{"id":240122,"date":"2010-03-05T00:00:00","date_gmt":"2010-03-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ms-jasmina-constructions-pvt-vs-mandapeshwar-kripa-co-operative-on-5-march-2010"},"modified":"2017-10-19T14:05:00","modified_gmt":"2017-10-19T08:35:00","slug":"ms-jasmina-constructions-pvt-vs-mandapeshwar-kripa-co-operative-on-5-march-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ms-jasmina-constructions-pvt-vs-mandapeshwar-kripa-co-operative-on-5-march-2010","title":{"rendered":"M\/S. Jasmina Constructions Pvt. … vs Mandapeshwar Kripa Co-Operative on 5 March, 2010"},"content":{"rendered":"
Bombay High Court<\/div>\n
M\/S. Jasmina Constructions Pvt. … vs Mandapeshwar Kripa Co-Operative on 5 March, 2010<\/div>\n
Bench: Anoop V.Mohta<\/div>\n
    Nms707.10                                       1\n\n                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n\n                         ORDINARY ORIGINAL CIVIL JURISDICTION\n\n\n\n\n                                                                                          \n                             NOTICE OF MOTION NO. 707 OF 2010\n\n\n\n\n                                                                  \n                                            IN\n                               SUIT (LODGING) NO. 229 OF 2010\n\n\n    M\/s. Jasmina Constructions Pvt. Ltd.                                   ...Plaintiffs.\n\n\n\n\n                                                                 \n                       Vs.\n    Mandapeshwar Kripa Co-operative \n    Housing Society Limited &  Ors.                                        ...Defendants.\n\n\n\n\n                                                       \n                                    \n    Mr. Rajiv Narula with Mr. Basant Trilokani i\/by M\/s. Jhangiani Narula & \n    Associates for the Plaintiffs.\n                                   \n    Mr.   S.U.   Kamdar,   Sr.   Counsel   with   Mr.   Vinay   Deshpande   with   Ms. \n    Meenakshi Mhapeukar i\/by M\/s.  Shamim & Co. for Defendant No. 1.\n    Mr. Ajay M. Talreja for Defendant No. 8.\n          \n\n\n    Mr. Deepak S. Jadhav for Defendant Nos. 2, 3, 4 & 6.\n       \n\n\n\n                                     CORAM :- ANOOP V. MOHTA, J.\n<\/pre>\n
                                     DATED  :-  5TH MARCH, 2010.\n<\/p>\n
    P.C.-\n<\/p>\n
    1           Leave granted. \n\n\n\n\n\n    2           The   Plaintiffs,   who   are   Builders   and   Developers,   claiming   binding \n\n<\/pre>\n
    and enforceable rights against the Defendants, in view of a Development <\/p>\n
    Agreement dated 3rd January, 2009 and a Supplementary Agreement dated <\/p>\n
    4th  January, 2009 and also praying for specific performance of the same <\/p>\n
    against Defendant No.1 Society and all necessary orders to complete the <\/p>\n
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\n     Nms707.10                                     2<\/span><\/p>\n
    construction and to perform their obligation even against Defendant Nos.\n<\/p>\n
    2,3, 4, 6 and 8, for the reliefs of injunction and also for appointment of <\/p>\n
    Receiver   to   take   possession   of   the   flats   from   them   for   the   agreed <\/p>\n
    development.\n<\/p>\n
    3           Defendant No.1 is a Co-operative Housing Society, registered under <\/p>\n
    the provisions of Maharashtra Co-operative Societies Act, 1960 (for short, <\/p>\n
    “the   Act”).     The   Society   is   the   owner   of   the   land   situated   at   Village <\/p>\n
    Mandapeshwar,   Tq.   Borivali,   bearing   Survey   No.   23,   23-A,   admeasuring <\/p>\n
    5960.46 sq. mtrs.  On the said land there exists A-type and B-type buildings <\/p>\n
    having 5 wings consisting of total 84 flats, which were in use, occupation <\/p>\n
    and possession of the members of the Society comprising of 84 members, <\/p>\n
    out of which some of the Defendants are now objecting for redevelopment.\n<\/p>\n
    As   all   the   members   in   the   General   Body   Meeting   have   unanimously <\/p>\n
    resolved to redevelop the dilapidated buildings\/ flats by demolishing the <\/p>\n
    same and by utilizing the F.S.I. and by loading of Transferable Development <\/p>\n
    Rights (T.D.R.) by constructing the new buildings for the members of the <\/p>\n
    Society.  This resolution of 20\/05\/2007 was objected by only one person at <\/p>\n
    the relevant time.\n<\/p>\n
    4           Based upon the same, the Society invited tenders for the proposed <\/p>\n
    demolition of the existing buildings and the development, on 14\/02\/2008.\n<\/p>\n
    The   Plaintiffs   got   the   technical   commercial   bid   from   the   Society   on <\/p>\n
    05\/03\/2008. After considering the proposals\/ offers given by the Plaintiffs <\/p>\n
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\n     Nms707.10                                       3<\/span><\/p>\n
