Shri Ashok Dattatraya Kulkarni And 9 Ors vs The State Of Maharashtra And 61 Ors

Kamalakar Sadan, Samartha Nagar Circle, Andheri (West), Mumbai - 400 053 ...Appellants Versus

1 The State of Maharashtra, Mantralaya, Mumbai 2 Maharashtra Housing & Area Development Authority, having its office at Griha Nirman Bhavan, Bandra (East), Mumbai - 400 051

3 The Collector, Mumbai Suburban District Collectorate Office, Bandra (E), Mumbai - 400 051 4 Samartha Development Corporation, A Partnership Firm registered under the provisions of Indian Partnership Act 1932 and having its address at (i) 11A, Suyash, Near Amar Hind Mandal, Gokhale Road (North), Dadar (West), Mumbai - 400 028

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(ii) Parijat, Near Amar Hind Mandal, Gokhale Road (North), Dadar (West), Mumbai - 400 028

5 Apna Ghar Coop. Hsg. Soc. Ltd., Survey No. 120(P), Village Varsova, A.P. Marg, Andheri (West), Bombay

(Reg. No. MUM/WKW/HSG/TC/ 15145/11-12) 6 Shri Sudhakar Sitaram Jadhav, Age 41 years, Resi. 103, 1st Floor,

Neelkanth Gokuldas Pasta Road, Dadar (E), Mumbai - 400 014. 7 Shri Vijay Purushottam Samant, Age 70 years, Resi. Flat No. 305/306, Kamalakar Sadan, Shree Swami Samartha

Nagar, Andheri (W), Mumbai - 400 053 8 Shri Madhav Raghunath Kajarekar,

Age 55 years, Resi. 202, Vasudeo Sahaniwas, 335, Narayan Peth, Near Ganapati Mandir, Pune - 411 030 9 Shri Bilwakumar Ratnakar Walawalkar,

Age 38 years, Resi.: Flat No. 1005, Hrishikesh Apartment, F.P. No. 874, Veer Savarkar Marg, Dadar, Mumbai - 400 028 10 Shri Kewal Prabhakar Kondkar,

Age 60 years, Resi.: Flat No. 204, Hrushikesh - H, Apna Ghar Unit No.1, Shri

Swami Samartha Nagar, Andheri (W), Mumbi - 400 053 11 Shri Prabhakar Raghunath Kajarekar, Age 59 years, Resi.: Flat No.4, Vaibhavgad, 1238, Apte Road, Pune 411 004

12 Shri Prabodh Kashinath Manohar, Age 50 years, Resi.: C-18, Ultra Coop. Hsg. Soc. Ltd., Lt. Dilip Gupte Marg, Mahim, Mumbai - 400 016. 13 Shri Ajit Jagannath Galwankar,

Age 54 years, Resi.: 3rd Floor, Shree Shailya Apartment, Lane No. 14, 111/118, Prabhat Road, Pune 411 004 14 Shri Mahesh Ramchandra Natekar, Age 56 years, Resi.: 204, Kamalakar Sadan, Shree Swami Samartha Nagar, Andheri (W), Mumbai - 400 053 15 Shri Hari Narsinh Manerikar, Age 52 years, Resi.: 113, Chiramangal Apartments,Shaniwar Peth,Pune-411 030.

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16 Shri Vishwanath Dinanath Banavali, Age 52 years, Resi.: 303, Indra Lok "A", Shree Swami Samartha Nagar, Andheri

(W), Mumbai - 400 053 17 Shri Yashwant Vinayak Inamdar, Age 49 years, Resi.: 604, Pulachiwadi,

Pune - 411 004. 18 Shri Surendra Jaywant Malwankar, Age 44 years, Resi.: 304, 10-A, Nalanda, Apna Ghar Unit No.2, Shree Swami

Samartha Nagar, Andheri (W), Mumbai - 400 053 19 Shri Manoj Ravindra Redij, Age 43 years, Resi.: 103, 1st Floor, Neelkanth Gokuldas Pasta Road, Dadar

(East), Mumbai - 400 014 20 Smt. Sucheta Ravindra Paradkar,

21

Age 61 years, Resi, Bandhuprem, 376, Shaniwar Peth, Pune - 411 030 Shri Kamlesh Ashok Joshi, Age 38 years, Resi.: 103-104, Samartha

Prasad, Shree Swami Samartha Nagar, Andheri (W), Mumbai - 400 053 22 Smr. Aparna Amol Kondkar, Age 63 years, Resi." C-25, Suyash, Gokhale

Road (North), Dadar, Mumbai - 400 028 23 Shri Pusharaj Purushottam Mungekar,

Age 29 years, Resi,: Plot No.15, Vargade Chawl, Kothrud, Pune 411 029 24 Mrs. Rudra Haresh Pandya, Age 48 years, Resi.: 1302, Samartha Ashish, Indar Darshan Complex, Oshiwara,

Andheri (West), Mumbai - 400 053 25 Shri Rupesh S. Prabhudesai, Age 39 years, Resi.: 004, Rajmata Coop. Hsg. Soc. Ltd., Karmaveer Dadasaheb Gaikwad Road, Andheri (West), Mumbai - 400 053

26 Shri Rajnish Bhikaji Samant, Age 47 years, Resi,: 203, Kamalakar Sadan, Shree Swami Samartha Nagar, Andheri (W), Mumbai - 400 053 27 Dr. Shripad Dinanath Banavali, Age 51 years, Resi.: 11-A, Jyoti Sadan, Sitaladevi Temple Road, Mahim, Mumbai - 400 016 28 Adv. Rajendra Sitaram Desai, Age 56 years, Resi.: 1501, Vainaganga, Sir

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Pochkhanwala Road, Worli, Mumbai - 400 016 29 Shri Vasant Keshav Patwardhan,

Age 68 years, Resi.: D-2/4, Green Field Society, Paud Road, Shivtirth Nagar, Pune - 411 038

30 Shri Nandan Sudam Patilhande, Age 50 years, Resi.: 2, Ishkripa, Naigaon Coop. Hsg. Soc. Ltd., Sadanand Mohan Jadhav Marg, Naigaon, Dadar (East), Mumbai -

400 014. 31 Shri Tejas Sudam Patilhande, Age 40 years, Resi.: 2, Ishkripa, Naigaon Coop. Hsg. Soc. Ltd., Sadanand Mohan Jadhav Marg, Naigaon, Dadar (East), Mumbai -

400 014. 32 Shri Vishnu Bhalchandra Varawadekar,

Age 61 years, Resi.: Flat No. 22, Sheetal Soc., Pandit Malharrao Kulkarni Marg, Vazira Naka, Borivali (West), Mumbai - 400 091.

33 Shri Chandrashekhar Bhikaji Samant Age 57 years, Resi.: 13, Rajratna, Ram Mandir Road, Borivali (West), Mumbai. 34 Shri Suresh Shantaram Pakale,

Age 57 years, Resi.: 1/1602, Sumer Trinity Towers, New Prabhadevi Road,

Prabhadevi, Mumbai - 400 025. 35 Dr. Sunil Manohar Nadkarni, Age 53 years, Resi.: 12, Shanta Soc., 394- B, Kusalkar Road, Pune - 411 016. 36 Shri Laxmikant Madhav Mahajan,

Age 49 years, Resi.: E-10, Maurya Vihar, Near Gandhi Bhawan, Kothrud, Pune - 411 038 37 Shri Rajan Bhalchandra Samel, Age 59 years, Resi.: Flat No. 10, Shivganga

Apartment, S.B. Road, Pune - 411 016. 38 Shri Prashant Vasudeo Sawant, Age 43 years, Resi.: Meghvarsha, Near Vindhyawasini Temple At-Post Dhamnavne, Chiplun, Dist. Ratnagiri - 415 605. 39 Shri Omkar Vijay Samant, Age 39 years, Resi.: Shri Sahajanand Saraswati Niwas, Shrikshetra Derwan, Taluka Chiplun,Dist.: Ratnagiri -415 606.

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40 Shri Prafulla Shrikrishna Godbole, Age 42 years, Resi.: 203, Ganga Bldg., BKL Walawalkar Hospital Residential Complex,

At Post Sawarda, Taluka Chiplun, Dist.: Ratnagiri 415 606. 41 Shri Liladhar Rajarm Sarang,

Age 41 years, Resi.: Samartha Krupa Complex, A Wing, G-1, Dhwriwada, Near Topiwala High Schook, Taluka Malwan, Dist. : Sindhudurg.

42 Adv. Vikas Vasant Warerkar, Age 51 years, Resi.: 59/D, Nirvan Society, Bhagoji Keer Marg, Mahim, Mumbai - 400 016. 43 Shri Rajeev Nilkanth Shrikhande,

Age 38 years, Resi.: 42, Kalpak, Artech Apartments, Madhusudan Kelkar Marg,

44

Bandra (East), Mumbai - 400 051 Shri Sanjeev Diwakar Upalekar, Age 51 years, Resi.: 302, Gloriosa Apartments, N.M. Kale Marg, Near Agar

Bazar, Dadar (West), Mumbai - 400 028. 45 Shri Rajeev Diwakar Upalekar, Age 53 years, Resi.: 1-B, Ameyanand Soc., Near Kirti College, Kashinath Dhru Road,

Dadar (West), Mumbai - 400 028. 46 Dr. Sudhir Shriniwas Joshi,

Age 58 years, Resi.: SamarthNarsing Home, 128, Hindu Colony, Nappu Road, Dadar, Mumbai - 400 014. 47 Shri Satish Prabhakar Shetye, Age 51 years, Resi.: 306, Jupiter

Apartments, Apna Ghar Unit No.3, Shree Swami Samartha Nagar, Andheri (W), Mumbai - 400 053 48 Shri Sunil Prabhakar Kondkar, Age 58 years, Resi.: 1/215, Kamdhenu Shopping

Centre, Apna Ghar Complex, Samartha Nagar, Andheri (W), Mumbai - 400 053. 49 Shri Mandar Vasant Phadke, Age 37 years, Resi.: Chintamani, 17, Vrundavan Society, Navi Peth, Near Mhatre Pool, Pune - 411 030. 50 Shri Milind Gajanan Borkar, Age39 years, Resi.: Shripad Apartment, City Survey No. 532/15/6, Kalpataru - A Colony, Varje,Karve Nagar,Pune - 411 052.

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51 Shri Vijay Sidhadharaj Bashte, Age 56 years, Resi." Gurukrupa Udyamnagar, Ratnagiri - 415 612.

52 Shri Shirish Dnyandeo Bamne, Age 54 years, Resi.: House No. 844, Swaroop Bhandar, Maruti Mandir,

Ratnagiri - 415 612. 53 Shri Harish Shivram Karmarkar, Age 45 years, Resi.: 18/B, Ranuka Hsg. Soc., Chintamani Nagar Phase - 1, Bibwe

Wadi, Pune - 411 037. 54 Shri Vijay Purushottam Joshi, Age 63 years, Resi.: C/704, Agam Darshan More Baug, Katraj, Pune - 411 046 55 Smt. Charushila Gajanan Mudaliar,

Age 53 years, Resi.: 115/44, Nav Sahyadri Society, Kanchan Path, Naraje Nagar, Pune

56 - 411 052.

Smt. Hemlata Abhijit Dabholkar, Age 50 years, Resi.: 50, Mrudgandh Society, Behind Shivraj Petrol Pump,

Baraokar Nagar, MIDC, Satara. 57 Shri Mihir Sharad Rajguru, Age 44 years, Resi.: Flat No.9, Kamalsudha Apartments, 567, Narayan Peth, Pune -

411 030. 58 Shri Hemant Janardan Deorukhkar,

Age 46 years, Resi.: C/4, Ground Floor, Bhagwansingh Colony, Senapati Bapat Marg, Mahim, Mumbai - 400 016. 59 Shri Yashwant Pandurang Jadhav, Age 52 years, Resi.: 003, Satyam

Apartment, Badlapur Karjat Road, Chinchali, Neral, Taluka Karjat, Dist.: Raigad. 60 Shri Vinayak Raghunath Kajarekar, Age 42 years, Resi.: Flat No. 102, Vasudeo

Sahanivas, 335, Narayan Peth, Near Modi Ganapati Mandir, Pune - 411 030. 61 Shri Jaganath Hrishikesh Pandit, 62 Shri Saidutt Arun Adelkar, Defendants Nos. 61 and 62 (promoter / members of Apna Ghar Cooperative Housing Society (Prop.), Adult, Indian Inhabitants, having their address at Apna Ghar Cooperative Housing Society (Prop.) 304 B, Kamalakar Sadan, Samartha Nagar Circle, Andheri (West), Mumbai - 400 053 .....Respondents

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Appearances:- Mr. Pravin Samdani-Senior Advocate with Mr. Chetan Kapadia, Mr. Ankit Lohia, Mr. Rahul

Totla and Ms. Kausar Banatwala i/b. Mr. Tushar Goradia for the Appellants.

Mr. U. S. Upadhyay-AGP for Respondent Nos. 1 and 3. Mr. Shankar P. Thorat for Respondent No. 1.

Mr. P. Chidambaram-Senior Advocate with Mr. Dinyar Madon-Senior Advocate i/b. Mr. Kunal Bhanage for Respondent No. 4. Mr. Iqbal Chagla-Senior Advocate with

Mr.Mustafa Doctor-Senior Advocate i/b. Mr. Kunal Bhanage for Respondent No. 5.

Mr. Zal Andhyarujina i/b. Mr. Kunal Bhanage for Respondent No. 6.

Mr. Shailendra Kamdar-Senior Advocate with Mr. Yashesh Kamdar i/b. Mr. Kunal Bhanage for Respondent Nos. 7, 8, 10, 11, 13, 14, 16, 27, 28, 34, 46, 47, 48 and 55.

Ms. Madhavi Divan i/b. Mr. Kunal Bhanage for Respondent Nos. 9, 12, 15 and 17 to 20.

Mr. Vineet Naik-Senior Advocate i/b. Mr. Kunal Bhanage for Respondent Nos. 21 to 26, 29 to 33, 35 to 45 and 49 to 54.

Mr. Mustafa Doctor-Senior Advocate i/b. Mr. Kunal Bhanage for Respondent Nos. 56 to 60.

CORAM :- S.C.DHARMADHIKARI &

A.A.SAYED, JJ. Reserved on :- December 22, 2014 Pronounced on :- February 20, 2015

JUDGMENT :

- (Per S.C.Dharmadhikari, J.) This Appeal under clause 15 of the Letters Patent

challenges the order of a learned Single Judge of this Court dated 7 th

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October, 2014 in Notice of Motion No. 1352 of 2013 in Suit No. 730 of

2013. By this order, the learned Single Judge of this Court has

proceeded to dismiss this Notice of Motion with costs.

2) The Appeal is admitted. The contesting Respondents waive

service. By consent, the Appeal is heard finally.

