1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 477 OF 2009 FROM NOTICE OF MOTION NO. 4380 OF 2008 IN SUIT NO. 3445 OF 2008 Mr. Sudatta Namdeo Jadhav. ... Appellant. V/s. M/s. Shubh Enterprises, Mumbai & Anr. ... Respondents. Mr. A.V. Anturkar a/w. Mr. S.B. Deshmukh for the Appellant. Mr. S.M. Sakhardande a/w. Ms. M.S. Kumbhar for Respondent 1. Ms. N.S. Moily for Respondent 2. CORAM : ANIL R. DAVE, C.J. & S.C. DHARMADHIKARI, J. JUDGMENT RESERVED ON : 8th MARCH, 2010. JUDGMENT PRONOUNCED ON : MARCH 2010. ORAL JUDGMENT :- By this Appeal under Clause 15 of the Letters Patent, the order dated 14th August 2009 of the learned Single Judge in the above Notice of Motion is challenged. 2. By this interlocutory order in the above Suit, the learned Judge has made the Notice of Motion absolute in terms of prayers (a) and (b). 2 3. Prayer clauses (a) and (b) of the Notice of Motion read as under :- “(a) That, pending hearing and final disposal of the Suit, the Court receiver, High Court, Bombay or some other fit and proper person be appointed as Receiver of the flats occupied by Defendant No.1 with all the powers under Order XL Rule 1 of the Civil Procedure Code, 1908 including power to take possession thereof and if necessary, with the help of police and hand over vacant and peaceful possession thereof to the Plaintiffs for the purpose of demolition and/or for the purpose of commencing the construction work of redevelopment. (b) That pending the hearing and final disposal of the Suit, the Plaintiffs are also entitled to any injunction restraining Defendant No.1 from in any manner interfering with/obstructing or impeding the performance of obligations under the Development Agreement dated 29.6.2006, including by making any representations before the M.C.G.M. or any other concerned authorities.” 4. The Suit in question has been filed by the First Respondent – Original Plaintiff praying that the Appellant/Original 3 Defendant No.1 be held to be bound by the coveyance and representations of the agreement dated 29th June 2006 and therefore, vacate and hand over the premises occupied by him viz. Flat No.7/112, D.N. Nagar, J.P. Road, Andheri (West) – 400 053, for the purpose of enabling the Original Plaintiff to demolish the entire building and carry out redevelopment of the property. The Suit was filed also for permanent injunction restraining the First Defendant by himself, his servants and agents and all those claiming through or under him from in any manner interfering with or obstructing the performance of obligations under the Development Agreement dated 29th June 2006. 5. The First Respondent – Original Plaintiff filed the Suit against two Defendants. The Appellant/Original Defendant No.1 is the contesting party whereas the Second Defendant is the Co- operative Housing Society which owns building No. 7, D.N. Nagar, J.P. Road, Andheri (West), Mumbai -53. 6. It is the case of the First Respondent – Plaintiff that they are a partnership firm carrying on business as builders and developers. They were appointed as developers for 4 redevelopment of a building situate on plot of land being Survey No.106-A, City Survey No.195(part) admeasuring about 919.73 sq. mtrs. This is the suit property. On this plot/property stands Building No.7 which consists of several flats. The occupants of the flats formed the Second Defendant – Co-operative Housing Society and accordingly became its members. The Appellant/Original Defendant No.1 is one such member. 7. It is the case of the Plaintiffs that the Society is registered as a Tenant – co-partnership Housing Society having in all 36 members. The Co-operative Society at a Special General Body Meeting dated 11th December 2005 unanimously decided to demolish the old dilapidated building and construct the new building, for which an Agency was appointed viz. the Original Plaintiff. The appointment of the Plaintiffs was made after considering various offers. It is case of the Plaintiffs that pursuant to such General Body Resolution, the Development Agreement dated 29th June 2006 was executed. Under the said Development Agreement, the Plaintiffs were given exclusive right to demolish the existing building and construct a new building by utilizing entire FSI and TDR. In turn, the Plaintiffs agreed to give to each of 5 the members one self-contained flat admeasuring 450 sq.ft. (carpet area). It is not necessary to refer to the other terms and conditions of this agreement for it is common ground that out of 36 members of the Second Defendant – Society, 35 have vacated their flats, handed over vacant possession of the same to the builder so as to enable him to demolish them and it is the only the First Defendant who refused to vacate and hand over possession of Flat No.112 occupied by him. 8. There has been some correspondence and at one stage even the Society thought of expelling the Original Defendant No.1. However, the Plaintiffs allege that Defendant No.1 has received a sum of Rs.2,01,000/- towards deposit for alternate accommodation and he had undertaken to vacate the premises occupied by him within two months from the date of receipt of Intimation of Disapproval (IOD) from the Mumbai Municipal Corporation. Having not complied with the same that the instant Suit has been filed in this Court principally against Defendant No.1. The Suit is filed in the month of December 2008 in which the subject Notice of Motion was moved and interim reliefs claimed. 