    on   01\/05\/2008,   the   members   of   the   General   Body   of   Defendant   No.1 <\/p>\n
    Society, unanimously resolved appointment of Plaintiffs and thereby, also <\/p>\n
    authorized executive committee to execute the redevelopment agreement <\/p>\n
    with the Plaintiffs.  Accordingly, the Society issued Letter of Indent to the <\/p>\n
    Plaintiffs   on   11\/05\/2008.     The   Society   also   addressed   a   letter   on <\/p>\n
    29\/08\/2008,   to   the   Assistant   Commissioner,   Borivali   describing   the <\/p>\n
    deteriorating   condition   of   the   building.   Apart   from   other   members, <\/p>\n
    Defendant Nos. 2 to  7 have  also executed irrevocable consent terms on <\/p>\n
    09\/10\/2008.\n<\/p>\n
    5           Some time in January, 2009, the Final Development Agreement was <\/p>\n
    executed between the Plaintiffs and the Society and also executed deeds of <\/p>\n
    confirmation-cum-declaration.  It has been duly registered. Defendant Nos.\n<\/p>\n
    4,5   and   6   by   letter   dated   23\/04\/2009   informed   to   the   Society   their <\/p>\n
    willingness to surrender their respective rights in the flat, if the Plaintiffs <\/p>\n
    pays the current market price and a lump sum amounts for the settlement <\/p>\n
    of the objection\/dispute. The Plaintiffs by letter dated 28\/10\/2009, pointed <\/p>\n
    out to Defendant No.1 Society the demand of lump sum consideration of <\/p>\n
    Defendant Nos. 2 to 6 of Rs.25,00,000\/- (Rupees twenty five lacs only).\n<\/p>\n
    6           Defendant   Nos.   2   to   6,   on   09\/11\/2009,   as   demand   could   not   be <\/p>\n
    fulfilled, filed the dispute before the Co-operative Court against the Society <\/p>\n
    and the Plaintiffs and thereby challenged to the Development Agreement <\/p>\n
    and further that the meeting so held and the resolution\/ decision so taken <\/p>\n
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\n     Nms707.10                                         4<\/span><\/p>\n
    are not binding upon them.  There was no application for interim relief  as <\/p>\n
    taken out by the Defendants immediately.\n<\/p>\n
    7           The Deputy Registrar, Co-operative Societies, Mumbai by letter dated <\/p>\n
    31\/12\/2009, observed that the work of development was  in  accordance <\/p>\n
    with the procedure prescribed and there is no irregularity.\n<\/p>\n
    8           On 04\/01\/2009, a supplementary agreement executed between the <\/p>\n
    Society   and   the   Plaintiffs   regarding   the   further   terms   and   conditions <\/p>\n
    pursuance to the basic development agreement.  The Plaintiffs got the plan <\/p>\n
    approved   in   July,   2009   and   subsequently   amended   the   plans   on <\/p>\n
    01\/01\/2010.\n<\/p>\n
    9           The Plaintiffs and Society have executed a deed of Rectification on <\/p>\n
    05\/08\/2009.\n<\/p>\n
    10          In   all   77,   out   of   84   members   of   the   Society   have   vacated   their <\/p>\n
    respective   premises   for   the   redevelopment.   The   Plaintiffs   have   already <\/p>\n
    entered upon the property and demolished the two wings comprising of the <\/p>\n
    members who have vacated their respective flats. The work is in progress.\n<\/p>\n
    Defendant Nos. 5 and 7 have settled the matter on 15\/02\/2010 and agreed <\/p>\n
    to vacate their respective flats.\n<\/p>\n
    11          There  is   no  dispute   that   the   Plaintiffs   have   incurred  and  invested <\/p>\n
    huge amount approximately Rs. 8.5 Crores till the date, for the purpose of <\/p>\n
    purchasing   T.D.R.,   security   deposit,   bank   guarantee   and   by   depositing <\/p>\n
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\n     Nms707.10                                      5<\/span><\/p>\n
    cheques   towards   the   rent,   brokerage,   transportation   charges   etc.   of   77 <\/p>\n
    members.\n<\/p>\n
    12          The Plaintiffs, pursuance to the  basic  requirements   of  the  consent <\/p>\n
    terms   of   all   the   members   at   the   relevant   time,   and   the   unanimous <\/p>\n
    resolution   in   their   favour   and   duly   signed   and   registered   documents, <\/p>\n
    proceeded and acted in full swing without any obstruction and objection of <\/p>\n
    anybody except  Defendant Nos. 2, 3, 4, 6 and 8.\n<\/p>\n
    13          The   Plaintiffs   have   acted   upon   the   Agreement   clauses   in   the <\/p>\n
    following ways:-\n<\/p>\n
                “(a)   The Plaintiffs procured licenses from the State Archeology  <\/p>\n
                       Department, which were required for the reconstruction  <\/p>\n
                       of the buildings within 45 days which was a condition  <\/p>\n
                       precedent in appointing Plaintiffs as developers;\n<\/p><\/blockquote>\n
                (b)    The   Plaintiffs   obtained   NOC   from   the   Public   Housing <\/p>\n