3) The original Plaintiffs are in Appeal before us. The

Appellants instituted the above Suit in this Court claiming the following

reliefs:-

"a. That this Hon'ble Court be pleased to declare that the

Plaintiffs and Defendant Nos. 61 and 62 are entitled to allotment and possession of all those pieces of parcels of land or ground bearing (i) Survey No. 120 (part) bearing C.T.S. No. 1374/A/8/1 to 5 admeasuring 39,790.80 sq. mtrs; (ii) Survey No. 120 (part) bearing C.T.S. No. 1374/A/4 admeasuring 41,570.10 sq. meters;

(iii) Survey No. 120 (part) bearing C.T.S. No. 1374/A3 admeasuring 13,500.40 sq. mtrs; in all aggregating to 94,861.30

square meters all of Village Versova, Taluka Andheri, District Mumbai Suburban (the said property).

b. That this Hon'ble Court be pleased to declare that Defendant No. 5 i.e. Apna Ghar Co-operative Housing Society

Limited, or Defendant Nos. 6 to 60 are not entitled to be allotted or handed over possession of the said property.

c. That this Hon'ble Court be pleased to set aside or cancel the Resolutions dated 24th December, 2011 passed by Defendant No. 5 and Defendant Nos. 6 to 60 and declare that the same are

not binding upon the Plaintiffs.

d. That this Hon'ble Court be pleased to set aside or cancel the Agreement dated 9th April, 2013 executed by Defendant No. 5. e. That this Hon'ble Court be pleased to set aside or cancel the Development Agreement dated 11th November, 2004, being Exhibit 'D' to the Plaint, entered into between the Plaintiff No. 1 in his capacity as the Chief Promoter of Apna Ghar Cooperative Housing Society (Proposed) and Defendant No. 4 and declare that

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the same is not binding upon the Plaintiffs and Defendant Nos. 61 and 62.

e(i). That this Hon'ble Court be pleased to declare that the

alleged Development Agreement (Exhibit E) hereto is forged, fabricated, null and void and not binding on Plaintiffs and

Defendant Nos. 61 and 62."

4) These reliefs were claimed by alleging that all the

Appellants are residents of Mumbai. It would be convenient to refer to

the Appellants as original Plaintiffs and the Respondents as original

Defendants. The Appellant/original Plaintiff No. 1 is the Chief

Promoter of Apna Ghar Co-operative Housing Society Limited

(proposed). The Appellants/original Plaintiff Nos. 2 to 10 and

Respondent/Defendant Nos. 61 and 62 are the present

Promoters/Members of Apna Ghar Co-operative Housing Society

Limited (proposed).

5) It was further stated that the original Defendant No. 1 is

State of Maharashtra. Respondent/Defendant No. 2 is Maharashtra

Housing and Area Development Authority ('MHADA' for short) and

which is an authority constituted under the Maharashtra Housing and

Area Development Act, 1976. The original Defendant No. 3 is the

Collector of Mumbai Suburban District. The original Defendant No. 4 is

a partnership firm registered under the provisions of the Indian

Partnership Act, 1932. The original Defendant No. 5 is a Society

allegedly formed and registered under the Maharashtra Co-operative

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Societies Act, 1960, but by mis-representation and fraud. The original

Defendant No. 6 claims to be the Chief Promoter/Chairman of this

Society (original Defendant No. 5) and original Defendant Nos. 6 to 60

are its purported members.

6) The brief facts leading to filing of the above Suit are as

follows:

a. Byramjee Jeejeebhoy Pvt. Ltd. and/or its predecessors

(hereinafter called 'predecessors') were vested with the entire

survey No. 41 in Village Oshiwara by virtue of a Kaul or Grant

dated 12th October, 1820. The said grant and/or archival record

from Pune mentions the aggregate area of Survey No. 41 at the

date of vesting in the said predecessors to be 1270 acres and 20

gunthas out of which 184 acres and 12 gunthas of land is

separately shown as 'Khajan' and the remaining 1086 acres and 8

gunthas has also been shown separately.

b. The said predecessors as vendors and one Govindbhai

Appaji Bhatte and others as partners of new Swastik Land

Development Corporation as purchasers (subsequently named as

"Oshivara Land Development Corporation Private Limited" and

hereinafter referred to as "the said Oshiwara Development")

entered into an agreement for the sale of the entire Survey No. 41

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of Village Oshiwara, as recorded by an agreement for sale dated

25th January, 1964, modified by writings dated 6 th August, 1964,

23rd December, 1964, 9th March, 1966, 18th August, 1966 and 11th

September, 1967.

c. Thereafter, the said Oshiwara Land Development entered

into an agreement for sale dated 18 th February, 1981 with one

Mr.Vasant Mahadev Tikekar and Plaintiff No. 1 (the Chief

Promoters of the said Apna Ghar).

d. Due to pending disputes and differences, the said Oshiwara

Development along with the Plaintiff No. 1 (Plaintiff No. 4

therein) and others had filed Suit bearing No. 3429 of 1991 (the

said Suit) in the Hon'ble High Court at Bombay against Defendant

No. 1 i.e. the Government of Maharashtra and Defendant No. 2

i.e. MHADA therein. The said proceedings pertained to disputes in

connection with the ownership and entitlement of a larger piece of

property that included the property (now numbered as) i.e. all

those pieces or parcels of land or ground bearing (i) Survey No.

120 (part) bearing C.T.S. No. 1374/A/8/1 to 5 admeasuring

39,790.80 sq. mtrs; (ii) Survey No. 120 (part) bearing C.T.S. No.

1374/A/4 admeasuring 41,570.10 sq. meters (iii) Survey No. 120

(part) bearing C.T.S. No. 1374/A3 admeasuring 13,500.40 sq.

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mtrs; in all aggregating to 94,861.30 square meters all of Village

Versova, Taluka Andheri, District Mumbai Suburban (the said

property).

e. The said predecessor purportedly claiming certain rights in

respect of the said property filed Suit No. 1096 of 2009. The Suit

is filed on the basis of writing dated 5.11.1990 said to be executed

between the said predecessor and the said Oshiwara Development.

Another purported writing dated 21.10.1999 is also referred in the

said Suit along with Mr. Vasant Tikekar, an erstwhile Chief

Promoter as Defendant No. 3, the Chief Promoters of proposed

Plaintiff Society.

f. On 11th November, 2004, a purported agreement titled as

Development Agreement is alleged to have been entered into by

Plaintiff No. 1 in the instant Suit, namely, Suit No. 730 of 2013

with Defendant No. 4 thereto. The said agreement was executed

on the basis of false assurances, misrepresentations and undue

influence. The said agreement was without consideration. The

same was not valid in law and was void ab-initio. The said

agreement was on a stamp paper of Rs.100/- purchased in the

name of Vikas Kamlakar Walawalkar. The stamp paper is dated 3 rd

January, 2004, the said agreement runs into 11 pages. On page 3,

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the main body of the agreement begins, the said page 3 bears the

initial of three persons. Page 4 of the agreement also bears the

initials of three persons. The said agreement could have never

have been acted upon.

g. An FIR has been registered against the partners of

Defendant No. 4 and the alleged Chief Promoters/members of

Defendant No. 5 in connection with forgery, cheating and fraud, as

they have interpolated and fabricated 2 pages of the said

agreement. Even otherwise the said agreement being

inadequately stamped cannot be looked into and should have not

been acted upon.

h. Consent Terms dated 19th December, 2006 were filed in the

said Suit No. 3429 of 1991. The High Court by an order dated

29th June, 2007, declined to pass decree in terms of the Consent

Terms on record. Appeal bearing No. 674 of 2007 was filed

against the said order dated 29 th June, 2007. The Division Bench

of this Court, vide its order dated 17 th January, 2008 quashed and

set aside the order dated 29th June, 2007 and the matter was

remanded back to the Trial Court for de-novo consideration.

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i. The said order dated 17th January, 2008 passed by the

Division Bench of this Court was challenged/impugned before the

Hon'ble Supreme Court, in which, the Hon'ble Supreme Court, in

Civil Appeal No. 6245 of 2008 (arising out of SLP (C) No. 9785 of

2008) by its order dated 23rd October, 2008, ordered that Suit

No.3429 of 1991 is disposed of by way of Consent Terms dated

19th December, 2006 and Decree be passed and drawn up in the

said Suit.

j.

The said Suit No. 3429 of 1991 thus was decreed as per the

Consent Terms dated 19th December, 2006 filed therein. The said

Consent Terms/Decree inter alia provided that the said property

shall be allotted to Mr. Ashok Kulkarni, the Plaintiff No. 1 herein in

his capacity as the Chief Promoter of Apna Ghar Co-operative

Housing Society Limited (proposed), the proposed Plaintiff's

Society.

k. After the passing of the order dated 17 th January, 2008, the

Plaintiffs were confronted with various conflicting claims by the

said predecessor and the said Oshiwara Development and

untenable demands by Defendant No. 4 i.e. Samarth Development

Corporation as the Plaintiff No. 1 was also impleaded in Suit

No.1096 of 2009 in respect of the said property. An interim order

dated 25th August, 2009 was passed therein inter alia requiring

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information to be furnished to the said predecessors as directed

therein on allotment of land in terms of Consent Terms in Suit No.

3429 of 1991.

l. On 17th April, 2012, the Plaintiffs applied to the Deputy

Registrar of Co-operative Societies for registration of the name of

the proposed society with copy of the resolution passed by the said

Apna Ghar Co-operative Housing Society Limited (proposed).

m.

The Deputy Registrar Co-operative Societies, K-West Ward

by its letter dated 15th May, 2012 rejected the application of the

Plaintiffs on the grounds that another Society with the very same

name, Defendant No. 5 i.e. Apna Ghar Co-operative Housing

Society Limited had been formed and registered on 28 th February,

2012 with respect to the said property. The same was on the

application of the alleged Chief Promoters/members claiming to

be the Chief Promoter and its members.

n. On making enquiries and obtaining papers under the RTI,

which documents were received on 9 th April, 2012, the Plaintiffs

learnt that:-

(i) An alleged Special General Body Meeting was held

on 24th December, 2011 of Apna Ghar Co-operative Housing

Society (proposed).

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(ii) No notice or intimation thereof had been given to the

Plaintiff No. 1 in his capacity as a Chief Promoter and/or

member.

(iii) Defendant No. 6 Shri. Sudhakar Sitaram Jadhav was

elected/became the Chief Promoter of Apna Ghar Co-

operative Housing Society (proposed) i.e. Defendant No. 5 as

proposed in the said meeting.

(iv) It was inter alia recorded therein that the Plaintiff

No. 1 was not interested in acting as the Chief Promoter. The

status of the Plaintiff No. 1 as a member bears no reference at

all.

(v) Vikas Walavalkar the partner of Defendant No. 4 was

also present in the said meeting. On the basis of the

purported Development Agreement, members were inducted

by the said Vikas Walavalkar as members of Defendant No. 5.

(vi) The copy of the Development Agreement enclosed to

the application for registration of Defendant No. 5 was

interpolated and forged.

(vii) No document was annexed to indicate the manner in

which Shri. Sudhakar Sitaram Jadhav became the Chief

Promoter.

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(viii) No document was annexed as to whether Plaintiffs

were given notice of the alleged meeting or not.

(ix) The application to register was made on 18th

February, 2012 and Defendant No. 5 was registered within 10

days on 28th February, 2012.

(x) It is obvious that the Special General Body Meeting

and the minutes thereof are sham and bogus.

(xi) The alleged Chief Promoters/members had mis-

represented the Deputy Registrar, Co-operative Societies, K-

West Ward that the Plaintiff No. 1 was now not the Chief

Promoter and further that other members were inducted by

following proper procedure.

(xii) The application for registration of the Defendant

No.5 by Shri. Sudhakar Sitaram Jadhav in the capacity as the

purported Chief Promoter is unlawful, invalid, mischievous

and fraudulent.

o. Being aggrieved by the order of grant of registration of

Defendant No. 5 by the Deputy Registrar, Co-operative Societies,

K-West Ward, the Plaintiff No. 1 filed Application No. 22 of 2012

before the Divisional Joint Registrar, Co-operative Societies under

section 21A of the said Act for de-registration of Defendant No. 5

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and challenged the grant of impugned Registration Certificate

dated 28th February, 2012 issued by the Deputy Registrar, Co-

operative Societies, K-West Ward.

p. The alleged Chief Promoters/members of Defendant No. 5

filed two separate replies in the above matter.

q. The Plaintiff No. 1 filed his affidavit in rejoinder dated 6 th

October, 2012 dealing with the contents of the said replies.

Written arguments were also filed.

r. The Divisional Joint Registrar, Co-operative Societies, by his

order and Judgment dated 22nd February, 2013 rejected the

application filed by the Plaintiff No. 1.

s. Being aggrieved and dissatisfied with the said order dated

22nd February, 2013 passed by the Divisional Joint Registrar, Co-

operative Societies, the Plaintiff No. 1 filed Appeal under section

152 of the said Act before Defendant No. 1.

t. It is thereafter learnt and revealed that the Competent

Authority has issued letter dated 2nd February, 2013 in favour of

Defendant No. 5 purportedly allotting the said property to

Defendant No. 5. The Plaintiff No. 1 has addressed letter dated

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13th May, 2013 to the Attorneys of the said predecessors intimating

inter alia about the same.

u. The Plaintiff No. 1 has filed criminal complaint against

Defendant No. 4 and its partners and all the members of

Defendant No. 5, before 65 th Court at Andheri in connection with

the forgery and tampering with the purported Development

Agreement. The Magistrate Court has, on 20th March, 2013 passed

an order directing the police authorities to investigate and submit

its report under Section 156(3) of the Criminal Procedure Code.

FIR in connection therewith has been registered.

v. Defendant No. 1 by its Judgment and order dated 8 th May,

2013 dismissed the said Appeal.

w. The Plaintiffs have, by their letter dated 4 th June, 2013,

terminated the said agreement out of abundant precaution as not

valid in law and not binding upon the Plaintiffs.

x. The Plaintiffs have filed Civil Writ Petition No. 4882 of

2013 impugning the said orders dated 22 nd February, 2013 and 8th

May, 2013. On 6th June, 2013, the Vacation Judge of this Court

has passed an order to maintain status quo in connection with the

said property.

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y. At the hearing of the said Writ Petition for ad-interim

reliefs, on 6th June, 2013, a reference was made by Advocate for

the Defendant No. 5 to an agreement dated 9 th April, 2013

between Defendant No. 3 and Defendant No. 5. The Defendant

No. 5 had deliberately suppressed and had not disclosed the said

agreement at the time of hearing of the Appeal.

7) Thus, it is alleged that original Defendant No. 4 in collusion

and connivance with Defendant Nos. 5 to 60, purportedly, without any

authority, have enrolled members and got registered Defendant No. 5.

These acts on their part are vitiated by impersonation. They are termed

as mischievous, malafide and fraudulent. The claim is that the

registration of the Defendant No. 5 is purportedly done on the basis of a

resolution dated 24th December, 2011 but none of the

Promoters/Members were present in the said meeting. None of the

members, namely, the Plaintiffs, have been given notice of the said

meeting. The original Plaintiff No. 1 has never made a statement to

Defendant No. 4 that he is not willing to act as a Chief Promoter or

Chairman of the proposed Society. There is no basis for the Defendant

Nos. 5 to 60 to rely upon any such representation by Defendant No. 4.