6 9. It is this Notice of Motion which was placed before the learned Single Judge and after perusing all affidavits and the relevant documents, the learned Single Judge has concluded that the Plaintiff had made out a prima-facie case. Defendant No.1 has blocked the entire development work causing inconvenience and hardship to other members of the Society and this is a fit case where mandatory orders and directions need to be passed as irreparable loss would be caused to other members of the Society. 10. It is this prima-facie conclusion which is challenged in this Appeal. 11. Mr. Anturkar, learned Counsel appearing on behalf of the Applicants submits that there is no cause of action for filing the Suit. He invited our attention to the Development Agreement and submitted that by Clause 9 thereof, the Plaintiff had agreed to provide each of the members one self-contained flat admeasuring 450 sq.ft. (carpet area). Mr. Anturkar submits that till date the sanctioned plans which would show that such a flat is earmarked for the Appellant have not been produced. If there is no guarantee that the Plaintiff would provide a self-contained flat of 7 450 sq.ft., then, calling upon the First Defendant to vacate the premises presently in his occupation would result in hardship and injury to him. Mr. Anturkar submits that the learned Single Judge has not looked into this aspect but has accepted the case of the Plaintiff straightaway. Mr. Anturkar submits that even before the Single Judge and during the course of this Appeal what is assured is that a flat admeasuring 320 sq.ft. (carpet area) would be provided and plans for 450 sq.ft. of area are awaiting sanction from the Bombay Municipal Corporation. It was orally argued that the Development Control Regulations have been amended and therefore, the benefit of additional F.S.I. would be available to the builder and developer. However, no document evidencing sanction of additional F.S.I. is produced and on such oral submissions this Court should not confirm the order of the learned Single Judge. 12. Mr. Anturkar submits that if the First Defendant – Appellant is forced to accept 320 sq.ft. of flat then, it would amount to substituting the original agreement and particularly, Clause 9 thereof. This would amount to a Novatio and unless both sides agree to the substitution and alteration, a new contract 8 cannot be foisted upon the Appellant – Original Defendant No.1. Mr. Anturkar has invited our attention to Section 62 of the Contract Act and contended that the requirement thereof has not been satisfied in this case. 13. Mr. Anturkar submits that there are more fundamental and basic issues involved in this case. He submits that if the Second Defendant – Society thinks that the First Defendant is not co-operating in the re-development project and therefore, needs to be expelled or prevented from obstructing the re-development work, then, the Society has to approach the competent Co- operative Court by filing a dispute under Section 91 of the Maharashtra Co-operative Societies Act, 1960. Mr. Anturkar submits that the jurisdiction of a Civil Court is ousted in such cases. What the Society is directly prohibited from doing in law cannot be achieved indirectly by the developer approaching this Court and impleading the Society as a formal Defendant. If the Society cannot file a Civil Suit, then, the Plaintiff cannot also approach the Civil Court. For all these reasons, the learned Single Judge was in error in entertaining the Suit and passing virtually a decree in favour of the First Respondent – Plaintiff. The order of 9 the learned Single Judge is ex-facie, erroneous and illegal and therefore, must be set aside. 14. Mr. Anturkar has invited our attention to the agreement between parties and has contended that the learned Single Judge has relied upon an undertaking of Defendant No.1. However, if it is perused, it will be clear that Defendant No.1. had agreed to vacate provided a flat admeasuring 450 sq.ft. Is given to him. Therefore, the undertaking now relied upon does not prevent the Appellant – Original Defendant No.1 from challenging the order of the learned Single Judge or defending the claim of the Plaintiff in the Suit. Further, on instructions, Mr. Anturkar makes a statement that the First Defendant – Appellant is willing to return all sums paid to him till date by the Plaintiff. 