                       Department   and   removed   the   reservation,   which   was  <\/p>\n
                       required;\n<\/p><\/blockquote>\n
                (c)    The Plaintiffs has paid scrutiny fees for deduction of TDR;\n<\/p><\/blockquote>\n
                (d)    The Plaintiffs has obtained CFO concession;\n\n                (e)    The Plaintiffs applied for and obtained copies of the PR  \n\n<\/pre>\n
                       Card, DP remarks, conveyance in favour of the Society, <\/p>\n
                       copies of the original building plans, etc.;\n<\/p><\/blockquote>\n
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\n     Nms707.10                                      6<\/span><\/p>\n
                (f)   The building plans were prepared and submitted to the  <\/p>\n
                      Defendant No.1 Society for its approval; Defendant No.1  <\/p>\n
                      Society has approved the building plans submitted by the  <\/p>\n
                      Plaintiffs   and   the   Municipal   Corporation   of   Greater  <\/p>\n
                      Mumbai has sanctioned the building plans; the Plaintiffs <\/p>\n
                      has obtained the IOD;\n<\/p><\/blockquote>\n
                (g)   The   Plaintiffs   has   appointed   Architects   for   the  <\/p>\n
                      redevelopment project;\n<\/p><\/blockquote>\n
                (h)<\/p>\n
                      The   Plaintiffs   has   paid   a   sum   of   Rs.11,00,000\/-   to  <\/p>\n
                      Defendant No.1 Society  towards corpus fund, a sum of  <\/p>\n
                      Rs.2,64,00,000\/- to members of Defendant No.1 Society  <\/p>\n
                      and a sum of Rs.25,00,000\/- towards security deposit;\n<\/p><\/blockquote>\n
                (i)   Out of Rs.5,60,00,000\/-, a sum of Rs.2,64,00,000\/- has  <\/p>\n
                      been distributed amongst 75 members who have vacated  <\/p>\n
                      their respective flats and handed  over possession of the  <\/p>\n
                      same to the Plaintiffs;\n<\/p><\/blockquote>\n
                (j)   The Plaintiffs has commenced demolition of 2 out of the 5 <\/p>\n
                      buildings   belonging   to   the   Society,   which   are   to   be <\/p>\n
                      reconstructed;\n<\/p><\/blockquote>\n
                (k)   The Plaintiffs has purchased total TDR required for the  <\/p>\n
                      entire   project   from   the   open   market,   obtained  <\/p>\n
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\n     Nms707.10                                      7<\/span><\/p>\n
                      development   rights   certificate   and   has   loaded   TDR   of  <\/p>\n
                      1,350 square meters required for the Defendant No.1;\n<\/p><\/blockquote>\n
                (l)   The Plaintiffs has paid transportation\/ shifting charges to  <\/p>\n
                      members who have vacated their respective flats;\n<\/p><\/blockquote>\n
                (m)   The Plaintiffs has paid to each of the members who have  <\/p>\n
                      vacated their respective flats, monthly compensation for  <\/p>\n
                      11 months to enable them to secure temporary alternate  <\/p>\n
                      accommodation   and   balance   postdated   cheques  <\/p>\n
                      aggregating to 1,47,51,000\/-;\n<\/p><\/blockquote>\n
                (n)   Defendant No.1 has  given possession and  Plaintiffs has  <\/p>\n
                      entered upon the property and started demolition;\n<\/p><\/blockquote>\n
                (o)   The Plaintiffs has paid 2 months brokerage charges to the  <\/p>\n
                      members who have vacated their respective flats for the <\/p>\n
                      purpose   of   acquiring   temporary   alternate <\/p>\n
                      accommodation.\n<\/p><\/blockquote>\n
    14          A Division Bench of this Court in Saraswat Co-operative Bank Ltd.\n<\/p>\n
    Mumbai,   Vs.   Chandrakant   Maganlal   Shah   &   Ors.,2002   (Supp.)  <\/p>\n
    Bom.C.R.539= 2001 (1) Mh.L.J. 581, has observed that if a case is made <\/p>\n
    out,   the   Court   can   appoint   Court   Receiver   under   Order   40   of   the   Civil <\/p>\n
    Procedure Code (for short, CPC) or pass the order of attachment before <\/p>\n
    judgment   as   envisaged   under   Order   38   of   the   CPC   or   such   other <\/p>\n
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\n     Nms707.10                                         8<\/span><\/p>\n
    interlocutory stage, itself.\n<\/p>\n
    15          The   Apex   Court   in  Rajendran   &   Ors.   Vs.   Shankar   Sundaram   & <\/p>\n
    Ors. 2008 (2) S.C.C. 724,  has observed that prima facie opinion at the <\/p>\n
    interlocutory stage  is  sufficient to pass an order, under  Order 38 of the <\/p>\n
    CPC.\n<\/p>\n