Defendant No.5 and/or Defendant No. 6 had no authority to call for a

Special General Body Meeting. Defendant No. 4, along with Defendant

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Nos. 6 to 60 has fraudulently and behind the back of the Plaintiffs held

the Special General Body Meeting of this proposed Society, wherein,

Plaintiff No. 1 has been purportedly removed as the Chief Promoter

thereof on the false pretext that he was not interested in acting as the

Chief Promoter of the proposed Society. No notice of the alleged

meeting dated 24th December, 2011 was given to the Plaintiffs. The

Chief Promoter, thus, did not lose his status as a member of the Society.

Defendant No. 4 and Defendant Nos. 6 to 60 perpetrated fraud and

misrepresented the Competent Authorities in getting the Defendant

No.5 Society registered.

8) It is claimed in paras 5 and 6 of the Plaint that since

inception, all throughout and till the date of the institution of the Suit,

Plaintiff No. 1 has acted as the Chief Promoter of the proposed Society.

The proposed Society of the Plaintiff No. 1 has 11 other members,

namely, Plaintiff Nos. 2 to 10 and Defendant Nos. 61 and 62. They

were regularly holding meetings and Resolutions have also been passed.

In such circumstances, none of the acts of the Defendant Nos. 6 can be

said to be valid and they are vitiated as above.

9) The Development Agreement dated 11 th November, 2004

cannot be looked at, as the same is without consideration. The

agreement has been made on a stamp paper of Rs.100/- purchased in

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the name of Vikas Kamlakar Walawalkar. The stamp paper is dated 3 rd

January, 2004. The agreement runs into 11 pages. On page 3, the main

body of the agreement begins and the said page 3 bears the initials of 3

persons. Page 4 of the agreement also bears the initials of 3 persons.

The agreement inter alia proposes to grant Defendant No. 4

development rights of the said property on the terms and conditions as

mentioned therein. This agreement was executed on the basis of false

assurances, mis-representation and undue influence. The same is void

and/or voidable and the Plaintiffs avoid the same. The same is also

terminated by letter dated 4 th June, 2013. It has been stated that the

Consent Terms/Decree dated 19th December, 2006 filed in Suit No. 3429

of 1991 inter alia provided that the said property shall be allotted to

Ashok Dattatraya Kulkarni in his capacity as the Chief Promoter of Apna

Ghar Co-operative Housing Society Limited (proposed) i.e. to the

Plaintiffs' proposed Society. The Development Agreement dated 11 th

November, 2004 was a contingent contract. The contingency is that on

the property being allotted to the Plaintiffs, the agreement would come

into effect and force. The said agreement recites that the Plaintiffs were

seeking to acquire the said property for and on behalf of the Plaintiffs or

a Co-operative Housing Society to be registered by the Plaintiffs. The

entire agreement is silent about the nature of consideration to be paid

by Defendant No. 4. Thus, it is without any consideration and not valid

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in law. It is inadequately stamped. There are interpolations therein,

which have been made fraudulently and deliberately. Page Nos. 3 and 4

of the agreement have been changed. The alleged Development

Agreement produced by Defendant No. 5 in collusion and connivance

with Defendant Nos. 6 to 60, before the Deputy Registrar has different

page Nos. 3 and 4 and even the clauses/terms as mentioned in the

agreement have been changed fraudulently. Defendant No. 4 has, with

malafide intention, committed forgery and tampered with the said

agreement without knowledge, consent or concurrence of the Plaintiffs.

These and other allegations, as are found in the original and amended

Plaint, have led to the institution of the Suit and claiming the

aforereproduced reliefs. The original Plaint was filed sometime in

2013. There are amendments made to the Plaint, based on which,

prayer clause [e(i)] is inserted and prior thereto, there are certain

averments and allegations, essentially to demonstrate as to how the

documents executed by the contesting Defendants are vitiated in the

manner alleged above.

10) It is in such Suit that the application for interim relief was

filed and the events disclosed that on 21st January, 2014, an application

for ad-interim reliefs in terms of the prayers of the Notice of Motion was

made, but those were refused. In Appeal(L) No. 56 of 2014, this Court

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passed an order directing the parties to maintain status quo. The Plaint

was amended by order dated 3rd April, 2014.

11) The prayers in the Notice of Motion are essentially of an

injunction to restrain the original Defendant Nos. 4 and 5, their

servants, agents or nominees and/or persons or entities claiming

through or under them and/or their nominees and/or any persons or

entities claiming through or under them from creating any third party

rights, title and/or interest of whatsoever nature in connection with the

said property. That pending the hearing and final disposal of the above

Suit, the effect, implementation of the resolution dated 24 th December,

2011 be stayed and/or suspended. There are prayer clauses (c) and (d)

to this Notice of Motion, which read as under:-

"(c) That pending hearing and final disposal of the above suit all further proceedings, acts, deeds and/or things done or to be done by Defendant Nos. 4 to 60 or their servants, agents, representatives with a view to take over possession of the said property from Defendant Nos. 1 to 3 to be stayed, suspended

and/or kept in abeyance.

(d) That pending the hearing and final disposal of the above suit, Defendant Nos. 4 to 60 or their servants, agents, representatives or persons claiming through or under them be directed to maintain status quo in respect of the said property."

12) This Motion was supported by an affidavit of the Appellant

No. 1/original Plaintiff No. 1. There are affidavits filed to oppose grant

of any ad-interim relief as also final reliefs. The affidavit of the original

Defendant No. 5 dated 9th July, 2013 is stated to be filed for a limited

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purpose of opposing ad-interim reliefs. However, we find from a

perusal thereof that it is fairly extensive. The objections to the

maintainability of the Suit and on various grounds are set out from para

2 and it is urged that the basis of the present Suit is identical to Writ

Petition No. 4882 of 2013. Thus, this is a case where both proceedings

are identical. In the light of the Suit being a copy of the Writ Petition

and containing the same allegations, it was urged that the Suit is not

maintainable. Then, it was urged that the Plaintiff No. 1 has, only in

the year 2012, enrolled Plaintiff Nos. 2 to 10 and Defendant Nos. 61

and 62 as members of the so called Apna Ghar Co-operative Housing

Society Limited (proposed). The Plaintiff Nos. 2 to 10 and Defendant

Nos. 61 and 62 are complete strangers. The Suit is thus filed by

Plaintiff No. 1 alone. The Plaintiff Nos. 2 to 10 and Defendant Nos. 61

and 62 are put up by the Plaintiff No. 1 to make a semblance of an

Association to raise false and frivolous disputes against Defendant No. 5

Society and its members being Defendant Nos. 6 to 60.

13) The Affidavit in reply adopts the stand adopted in a reply

affidavit dated 15th June, 2013 filed in Writ Petition No. 4882 of 2013.

Then, without prejudice and alternatively it was submitted that the

entire Suit is an abuse to process of the Court. The Plaintiffs seek to re-

agitate issues which are already settled by orders dated 22 nd and 8th

May, 2013 (Annexures 'P' and 'T' to the Plaint).

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14) Further, the reliefs are barred by delay and laches. As far

back as on 28th February, 2012, vide certificate of registration (Annexure

'K' to the Plaint) Defendant No. 5 Society has been registered and the

intent and object thereof being to have allotment of the land, Plaintiff

No. 1 is fully aware of this registration and that the 5 th Defendant is

interested in obtaining allotment of the land in its favour. The Plaintiffs

have acquiesced in the registration of the Defendant No. 5 Society and

the allotment of the said land in favour of the Defendant No. 5 Society.

They have allowed the Defendant Nos. 6 to 60 to pay Rs.58,25,30,376/-

and incur several costs and liabilities. The Plaintiffs have allowed the

Defendant Nos. 6 to 60 and/or Defendant No. 5 and/or Defendant No.4

to alter their position to their detriment and now, after more than 1 and

half year, are belatedly seeking orders against the contesting

Defendants. The developments leading to the filing of an application

challenging the registration are then set out in para 7(a) to (d) of this

affidavit. Then, in para 8, it is submitted that there is no question of

this Court passing any order in terms of prayer clause (c) of the Plaint

to set aside or cancel the Special General Body Resolution dated 24 th

December, 2011, a copy whereof is annexed to Application No. 22 of

2012. That Resolution was passed by the members of the proposed

Society inter alia for electing the new Chief Promoter in place of the

Plaintiff No. 1, for adopting the Development Agreement dated 24 th

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November, 2004 and for registration of the Defendant No. 5 Society.

After registration of the Society, as evidenced by Registration Certificate

dated 28th February, 2012, the effect and object of the said Resolution

has been worked out. In such circumstances, prayer clause (c) of the

Plaint is rendered infructuous. No interim relief can be granted.

15) Para 9 of this affidavit sets out as to how the reliefs in

terms of other prayers of the Plaint also cannot be granted. Apart from

the Plaintiffs having no right to claim such reliefs, which amounts to

interfering with the affairs of the Defendant No. 5, it was pointed out

that the aforementioned huge sum has been paid for acquiring the land

and Defendant No. 5 is absolute and lawful owner of the land. Reliance

was placed upon an agreement dated 9th April, 2013 (Annexure 'X' to

the Plaint), which is duly registered with the Sub-Registrar of

Assurances. There were several efforts and which have been

undertaken by a core group of members, forming the Association, of

which, the Plaintiff No. 1 and Shri. V. M. Tikekar were the Promoters.

Defendant No. 4, who is current Managing Partner and Late

Mr.Kamlakar Walawalkar have contributed immensely for the purpose

of ensuring that the lands are allotted to Defendant No. 5 Society and in

consideration thereof, the Development Agreement has been executed.

Since 1979 till 2013, the entire contribution for acquisition of the said

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land and incidental expenditure, including cost of litigation for legal

proceedings etc., have been incurred by Defendant No. 4. Plaintiff No.1

has not contributed a farthing for the said land or any efforts in the

litigation and settlement thereof, resulting in the agreement dated 9 th

April, 2013. Thus, dishonest and malafide claim has been made by

Plaintiff No. 1 in respect of the said land. Some of the Plaintiffs and

Defendant Nos. 61 and 62 are complete strangers and have nothing

whatsoever to do with the land or the Society. For all these reasons, it

was submitted that no ad-interim relief be granted and the Notice of

Motion be dismissed. It was submitted that the allegations in the Plaint

are vague and unsustainable. Similar affidavit has been filed by original

Defendant No. 28. In this affidavit, nothing has been stated, save and

except reiterating the stand of several Defendants in Writ Petition No.

4882 of 2013.

16) Then, there is an affidavit of Defendant No. 4, which is at

page 266 (Volume I) of the paper book. The Defendant No. 4 has dealt

with the allegations regarding the Development Agreement dated 11 th

November, 2004. It has been pointed out that the same is executed

jointly by Shri. Vasant Mahadev Tikekar and original Plaintiff No. 1, in

their capacity as Chief Promoters of the proposed Apna Ghar Co-

operative Housing Society. The development rights in respect of the

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property, which are referred therein have been granted by them on

behalf of Defendant No. 5, which subsequently having been registered

as a Co-operative Housing Society has ratified and confirmed the

Development Agreement dated 11 th November, 2004. It is stated that

the Development Agreement is fully stamped and after 9 years of its

execution, all the allegations pertaining to its falsity, it being vitiated by

mis-representation or undue influence or there being no consideration,

are totally unsustainable and untenable. There is no interpolation or

fabrication. There is no forgery, cheating or fraud in the execution or

implementation of the Development Agreement. The Development

Agreement is thus supported and all allegations of the Plaintiffs, as set

out in the Plaint and in a FIR (Annexure 'F') to the Plaint, are denied. It

was also pointed out that the purported cancellation of the

Development Agreement is illegal because the same has been acted

upon and in relation thereto, the Resolution of the Special General Body

Meeting dated 24th December, 2011 has been relied upon. In para 9 of

this affidavit at pages 274 to 277 of this paper book, this is what is

stated:-

"9. Without prejudice to the foregoing and in the alternative I say that the Plaintiffs have made false statements on oath and have suppressed from this Hon'ble Court material particulars amongst them the following:-

(a) I say it is a matter of record that the Apna Ghar Co-

operative Housing Society (Proposed) was an Association and formed in 1980 constituted of viz. Defendant Nos. 7, 8, 10, 11,

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13, 14, 16, 27, 28, 34, 46, 47, 48 and 55 along with Plaintiff No. 1 along with one Vasant Mahadev Tikekar.

(b) The said 16 persons had appointed the Plaintiff No. 1 V. M.

Tikekar to act as Promoters of Apna Ghar Co-operative Housing Society (Proposed).

(c) I say that the Plaintiff No. 1 is only a representative of the said Association and has no beneficial right or interest in the lands which are subject matter of the suit.

(d) I say that the said Association Apna Ghar Co-operative

Housing Society (Proposed) was formed in 1980 under guidance of my late father Mr. Kamlakar Laxman Walawalkar, who then the Managing Partner of the Defendant No. 4 and thereafter I have continued as Managing Partner of Defendant No. 4.

(e) I say that my late father, Mr. K. L. Walawalkar had established the partnership firm, Defendant No. 4, in 1978 or

thereabouts. I say the registered office of the partnership firm, Defendant No. 4, since 1978 or thereabouts till date (2013) had been and continues to be at 11-A, Suyash, Near Amar

Hind Mandal, Gokhale Road (N), Dadar (West), Mumbai 400028. I crave leave to refer to and rely upon the extract issued by Registrar of Firms to show that since inception and even now the registered address of Defendant No. 4 has been and continues to be 11-A, Suyash, Near Amar Hind Mandal,

Gokhale Road (N), Dadar (West), Mumbai 400028.

(f) I say that in the plaint, the Plaintiffs refers to but has not

annexed Supplemental Agreement dated 18 February 1981 entered between Oshiwara Land Development Company Private Limited on one hand and Vasant Mahadeo Tikekar and the Plaintiff No. 1 in their capacity as Chief Promoters of Apna

Ghar Co-operative Housing Society (Proposed) whereby the lands admeasuring 86 acres was agreed to be acquired, which is the basis for allotment of the said lands, by virtue of Consent Terms (Exhibit 'G' to the plaint) in Suit No. 3429 of 1991.

(g) The Plaintiff No. 1 admits having filed Criminal Complaint

No. 101/SW/13 of 2013 before the 65 th Metropolitan Magistrates Court at Andheri and as Exhibit 'A' thereto, he has annexed Supplemental Agreement dated 18 February 1981. I say that the said agreement emanating from the Plaintiff No. 1 himself shows the address of Apna Ghar Co-operative Housing Society (Proposed) as 11-A, Suyash, Near Amar Hind Mandal, Gokhale Road (N), Dadar (West), Mumbai 400028. Thus, on the Plaintiffs' admission full support has been extended by the Defendant No. 4 to Apna Ghar Co-operative Housing Society (Proposed).

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(h) I say that it is not in dispute even by the Plaintiffs that the Development Agreement (Exhibit 'D' to the plaint) or the Development Agreement (Exhibit 'E' to the plaint) refer to the

address of Apna Ghar Co-operative Housing Society (Proposed) as 11-A, Suyash, Near Amar Hind Mandal, Gokhale Road (N), Dadar (West), Mumbai 400028 and even the

registered address of the Defendant No. 4 in 2004 has been 11-A, Suyash, Near Amar Hind Mandal, Gokhale Road (N), Dadar (West), Mumbai 400028 on this document.

