1 ao808.sxw ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION APPEAL FROM ORDER NO.808 OF 2010 WITH CIVIL APPLICATION NO.1007 OF 2010 Khira Steel Works Pvt.Ltd. & Ors. ...Appellants vs. Khira Nagar Co-operative Hsg. Societies Association Ltd. & Ors. ...Respondents Mr.V.A.Thorat, Sr.Advocate i/b Mr.Bipin Joshi for the appellants Ms Pinki Bhansali for respondent no.1 Mr.P.K.Dhakephalkar, Sr.Advocate with Mr.Suraj Juneja and Mr.A.Menon i/b Wadia Ghandy & Co. for respondent no.2 CORAM : R.C.CHAVAN,J. DATE : JULY 26, 2010 P.C.: 1 This appeal is directed against the order passed by the learned Judge of City Civil Court,Mumbai whereby he rejected the appellants notice of motion no.4161 of 2006 in Short Cause Notice no.4588 of 2006. I have heard both the learned counsel for the applicants-original plaintiffs as well as respondent no.1-Association of Co- operative Housing Society in that area. 2 The learned counsel for the appellants submitted that the land in question was originally owned by the plaintiff nos.1 and 2 i.e. Khira Steel Works Pvt.Ltd and M/s.Jayanand Khira & Company Private Limited. In the year 1975, these two plaintiffs along with 14 others formed a partnership. The land owned by the plaintiff Nos.1 and 2 was given as stock in trade, in lieu of which, the plaintiff Nos.1 and 2 got their shares in the partnership. In the year 1982, the firm constructed 16 buildings which is known as Khiranagar and sold to 2 ao808.sxw individual flat purchasers. Those purchasers have formed 16 societies, one society for each building. One such society is defendant no.3 in the suit. According to the respondent no.1-the societies formed a society which is a Apex society of all those societies. It is not disputed that the partnership or whosoever are obliged or execute the conveyance have not conveyed the land under the Maharashtra Ownership Flats (Regulation of the Promotion of construction, sale, management and transfer) Act, 1963 (hereinafter referred to as MOFA) favouring the Apex Society. 3 After the 16 buildings were constructed, the land of 10,065 sq. yards and 39 unsold flats remained with partnership. The partner Nos.12 to 15 were given with the duty or the obligation to convey the land which was developed. Remaining 10065 sq.yard land and 39 unsold flats were distributed among the partners according to the shares. Five firms were established and this 10,065 sq. yard land and 39 unsold flats were presumably brought as stock in trade in those 5 firms. On 31st December 1982, 5 firms were consolidated and admitted M/s.Viral Hotels Pvt.Ltd as a partner in the new firm. This Viral Hotels Pvt.Ltd was a trustee for M/s.Saral Enterprises which is represented by plaintiff Nos.3 in the suit. In 1985, on the land of 10,065 sq. yard which was left, some flats were constructed for the employees of NABARD which have been also transferred to the respective purchasers. The occupants of those flats are not a part of the Apex Society-respondent no.1, but it cannot be disputed that 10,065 sq. yard land is distinguishable and independent though there is no sub division of the piece of land. 4 The societies of occupants of those 16 buildings 3 ao808.sxw formed respondent no.1 Apex society in the year 1989. The respondent no.1 invited tenders somewhere in July 2006 for redevelopment of the property by loading Transfer of Development Right. Thereafter, the appellants-plaintiffs filed the suit before the City Civil court praying for following reliefs : (a) This Hon ble Court be pleased to pass an order and permanent injunction restraining the Defendants by themselves their servants and agents from in any manner representing themselves as the owners of the said Khira Nagar Property or any part thereof or to enter into any agreement with any person as the prospective bidders for the redevelopment of the said Khira Nagar Property or any part thereof under the said Tender Notice or in any manner whatsoever or in any manner dealing with or disposing of or alienating encumbering or parting with possession or creating any third party rights in or over the said Khira Nagar Property or any part thereof in any manner whatsoever or redeveloping the same. 5 By notice of motion they prayed for injunction against the defendants restraining them from proceeding further with the development of the property in pursuance of the tender notice which was published. The exact prayer in the notice of motion is as under : (a) that pending the hearing and final disposal of this suit this Hon ble Court be pleased to pass an order and injunction against defendants by restraining themselves their servants and agents from in any manner 4 ao808.sxw representing themselves as the owners of the said Khira Nagar property or any part thereof or to