15. Mr. Anturkar has placed reliance upon a decision of the Hon’ble Supreme Court reported in (2008) 1 SCC 285 in (Anita Enterprises and Anr. V/s. Belfer Co-op.Hsg.Soc.Ltd. & Ors.) and an order of a learned Single Judge (one of us S.C. Dharmadhikari, J.) in Notice of Motion No.2090 of 2009 in Suit No.1404 of 2009 (M/s. Acknur Constructions Pvt. Ltd. V/s. Sweety Rejendra Agarwal & 10 Ors.) 16. On the other hand, Mr. Sakhardande, learned Counsel contesting Respondent No.1 – Original Plaintiff submits that the conduct of the Appellant dis-entitles him from any equitable and discretionary relief. The Appellant is aware of the execution of the Development Agreement. He was present at the meeting. His name is included in Schedule – II to the agreement at Sr. No. 34. Further, the agreement itself states that the developer shall strictly adhere to the rules and regulations of the M.C.G.M. and local authorities while constructing the new building. The developers are bound by whatever amendments or changes are made in the Development Control Regulations. The developers will have to construct the building at site in accordance with the sanctioned plan. The developer has carried out his obligation and has submitted the plans for sanction so as to provide a flat of 450 sq.ft. to each of the members. Mr. Sakhardande submits that the Appellant alone is resisting and obstructing the re-development at site. The other members are not challenging the bonafides of the Plaintiff. They have complied with the terms and conditions of the Development Agreement by vacating the premises in their 11 possession and handing over the same to the Plaintiff for the purposes of demolition. The Appellant alone is raising some doubts although each of the issues raised by him has been answered. Further, by a Circular dated 5th February 2008 issued by the Government of Maharashtra, the maximum tenement size to be allotted for giving benefit of Regulation 33(5) of the D.C. Regulations is now increased from 30 sq.mtrs. to 45 sq.mtrs. It is in these circumstances, when all undertakings have been given and by accepting the monies, the Appellant also has acted upon and in furtherance of the Development Agreement, then, no order be made in his favour. Further, Mr. Sakhardande contended that none of the arguments in so far as jurisdiction of this Court, applicability of Section 91 of the Maharashtra Co-operative Societies Act, 1960 and there being no cause of action were raised before the learned Single Judge. Mr. Sakhardande submits that the argument that the Plaintiffs are agents of the Second Defendant – Society and therefore, the Suit claim is covered by Section 91 of M.C.S. Act has not been raised even at the prima- facie stage. Mr. Sakhardande submits that Section 9A of C.P.C. was available and if the First Defendant was desirous of raising an issue of Jurisdiction of the Civil Court, he could have made an 12 application and pointed out that the Suit claim does not fall within the Civil Court’s jurisdiction. That course was not adopted and all arguments now raised are purely as an afterthought. They do not deserve to be accepted and the Appeal should be dismissed. 17. Additionally, Mr. Sakhardande has invited our attention to a Division Bench Judgment [Appeal No.338 of 2009 in Arbitration Petition (L) No.493 of 2009 (G.M. Mehta and Anr. V/s. M.S. Mehta & Anr.)] and submitted that a wider controversy raised about the right of the Plaintiff to file such a Suit is covered by this Judgment. Mr. Sakhardande submits that undertakings have been filed by the Plaintiff before the Single Judge and even a revised undertaking is now filed before this Court which would ensure that the First Defendant’s entitlement under the agreement is fully protected. Therefore, his rights are not in any manner taken away or prejudicially affected. Therefore, accepting the undertaking this Court should dispose of/dismiss this Appeal. 18. With the assistance of Mr. Anturkar and Mr. Sakhardande, we have perused the plaint, the relevant annexures, the prayers in the Notice of Motion, the affidavits filed and the 13 order of the learned Single Judge. 19. In our view, this is not a case where we should decide any wider controversy. In this case, the allegations in the plaint have been noted. Further, the affidavit filed in support of the Notice of Motion confirms the allegations and additionally asserts that the First Defendant has acted upon the agreement and accepted a sum of Rs.2,01,000/- from the original Plaintiff. Further, it has been pointed out that all persons/members other than Defendant No.1 have vacated the premises and handed over their flats for the purposes of demolition and re-construction. In the affidavit in reply filed by the First Defendant, none of the pleas that have been raised by Mr. Anturkar about the maintainability of the Suit, jurisdiction of the Court, are raised. They are sought to be raised for the first time. They are not pure questions of law as urged. The plea of agency has not been set out in the affidavit in reply to the Notice of Motion. All that has been alleged in the affidavit in reply is that the Society and the developer have colluded and produced a plan showing 450 sq.ft. carpet area (inclusive of balcony). 