(i) I say that the entire consideration for acquiring the said

lands including litigation costs as far back as 1979-1980 has been borne and paid by the Defendant No. 4 alone. The Plaintiff No. 1 who claims to be the promoter has not contributed a farthing."

17) Thus, in this affidavit of 10 th July, 2013, it is asserted that

the Suit is a gross abuse of process of law, malafide and does not

disclose any cause of action. It is liable to be dismissed. There is an

additional affidavit in reply of original Defendant No. 4 and copy of

which is at pages 279 to 303 of the paper book. In that affidavit, the

partner of Defendant No. 4 has placed on record the explanation with

regard to execution of the Development Agreement. He points out that

the draft of the Development Agreement has been prepared by M/s.

Mahimtura and Company, the Advocates representing the Plaintiffs in

Suit No. 3429 of 1991 for quite some time before November, 2004. The

soft copy of the draft Development Agreement was available in the

office of Defendant No. 4 and it was printed at the office of Defendant

No. 4. The Defendant No. 4 has been requesting the members of the

proposed Society to cause Plaintiff No. 1 and V. M. Tikekar, the Chief

Promoters to come forward and sign the agreement, which was

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engrossed and printed at the office of Defendant No. 4. On 11 th

November, 2004, the Development Agreement, in the form annexed as

Annexure 'D' to the Plaint, was signed by Plaintiff No. 1 and V. M.

Tikekar as Promoters of Apna Ghar Co-operative Housing Society

(proposed) and by Defendant No. 4. After signing the Development

Agreement, some of the members and Plaintiff No. 1 started making

demands on Defendant No. 4 for provision of free flats in the buildings

to be constructed on the said land. Defendant No. 4 did not intend to

have any dispute on this ground and therefore, he agreed to the

demand of the members of the proposed Society, including the Plaintiff

No. 1 for provision of flats admeasuring 7,700 square feet built up in

the buildings to be constructed on the land, free of cost. That is how

clause (1) of the Development Agreement was modified and by an

insertion. The Development Agreement, a soft copy of which was

available at the office of Defendant No. 4, was thus reprinted with this

insertion i.e. by replacement of pages 3 and 4 of the previously

executed Development Agreement. After the pages 3 and 4 were

replaced in the already executed Development Agreement, Plaintiff No.

1 and Defendant No. 4 initialed the said pages. Mr. Tikekar agreed to

this arrangement, but his initials on the said pages remained to be

obtained. The insertion of pages 3 and 4 was made at the insistence of

the members of the proposed Society, which included Plaintiff No. 1 and

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Mr. Tikekar. The same enures for their benefit. Thus, it was denied that

that the Development Agreement was executed on some false

assurances or misrepresentation or undue influence, as alleged in the

Plaint. The Development Agreement was subsequently got adjudicated

from the office of the Collector of Stamps and appropriate duty of

Rs.51,95,365/- and penalty of Rs.86,24,310/- has been paid. Thus,

there is a certificate which has been issued by the authorities under the

Stamp Act. The allegation that the Development Agreement was

executed on a stamp paper dated 3rd January, 2005 is of no

consequence. Further, the allegation that there was any interpolation or

fabrication in two pages of the Development, Agreement has been

denied.

18) There is an affidavit in rejoinder of the Plaintiff No. 1

dealing with the affidavits in reply. He reiterates the allegations in the

Plaint. He alleges that the first affidavit in reply filed by the Defendant

No. 5, through its Chairman, is silent as to whether notice of the

purported meeting dated 24th December, 2011 was given to the

Plaintiffs or not. On the other hand, these Defendants have admitted

that the Plaintiff No. 1 was the Chief Promoter of the proposed Society.

Not only in such capacity he was impleaded in Suit No. 3429 of 1991

but has been duly represented in Notice of Motion No. 1644 of 2009 in

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Suit No. 1096 of 2009 and after being heard, directed to comply with

the order dated 25th August, 2009. Thus, now an attempt is made to

create confusion and raise issues which are not germane to the lis. The

Defendants have not dealt with the contents of the Plaint. The

unanswered assertions of the Plaintiffs are deemed to be admitted.

Then, he points out as to how the Suit is not challenging any orders

passed under the Maharashtra Co-operative Societies Act, 1960.

Plaintiff No. 1 has filed a Writ Petition No. 4882 of 2013 impugning

these orders. Therefore, none of the preliminary grounds have any

substance. The allegation that some of the parties to Suit are strangers

has been denied. Plaintiff No. 1 has, in this affidavit in rejoinder,

reiterated what is set out by him in the Plaint. He has also raised the

issue of the inspection of the documents not being provided or granted.

Then, it is pointed out that there is no inspection given of any record of

the alleged 16 members of the Defendant No. 5 Society being

Promoters. The Plaintiff No. 1 has set out the names of the original

Promoters and in 1980. Thereafter, either on account of inability, death,

retirement, resignation, members were added and as on date, the

members as mentioned in the Writ Petition and in the Plaint constitute

and comprise the proposed Society.

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19) There is a challenge raised to the Development Agreement

dated 11th November, 2004 on the basis of the same allegations as are

set out in the Plaint. There is a denial that the amount of Rs.58 crores

and odd or any other amount has been paid. The writing dated 9 th

April, 2013 was earlier suppressed and not mentioned or produced

before the Minister. The execution thereof cannot create any right in

favour of the Defendants. It is executed deliberately with a view to gain

sympathy and create equities in favour of the Defendants. It is denied

that the flats have been properly allotted to the Defendants. Thus, all

the allegations as set out in the affidavit in reply have been denied

including that there is any acquiescence on the part of Plaintiff No. 1.

The allegations of delay and laches have also been denied in this

affidavit, copy of which is to be found in Volume II of the paper book at

pages 304 to 315. Pertinently, it was set out that the Defendants, as

mentioned in para 7(a) of the reply affidavit, were not the original

members. It was denied that the proposed Society was formed under

the guidance of the father of the Deponent. However, the father of the

Deponent and Plaintiff No. 1 were well known and had cordial relations

with each other. It was stated that the proposed Society has derived

rights in the property on the basis of the agreement dated 18 th February,

1981 read with Consent Terms dated 19th December, 2006 and the order

dated 23rd October, 2008 passed by the Hon'ble Supreme Court of India.

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It was denied that on account of the address on the agreement dated

18th February, 1981 as Suyash, Near Amar Hind Mandal, Gokhale Road

(N), Dadar (West), Mumbai 400028, the Plaintiffs have admitted or

supported Defendant No. 4. On the other hand, it is admitted that

Plaintiff No. 1 was the Chief Promoter. The Defendant No. 4, as an

interested party and intending to act as a Developer, may have incurred

several expenses and spent amounts and made the address available,

but this does not create any right in its favour and in respect of the said

property. It was denied that the Suit was barred by limitation or is

malafide or gross abuse of the process of law.

20) We find from the record that there was an additional

affidavit in reply of the Defendant No. 5 and Sudhakar Sitaram Jadhav

Chairman of Defendant No. 5 to clarify as to how there was no ad-

interim order passed on the Notice of Motion against any of the

Defendants.

21) Thereafter, on 16th December, 2013, affidavit of original

Defendant No. 4 (Respondent No. 4 to this Appeal) is filed in reply to

the Notice of Motion and that is to be found from pages 350 to 421 of

the paper book. That is an affidavit to place on record the

developments which transpired after institution of the Suit. That is with

regard to the investigation, which was commenced pursuant to a FIR

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registered by Oshiwara Police Station. That was registered consequent

upon the order dated 20th March, 2013 passed by Metropolitan

Magistrate, 65th Court at Andheri, Mumbai. The principal allegation

was that the Development Agreement is fabricated or interpolated. The

forgery has been investigated by recording statements and a report

under section 156(3) of the Criminal Procedure Code was filed.

Thereafter, reference is made in this affidavit to the final report of the

Investigating Officer, who concluded therein that the complaint filed by

Plaintiff No. 1 was false.

22) An affidavit in rejoinder was filed by Appellant No. 1 to this

reply affidavit of the original Defendant No. 4. That is at pages 422 to

570 of the paper book. In that, we find that the MHADA has handed

over original files in connection with the suit property and they are

retained in custody of this Court. The MHADA has made a statement

that it would not hand over possession of the suit property. That

statement has been continuing. The report of the Investigating Officer

has been not accepted, inasmuch as the facts in that regard have not

been completely set out by Defendant No. 4. There is a reply dated 2 nd

December, 2013 filed by the Complainant (original Plaintiff No. 1) in

the Metropolitan Magistrate's Court at Andheri against the report of the

Investigating Officer and the handwriting expert. The prayer was to

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direct a reinvestigation. Then, reference is made in para 6 of this

affidavit to an order passed on 26 th November, 2013 by the Hon'ble

Supreme Court of India and the list of Promoter members was stated to

have been placed on record. There is a contest with regard to the

meeting of the Special General Body Meeting held on 24 th December,

2011 and the assertion of the Appellant No. 1 is that none of the

Promoter members of this proposed Society were present in the

meeting. They, along with the Plaintiff No. 1 were not given any notice

of the alleged meeting. In the minutes of the meeting dated 24 th

December, 2011, in para (iii), it has been recorded that Samarth

Development Corporation (Defendant No. 4) has enrolled members in

the proposed Society to now constitute its general body. Thus, this is

nothing but an enrollment of the members by Defendant No. 4. None

of the members therefore of the proposed Society and represented by

Plaintiff No. 1 had any notice nor were they present at the alleged

meeting. Then, reference has been made to the contradictory stand

taken by the Defendant No. 4 before the police and in affidavits filed in

the Notice of Motion. The case that the Development Agreement was

prepared in draft and a soft copy was available in the office of

Defendant No. 4 or it was signed in the office of Defendant No. 4 have

been denied and they are contrary to the statements recorded by the

police. The allegations of forgery and particularly of the initials of

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Plaintiff No. 1 have been reiterated. This affidavit thus denies the

allegations raised in the affidavits of original Defendant Nos. 4 and 5

filed in reply. In such circumstances, it was prayed that the Notice of

Motion be made absolute.

23) There are affidavits in sur-rejoinder, which are filed by

original Defendant Nos. 4 and 5 and copies of which are from pages

571 to 589 of the paper book. These are dealing with the rejoinder

affidavit of the Appellant No. 1/original Plaintiff No. 1. There is no

need to make any detailed reference to the same, inasmuch as the

parties reiterate their stand and deny what was contrary thereto and

contained in the affidavits of the Plaintiff No. 1.

24) The only affidavit which is required to be referred to is an

affidavit of the Respondent No. 5/original Defendant No. 5 to the

Notice of Motion. That is dated 19 th September, 2014. Thus, the

affidavits were filed throughout 2013 and in January and September,

2014. In the affidavit of the original Defendant No. 5, the Plaintiffs'

case has been denied. The same case as was set out in the affidavit filed

earlier by the Defendant Nos. 4 and 5 is reiterated in para 3 of this

affidavit. In para 4 of the affidavit, it was reiterated that original

Plaintiff No. 1 is only one of the 16 original Promoter members of the

Society. He was elected by the Society to act as Chief Promoter in its

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representative capacity. Except as one member of the Association, the

Plaintiff No. 1 has no other right whatsoever. Then, reliance is placed

on the Special General Body Meeting Resolution dated 24 th December,

2011 replacing the Plaintiff No. 1 with Defendant No. 6. The Plaintiff

No. 1 having not contributed anything in terms of financial resources

for acquiring the land has now on behalf of interested party concocted

the claim and which should not be accepted. Reliance has been placed

upon the order dated 21st January, 2014 refusing ad-interim relief. We

are not concerned with other allegations as they pertain to the

preliminary objections. It is urged that they pertain to the jurisdiction

of this Court. In the light of the further orders of the Hon'ble Supreme

Court of India and the Notice of Motion being directed to be heard

without trying any issues as preliminary issues, no reference is required

to be made to the stand of respective parties on such issues.

25) Suffice it to note that the affidavits continued to be filed in

reply to the Notice of Motion. Defendant No. 4 filed an affidavit on 19 th

September, 2014, which is at pages 682 to 624 of the paper book and in

which reference is made to the earlier affidavits and the stand of the

parties therein. There are same denials. This affidavit purports to deal

with the Plaintiffs' claim. It also deals with the earlier agreements and

writings of 1975 and 1981.

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26) To this affidavit, a rejoinder was filed by the original

Plaintiff No. 1. Rather he filed rejoinders to two affidavits, one of

Defendant No. 4 and one of Defendant No. 5.

27) It is upon the above materials including the Plaint and its

Annexures that the learned Judge heard the oral arguments of both

sides and by the impugned order, proceeded to dismiss the Notice of

Motion.

28)

At the hearing of this Appeal and as we indicated to parties

that it would be disposed of finally by the present order and Judgment,

an agreed compilation and containing all the relevant documents was

placed on record by Mr. Samdani, the learned Senior Counsel appearing

for the Appellants/original Plaintiffs. Mr. Samdani also tendered some

documents so also Mr. Chagla.

29) We would refer to this agreed compilation, so that it would

be convenient and enables us to decide the Appeal.

30) Mr. Samdani appearing for the Appellants submits that the

Appellants' case has been summarised in the Plaint. It is based on the

constitution of the proposed Society. The admitted position is that the

Appellant No. 1 was Chief Promoter of the Society. It comprised of 12

members. Mr. Samdani points out as to how an agreement for sale was

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executed between Oshiwara Land Development Company Private

Limited (OLDC) (Vendor) and Plaintiff No. 1 and V. M. Tikekar, the

Promoters of the proposed Society (purchasers) in respect of 86 acres of

land being Survey No. 41 at Versova, Mumbai. A consideration of

Rs.1,50,000/- is acknowledged as received by the Vendor for the

proposed Society. Mr. Samdani submits that Suit No. 3429 of 1991 filed

by OLDC along with Plaintiff No. 1 against original Defendant Nos. 1, 2

and others sought a declaration of ownership of this 86 acres of land,

which includes the property involved in the present Suit. The Suit had

to be filed, as the Government of Maharashtra and MHADA denied

ownership rights to OLDC and its predecessor M/s. Byramjee

Jeejeebhoy Pvt. Ltd. At that time, Plaintiff No. 1, Vasant Tikekar and

OLDC were the joint Plaintiffs. The Suit was instituted by these Plaintiff

No. 1 and Vasant Mahadev Tikekar because they were Chief Promoters.

