: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.225 OF 2008 WITH CIVIL APPLICATION NO.274 OF 2008 M/s.Sharad Mutha Housing . Development Co.Ltd. & Ors. ....Appellants V/s. Prashant Motilal Sharma & Ors. ....Respondents Mr.C.J. Sawant, Senior Counsel i/b Ms.Smita S. Ranpise for the Appellants. Mr.R.D. Soni i/b Ram & Co. for the Respondents. AND APPEAL FROM ORDER NO.396 OF 2008 WITH CIVIL APPLICATION NO.465 OF 2008 Takashashila Co-op.Hsg.Soc.Ltd. ....Appellants V/s. M/s.Sharad Mutha Housing . Development Co.Ltd. & Ors. ....Respondents Mr.Vishal C. Ghosalkar for the Appellants. Mr.R.D. Soni i/b Ram & Co. for Respondent Nos.2 and 7. CORAM : S.J. VAZIFDAR, J. DATED : 2ND DECEMBER, 2008. P.C. : Admit and heard finally. : 2 : 2. This is an appeal against an order restraining Defendant Nos.1 to 14 from developing the suit property or creating third party interests therein pending the disposal of the suit. 3. In Appeal from Order No.225 of 2008, the Appellants are Defendant Nos.12 to 14, Respondent Nos.1 to 4 are the Plaintiffs, Respondent Nos.5 to 15 are Defendant Nos.1 to 11 and Respondent Nos.16 and 17 are Defendant Nos.15 and 16. In Appeal from Order No.396 of 2008, the Appellant is Defendant No.1, Respondent Nos.1 to 3 are Defendant Nos.12, 13 and 14, Respondent Nos.4 to 7 are the Plaintiffs and Respondent Nos.8 to 19 are Defendant Nos.2 to 11, 15 and 16. For convenience, I will refer to the parties as they are arrayed in the suit. 4. Plaintiff Nos.1 to 3 and Defendant Nos.15 and 16 are partners of the fourth Defendant firm, Tejas Construction Company. Defendant No.1 is a society registered under the Maharashtra Co-operative Societies Act. Defendant Nos.2 to 8 are office bearers of the society. Defendant Nos.9 to 11 are : 3 : members of the society. Defendant No.12 is a company, M/s.Sharad Mutha Housing Development Company Limited, the Appellant in Appeal from Order No.225 of 2008. Defendant Nos.13 and 14 are Directors in Defendant No.12. Defendant Nos.15 and 16 are the son and nephew of Defendant No.13. 5. Defendant No.1 - Takashashila Co-operative Housing Society was formed in 1996. On 29.1.1997, the General Body authorized the Managing Committee of Defendant No.1 to enter into an agreement with a developer for development of the suit land. Prior thereto, the development contract was awarded to M/s.Runwal Construction. M/s.Runwal Construction however did not develop the property. 6. On 24.8.2003, the Managing Committee decided to award the work to Defendant No.12, M/s.Sharad Mutha Housing Development Company Limited. Subsequently a general meeting of the members of Defendant No.1 was held to consider awarding the contract to Defendant No.12. Eighty two out of the one hundred and two members attended the meeting and consented to the work of development of the property being awarded to Defendant No.12. 7. An M.O.U. dated 29.11.2003 was thereafter : 4 : executed between Defendant No.1 and Defendant No.12 for development of the said property. 8(A). By a letter dated 20.7.2004, Defendant No.12 requested the Managing Committee of Defendant No.1 to permit Plaintiff No.4 - Tejas Construction Company to carry out the work jointly with them. (B). The Managing Committee of Defendant No.1 on 25.7.2004 passed a resolution agreeing to the same. It must be noted that there admittedly was no approval from the General Body of Defendant No.1 in this regard. 9(A). Thereafter a development agreement dated 18.8.2004 was executed by the Managing Committee of Defendant No.1 on the one hand and Defendant No.12 and Plaintiff No.4 on the other. One of the partner of Plaintiff No.4 executed the said agreement. It is this agreement of which specific performance is sought. (B). It is important to note that the agreement was subject to the approval of the General Body of Defendant No.1. The General Body not only did not accord approval to this arrangement but expressly rejected it. : 5 : 10. The General Body of Defendant No.1 at a meeting held on 14.8.2005 passed a resolution cancelling the resolution of the Managing Committee dated 25.7.2004 agreeing to Plaintiff No.4 - Tejas Construction Company being made a party to the construction contract dated 18.8.2004. The resolution confirmed the development agreement with the deletion of Plaintiff No.4 thereto. This resolution is challenged in this suit. 11. Pursuant thereto a correction deed dated 19.9.2005 was executed by which the agreement dated 18.8.2004 was sought to be rectified by deleting the inclusion of Plaintiff No.4 therein in view of the resolution dated 14.8.2005 passed by the General Body of Defendant No.1. This correction deed is also challenged in the suit. 12. The Plaintiffs’ grievance is that two of the partners of Plaintiff No.4 had executed a correction deed dated 19.9.2005. These two partners are also Directors of Defendant No.12. : 6 : 13. The suit was filed on 15.6.2006. The impugned order was passed on 13.12.2007. 14. The grant of an order of specific performance is in the discretion of the Court. In the facts and circumstances of this case, it is highly improbable that specific performance can ever be granted. 