    16          In similarly situated matter, though the proceedings were not under <\/p>\n
    Arbitration Act, I have passed the order and appointed the Receiver with a <\/p>\n
    view to complete the project by taking possession for the time being from <\/p>\n
    the tenants with further directions to provide them all facilities as agreed <\/p>\n
    by   the   Developer.     That   was   also   a   case   of   temporary   dispossession   to <\/p>\n
    complete the project.  A Division Bench of this Court in Appeal No. 338 of  <\/p>\n
                                                                th
\n     2009 in Arbitration Petition (L) No. 493 of 2009, dated 10    December,<\/p>\n
    2009, Girish Mulchand Mehta Vs. Mahesh S. Mehta, arising out of the <\/p>\n
    same order, has clarified as under, dealing with the similar aspects of power <\/p>\n
    of   Court   to   pass   appropriate   order   or   direction   in   a   situation   where   a <\/p>\n
    nominal members are objecting \/ obstructing to complete the project.\n<\/p>\n
                “16. In the present case, it is not in dispute that the General  <\/p>\n
                Body  of  the Society  which  is supreme, has taken a conscious
\n                decision to redevelop the suit building.  The General Body of the
\n                Society has also resolved to appoint the Respondent No.1 as the
\n                Developer.  Those decisions have not been challenged at all.  The
\n                Appellants   who   were   members   of   the   Society   at   the   relevant
\n                time, are bound by the said decisions.   The Appellants in the
\n                dispute filed before the Cooperative Court have only challenged
\n                the Resolution dated 27\/4\/2008, which challenge would merely
\n                revolve   around   the   terms   and   conditions   of   the   Development
\n                Agreement. As a matter of fact, the General Body of the Society  <\/p>\n
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\n     Nms707.10                                          9<\/span><\/p>\n
                has   approved   the   terms   and   conditions   of   the   Development
\n                Agreement   by   overwhelming   majority.     Merely   because   the
\n                terms   and   conditions   of   the   Development   Agreement   are   not  <\/p>\n
                acceptable   to   the   Appellants,   who   are   in   minuscule   minority
\n                (only two out of twelve members), cannot be the basis not to <\/p>\n
                abide   by   the   decision   of   the   overwhelming   majority   of   the
\n                General   body   of   the   Society.   By   now   it   is   well   established
\n                position   that   once   a   person   becomes   a   member   of   the
\n                Cooperative Society, he looses his individuality with the Society  <\/p>\n
                and he has no independent rights except those given to him by
\n                the statute and Bye-laws.  The member has to speak through the
\n                Society or rather the Society alone can act and speaks for him
\n                qua the rights and duties of the Society as a body (See Daman
\n                Singh & Ors. V\/s. State of Punjab reported in AIR 1985 SC  <\/p>\n<\/blockquote>\n
                973).  This view has been followed in the subsequent decision of
\n                the   Apex   Court   in   the   case   of  State   of   U.P.   V\/s.   Chheoki  <\/p>\n
                Employees Cooperative Society Ltd. reported in AIR 1997
\n                SC 1413. In this decision the Apex Court further observed that
\n                the member of Society has no independent right qua the Society  <\/p>\n
                and it is the Society that is entitled to represent as the corporate
\n                aggregate.  The Court also observed that the stream cannot rise
\n                higher than the source.  Suffice it to observe that so long as the
\n                Resolutions passed by the General Body of the Respondent No.2  <\/p>\n
                Society are in force and not overturned by a forum of competent
\n                jurisdiction, the said decisions would bind the Appellants.  They  <\/p>\n
                cannot   take   a   stand   alone   position   but   are   bound   by   the
\n                majority decision of the General Body.  Notably, the Appellants
\n                have not challenged the Resolutions passed by the General Body
\n                of the Society to redevelop the property and more so, to appoint  <\/p>\n
                the   Respondent   No.1   as   the   Developer   to   give   him   all   the
\n                redevelopment   rights.     The   property   rights   of   the   Appellants
\n                herein in the portion (in respective flats) of the property of the
\n                Society cannot defeat the rights accrued to the Developer and\/or