They represented the interest of the members of an Association, of

which, they were Chief Promoters. That Suit was in the process of

being settled. The land was likely to be allotted to Plaintiff No. 1. In

such circumstances, the Development Agreement was entered into

between Vasant Tikekar and Plaintiff No. 1 as Chief Promoters of Apna

Ghar Co-operative Housing Society (Proposed) with Defendant No. 4

for development of the suit land. Mr. Samdani placed reliance upon

clauses 5, 6 and 7 of the proposed terms of settlement, which have been

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filed in the Suit. According to Mr. Samdani, the wording of these

clauses would show that it was decided by parties that in order to meet

the expenses and charges incurred on the property including to initiate

and contest litigations, allowing Mr. Kulkarni and Tikekar (Chief

Promoters) to enroll members and collect contribution that it was

decided to give them appropriate authorisations including to register

the Society. It was this proposed Society then and represented by

Plaintiff No. 1 and Tikekar, which was to be registered under the

Maharashtra Co-operative Societies Act, 1960. Mr. Samdani submits

that very wide powers were conferred including execution of a Power of

Attorney in favour of the original Defendant No. 4 Samarth

Development Corporation. Mr. Samdani relies upon Consent Terms

dated 19th December, 2006, copy of which is at page Nos. 102 to 111 of

the paper book. He submits that the terms confirm the ownership of

MHADA in respect of the said land and allotment thereof in favour of

Plaintiff No.1. The Consent Terms also envisage payment to be made,

of actual cost of development borne by MHADA, by Plaintiff No. 1. The

terms of allotment exempted the Society from provisions of Urban Land

(Ceiling and Regulation) Act, 1976 but the Society was required to pay

an amount equal to market value prevailing before 10 years. The

Society was required to submit list of members within one year for

approval of Government, 20% members were to be from backward

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classes and no flat more than 700 square feet to be constructed. Mr.

Samdani submits that this Suit No. 3429 of 1991 came to be decreed by

the Hon'ble Supreme Court on 23rd October, 2008. Mr. Samdani also

relies upon another Suit filed in this Court being Suit No. 1096 of 2009.

He relies upon the order passed therein on 26 th August, 2009. Mr.

Samdani submits that a payment of Rs.89,16,034/- made to MHADA by

Defendant No. 4 is in the name of the proposed Society. Between the

decree of the Supreme Court and the year 2011, Plaintiff No. 1 resisted

some demands and claims of original Defendant No. 4 Samarth

Development Corporation and OLDC in respect of the suit property. The

allotment of the suit land was pursued jointly by Plaintiff No. 1 and

Defendant No. 4.

31) After these attempts were made and it appeared that the

allotment would fructify, that too in favour of the proposed Society and

Plaintiff No. 1 as Chief Promoter, that original Defendant No. 4 Samarth

Development Corporation engineered a scheme to oust Plaintiff No. 1

and to hijack the control and management of the Society. The intent

was to usurp the suit land. It is with a view to achieve the above,

Defendant No. 4, in collusion with Defendant Nos. 6 to 60 caused

issuance of notice and agenda dated 15th December, 2011 convening

Special General Body Meeting. Mr. Samdani invited our attention to

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this agenda and submits that it records that 55 members of the

proposed Society, as enrolled by Defendant No. 4 pursuant to the

Development Agreement dated 11th November, 2004 have been

informed that Vasant Tikekar has resigned and Plaintiff No. 1 recently

intimated to Defendant No. 4 that he is no longer interested in acting as

Chief Promoter of the Society. If Tikekar and Plaintiff No. 1 volunteered

to go out of the Society, then, it was expected that a notice together

with this agenda would be served on Plaintiff No. 1, so that he remains

present at the so called Special General Body Meeting dated 24 th

December, 2011. However, no notice was given of this meeting to

Plaintiff No. 1. Plaintiff No. 1 has not intimated in writing or otherwise

to Defendant No. 4 or anybody else that he is not interested in acting as

Chief Promoter of the Society. The 55 members are enrolled by

Defendant No. 4 as allegedly authorised under the Development

Agreement dated 11th November, 2004. Mr. Samdani heavily criticised

the minutes of the Special General Body Meeting and the recordings

therein. He submits that none of the statements in the said minutes are

supported by any record. There is absolutely nothing on record

indicating as to how Plaintiff No. 1 was served and why he was not

present at the meeting. In the circumstances, his removal as Chief

Promoter in terms of these minutes is highly questionable and doubtful.

It is suspicious because how the meeting could have been convened by

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Defendant No. 4, how the 55 members (original Defendant Nos. 6 to

60) could have requested Defendant No. 4 to convene a Special General

Body Meeting has not been indicated at all. These 55 members are not

the original members of the proposed Society. They have been inducted

in the proposed Society by the original Defendant No. 4, without

knowledge, acceptance and consent of Plaintiff No. 1. Thus, the intent

was to create and establish the Defendant No. 5 Society by excluding

Plaintiff No. 1 and others therefrom. This exclusion was completely

brought about by the Builder/Defendant No. 4 and who has hijacked

the Society. In these circumstances, both, the meeting and the minutes

are vitiated. How the control has been taken of this proposed Society

by the partner of Defendant No. 4 is evident by presence of the partner

of Defendant No. 4 at the Special General Body Meeting. It is he, who

brought all the Defendant Nos. 6 to 60 and caused the removal of

Plaintiff No. 1.

32) It is acting on such Resolution that Defendant No. 6 applied

for name reservation of the Defendant No. 5 Society, which was granted

with alarming speed and expedition. Even the registration was done

within 10 days. The registration is challenged and is subject matter of

distinct proceedings. However, even these were questionable and

suspicious acts. The interpolation done in the Development Agreement

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would denote as to how a figure of 700 square feet became 7700 square

feet and the construction of the flats of this area was to be carried out

and thereafter they are to be handed over to the members of the

proposed Society. Pages 3 and 4 of the agreement, by which such

insertions are made in the Development Agreement dated 11 th

November, 2004 would indicate that the initials thereon and

particularly of Plaintiff No. 1 are forged. These two pages do not bear

the initials of Vasant Tikekar. This agreement is suspicious, doubtful

and fabricated because it is stamped only on 16 th January, 2012. The

original two pages have been substituted. The construction of 7700

square feet of free constructed area introduced would denote that

Plaintiff No. 1 and other Plaintiffs and Defendant Nos. 61 and 62 have

been cheated and taken for a ride.

33) Mr. Samdani submits that there is absolutely no question of

delay and laches. Similarly, there is no question of Plaintiff No. 1 being

put up by somebody to stall the project. Mr. Samdani submits that the

learned Single Judge, with great respect, was severe and unduly harsh

in his criticism on the alleged misconduct of Plaintiff No. 1. There is

absolutely no silence, much less acquiescence on his part. With respect

to the learned Single Judge, Mr. Samdani submits that the Suit is

virtually dismissed at an interlocutory stage. All the allegations against

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the Plaintiffs and made on affidavits have been accepted at the

interlocutory stage as if they are proved or established. The inferences

and conclusions drawn are but conjectures and surmises. Thus, all

findings are vitiated in law. They are not justified and were totally

uncalled for at an interlocutory stage. The lengthy order completely

shuts out the Plaintiffs.

34) More so, when it has been set out as to how original 12

Promoters of the Society faced several challenges. The composition

changes by passage of 32 years and which is normal. The original claim

was put up in 1981 and jointly. That litigation continued till 2006 and

culminated in final orders of the Hon'ble Supreme Court accepting the

Consent Terms. These details have been set out in the Plaint and the

affidavits. After culmination thereof, on 12th April, 2012 Plaintiff Nos.1

to 10 and Defendant Nos. 61 and 62 held a meeting of the Association

or the proposed Society. The meeting was held for passing necessary

formal Resolution appointing Plaintiff No. 1 as Chief Promoter and

authorising him in making applications for registration. That is how an

application was made for registration of name on 17 th April, 2012 by

Plaintiff No. 1, which was rejected on 15 th May, 2012. That was because

a Society with the same name was already registered (Defendant No. 5)

on 28th February, 2012. That is how the contest in relation to

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registration commenced and application under section 21A of the

Maharashtra Co-operative Housing Societies Act for de-registration of

Defendant No. 5 Society was filed. The proceedings in that behalf have

been extensively set out and they continued up to 8 th May, 2013. All

this led to Plaintiffs terminating the Development Agreement dated 11 th

November, 2004 by the termination notice/letter dated 4 th June, 2013.

This Suit is founded on all this and the termination. In such

circumstances, to refuse an interim injunction in the teeth of serious

and genuine contest is totally erroneous and the learned Single Judge's

order be therefore quashed and set aside.

35) It should be quashed and set aside all the more because

though Writ Petition No. 4882 of 2013 challenging the orders in

proceedings under section 21A of the Maharashtra Co-operative

Societies Act, 1960 has been rejected, that order of the learned Single

Judge of this Court has been challenged in the Hon'ble Supreme Court

and the Hon'ble Supreme Court has directed status quo to be

maintained. That order had a definite bearing on the proceedings

before the learned Single Judge. Further, and more importantly, on 15 th

January, 2014, the concerned learned Metropolitan Magistrate rejected

the 'B' Summary Report filed by the police on 20 th October, 2013. He

directed further investigation by his order of 15 th January, 2014. Lastly

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and importantly in Appeal (L) No.56 of 2014, which was directed

against the refusal to grant ad-interim reliefs, this Court passed an order

directing maintenance of status quo. That order of status quo has been

continued.

36) Mr. Samdani relied upon the amendments to the Plaint and

to submit that important triable issues arise therefrom. The suit is

comprehensive and until its trial, the protection and preservation of the

suit property becomes necessary. Mr. Samdani has urged and with all

vehemence at his command that the whole purpose of the contesting

parties is to reap all benefits and in relation to a very valuable property

in Mumbai, admeasuring about 90000 square feet at a prime location at

Versova, exclusively in favour of a builder, namely Defendant No. 4

Samarth Development Corporation. The attempt is to takeover the

affairs from a duly constituted legal entity. Eventually, a Builder and

Developer can have no say in enrollment of members, election of office-

bearers and meetings of an Association or body of flat purchasers. He is

only concerned with the registration of a co-operative Society. That is

an obligation which he discharges under the Maharashtra Ownership of

Flats Act, 1963 ('MOFA' for short). The composition and constitution of

the Society is not an issue and a matter with which a Developer is

concerned. All that he has to make is a list of flat purchasers and

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include the same in an application to register a Co-operative Housing

Society. It is the Society which is entitled to the buildings and the land

beneath it. There may be some delay in applying for registration on

account of a litigation and which may have been contested by the

proposed Society and the Builder jointly. However, there can never be

any question of the Society being controlled or allowed to be controlled

by the Builder. No authority in law vests in anybody except an

Association or a proposed Society. Its registration under the

Maharashtra Co-operative Societies Act, 1960 is but a formalisation of

its formation and establishment. It is to give it an identity and

registration as a Co-operative Housing Society. A right to form an

Association or Society is constitutionally recognised as a fundamental

right of a citizen of India (see Article 19(1)(c) of the Constitution). It is

but endorsement of a common law and natural right. In the present

case, the Society has been virtually taken over. The earlier composition

has been altered and to a great extent. This is contrary to the

stipulations in the documents. Curiously the Defendant Nos. 4 and 5

are supporting each other. They are drafting each others affidavits.

There is nothing like a Society. It is its alter ego, namely the Samarth

Development Corporation, which has the final say. These state of affairs

can never be countenanced by a Court of law.

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37) Mr. Samdani has submitted that the learned Single Judge

has completely missed the point that there was no dispute with regard

to the fact that Plaintiff No. 1 was a Chief Promoter of the proposed

Society. Mr. Samdani submits that it was Plaintiff No. 1 who was

instrumental in the Suit between OLDC, himself and the proposed

Society so also between the State Government and MHADA being

settled. Mr. Samdani submits that there is absolutely no dispute about

the fact that the draft of the Consent Terms in the Suit of 1991 were

finalised by this Plaintiff and the proposed Society. Therefore, it could

not have been that with so many efforts undertaken by him from 1981

to 2008 that at the fag end he would disassociate himself with the

affairs of the proposed Society. He did not intimate or inform anybody

about his alleged disinterest or intent of disassociation with the

proposed Society. In any event, all this has yet to be proved by those on

whom the burden lies in law. The story which has been put up that this

Plaintiff was not pursuing the matter in the interest of the members and

therefore a Special General Body Meeting of the proposed Society had

to be convened to formally remove him itself denotes as to how

Defendant No. 4 hijacked and took over the project. This was a

concerted move and by some of those who were interested in excluding

the original members of the Association/proposed Society. This itself

would indicate as to how the meeting was convened of this Association

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by the Builder and Developer. It is the Builder and Developer who

finalised the agenda and presided over the meeting. The version that

Tikekar indicated that he was not interested in continuing his

association with the Society is to support the stand that there was

alleged inaction on the Plaintiff No. 1's part. He did not allegedly act

expeditiously and in the interest of the members is something which

does not emanate from the members themselves but from the Builder

and Developer. This would indicate as to how a conspiracy was planned

to deprive Plaintiff No. 1 and Plaintiff Nos. 2 to 10 and 61 and 62 from

obtaining their tenements and flats. The other version that 7700 square

feet was demanded by members of the proposed Society could not have

been a mere oral one. There would have been a document to that

effect. Thus, the Samarth Development Corporation/original Defendant

No. 4 knew fully well its position as a mere Developer. It could not

have dealt with the property and in the manner now attempted. Thus,

the increased demand for land, its scarcity and its value in the market

being at a prime location are all factors which have influenced the

Builder and Developer's actions. This has not been seen through

unfortunately by the learned Single Judge.

38) Mr. Samdani has invited our attention to the copy of the

Plaint in Suit No. 3429 of 1991. He submits that the Suit was filed

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jointly by Oshiwara Land Development Company and in which the

present Plaintiff No. 1/Appellant No. 1 was Plaintiff No. 3(b). The Suit

was filed against the State of Maharashtra, the Collector, the Officer on

Special Duty, Minister of Revenue-Government of Maharashtra and

MHADA. It was pointed out by Mr. Samdani that at para 13 of the

Plaint in that Suit, it was stated that the first Plaintiff OLDC entered into

an agreement for sale with the second Plaintiff, namely, Vinod Mahajan,

the Chief Promoter of Shri. Swami Samarth Prasanna Co-operative

Housing Society (proposed). The Plaint describes as to how the second

proposed Society, of which Plaintiff No. 1 herein was Chief Promoter,

became entitled to and got benefit of an agreement for sale dated 18 th

February, 1981 with Plaintiff Nos. 2 and 3. Mr. Samdani also invited

our attention to the prayers in the Plaint in the Suit.

39) Then, Mr. Samdani invited our attention to the copy of the

Development Agreement dated 11 th November, 2004. Mr. Samdani

relies upon clauses 5, 6, 7 and 13 of this agreement. He submits that

this agreement is unstamped. Later it was stamped on 16 th January,

2012. Similarly, he invited our attention to the Consent Terms in Suit

No. 3429 of 1991 and particularly the clauses under the caption/title

Exhibit 'B'. He invited our attention to the exemptions and the

restrictions therein to submit that it is only the Apna Ghar Co-operative

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Housing Society Limited (proposed) of which the Plaintiff No. 1 is the

Chief Promoter, who was entitled to the land and property and the

benefits in terms of the Consent Terms. He thus relied upon the

substantive terms as well and particularly the clauses 3, 5 and 9 thereof.