enter into any agreement with any person as the prospective bidders for the Redevelopment of the said Khira Nagar property or any part thereof under the said Tender Notice or in any manner whatsoever or in any manner dealing with or disposing of or alienating encumbering or creating any third party rights or parting with possession of the said Khira Nagar Property or any part thereof in any manner whatsoever or redeveloping the same. 6 A statement was made pending hearing the notice of motion that the respondents would not proceed with the development till the notice of motion was decided after hearing the parties by elaborate discussion running into 57 pages, the learned Judge dismissed the notice of motion. Aggrieved thereby, the appellants are before this Court. 7 I have heard both the learned counsel for the parties. Even if it is taken for a while that the plaintiff Nos.1 and 2 continue to be the owners of the property, it would be a paper ownership, because under MOFA the owners are obliged to transfer ownership in the land in the building concerned to the societies of the occupants of the flats. The learned counsel for the appellant submitted that all the plaintiffs as well as the partners 12 to 15 would execute conveyances in favour of 16 societies, but not in favour of the Apex Society- respondent no.1 Therefore, it is really not necessary to go into the question as to whether the plaintiffs nos.1 and 2 are the owners of the property at least on paper 5 ao808.sxw or not. All the same, the learned counsel for the respondent no.1 pointed out that upon formation of the firm in the year 1975, the ownership of the plaintiff Nos.1 and 2 came to an end since the property has been put by them as stock in trade of the firm. He further pointed out that in the dissolution deed, an obligation to deal with the property has been given to the partner Nos.12 to 15 and not the plaintiff Nos.1 and 2. He also pointed out that the plaintiff Nos.1 and 2 had filed a suit on the Original Side bearing suit No.577 of 2009 against the plaintiff no.3 in respect of the very same property which would show that interests of plaintiff Nos.1, 2 and 3 were adverse to each other. In these circumstances, the learned counsel for the respondents submitted that the statement of the learned counsel for the appellants that the appellants are ready to execute conveyance in respect of the land and buildings to the societies, without seeking farthing more from society and if necessary the plaintiffs would also ensure that the original partners nos.12 to 15 who were charged with this duty would also join in executing those conveyances has to be taken with a pinch of salt. He submitted that these parties will be ready to execute 16 conveyances. However, this readiness to convey itself shows that the plaintiffs have no interest left in the property which are sought to be developed by the societies. Therefore, there is no question of appellants being able to make any prima facie case. 8 That apart, in spite of being repeatedly asked, the learned counsel for the plaintiffs, possibly because of his sense of fairness, could not tell as to what irreparable loss that would be caused to the plaintiffs if the injunction was refused. The societies have come together and they want to develop the property. Unless 6 ao808.sxw the plaintiffs show that some loss would be caused to them there would have been no question of granting injunction in favour of the plaintiffs and this is what the learned Judge has done. He has refused the injunction because the plaintiffs were not entitled to it. Therefore, Appeal is dismissed. 9 The learned counsel for the appellants submitted that the appellants would consider withdrawing this Appeal and the suit and file a fresh suit by joining the other original partners and for that purpose for a period of fortnight the statement made by the respondent no.1 not to go ahead with the development be continued. The learned counsel for the respondent no.1 states that this statement has stalled the development for the last four years. 10 It is, however, made clear that rejection of the prayer for injunction may not be construed as putting a stamp of approval on the activities which the respondent no. 1 is taking up, which would be at the risk of the respondent no.1 and carried on only after following applicable rules. 11 The learned counsel for the applicants at this stage seeks that the statement made by the respondent no.1 may be continued for a period of six weeks since the applicants would like to take the matter further. Statement made before the trial court shall continue for a period of six weeks. 12 In view of dismissal of the appeal, civil application does not survive and the same is disposed of. (R.C.CHAVAN,J.)