\n                absolve the Society of its obligations in relation to the subject  <\/p>\n
                matter of the Arbitration Agreement.”\n<\/p><\/blockquote>\n
                “18. We have no hesitation in taking the view that since the
\n                Appellants were members of the Society and were allotted flats
\n                in question in that capacity at the relevant time are bound by
\n                the decision of the General Body of the Society, as long as the
\n                decision of the General Body is in force.  As observed earlier, the
\n                Appellants   have   not   challenged   the   decisions   of   the   General
\n                Body of the Society which is supreme, in so far as redevelopment  <\/p>\n
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\n     Nms707.10                                   10<\/span><\/p>\n
                of the property in question or of appointment of the Respondent
\n                No.1 conferring on him the development rights.”\n<\/p><\/blockquote>\n
    17          The   contesting   Defendants\/Members   unable   to   make   statement <\/p>\n
    and\/or not ready to provide security in case the suit is dismissed but the <\/p>\n
    project is halted at this stage, at their instance.  Therefore, in view of above <\/p>\n
    facts,   as   well   as,   law   so   referred,   the   Court   is   empowered   to   pass <\/p>\n
    appropriate order, even at the interlocutory stage including to appoint the <\/p>\n
    Receiver under Order 38 and Order 40 of the  CPC.\n<\/p>\n
    18<\/span><\/p>\n
                The learned counsel appearing for the Defendants has strongly relied <\/p>\n
    upon the Judgment of Single Bench of this Court in Notice of Motion No.  <\/p>\n
                                                    th
\n     2090 of 2009 in Suit No. 1404 of 2009, dated 5    December, 2009 M\/s.\n<\/p>\n
    Acknur Constructions Pvt. Ltd. Vs. Sweety Rajendra Agarwal & Ors..  In <\/p>\n
    that   case   the   suit   was   filed   by   the   Builder-Developer   against   the   Co-\n<\/p>\n
    operative   Society\/occupants\/members.   That   was   not   the   case   of   100% <\/p>\n
    consent given by the occupants at the relevant time.  That was also not the <\/p>\n
    case where the person like the Defendants-Members raised dispute before <\/p>\n
    the Co-operative Court after such long time. In that case, there was serious <\/p>\n
    dispute about the title of the land itself, and therefore, observed that the <\/p>\n
    existence of Co-operative Housing Society itself was in doubtful.   In the <\/p>\n
    present case, there is no such dispute and\/or objection of title or ownership <\/p>\n
    of the society, as well as, the concerned majority members. In the present <\/p>\n
    case, based upon the majority members, the consent terms, as well as, the <\/p>\n
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\n     Nms707.10                                      11<\/span><\/p>\n
    resolution, the parties have already acted upon and proceeded further in <\/p>\n
    view   of   the   valid   permission   and   sanction   and   registered   documents   as <\/p>\n
    referred above. Therefore, the facts and circumstances of the case, so cited <\/p>\n
    are   totally   distinct   and   distinguishable,   and   specially   for   the   reason   of <\/p>\n
    above   Judgments   and   provisions   of   law   as   explained   and   elaborated   in <\/p>\n
    various Judgments including of the Supreme Court, as referred above.\n<\/p>\n
    19          It is relevant to note that the Division Bench Judgment in Appeal No.<\/p>\n
    338 of 2009, Girish Mulchand Mehta, (Supra) which is final and binding, <\/p>\n
    was not cited before the learned Single Judge in Notice of Motion No.348  <\/p>\n
    of   2009   in   Suit   No.126   of   2009,   dated   08\/01\/2010,   M\/s.   Jaydeep  <\/p>\n
    Constructions Vs. Pant Nagar Rail View Co-operative   Housing Society  <\/p>\n
    Ltd. Therefore, also the said Judgment is of no assistance for the contesting <\/p>\n
    Defendants- members.\n<\/p>\n
    20          It   is   relevant   to   note   that   the   Division   Bench   Judgment  Girish <\/p>\n
    Mulchand Mehta, (Supra) is of dated 10th December, 2009, confirming the <\/p>\n
    earlier   order   as   referred   above.   Now,   that   judgment,   as   well   as,   the <\/p>\n
    reasoning given has attained finality.  This judgment, in my view, holds the <\/p>\n
    field   on   the   subject.   The   judgment   relied   upon   by   the   contesting <\/p>\n
    Defendants in the matter of M\/s. Acknur Constructions Pvt. Ltd. (Supra) <\/p>\n
    is of dated 5th  December, 2009.   Therefore, there was no occasion for the <\/p>\n
    Learned  Judge to deal and\/or even to consider the judgment passed by the <\/p>\n
    Division Bench, as referred and quoted above. It is a relevant factor which <\/p>\n