15. Firstly, it is of vital importance to note that this is not a dispute merely between a seller and a purchaser or a contractor and a client or a developer and a owner alone. . The Plaintiff’s entire case is based on the alleged right of Respondent No.4 - Tejas Construction Company being entitled to jointly develop the property with Defendant No.12 - M/s.Sharad Mutha Housing Development Company Ltd. pursuant to and under the agreement dated 18.8.2004. There are however serious disputes between Defendant No.12 and Plaintiff No.4. Of greater significance is the fact that there are serious disputes between the partners of Plaintiff No.4 inter-se. Plaintiff No.4 though impleaded as a firm, all the partners are not ad-idem on the issue. As Mr.Soni himself contended on behalf of the Plaintiffs there are disputes between the partners of Plaintiff No.4 inter-se. He has however made several : 7 : allegations against the other partners stating that they are in collusion with Defendant No.12 as they are also Directors of Defendant No.12. Thus there is a serious disputes among the joint developers themselves. 16. The importance of the above facts is that even assuming that the agreement dated 18.8.2004 is valid and subsisting performance thereof has been seriously if not irretrievably jeopardised. The performance of the contract must await the result of the disputes between Defendant No.12 and Plaintiff No.4 as well as between the partners of Plaintiff No.4 inter-se. The society/Defendant No.1 is in no manner whatsoever connected with the disputes between Defendant No.12 and Plaintiff No.4 or the disputes between the partners of Plaintiff No.4 inter-se. Each of these disputes in turn raises complicated questions including as to the maintainability of the suit as framed at the instance of Plaintiff No.4 whose partners are not ad-idem and the rights between Plaintiff No.4 and Defendant No.12 which are further complicated by the rights among the partners of Plaintiff No.4 inter-se. 17. I see no reason why Defendant No.1 and its members rights qua the property ought to be affected : 8 : in any manner whatsoever as a result of the disputes between the developers themselves. Even assuming that the agreement dated 18.8.2004 is valid and binding, this would be a fit case to refuse not merely an injunction but the relief of specific performance itself as it is clear that the execution of the agreement is itself uncertain and seriously jeopardised. 18. The agreement dated 18.8.2004 is expressly made subject to the approval of the General Body. Admittedly the approval of the General Body was never obtained. In fact as stated above, the General Body by a resolution passed at the meeting held on 14.8.2005 expressly required the deletion of the name of Plaintiff No.4. The General Body can in no circumstances be compelled to accept the participation of Plaintiff No.4 in the venture. . In the circumstances, in the absence of the approval of the General Body, there would be no question of the agreement dated 18.8.2004 being performed with the involvement of Plaintiff No.4. 19. Apart from these substantive grounds on merits, disentitling the Plaintiffs from any reliefs equitable or otherwise , there are also several other : 9 : hurdles in their way. For instance, it appears to be clear that in respect of the development agreement there is a joint venture between Plaintiff No.4 and Defendant No.12. All the requirements necessary to constitute a partnership including of an agency are inherent in the agreement between Plaintiff No.4 and Defendant No.12 even as pleaded. The relationship between them is clearly one of partners. The partnership has admittedly not been registered. The suit itself may be barred under the provisions of Section 69 of the Indian Partnership Act. 20. What is involved in the present litigation is the rights of over hundred members of the first Defendant society qua the suit land. An injunction which affects the rights of Defendant No.1 would be not only contrary to law but in the facts and circumstances of the present case highly inequitable and improper for yet another reason. This is a development agreement. Nothing substantial pursuant to the alleged agreement sought to be enforced has been done. No construction activity pursuant to this agreement has been carried out. It is highly doubtful that specific performance of the agreement can be granted. 21. Mr.Soni submitted that the agreement dated : 10 : 18.8.2004 itself has now been cancelled by a resolution of the General Body dated 13.1.2008. The validity of the meeting and the alleged resolution have been challenged. It appears that there are also disputes regarding the membership of Defendant No.1. Proceedings are pending in the Co-operative Court regarding these issues. This is disputed by other counsel. It is stated that the cancellation has been stayed. . I am not concerned with the same. It is necessary only to clarify that nothing in this order confers any right upon Defendant No.12/Appellant in Appeal from Order No.225 of 2008. This order does not recognize or confirm any right in favour of Respondent No.12 qua Defendant No.1. All that is said is that the Plaintiffs have no right to an injunction. Nor do I say anything as to the disputes between the partners of Plaintiff No.4 inter-se, the disputes between the Plaintiffs and Defendant No.12 and the disputes, if any, between Defendant No.1 and Defendant No.12. 22. In the circumstances, the impugned orders in both the Appeals from Order are set aside. Exhibit-5 application is rejected. 23. The Appeals from Order and the Civil : 11 : Applications are accordingly disposed of.