40) Mr. Samdani submits that in the light of the above material,

it would be evident that the order and decree of the Hon'ble Supreme

Court of India, in furtherance of the Consent Terms in Suit No. 3429 of

1991 is in relation to the entitlement and allotment of the land to the

proposed Society, of which Plaintiff No. 1/Appellant No. 1 is the Chief

Promoter. In such circumstances, unless and until any positive act is

attributed to the Appellant No. 1, he would not be demitting or

relinquishing his office as the Chief Promoter of the said proposed

Society and the entitlement noted above. Such a positive act has never

been committed or alleged to have been committed. What is inferred

from the agenda of the meeting of the Special General Body Meeting,

which was issued by original Defendant No. 4, is that Plaintiff No. 1

indicated that he is no longer interested in acting as Chief Promoter of

the Society. Pertinently, none of the persons to whom such an

indication has been given came forward or placed any affidavit, leave

alone a writing of this nature. No particulars are set out in the version

of the contesting Defendants as to when such alleged indication

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was given by Plaintiff No. 1, to whom and where it was given, orally or

in writing. In these circumstances, everything about the meeting is

doubtful and suspicious. That agenda and the minutes of the meeting

both refer to the Development Agreement dated 11 th November, 2004

and the role of Samarth Development Corporation would go to show

that it was only at the instance of this Builder and Developer that the

agenda was prepared, the meeting allegedly held and the minutes

prepared. Since all steps have been taken in pursuance of this so called

Resolution of the Special General Body Meeting held on 24 th December,

2011, they stand vitiated in the event Plaintiff No. 1 proves that the

meeting itself could not been convened. Convening of such meeting

without notice to Plaintiff No. 1 and behind his back is nothing but a

fraud perpetrated on the Plaintiffs and Defendant Nos. 61 and 62. If

the entitlement of these parties is established successfully and which

can be done only at the hearing of the Suit that Mr. Samdani submits

that a strong prima facie case has been made out. The balance of

convenience is also in favour of the Plaintiffs and they will suffer

irreparable loss and injury in the event no interim reliefs are granted.

Further, Mr. Samdani has highlighted the fact that in such an important

matter and involving crucial and vital issues relating to public property,

both, the State of Maharashtra and MHADA have maintained complete

silence. They did not produce any record nor did they proceed to file an

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affidavit. In the circumstances, the false and misleading stand of the

interested private parties could not have been relied upon by the

learned Single Judge to refuse interim reliefs. Though Mr. Samdani has

questioned the proceedings in relation to the registration of Defendant

No. 5 Society, still, he fairly submits that they are at large in the Hon'ble

Supreme Court of India. Mr. Samdani submits that all that the Plaintiffs

wish to point out is that no reliance could have been placed by the

learned Single Judge on a preliminary agreement and stated to have

been executed by the Chairman and Secretary of Defendant No. 5

Society, the Developer, namely, Defendant No. 4 and consenting to take

possession of the land on the terms and conditions set out therein.

Apart therefrom, several terms and which have been agreed upon, are

totally one-sided.

41) Mr. Samdani has brought to our notice the preliminary

agreement stated to have been executed on 9 th April, 2013. He submits

that it is preliminary, yet, it purports to create occupancy rights. The

occupancy is stated to be of Class II. In that regard, our attention was

invited to section 29 of the Maharashtra Land Revenue Code, 1966.

This class of occupancy means no rights can be transferred except with

the permission of the State. Therefore, everything is dependent upon

such permission. It is submitted that by itself this preliminary

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agreement does not create any right. In any event, this agreement is

executed by completely excluding the Plaintiffs. In such circumstances,

even this agreement, though subsequently executed, that cannot create

any equities far from any rights in favour of the contesting Defendants.

Mr. Samdani submits that none of the members, at least those who are

Defendants, have been enrolled with the approval of the State of

Maharashtra. Therefore, the Society (Defendant No. 5) cannot rely

upon this agreement. This agreement is nothing but a fraud on the

State.

42) Mr. Samdani submits that the learned Single Judge should

have considered the issue arising out of the specific termination of the

Development Agreement dated 11th November, 2004 by a party thereto,

namely Plaintiff No. 1/Appellant No. 1 before this Court. The Plaintiffs

thus deserve a chance to prove their case by leading oral and

documentary evidence, that can be only at the trial of the Suit. Until

then, the subject matter of the Suit deserves to be protected and

preserved. Mr. Samdani has also relied upon the statements which have

been made in the additional reply affidavit of Defendant No. 4. He

submits that the statements which are to be found in para 2(e) of this

additional affidavit, which is filed before the learned Single Judge in

July, 2013, would indicate as to how conflicting and contrary stand has

been taken. It would therefore support an argument of the Plaintiffs

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that the Development Agreement was executed on the basis of false

assurances or mis-representation or undue influence, as alleged in the

Plaint. Mr. Samdani also invited our attention to the order passed in

Appeal (L) No. 56 of 2014 in Notice of Motion No. 1352 of 2013 in Suit

No. 730 of 2013. Reliance is also placed upon the order passed by the

Hon'ble Supreme Court on 4th August, 2014 and in a Special Leave

Petition, which was converted in to a Civil Appeal, namely Civil Appeal

No. 7205 of 2014.

43)

Then, reliance is placed on the order of the Hon'ble

Supreme Court directing parties to maintain status quo.

44) The learned Single Judge's order on the point of delay and

laches has also been termed as conclusive. Mr. Samdani submits that if

the Plaintiffs' bonafides themselves have been questioned and

commented upon, then, that has influenced the learned Single Judge in

denying reliefs by holding that there is delay and laches on the

Plaintiffs' part. Mr Samdani has submitted that it was the Plaintiffs and

more particularly Plaintiff No. 1 who has been pursuing the matter from

the date the Decree was passed in the earlier Suit (3429 of 1991) by the

Hon'ble Supreme Court. That Decree has been passed on 23 rd October,

2008. In the meanwhile, there is an interim order passed in another

Suit, namely 1096 of 2009, which has been brought by M/s. Byramjee

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Jeejeebhoy Pvt. Ltd. In these circumstances, it is the Plaintiff No. 1 who

has resisted the claim of both Oshiwara Land Development Corporation

and M/s. Byramjee Jeejeebhoy Pvt. Ltd. (Suit No. 1096 of 2009). If that

Suit is pending and nothing except a payment of Rs.89,16,034/- was

made to MHADA in the name of the proposed Society, that too on 23 rd

June, 2010, that would indicate as to how there are no delay and

laches. The finding that Plaintiffs have not done anything from 2008

till 2012 is thus vitiated by non application of mind to these relevant

circumstances. There was no delay and, assuming there was some

marginal one, there is a plausible and reasonable explanation for the

same. There is thus no silence on the Development Agreement, as is set

out in para 81 of the impugned order.

45) For all these reasons, it is submitted by Mr. Samdani that

the order of the learned Single Judge deserves to be quashed and set

aside. It deserves to be set aside also because of the fact that far from

making any prima facie observations, the learned Single Judge went

ahead and doubted the bonafides of the litigation. Not only he has

expressed mere doubt, but concluded that the litigation is frivolous,

speculative and false. He imposed heavy costs. The costs are wholly

disproportionate and amount to non-suiting the Plaintiffs. In these

circumstances the costs of Rs.20,00,000/- payable to each of the

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Defendants are excessive, exorbitant and unreasonable. The order of

the learned Single Judge deserves to be quashed and set aside on this

ground as well.

46) In support of his submissions, Mr. Samdani has relied upon

the following Judgments and authorities:-

1. Shri. Ramji Mandir Narsinhji and Ors. vs. Narsinh Nagar Co- operative Housing Society Ltd. AIR 1979 Gujarat 134.

2. Maneklal Mansukhbhai Co-operative Housing Society vs.

Rajendra Kumar Maneklal Shah and Anr. 2002 CTJ 113 (Supreme Court).

3. Madhvi Amma Bhawani Amma and Ors. vs. Kunjikutty Pillai Meenakshi Pillai and Ors. (2000) 6 SCC 301.

4. Kaml Kumar Dutta and Anr. vs. Ruby General Hospital Ltd. and Ors. (2006) 7 SCC 613.

5. Radha Kishan Jaikishan and Ors. vs. Municipal Committee AIR 1934 Privi Council 62.

6. Relevant extract from "The Law of Unincorporated Associations and similar relations" by Sydney R. Wrightington

of the Boston Bar.

47) On the other hand, the learned Senior Counsel appearing

for the contesting Respondents have entirely supported the order of the

learned Single Judge. Mr. Chidambaram, the learned Senior Counsel

appearing for Respondent No. 4 submitted that there is gross delay,

laches and acquiescence on the part of the Plaintiffs, particularly

Plaintiff No. 1. In such circumstances, they cannot claim any equitable

and discretionary relief. Relief of injunction is entirely in the discretion

of the Court. If the discretion is exercised judiciously and reasonably,

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then, this Court cannot interfere with exercise of such discretion, unless

that is proved to be palpably erroneous, unreasonable or arbitrary.

Nothing has been demonstrated by the Plaintiffs/Appellants in this

behalf. If the Development Agreement, which is styled as not vitiated

but an admitted document (DA-I) and dated 11 th November, 2004, then,

at least in April, 2012, the Plaintiffs had knowledge of the acts and

deeds pursuant to this agreement and attributable to this contesting

Defendant No. 4. If that is the date of the knowledge, then, silence

therefrom till the termination of the agreement in June, 2013 would

indicate as to how the Appellants/original Plaintiffs have acted

throughout. Their silence in not objecting to any of the steps taken

including payments of heavy amounts or huge sums, execution of

preliminary agreement supports the finding on the point of delay and

laches.

48) Mr. Chidambaram submits that there is no substance in the

contention of Mr. Samdani that Plaintiff No. 1 was not apprised of or

had no knowledge of the developments. Mr. Chidambaram submits that

Plaintiff No. 1 is estopped from raising such contentions simply because

the payments were made by defendant No. 4 in December, 2005 and

August, 2009 to Oshiwara Land Development Corporation. A sum of

Rs. 4,14,00,000/- was paid during this period. Thereafter, a sum of

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Rs.89,16,034/- was paid to MHADA by Defendant No. 4 on 23 rd June,

2010. Thereafter, on 9th April, 2013, a further sum of Rs.61,16,86,900/-

has been paid. All these payments are documented and there are

receipts evidencing the same. The payments have been made to public

bodies and the details thereof could have been obtained by Plaintiff No.

1 by invoking inter alia the Right to Information Act, 2005. Defendant

No. 4 has not invested in any litigation, as is erroneously contended but

it was authorised to carry out several tasks, perform duties and

discharge obligations in terms of the Development Agreement dated

11th November, 2004 and the decisions taken at the Special General

Body Meeting. Even prior thereto, Defendant No. 4 was authorised to

protect the interest of the members of Defendant No. 5. Plaintiff No. 1

is and continues to be a member of Defendant No. 5. However, he has

stood-by and allowed the aforesaid steps to be taken. In these

circumstances, now Plaintiff No. 1 cannot raise any grievance, much

less of the nature set out in the Plaint and seek any prohibitory or

injunctive relief. Such reliefs are not granted to litigants whose conduct

is blameworthy. In these circumstances, the learned Single Judge has

rightly refused any interim relief.

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49) It is then submitted that Plaintiff No. 1 has no locus,

inasmuch as he has been removed as the Chief Promoter of the

proposed Society and is a ordinary member of Defendant No. 5. He has

no rights independent of the Co-operative Housing Society (Defendant

No. 5), which is duly registered. Once a Co-operative Housing Society

is registered and in terms of the Maharashtra Co-operative Societies Act,

1960, then, there is no scope for urging that any unregistered

Association continues in existence, leave alone any proposed Society.

Once the legal position is noted, then, Plaintiff No. 1 cannot claim to be

the Chief Promoter. Now, a duly constituted Managing Committee is in

place and power. If the Plaintiffs are aggrieved by any act of such

Committee and in relation to the business or management of the

Society, then, there only remedy is to approach the competent Court or

authority under section 91 of the Maharashtra Co-operative Societies

Act, 1960. The Suit of the present nature cannot be instituted and

maintained. For all these reasons, Mr. Chidambaram would submit that

the Appeal be dismissed on this ground alone.

50) Alternatively and without prejudice to the aforenoted

submissions, Mr. Chidambaram submits that Plaintiff No. 1 has

conveniently chosen to ignore the undisputed and admitted facts and

events. It is the original Plaintiff No. 1 who affirmed the Consent Terms

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in Suit No. 3429 of 1991. It is he, along with Mr. Tikekar, who

conferred rights in the original Defendant No. 4 by execution of an

agreement dated 11th November, 2004. There is no interpolation or

change or modification therein. No pages have removed or inserted as

alleged. The additions made in the agreement/clauses therein are duly

initialed by the parties including Plaintiff No. 1. In terms of the

agreement and by virtue of it, advantages and benefits would be

derived by the Co-operative Housing Society. Mr. Chidambaram has

invited our attention to the undisputed agreement of development

dated 11th November, 2004 and the disputed portion thereof, wherein, a

benefit of 700/7700 square feet each is claimed. He has invited our

attention to the paragraphs of the Plaint and particularly paras 1, 5, 6

and 9 to urge that Plaintiff No. 1 did not question the Development

Agreement executed on 11th November, 2004 till December, 2011. The

amended Plaint would denote his silence and that he had no quarrel

with the terms and conditions of this agreement. Plaintiff No. 1 claims

to have nominated certain persons as members of the proposed Society,

because the original members either resigned or expired. However,

there are no details set out in the Plaint as to how these nominations

came about. Was any meeting convened of the proposed Society to

consider the so called nominations received or whether these were

granted allegedly by Plaintiff No. 1 of his own. This would indicate as

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to how beyond formation of the Association or proposed Society

Plaintiff No. 1 has not taken any steps as Chief Promoter thereof. It is

belatedly that he has decided to attack the original Development

Agreement, and by setting up a case of fraud, forgery/

misrepresentation.

51) Mr. Chidambaram then submits that if the forgery or fraud

in the Development Agreement (DA-II) became known to the

Appellants/original Plaintiff by means of information obtained under

the Right to Information Act, 2005, then, allowing the parties to the

said agreement to rely upon it to seek registration of a Co-operative

Housing Society, denotes as to how the Appellants/Plaintiffs and

particularly Plaintiff No. 1 Kulkarni was not interested in the affairs of

the proposed Society, after a certain point of time. Else, he would not

have taken one year and two months after such registration, for

termination of the agreement particularly when he had sought de-

registration of the Society. Mr. Chidambaram has invited our attention

to the termination notice/letter dated 4th June, 2013 and particularly

para 6 thereof. He submits that if Plaintiff No. 1 was interested in the

affairs of the proposed Society and desired that the said Society obtains

all the rights in terms of the Development Agreement, then, it was not

necessary for him to wait till 17th April, 2012 for seeking registration or

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allotting name to the proposed Society. In any event, if this application

was made on 17th April, 2012, there was a response or reply to the same

on 15th May, 2012, then, there is no justification for waiting till 4 th June,

2013 to terminate the agreement. Mr. Chidambaram submits that on a

reading of para 15 of the termination notice, the intent of the Plaintiffs

is clear. They did not unconditionally or absolutely terminate the

agreement. However, if they contend that the Development Agreement

was invalid since its inception, then, this plea is contradictory to their

stand adopted throughout. That stand is that the original Development

Agreement and without the alleged interpolation or forgery is valid and

binds the parties. Mr. Chidambaram therefore submits that such self-

defeating pleas having been set out, the learned Judge rightly denied a

discretionary and equitable relief.