14 20. When this argument was repeated by Mr. Anturkar on one occasion, we had indicated to both sides that the matter can be amicably settled. Various options were given by the builders to which the Appellant does not seem to be agreeable. The Appellant is agitated by the fact that if he vacates the existing flat/accommodation, he will be forced to accept a flat admeasuring 320 sq.ft. instead of 450 sq.ft. to which he is entitled under the agreement. That aspect has been amply clarified before the Single Judge so also before us. If the NOC from the MHADA is perused, it is apparent that MHADA which is having a title to the land on which the building is constructed has given its no objection to the re-development proposal provided it is in accordance with the Development Plan Reservation, Building Regulations and applicable Rules. Further, it is the Societies’ obligation to obtain approval for amended plan. The First Respondent – Plaintiff in their plaint as well as before the learned Single Judge produced the copy of the IOD dated 15th May 2007, Development Agreement and the NOC dated 8th February 2007 to which we have made a reference. Further, the Plaintiff stated that they are ready to give undertaking to this Court that they would provide to the Appellant/Original Defendant No.1 a flat 15 admeasuring 450 sq.ft. (carpet area) in the newly constructed building. Mr. Anturkar does not dispute that Respondent No.1 has obtained the IOD and renewed it from time to time. Further, Mr. Anturkar does not dispute that the First Respondent is making attempt to obtain the additional FSI in terms of the circular of the Government of Maharashtra. Therefore, he has done everything that is necessary to get the sanction for the amended plans. The plan would be amended. The sanction of the plan is something, which the Authorities are required to grant and it is not possible to provide a time frame for the same. Despite this, the undertaking that has been given by the First Respondent – Plaintiff before us clearly states that in the event, the plans are not sanctioned within six months from 15th March 2010, then, the First Respondent/Plaintiff shall provide one residential flat of 450 sq.ft. (carpet area) in the nearby vicinity on ownership basis to the original Appellant/Defendant No.1. This would be in view of his entitlement under the Development Agreement. The undertaking is perused by us and it is unconditional. Since it is an undertaking given by the First Respondent through its partner, it would bind the Firm as well. Therefore, after such an undertaking is given and which is accepted by us, we have no doubt that in case there 16 is breach or violation of the statements therein, then, the Appellant/Original Defendant No.1 can adopt appropriate proceedings. The Suit is pending. It is not as if the Appellant is remediless. For the present, when the balance of convenience is in favour of the Plaintiffs and other members of the Society and it is they who suffer irreparable harm and loss so also injury, then, we do not wish to interfere with the order of the learned Single Judge. 21. We have perused it and we find that the learned Single Judge was right in his conclusion that a prima-facie case is made out by the Plaintiff. Considering the terms of the development agreement and that the Appellant having accepted them and acted in furtherance thereof, we do not find that this is a fit case wherein the order of the learned Single Judge should be set aside. None of the arguments raised before us have been raised before the learned Single Judge. Further, it is not the contention of Mr. Anturkar that the same could not have been raised. As pointed out by Mr. Sakhardande, the Suit is still pending. Today, if the Appellant does not vacate the premises, the entire project would have to be shelved. There is serious apprehension that none of 17 the members would get their entitlement under the agreement if the project is delayed further. Therefore, there are no equities in favour of the Appellant. The legal issues as raised by Mr. Anturkar can be examined in an appropriate case. We do not express any opinion on the same while upholding the order of the learned Single Judge. 22. In the result, in the light of the revised undertaking of Respondent No.1, which is accepted and taken on record and the view that we have taken, the Appeal deserves to be dismissed and is accordingly dismissed. There shall be no order as to costs. In the peculiar facts of this case, it is not necessary to refer to the decisions brought to our notice. Suffice it to state that the arguments based thereon can be examined in an appropriate case. They are also open for being urged at an appropriate stage in the proceedings, since the main Suit is pending before this Court. CHIEF JUSTICE (S.C. DHARMADHIKARI, J.) 18