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\n     Nms707.10                                           12<\/span><\/p>\n
    goes in favour of the Plaintiffs.\n<\/p>\n
    21          As   noted,   it   is   relevant   to   consider   all   the   necessary   elements   as <\/p>\n
    contemplated   under   Order   38,   39   and   40   of   the   CPC,   while   granting <\/p>\n
    and\/or passing any order in such situation.  As noted above, if the case is <\/p>\n
    made out and in a given facts and circumstances, the Court is empowered <\/p>\n
    to   pass   such   ad-interim   and\/or   interlocutory   order   including   mandatory <\/p>\n
    order and\/or even the Court can appoint the Receiver as already observed <\/p>\n
    in the Girish Mehta (supra) by the Division Bench of this Court.  As noted, <\/p>\n
    even the Supreme Court in Rajendran & Ors. (supra), while dealing with <\/p>\n
    the aspect of Order 38 of the CPC, further clarified that if a case is made <\/p>\n
    out, the Court is empowered to pass such order even at ad-interim stage. In <\/p>\n
    the   present   case,   all   these   elements   are   available   for   passing   the   order, <\/p>\n
    including appointment of Receiver as prayed.\n<\/p>\n
    22          It is relevant to note that the following observations of the Supreme <\/p>\n
    Court in such situation, which in my view also applies to the present facts <\/p>\n
    and circumstances of the case. (Deoraj Vs. State of Maharashtra & Ors.\n<\/p>\n
    (2004) 4 S.C.C. 697):-\n<\/p>\n
                “11. The courts and tribunals seized of the proceedings within
\n                their   jurisdiction   take   a   reasonable   time   in   disposing   of   the
\n                same.   This is on account of fair-procedure requirement which
\n                involves  delay  intervening  between the  previous and  the next
\n                procedural   steps   leading   towards   preparation   of   case   for
\n                hearing.     Then,   the   courts   are   also   overburdened   and   their
\n                hands are full.  As the conclusion of hearing on merits is likely
\n                to   take   some   time,   the   parties   press   for   interim   relief   being
\n                granted in the interregnum.”\n<\/p><\/blockquote>\n
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\n     Nms707.10                                            13<\/span><\/p>\n
                “12. Situations emerge where the granting of an interim relief
\n                would tantamount to granting the final relief itself.   And then  <\/p>\n
                there may be converse cases where withholding of an interim
\n                relief would tantamount to dismissal of the main petition itself;\n<\/p><\/blockquote>\n
                for, by the time the main matter  comes up for hearing there
\n                would be nothing left to be allowed as relief to the Petitioner
\n                though all the findings may be in his favour.  In such cases the
\n                availability of a very strong prima facie case – of a standard  <\/p>\n
                much higher than just prima facie case, the considerations of
\n                balance of convenience and irreparable injury forcefully tilting
\n                the balance of the case totally in favour of the applicant may
\n                persuade the court to grant an interim relief though it amounts  <\/p>\n
                to granting the final relief itself.  Of course, such would be rare
\n                and exceptional cases.  The court would grant such an interim  <\/p>\n
                relief   only   if   satisfied   that   withholding   of   it   would   prick   the
\n                conscience of the court and do violence to the sense of justice,
\n                resulting in injustice being perpetuated throughout the hearing,  <\/p>\n
                and  at  the end  the court  would  not be able  to vindicate  the
\n                cause   of   justice.   Obviously   such   would   be   rare   cases
\n                accompanied   by   compelling   circumstances,   where   the   injury
\n                complained   of   is   immediate   and   pressing   and   would   cause
\n                extreme hardship.  The conduct of the parties shall also have to  <\/p>\n
                be seen and the court may put the parties on such terms as may
\n                be prudent.”\n<\/p><\/blockquote>\n
    23          The   above   observations   are   relied   in  Zenit   Mataplast   Private  <\/p>\n
    Limited   Vs.   State   of   Maharashtra   &   Ors.,   (2009)   10   S.C.C.,   388.\n<\/p>\n
    Paragraph No. 34 reads thus:-\n<\/p>\n
                “34. This   Court   in  Manohar   Lal   Chopra   V.   Rai   Bahadur
\n                Rao Raja Seth Hiralal, AIR<\/a> 1962, S.C. 527, held that the
