1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 155 OF 2010 WITH APPEAL FROM ORDER NO. 258 OF 2010 APPEAL FROM ORDER NO. 155 OF 2010 WITH CIVIL APPLICATION NO. 220 OF 2010 Mr. Dharmesh Vyas ... Appellant/Applicant Vs. Anand Nagar Om Co-op. Housing Society Ltd. & Ors. ... Respondents Mr. R.A.Thorat,Advocate, for the appellant. Mr.R.G.Bhat i/b. Ms. Padnya Shinde, Advocate, for the respondent No.1. Mr. G.W.Mattos, Advocate, for respondent no.2 MHADA. Smt. K.K. Soran, Advocate for respondent BMC. APPEAL FROM ORDER NO. 258 OF 2010 Maharashra Housing and Area Development Authority & Anr. ... Appellants Vs. Anand NagarOm Co-op.Housing Society Ltd. & Ors. Respondents Mr. G.W.Mattos, Advocate, for the appellants. Mr R.G.Bhat, i/b. Ms. Pradnya Shinde, Advocate for respondent No.1. Smt. K.K.Soran, Advocate for respondent BMC. CORAM: J.H.BHATIA, J. DATE : 19th April, 2010. 2 P.C. 1. Heard the learned Counsel for the parties. 2. The respondent No.1 in both the Appeals is the original plaintiff. It is a Co-operative Housing Society of the residents of a number of chawls situated on the land of MHADA. The chawls were constructed by MHADA sometime in 1960 or thereafter. According to the plaintiff, there are small pieces of land marked as RG. Plot Nos.6/1, 6/2, 8 and 9 adjoining these chawls of the said Society. On request of the Society, a meeting had taken place and on 16.4.1996, MHADA had offered these four plots admeasuring in all 603.63 sq. mtrs to the Society at the rate of Rs.190/- per sq. mtr. The MHADA informed the Society that at the above rate, the total value of the land would be Rs.1,14,689.70. That amount was fully paid by the Society and the payment was accepted by MHADA during 1996-97. The plots are in possession of the plaintiffs. Recently, MHADA and the Municipal Corporation planned to make construction of a Social Welfare Centre on plot No.6/2. Therefore, the plaintiffs filed Suit No.68 of 2010 for perpetual injunction as well as for specific performance of the contract in respect of the said four plots. Therein Notice of Motion No.272 of 2010 was taken out by the plaintiff seeking temporary injunction restraining the defendants from carrying 3 out any construction on the said RG plots and particularly plot Nos. 6/1 and 6/2. 3. The defendants contested the application. According to them, the defendant no.4, who is a Municipal Corporator, had only asked the Municipal Corporation and MHADA to make certain public works from the funds allotted to him as a Corporator for development of the local area and he has no personal interest in the property. It was contended that already two constructions are in existence on plot nos. 8 and 9 and the proposed construction on plot No.6/2 is being made from the said funds being provided by the defendant No.4. According to MHADA, a lease deed has been executed by MHADA in favour of the Society in respect of the land under the chawls on 4.4.2009 and no lease deed has been executed about the said four RG plots Nos.6/1, 6/2, 8 and 9 and the said plots are in possession of MHADA. The Society has no right and title on the same. It is contended that as per the terms of the offer, as long as the lease deed or conveyance deed is not executed, MHADA can divert the said property for any other public purpose and, therefore, no objection could be taken by the plaintiff- Society in respect of the development work being undertaken for public purpose. The trial Court by the impugned order restrained the defendants from carrying out any construction on the RG plots, specifically on RG Plot Nos. 6/1 and 6/2 pending the suit. That order is challenged by MHADA in A.O.No.258 of 2010 and 4 by defendant No.4 in A.O. No.155/2010. 4. After hearing the learned Counsel for the parties and perusing the relevant documents, it appears that on 16.4.1996, MHADA had offered to convey these four plots at the rate of Rs.190/- per sq. mtr. That offer was made as a result of a meeting which had taken place earlier between the parties. After the offer letter dated 16.4.1996, the plaintiff-Society had made full payment of the price/lease money in respect of all the four plots. On 4.11.1996, the payment was made in respect of plot no.9 and on 28.8.1997, the payment was made in respect of plot Nos.6/1 and 8 and finally on 7.12.1997, the payment was made in respect of plot No.6/2. Thus, MHADA has received the full price as per its offer which means the offer made by MHADA was accepted by the Plaintiff-Society and the Plaintiff-Society had made payments which was accepted by MHADA. Thus, there has been a concluded contract between the parties to convey the property to the Plaintiff. The MHADA has received full consideration as per the said offer. Only thing which remains is to execute the necessary conveyance or lease deed. 5. The learned Counsel for the MHADA pointed out that on 6.4.2009 a lease deed has been executed and there is no mention of these four plots being allotted or leased to the plaintiff. According to him, these plots were excluded 5 from this lease deed. He also pointed out that as per the map annexed to the lease deed, only the properties with red border were conveyed, while the properties with green borders were not conveyed by MOU to the Society. There is substance in this contention. However, it appears that that lease deed has nothing to do with the agreement to lease out the four plots on the basis of offer made on 16.4.1996. The lease deed dated 4.4.2009 is in respect of adjoining the chawls which were constructed by MHADA and which were leased out long back during 1960 or thereafter, but only the lease deed has been recently executed about the same. This does not and could not refer to the agreement or offer dated 16.4.1996. Having accepted the full price of those four plot from the Plaintiff- Society, now MHADA cannot say that it can allot the said plots to anybody else or make any construction on the same. Of course, the terms of the contract mentioned that till the property is conveyed, MHADA can do certain acts about the same. However, there s nothing on record to show that MHADA had terminated the agreement or had withdrawn the offer or had made an offer to refund the amount which was received by it on the basis of the offer dated 16.4.1996. Under these circumstances, I do not find any fault with the impugned order. 6. It is contended that the suit for injunction simplicitor may not be 6 tenable when the plaintiff can file a suit for specific performance of contract. The learned Counsel for the plaintiff/respondent points out that a prayer for specific performance is made in the suit before the trial Court. However, the value of the property is more than the pecuniary jurisdiction of the City Civil Court. In view of this, the learned Counsel for the plaintiff makes a statement that the plaintiff will file an appropriate suit before the High court within three months from this day. 7. For the aforesaid reasons, both the Appeals stand dismissed. 8. As both the Appeals are dismissed, the Civil Application does not survive and stands disposed of accordingly. (J.H.BHATIA,J.)