52) Mr. Chidambaram submits that from the above what is

apparent is that the Appellants are not impugning the Development

Agreement dated 11th November, 2004 without any change or alteration

or alleged interpolation therein. This agreement is not challenged.

However, from the above, it is clear that the Appellants/original

Plaintiffs are themselves in doubt as to which agreement they must

impugn and challenge. If there is interpolation or forgery or fraud,

then, the particulars in relation thereto have to be set out. The said

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particulars of false assurances or misrepresentations are hopelessly

lacking. Therefore, the requirement of Order VI Rule 4 of the Civil

Procedure Code, 1908 is not complied with.

53) The learned Senior Counsel then supported the conclusion

of the learned Single Judge that the Plaintiffs acted malafide. He

submits that the malafides have been referred and set out in details in

the impugned order of the learned Single Judge. Thus, the discretion is

properly exercised by the learned Single Judge. No interference is

therefore called for in the impugned order.

54) Our attention has been invited to the affidavits, which have

been placed on record. Reliance is specifically placed on the statements

contained in the affidavit of Vikas Walawalkar, the partner of Defendant

No. 4, styled as additional affidavit in reply filed on 10 th July, 2013. For

these reasons, Mr. Chidambaram submits that the Appeal deserves to be

dismissed.

55) Mr. Chidambaram, learned Senior Counsel appearing for

Defendant No. 4 has relied upon the following Judgments:-

1. Wander Ltd. and Anr. vs. Antox India Pvt. Ltd. 1990 (Supp) SCC 727.

2. Esha Ekta Apartments Chs.Ltd. and Ors. vs. Municipal Corporation of Mumbai and Anr. (2012) 4 SCC 689.

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56) Mr. Chagla, learned Senior Counsel appearing for

Defendant No. 5 Society has referred to certain Writ Petitions, wherein,

the allotment of land itself and in favour of the Society came to be

challenged. For that, Mr. Chagla has tendered a compilation of

documents, which were part of the proceedings before the authorities

under the Maharashtra Co-operative Societies Act, 1960. Adopting the

arguments of Mr. Chidambaram, Mr. Chagla would submit that the

Consent Decree and order of the Hon'ble Supreme Court records as to

how there is no contravention of the public interest. The public good is

subserved because only a portion of the larger property has been

granted or allotted to Respondent No. 5 Society. Mr. Chagla would

submit that each of the clauses of the Consent Terms have been

complied with. He would specifically submit that the portion marked as

Exhibit 'B' in the Consent Terms records exemptions and restrictions.

Mr. Chagla would submit that the Government of Maharashtra as also

MHADA are parties to these Consent Terms. They do not dispute

compliance with the terms and conditions thereof. Further, none of the

members of the Society and which includes Plaintiff No. 1 have

complained about any non compliance with essential terms and

conditions incorporated in the Consent Terms. Thus, this is a purely

private interest litigation. There is no public interest involved. The

original Plaintiffs do not dispute that for a project of this magnitude and

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size, the proposed Society rightly took assistance of a Builder and

Developer. It is only with their experience and expertise can a huge plot

of land be developed and buildings constructed efficiently and

expeditiously. The proposed Society also had approached such

Developer and not undertaken the construction or development

activities on its own. After entering into Development Agreement dated

11th November, 2004, the Chief Promoter/original Plaintiff No. 1 did not

take any steps and to fulfill his obligations so also perform his duties. It

is his inaction which led to the members approaching the Developer and

requesting him to takeover charge and manage the affairs so as to

protect the interest of the Society and its members. In such

circumstances, it was not open to the Plaintiffs to have obstructed the

development. In any event, if the Development Agreement was one

sided or vitiated as alleged, then, it was not necessary for the Appellant

to wait for 9 (nine) years to terminate it. If there is no challenge to the

original Development Agreement, then, its termination is totally

uncalled for. The Appellants cannot seek to derive benefit under the

same agreement, which they have terminated purportedly. In these

circumstances, their stand was rightly rejected. The Appellants' version

cannot be believed because clauses (c) and (d) of the Development

Agreement and equally clause (i) thereof are not conferring absolute

rights in the Developer. The Developer cannot derive any benefit so

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long as he constructs the building/s comprising of the flats to be handed

over to the members of the Respondent No. 5 Society. Mr. Chagla has

pointed out that by clauses 5, 6 and 7, it is evident that the Chief

Promoters of the Apna Ghar Co-operative Housing Society Limited

(proposed) did not retain any rights in the property but handed over the

same to the Developer. If these clauses are undisputed and

unchallenged throughout, then, they have been accepted even by the

original Plaintiffs and particularly Plaintiff No. 1 Mr. Ashok Kulkarni.

Therefore it is not open for the Plaintiffs to now allege that the

developer has taken over the Society. It is not open to the Plaintiff to

undo the steps taken till date including registration of the Co-operative

Housing Society. If, after the Development Agreement was executed

and till its termination allegedly by the notice and the Suit, nothing was

done by the Plaintiffs/Appellants, then, it is futile for them to complain

and seek prohibitory orders from this Court. The Notice of Motion has

rightly been dismissed. The Appellants/original Plaintiffs could not

place any document much less in the form of a letter of complaint to

any statutory authority or otherwise, which would evidence that the

Appellants had genuine grievance against the Developer. The

Development continued in terms of the Development Agreement dated

11th November, 2004. Even the Plaintiff No. 1 is a member of the

Defendant No. 5 Society and had his group assumed power, he has no

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complaint or grievance against the Developer. So long as the fruits of

the development can be availed off and by obtaining larger benefits,

then, the Plaintiffs are not complaining. If the Plaintiff No. 1 had been

chosen as the Chairman of the Society (Defendant No. 5) and

everything goes to his liking, he would find nothing objectionable in the

acts of the Developers and others supporting him. Hence, being a

member of the Society, the acts of the Society binds the

Appellant/Plaintiff No. 1 Ashok D. Kulkarni. He cannot question the

registration of the Society or the Development and construction

activities at site, which is also for the benefit of the Society and its

members. Hence, the Notice of Motion was rightly dismissed by the

learned Single Judge and his order be maintained.

57) Since a very lengthy order has been passed by the learned

Single Judge and touching virtually everything on merits that we were

required to hear the parties extensively. Lengthy and prolonged

arguments and heavy reliance on case law and documents have made

this order equally lengthy and bulky. We would have loved to avoid all

this because tentative and prima facie findings alone are required to be

rendered. There is absolutely no need to consider the contents of the

documents and in such details as if each one of them are admissible in

evidence and relevant and germane for determination of the lis. In a

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Judgment in the case of Anand Prasad Agarwalla vs. Tarkeshwar Prasad

and Ors. reported in AIR 2001 SC 2367, the Hon'ble Supreme Court

has cautioned the Court deciding interlocutory or interim application by

observing that they should not hold a mini trial. Further, in the

Judgment of the Hon'ble Supreme Court in the case of Dalpat Kumar

and Anr. vs. Prahlad Singh and Ors. reported in AIR 1993 SC 276 the

principles on which interim injunction have to be granted are

summarised by the Hon'ble Supreme Court as under:-

"4.

Order 39, Rule (c) provides that temporary injunction may be granted where, in any suit, it is proved by the affidavit or otherwise, that the defendant threatens to dispossess the plaintiff

or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit, the court may by order grant a temporary injunction to restrain such act or make such other order for the purpose of staying and preventing ..... or dispossession of the plaintiff or otherwise causing injury to the

plaintiff in relation to any property in dispute in the suit as the court thinks fit until the disposal of the suit or until further

orders. Pursuant to the recommendation of the Law Commission clause (c) was brought on statute by S. 88(i)(c) of the Amending Act 104 of 1966 with effect from February 1, 1977. Earlier thereto there was no express power except the inherent power

under S. 151, C. P. C. to grant ad interim injunction against dispossession. Rule 1 primarily concerns with the preservation of the property in dispute till legal rights are adjudicated. Injunction is a judicial process by which a party is required to do or to refrain from doing any particular act. It is in the nature of

preventive relief to a litigant to prevent future possible injury. In other words, the court in exercise of the power of granting ad interim injunction is to preserve the subject matter of the suit in the status quo for the time being. It is settled law that the grant of injunction is a discretionary relief. The exercise thereof is subject to the court satisfying that (1) there is a serious disputed question to be tried in the suit and that an act, on the facts before the court, there is probability of his being entitled to the relief asked for by the plaintiff/defendant; (2) the court's

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interference is necessary to protect the party from the species of injury. In other words, irreparable injury or damage would ensue before the legal right would be established at trial; and (3) that

the comparative hardship or mischief or inconvenience which is likely to occur from withholding the injunction will be greater than that would be likely to arise from granting it.

5. Therefore, the burden is on the plaintiff by evidence aliunde by affidavit or otherwise that there is "a prima facie case"

in his favour which needs adjudication at the trial. The existence of the prima facie right and infraction of the enjoyment of his

property or the right is a condition for the grant of temporary injunction. Prima facie case is not to be confused with prima facie title which has to be established, on evidence at the trial. Only prima facie case is a substantial question raised, bona fide,

which needs investigation and a decision on merits. Satisfaction that there is a prima facie case by itself is not sufficient to grant

injunction. The Court further has to satisfy that non-interference by the Court would result in "irreparable injury" to the party seeking relief and that there is no other remedy available to the

party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely one that cannot be

adequately compensated by way of damages. The third condition also is that "the balance of convenience" must be in

favour of granting injunction. The Court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is

refused and compare it with that it is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the Court considers that pending the suit, the subject-matter should be maintained in status quo, an injunction would be issued.

Thus, the Court has to exercise its sound judicial discretion in granting or refusing the relief of ad-interim injunction pending the suit.

6. ..... The phrases "prima facie case"; "balance of convenience" and "irreparable loss" are not rhetoric phrases for incantation, but words of width and elasticity, to meet myriad situations presented by man's ingenuity in given facts and circumstances, but always is hedged with sound exercise of judicial discretion to meet the ends of justice. ....."

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58) To our mind, if these principles guide the consideration of

an application for interim injunction, then, the learned Judge should

have applied them. He should have been guided by them alone and

not, with great respect, gone so deep into the matter and in such a

detailed manner as would denote a full length trial of the Suit. The

minor and minute details were not required to be referred and

scrutinised. A broad view of the controversy and with reference to

essential stand of the parties was enough. The nature of the reliefs

claimed and the frame of the Suit would have enabled the learned

Judge to consider as to whether a prima facie case is made out by the

original Plaintiffs, whether balance of convenience lies in their favour

and whether they will suffer irreparable injury or loss which cannot be

compensated in terms of money.

59) We would therefore restrict ourselves and by clarifying at

the outset that none of the observations that we make or that have been

made in the impugned order of the learned Single Judge shall influence

the outcome of the Suit. The observations and findings on the conduct

of the Plaintiffs are therefore neither conclusive nor binding at the time

of the trial of the Suit. The Plaintiffs can therefore lead oral and

documentary evidence to prove their case, as set out in the Plaint and in

accordance with law. They are not prohibited in pursuing this course,

despite some sweeping conclusions drawn by the learned Judge.

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60) The case of the Plaintiffs is simple. The Plaintiffs are

alleging that a group of persons organised themselves because they

were interested in obtaining residential tenements in Mumbai. They

had therefore approached the owner of the immovable property in

Mumbai, namely, M/s. Oshiwara Land Development Company Private

Limited, who represented to them by virtue of a Consent Decree dated

15th October, 1969 passed in Suit No. 660 of 1968, which decree is

dated 9th November, 1979, the company OLDC became owner of all the

residuary land bearing Survey No. 41 in village Oshiwara, Taluka

Andheri, Mumbai Suburban District, which, prior to the same belonging

to it was belonging to M/s. Byramjee Jeejeebhoy Pvt. Ltd. That is how

this Co-operative Housing Society (proposed) approached the owner

Company requesting it to transfer and convey the said land to it.

Accordingly, an agreement for sale dated 2 nd December, 1975 and 5th

December, 1975 and a supplementary agreement dated 18 th February,

1981 between OLDC and two sets of proposed Societies came to be

executed. The Company therefore agreed to sell and the Societies

agreed to purchase that piece of parcel of land situated and bearing

Survey No. 41 in village Oshiwara, admeasuring 86 acres. It is not

necessary to refer to all the terms and conditions of this agreement,

save and except, it was containing two Schedules, of which, the second

Schedule sets out description of the land stated to be admeasuring 86

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acres. Further, this agreement was signed by Ashok D. Kulkarni, the

Plaintiff No. 1.

61) Thereafter, a Suit being Suit No. 3429 of 1991 had been

filed in this Court jointly by OLDC and V. M. Tikekar and Ashok D.

Kulkarni, the Chief Promoters of Apna Ghar Co-operative Housing

Society (proposed). The Suit was filed against the State of Maharashtra

and MHADA for a declaration that the Plaintiffs therein are absolute

owners of the suit land, more particularly described in Exhibit 'B' to the

Plaint and that none of the Defendants have any right, title or interest

in the same. Certain orders passed by the authorities under the

Maharashtra Land Revenue Code were also challenged in the Suit. In

addition, a permanent injunction to restrain the Defendants to that Suit

and/or any of them, their servants, agents, from in any manner

interfering with and/or disturbing the Plaintiffs' possession of the suit

land was claimed. A Development Agreement was signed on 11 th

November, 2004 between Plaintiff No. 1/Appellant No. 1 and one V. M.

Tikekar in their capacity of Chief Promoters of Apna Ghar Co-operative

Housing Society (proposed) and Samarth Development Corporation

(Defendant No. 4 in the present Suit), in which, there is a reference to

this Suit No. 3429 of 1991 and the parties claimed that they are owners

of a large chunk of land admeasuring 86 acres and 32 gunthas in

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Survey No. 41, village Oshiwara, Taluka Andheri, District Mumbai

Suburban. At that time, MHADA and the State had disputed the claim

of the Plaintiffs in Suit No. 3429 of 1991. Clauses (b) and (c) of this

agreement reads as under:-

"(b) The parties to Suit No. 3429 of 1991 are in the process of

compromising the dispute and initially in 1997 Consent Terms had been signed whereby the Plaintiffs were to get substantial part of the suit property, which is in the residential/development zone,

however, in May, 2004 these consent terms have been withdrawn, as now fresh Consent Terms have been entered into in May 2004

whereby it is agreed inter alia that the State of Maharashtra shall allot to the Parties of the First Part amongst others a piece of land,

which is subject matter of this Agreement being the land forming part of Survey No. 120 of village Versova, taluka Andheri, district Mumbai Suburban shown in dark blue colour, parrot green colour

and brown colour marked with Letter 'A', 'E' and 'F' respectively on the plan annexed hereto as Annexure 'A' (being the same plan as

is annexed to the Consent Terms signed in May 2004 in Suit No.3429 of 1991) admeasuring 39,790.01 square meters,

37422.98 sq.mts. and 13348.09 sq.mts. more particularly described as Firstly, Secondly and Thirdly respectively in the Schedule hereunder written (hereinafter referred to as "the said property").