\n                civil court has a power to grant interim injunction in exercise of
\n                its inherent jurisdiction even if the case does not fall within the
\n                ambit of provisions of Order 39, Code of Civil Procedure.”\n<\/p><\/blockquote>\n
    24          As noted, there are correspondences (dated 23rd April, 2009 and 19th <\/p>\n
    September 2009) on record to show that the contesting Defendants in fact <\/p>\n
                                                                          ::: Downloaded on – 09\/06\/2013 15:40:40 :::<\/span>
\n     Nms707.10                                        14<\/span><\/p>\n
    submitted their proposal to settle the matter. However, that was on some <\/p>\n
    consideration\/lump sum amount.   The conduct is averred in the affidavit <\/p>\n
    and not in dispute.   This means, the intention was something else rather <\/p>\n
    than challenging the action as agitated by filing the dispute before the Co-\n<\/p>\n
    operative Court after such long time and in spite of the fact that initially <\/p>\n
    there was no objection for such project to be continued. The resolution of <\/p>\n
    the society read with the necessary compliances made at the relevant time, <\/p>\n
    apart from the vacation of the premises by other consenting members and <\/p>\n
    the action taken by all the parties as referred in paragraph 14 itself, in my <\/p>\n
    view, an additional factor, goes against such Defendants.\n<\/p>\n
    25          Admittedly,   the   Plaintiffs,   as   well   as,   Society   No.1   and   all   the <\/p>\n
    consenting members are supporting in all respect.  The averments made in <\/p>\n
    the suit, as well as, in notice of motion, objection so raised by filing dispute <\/p>\n
    on the allegations of fraud, misrepresentation, now at this stage, is again a <\/p>\n
    matter of trial and details. Those aspects, just cannot be gone into at this <\/p>\n
    stage in such fashion, merely on the basis of the averments so raised as <\/p>\n
    noted, the conduct of the parties, therefore, also place important role while <\/p>\n
    assessing  the  necessary elements  as contemplated under the  CPC before <\/p>\n
    passing any such order.\n<\/p>\n
    26          There   is   no   dispute   with   regard   to   the   stages\/steps   taken   by   the <\/p>\n
    parties   read   with   the   investment   already   made   and   the   fact   that   the <\/p>\n
    everybody is waiting for the project to complete within a stipulated time <\/p>\n
                                                                     ::: Downloaded on – 09\/06\/2013 15:40:40 :::<\/span>
\n     Nms707.10                                  15<\/span><\/p>\n
    and, as early as possible, so that the members can take and re-occupy the <\/p>\n
    newly premises and\/or they can occupy, as early as possible, with all the <\/p>\n
    facilities.\n<\/p>\n
    27          The basic consents and the unanimous resolution as passed and duly <\/p>\n
    registered documents as executed, now just cannot be restored back at the <\/p>\n
    instance of such 4 or 5 Defendants\/members.  It is not the case that they <\/p>\n
    will be deprived of their rights and the possession permanently.  The whole <\/p>\n
    object and purpose of this project is always to get the new premises on the <\/p>\n
    same plot subject to the terms and conditions.  Once the premises\/ project <\/p>\n
    is completed, all the members will re-occupy the same with the facilities.\n<\/p>\n
    Therefore,   this   temporary   dispossession   to   complete   the   project,   in   my <\/p>\n
    view,   cannot   be   treated   as   permanent   dispossession   as   sought   to   be <\/p>\n
    contended and basically on the ground of fraud and misrepresentation as <\/p>\n
    alleged.\n<\/p>\n
    28          Even if, some allegations are taken note of, still that itself cannot be <\/p>\n
    the reason to halt the project in such fashion, specially when majority of <\/p>\n
    the   members   and   the   society   till   today   and   even   otherwise   willing   to <\/p>\n
    proceed and continue with the project as already agreed. Therefore, merely <\/p>\n
    disputes have been raised by the some of the  Defendants and the same is <\/p>\n
    pending, that itself in the present facts and circumstances, cannot be the <\/p>\n
    reason to overlook the basic purpose and object of the project to complete.\n<\/p>\n
                                                              ::: Downloaded on – 09\/06\/2013 15:40:40 :::<\/span>
\n     Nms707.10                                      16<\/span><\/p>\n
    29          The   Plaintiffs   has   filed   this   suit   based   upon   the   agreed   and <\/p>\n
    unanimous resolution and registered documents and specially when both <\/p>\n
    the parties proceeded and acted accordingly since so many months.   The <\/p>\n
    agreement itself shows that it is not a simple agreement of development.\n<\/p>\n
