IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.4380 OF 2008 IN SUIT NO.3445 OF 2008 M/s. Shubh Enterprise ...Plaintiffs Vs. Sudatta N. Jadhav & Anr. ... Defendants --- Ms.M.S. Kumbhar for Plaintiffs Mr. Omar K. Shaikh for Defendant No.1 Ms. N.S. Moily for Defendant No.2 ---- CORAM: V.M. KANADE J. DATED 17TH AUGUST, 2009 P.C. 1. The Plaintiffs are a partnership firm. The Defendant No.2 is a society, registered under the Co-operative Societies Act. The Defendant No.1 is a member of the said society. The Defendant No.2 has in all 33 members in the said society. It was unanimously decided in the Annual General Meeting dated 11th December, 2005 to demolish the old building and construct a new building with additional building area by purchasing the TDR and it was also decided to entrust the work of development by inviting offers from various builders and developers. Accordingly, the Plaintiffs' tender was accepted and appointed of the Plaintiffs was confirmed by resolution dated 17.1.2005 and the society entered into a development agreement dated 29.6.2006 which was duly registered. The Plaintiffs agreed to give each of the 36 members one self contained flat admeasuring 450 sq.ft.(carpet area) with ultra modern amenities free of cots. The Plaintiffs will complete the construction of new building within a period of 18 months from the date of issuance of Commencement Certificate by the Co- operative Authority. It was agreed by the Plaintiffs that each member to be paid in advance, the sum of Rs.1,49,600/- and Rs. 67,600/- towards compensation at the rate of Rs.8,000/- p.m. for the period of 11 months and amount of Rs.61,600/- for the succeeding period of 7 months for making his own arrangement for temporary alternative accommodation for 18 months. The Plaintiffs paid substantial part of the consideration to all the members of the said society. The Plaintiffs obtained IOD dated 15.5.2007 along with sanctioned plan. Copy of NOC dated 8.2.2007. The Defendant No.1, however, refused to vacate his flat as agreed within two months from the receipt of IOD, though Plaintiffs had paid the Defendant No.1 all the amounts towards the compensation for alternate accommodation. The Plaintiffs, therefore, has filed the suit in which they alleged that the Defendant No.1 could not fulfill the legal obligations of handing over the vacant flat and is holding the entire project of ransom with the object of extracting monetary gains and other benefits from the Plaintiffs. In this suit, the Plaintiffs have taken out the Notice of Motion, in which the Plaintiffs are claiming appointment of Court Receiver in respect of the flat occupied by the Defendant No.1 with all the powers to take possession and hand over vacant and peaceful possession to the Plaintiffs and for an injunction restraining the Defendant No.1 from obstructing the performance of obligations under the Development Agreement dated 29.6.2006. The Defendant No.1 has filed affidavit in rely to the Notice of Motion. He has not disputed the development agreement executed by the society with the Plaintiffs. He, however, stated that the Plaintiffs would be entitled to fulfill the promise given by them for providing 450 sq.ft. (carpet area) to the members of the society and, therefore, the Defendant No.1 was willing to hand over the peaceful possession of the flat or the Plaintiffs shown the sanctioned plan in respect of 450 sq. ft. (carpet area) in the new building, which was to be constructed on the said land. 2. The learned Counsel appearing on behalf of the Plaintiffs has invited my attention to the copy of IOD dated 15.5.2007, development agreement dated 29.6.2006, copy of NOC dated 8.2.2007. She also invited my attention to the judgment of the Learned Single Judge of this Court in Notice of Motion No.2907 of 2008 in Suit No.2501 of 2008. Order passed by the Learned Single Judge of this Court dated 7th December, 2004 in Notice of Motion No.2207 of 2004 in Suit No.2232 of 2004 and also copy of the order dated 4th September, 2007 passed by the Learned Single Judge of this Court in Notice of Motion No.2985 of 2007 in Suit No.2245 of 2007. She also submitted that the Plaintiffs are ready to give an undertaking to this Court that they would provide flat admeasuring 450 sq. ft. (carpet area) in the newly constructed building. She also invited my attention to the circular dated 5.2.2008 issued by the Government of Maharashtra in which clarification was issued regarding maximum tenement size to be allotted for giving benefit of Regulation 33 (5). She submitted that by the said circular, the carpet area of the tenement size increased from 30 sq.mt. To 45 sq.mt. 3. The learned Counsel appearing on behalf of the Defendant No.1, on the other hand, has vehemently opposed the submission made by the learned Counsel for the Plaintiffs. He submitted that the Plaintiffs have not shown the sanctioned plan, indicating that each members would be entitled to get tenement admeasuing 450 sq. ft. (carpet area) in the newly constructed building. He submitted that if the relevant documents shown by the Plaintiffs to that effect, he would promptly hand over the quiet and peaceful possession of his flat in the old building. He submitted that various documents indicate that it would not be possible for the Plaintiffs to provide flat admeasuring 450 sq.ft. (carpet area) to the members of the Defendant No.2 Society. 4. In my view, there is a much substance in the submission made by the learned Counsel for the Plaintiffs. It is not disputed that the society has entered into the development agreement dated 29.6.2006. It is also not disputed that the Plaintiffs have failed to give an amount in advance for 18 months towards the alternate accommodation which would be obtained to all other members except the Defendant the No.1 for alternate accommodation. The Plaintiffs have obtained IOD, which would be renewed from time to time since the Defendant No.1 vacated the premises. In my view, the Defendant No.1 by his actions, has virtually blocked the entire development work, as a result, in convenience and hardship is caused to the other members of the society including the Plaintiffs herein. This Court in number of cases has observed that if the Defendants are permitted to obstruct the work not only the Plaintiffs would suffer irreparable loss, the other members of the society would also suffer irreparable loss since members would not be in a position to occupy the present building nor they would be able to occupy premises in new building in future. 5. Under these circumstances, though the relief claimed by the Plaintiffs that they have to give the final relief which will be claimed by them in the suit, in my view, taking into consideration the peculiar facts and circumstances of the case, no prejudice would be caused to the Defendant No.1 if Notice of Motion is allowed in terms of prayer clause (a) to the Notice of Motion since ultimately even the Defendant No.1 himself would be benefited by the redevelopment of the old building. The stand taken by the Defendant No.1 is totally unreasonable. The Plaintiffs have fulfilled all the obligations which were imposed upon them by the development agreement. However, only case is that an adamant stand taken by the Defendant No.1, the Plaintiffs are unable to carry on their development work. The Plaintiffs and other members of the Defendant Society would suffer irreparable loss, if the interim injunction as prayed by the Plaintiffs in the Notice of Motion is not granted. This Court, in similar cases has granted similar reliefs to the Plaintiffs who were similarly situated. In the result, the Notice of Motion is allowed in terms of prayer clauses (a) and (b). V.M. KANADE J.