    The Plaintiffs has right in the property also, in view of the agreement itself, <\/p>\n
    subject   to   the   conditions   so   agreed.  (Chheda   Housing   Development  <\/p>\n
    Corporation   Vs.   Bibijan   Shaikh   Farid   &   Ors.   2007   (3),   Mh.L.J.  403) <\/p>\n
    Such   right,   just   cannot   be   overlooked   at   the   instance   of   5   contesting <\/p>\n
    Defendants.  In my view, the Plaintiffs has a right, and basically when it is <\/p>\n
    supported by the Society, as well as, the majority of the members, to file <\/p>\n
    such suit and for such reliefs, as claimed in notice of motion. The challenge <\/p>\n
    to the right and\/or entitlement of the Plaintiffs to file such suit and\/or to <\/p>\n
    take for such motion for the above reason is unsustainable. There is a legal <\/p>\n
    right to file such suit for appropriate reliefs, so claimed.  The suit cannot be <\/p>\n
    dismissed and ad-interim relief just cannot be refused, merely because of <\/p>\n
    objections by 5 members by filing the dispute in the Co-operative Court <\/p>\n
    and raising issue, even of the jurisdiction of this Court, pending the dispute <\/p>\n
    before the co-operative Court.\n<\/p>\n
    30          Therefore, considering the above judgments including the Supreme <\/p>\n
    Court, to pass appropriate order even at interlocutory stage, if the case is <\/p>\n
    made out and in the situation like this, where whole object and purpose to <\/p>\n
    complete the project within the prescribed period specially when majority <\/p>\n
                                                                 ::: Downloaded on – 09\/06\/2013 15:40:40 :::<\/span>
\n     Nms707.10                                    17<\/span><\/p>\n
    of the members have consented and already vacated the premises and the <\/p>\n
    Plaintiffs   have   already   invested   huge   amount   as   recorded   above,   and <\/p>\n
    provided all necessary alternate accommodation and the facilities and as <\/p>\n
    this   dispossession   is   only   for   the   temporary   period   till   the   construction <\/p>\n
    and\/or completion of the project, therefore, it is just and convenient and it <\/p>\n
    is in the interest of justice and as this Court is empowered to pass such <\/p>\n
    order and the balance of convenience and equity also lies in favour of the <\/p>\n
    Plaintiffs. Therefore following order.\n<\/p>\n
    31<\/span><\/p>\n
                Resultantly, ad-interim  relief   in  terms  of  prayer  clauses   (a) except <\/p>\n
    Flat No. A-1\/13 and A-2\/31, and (b) except Defendant Nos. 5 and 7, as <\/p>\n
    Defendant Nos. 5 and 7 have settled the matter.\n<\/p>\n
    32          However, it is made clear that 8 weeks time is granted to vacate the <\/p>\n
    premises voluntarily, to these 5 contesting Defendants. No coercive steps <\/p>\n
    should be taken by the Plaintiffs and\/or the receiver till this date.\n<\/p>\n
    33          It is  also made  clear that the Plaintiffs and the  Society, subject to <\/p>\n
    agreement,   will   provide   all   the   facilities   including   payment   of   rent\/ <\/p>\n
    occupation charges as given and provided to the other members. If these <\/p>\n
    members   vacates   the   premises  voluntarily, the  Plaintiffs   to  provide\/  pay <\/p>\n
    them the necessary amount as agreed. If they do not, then Receiver to take <\/p>\n
    steps   in   accordance   with   law   and   the   Plaintiffs   to   deposit   the   requisite <\/p>\n
    amount   with   the   Court   Receiver   towards   the   compensation\/occupation <\/p>\n
    charges.\n<\/p>\n
                                                                 ::: Downloaded on – 09\/06\/2013 15:40:40 :::<\/span>
\n     Nms707.10                                 18<\/span><\/p>\n
    34          It is made clear that the Plaintiffs will pay the amount regularly and <\/p>\n
    provide   all   the   facilities   as   agreed,   till   the   permanent   alternate <\/p>\n
    accommodation is handed over to these Defendants in the new building, in <\/p>\n
    question, as agreed.\n<\/p>\n
    35          The Notice of Motion is allowed in above terms. No costs.\n<\/p>\n
                                                     (ANOOP V. MOHTA, J.)<\/p>\n
                                                           ::: Downloaded on – 09\/06\/2013 15:40:40 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court M\/S. Jasmina Constructions Pvt. … vs Mandapeshwar Kripa Co-Operative on 5 March, 2010 Bench: Anoop V.Mohta Nms707.10 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 707 OF 2010 IN SUIT (LODGING) NO. 229 OF 2010 M\/s. Jasmina Constructions Pvt. Ltd. …Plaintiffs. Vs. Mandapeshwar […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-240122","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nM\/S. 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