(c) The parties of the First Part are seeking to acquire the said property for and on behalf of members of the co-operative society or societies to be registered under the Maharashtra Co-operative Societies Act, 1960 and to have the said property developed for providing housing for the members of such society or societies."

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62) It is very categorically stated in clause (d) of this agreement

that the Chief Promoters or the proposed Society does not have the

financial means to undertake the development, being the object for

which the proposed Society was intending to acquire the said property

and that is how these Chief Promoters and the proposed Society entered

into an arrangement with Samarth Development Corporation and

agreed to grant to the said Samarth Development Corporation rights in

respect of the property on the terms and conditions appearing in the

agreement. That is how the parties proceeded and the rights that have

been granted include one which enables Samarth Development

Corporation to obtain or modify the change of user in respect of the

property or part thereof under the provisions of the Maharashtra

Regional and Town Planning Act, 1966 from any authorities thereunder

to obtain sanction and approvals of statutory authorities so as to

undertake the development of the property or any part or portion

thereof. The rights have been referred to at clauses 2(a to j) and what

is relied upon is the right to enroll members for and on behalf of the

Promoters and the proposed Society and allot occupancy rights in

respect of any flat or premises in the building/s to be constructed in the

said property or any part thereof. Equally, the right to assign the benefit

of the agreement in whole or in part has also been relied upon. The

obligations of Samarth Development Corporation are set out in clauses

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4, 5, 6 and 7, which denote as to how the party of the second part,

namely, Samarth Development Corporation therein has been granted

rights to develop the property and also deal with the property in the

manner set out therein (see clauses 14 to 17).

63) While it is true that there is no Power of Attorney executed

in favour of M/s. Samarth Development Corporation in terms of clause

13 of this agreement, but, prima facie, what emerges from a reading of

this agreement is that the proposed Society did not have the financial

capacity to undertake development activities and therefore it thought it

fit to involve this Samarth Development Corporation. It may be that the

assistance of this Developer was sought with a view to fulfill the object

and purpose of securing residential accommodation. However, the

agreement is with a Builder and Developer and to ensure development

of the property and the construction of buildings thereon, certain rights

have been conferred and created in the Builder and Developer.

Therefore, the learned Judge seems to be right in holding that prima

facie the sweep of this agreement is such that Samarth Development

Corporation would be put in possession of the property after obtaining

it on conclusion of the legal proceedings then pending, take up the

matters with the statutory authorities, seek their approvals and

permissions, commence and carry out construction and thereafter deal

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with the property. The parties intended that such of the persons to

whom the flats can be sold by the Builder and Developer in terms of the

rights conferred in or created in its favour can be enrolled as members

of the Society. Therefore, the clauses in the agreement have been

accordingly worded. It may be that with the enrollment of the members

of the Society or Societies for and on behalf of the parties of the first

part and allotting them occupancy rights in respect of any flat or

premises in the building/structure on the said property or any part

thereof is for and on behalf of the parties of the first part, but

considering that it was a group of persons approaching the Developer

and Builder and agreeing with it to takeover the project that the learned

Single Judge committed no error in arriving at the prima facie

conclusion that the Appellants/Plaintiffs before us are not averse to

induction of a Builder and Developer. There may be now some quarrel

or dispute on the stipulations in the agreement and according to the

Plaintiffs, they confer restricted rights and is not an absolute grant, still,

until they prove the case and at the trial of the Suit, they could not have

sought a restraint against the Developer from completing the project,

which is also in their own interest.

64) If one has a look at the Plaint allegations in the instant Suit,

the Plaintiffs seem to suggest that the agreement dated 11 st November,

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2004 is styled as a Development Agreement and alleged to have been

entered into by Plaintiff No. 1 with Defendant No. 4. The agreement

was executed on the basis of false assurances, mis-representation and

undue influence. The said agreement was without consideration. It

was not valid in law and is void ab initio. It is further alleged that the

said agreement was on a stamp paper of Rs.100/- dated 3 rd January,

2004. The agreement runs into 11 pages. On page 3, the main body of

the agreement begins and that page bears the initials of three persons.

Page 4 of the agreement also bears the initials of three persons. This

agreement could never have been acted upon. Then, an allegation has

been made that there is forgery, cheating and fraud, because the

partners of Defendant No. 4 and the alleged Chief Promoters/Members

of Defendant No. 5 colluded with each other and interpolated and

fabricated two pages of the agreement. At the same time, it is averred

that the agreement being inadequately stamped, cannot be looked into

and should not have been acted upon. Annexure 'D' to the Plaint is a

copy of the Development Agreement and Annexure 'E' is a copy with the

alleged interpolated portion. The Plaint further avers that the said

Development Agreement (Exhibit 'D' to the Plaint) was a result of mis-

representation and undue influence on the part of Defendant No. 4,

inasmuch as Defendant No. 4 persuaded the Plaintiff No. 1 and the said

Tikekar to enter into the said agreement (Exhibit 'D') on the

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representation that it would strictly adhere to the terms and conditions

of the said agreement (Exhibit 'D') with a clear intention from the

inception not to abide by the same. The mis-representation and undue

influence are clear from the subsequent conduct of Defendant No. 4 of

putting up purported members from December, 2011 onwards and

orchestrating the meeting dated 24 th December, 2011 leading to

registration of Defendant No. 5. The Defendant No. 4 never intended to

honour what it had agreed with Plaintiff No. 1 under the Agreement

(Exhibit 'D') inasmuch as all actions of Defendant No. 4 are in breach

and in violation of the terms of the agreement (Exhibit 'D').

65) There appears to be some substance in the contention of

Mr. Chidambaram that either there is no agreement and as understood

or intended by parties or alternatively there was a Development

Agreement executed and entered into by the Plaintiffs and Defendant

No. 4, but they never intended to act upon it, then, such allegations are

prima facie, inconsistent and somewhat contradictory. The third aspect

of it is that there was a Development Agreement duly executed but one

of the parties made changes therein. There was no consent obtained

from the other party to these changes. Thus, the alterations and

changes are behind their back, therefore, there is a fabrication or

forgery by allegedly making insertions on some pages which include the

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initials of Plaintiff No. 1. Those have been forged. Thus, the agreement

and its execution is not prima facie denied. If it is vitiated by false

assurances and mis-representation on the part of Defendant No. 4, then,

the Plaintiffs would have to explain as to how the Consent Terms in Suit

No. 3429 of 1991 have referred to land admeasuring 86 acres and 32

gunthas, within which the portions delineated on the Plan are to be

given to the Chief Promoters of the Apna Ghar Co-operative Housing

Society (proposed) and on the terms and conditions set out in Exhibit 'B'

of the Consent Terms. There is a Consent Decree, under which, these

lands have to be allotted to Apna Ghar Co-operative Housing Society

(proposed). The terms which are referred to in Exhibit 'B' read as

under:-

"EXHIBIT "B"

The land referred in the consent term is sanctioned for allotment to Apna Ghar Co-operative Housing Society Limited (proposed) on the following exemptions/terms and conditions.

Exemptions

(a) This Society is exempted from the policy by which plots are allotted on lottery system to the public by inviting applications, except the plots which are in the possession of the Government.

(b) This Society is exempted from the policy by which permitted carpet area in respect of flats is assessed on the basis of

income group of the members.

(c) When the Government land is granted to co-operative societies then as per the present policy, the Society is required to pay the amount which is equivalent to market value prevailing before 10 years and which is assessed on the basis of income of various groups. But in this matter, various income groups could not be taken into consideration, so the rate is applicable equivalent to market value prevailing before 10 years.

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(d) This Society is exempted from the provisions of Urban Land (Ceiling and Regulation) Act, 1976, in view of that those provisions are not applicable to this land.

Restrictions (1) OLDC is required to withdraw all matters whole are

pending in High Court/Civil Court and for which they are permitted to file necessary consent terms in the High Court of Bombay.

(2) The society is required to pay the cost, incurred by MHADA

in past for the purpose of development and protection of the land, along with interest thereon.

(3) The Society is required to submit list of members within one year for the approval of the Government.

(4) The Society will not able to construct flats with area more than 700 square foot.

(5) 20% members of this Society must be of backward class."

66) If these are the terms which are sanctioned and approved

by the Hon'ble Supreme Court, then, both the original Plaintiffs and the

MHADA and the State of Maharashtra ought to have brought to the

notice of the Hon'ble Supreme Court that there is a Development

Agreement already executed on 11th November, 2004, which is much

prior to the approval of the terms of the Hon'ble Supreme Court of

India, namely 23rd October, 2008. Thus, further inconsistency in the

stand of the Appellants and prima facie appears to be if there was a

representation made that the Government land is granted to Co-

operative Societies as per a policy of the Government to make available

housing accommodation to specified groups of income of persons, but

an exception was made in the present case. It was the Society which

was required to pay the costs incurred by MHADA for the purpose of

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development and protection of the land, along with interest thereon. It

was the obligation of the Society to submit the list of members within

one year for the approval of the Government and that the Society will

not be able to construct flats with more than 700 square feet. Further,

20% members of the Society must be from backward class. Thus, the

terms were executed later on, but in the backdrop of the above policy of

the Government. Yet, prior to the execution of the terms, the

Development Agreement came to be executed and with the background

noted above. That background is the pendency of Suit No. 3429 of

1991. In the recital on internal pages 2 to 4 of the agreement dated

11th November, 2004, there is specific reference to the understanding

between the State and the Apna Ghar Co-operative Housing Society

Limited (proposed), by which, the land would be obtained by this

proposed Society. The land would be acquired by the Chief Promoters

of the Apna Ghar Co-operative Housing Society Limited (proposed) and

to have the property developed for providing housing accommodation

to the members of the Society or Societies. If they did not have the

financial means to undertake the development of the property and were

therefore desirous of handing over the development rights in relation

thereto even before the property was handed over to the proposed

Society, then, the execution of the Development Agreement and with

the clauses and stipulations thereof, to our mind, should have been

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brought to the notice of the Hon'ble Supreme Court. Prima facie,

therefore, the Consent Terms were executed between the State and the

MHADA and the Plaintiffs in Suit No. 3429 of 1991, which included

Appellant No.1/original Plaintiff No. 1 in the present Suit as well, but

the present Plaintiff No. 1 Ashok D. Kulkarni, prima facie, did not bring

this Development Agreement dated 11 th November, 2004 to the notice

of the State, MHADA and the Hon'ble Supreme Court. Thus, from the

stage of execution of the Development Agreement till the approval of

the Consent Terms by the Hon'ble Supreme Court, the parties were ad-

idem with regard to the execution of the Development Agreement. Even

later on one does not find that any dispute raised with regard to the

execution of the Development Agreement nor the intent of Defendant

No. 4 was questioned prima facie by the Appellants before us. All of

them proceeded on the footing that a public property or Government

land, though allotted to a proposed Society, can be handed over for

development and construction of buildings thereon to a Builder and

Developer. Further, the terms of allotment do not prohibit involvement

of such a Builder and Developer in the development and construction

work or project. In such circumstances, it would be very difficult to

accept the argument of Mr. Samdani that right from inception there was

an intent not to act upon this Development Agreement or that it is full

of false assurances right from inception. Prima facie, we find it difficult

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to reconcile the stand of the Appellants at the time of execution of the

Development Agreement and even thereafter with the allegations now

set out in the Plaint in the present Suit.

67) We find there is absolutely no correspondence with regard

to the steps to be taken in furtherance of the Development Agreement.

The Plaint in the present Suit does not recite anything except alleging

that after the order of the Hon'ble Supreme Court dated 23 rd October,

2008, the original Appellants before us were confronted with various

conflicting claims by the said Oshiwara Land Development Company

and untenable demands by Defendant No. 4 i.e. Samarth Development

Corporation. Plaintiff No. 1 was also impleaded as a party in Suit

No.1096 of 2009 in respect of the said property. He refers to a interim

order passed on 25th August, 2009 in that Suit No. 1096 of 2009.

However, the dates and events as set out in the Plaint do not disclose

that any steps were taken prima facie for registration of the proposed

Society, of which Plaintiff No. 1 claims to be the Chief Promoter. Rather

reliance is placed upon a meeting, which was convened allegedly on

24th December, 2011 of the members of the proposed Society for

considering the request of Tikekar to relieve himself from the affairs of

the proposed Society and to consider the alleged intimation given by

Plaintiff No. 1 Ashok D. Kulkarni that he is no longer interested in

continuing as the Chief Promoter.

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68) This meeting of 24th December, 2011 has been assailed by

the Plaintiffs on several grounds and particularly absence of notice and

that it was the Builder and Developer (Defendant No. 4 Samarth

Development Corporation) who was instrumental in causing the

removal of Plaintiff No. 1 surreptitiously. Thus, all the steps taken

allegedly to convene and hold the meeting so also the decisions taken

thereat (the minutes of the meeting dated 24 th December, 2011) are

challenged in this Suit. That, the Plaintiff No. 1 never informed

anybody that he was not interested in continuing as a Chief Promoter of

the Apna Ghar Co-operative Housing Society (proposed) and that he

had no intimation of the meeting of the members convened on 24 th

December, 2014 nor was he aware of any decisions taken thereat are

the allegations which have been made extensively in the Plaint, but they

will have to be proved by the Appellant No. 1 and other Plaintiffs.

Suffice it to note that from the above, prima facie, at least the execution

of the Development Agreement dated 11 th November, 2004, without the

alleged interpolations or fabrication therein, appears to have been

admitted. Further, prima facie, there has been allegation that some false

assurances have been given or that the agreement is full of mis-

representation. There is no allegation forthcoming of undue influence

by Defendant No. 4 till the termination notice of 4 th June, 2013 and the

institution of the present Suit. Hence, when Appellant No. 1/original

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Plaintiff No. 1 acted in the manner noted by us hereinabove, at least till

January, 2008, it would not be open for him prima facie to allege that

the Development Agreement is vitiated by false assurances from

inception or mis-representation or undue influence on the part of

Defendant No. 4. This version of the Appellants therefore has been

rightly disbelieved at the prima facie stage by the learned Single Judge.

69) As we have already held, other allegations noted above and

with regard to the meeting and the removal of Plaintiff No. 1 would

have to be established and proved at the trial. The Plaintiffs would

definitely get an opportunity to do so at the hearing of the Suit. We

have no doubt in our mind that if the original Plaintiffs bring in enough

material to prove their allegations, as set out in the Plaint, then, even if

steps have been taken in furtherance of the Development Agreement by

Defendant No. 4 and that it is acted upon by these Defendants, still, this

Court is not prevented from passing appropriate orders and in

accordance with law. This Court can even then protect the entitlement

of the Plaintiffs in the said property, provided the Plaintiffs establish and

prove their case, as set out in the Plaint. This Court has ample powers

while decreeing the Suit to pass suitable orders and directions so that

the fruits or benefit of the project can be passed on to the Appellant No.

1 and other Plaintiffs. Either they can all become part of the project

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and obtain the residential accommodation or their fate will be the same

as that of others and depending upon the outcome of the Suit instituted

by M/s. Byramjee Jeejeebhoy Pvt. Ltd., namely Suit No. 1096 of 2009.

Hence, rejection of the Motion at this prima facie stage does not mean

that the Plaintiffs are non-suited or deprived of any opportunity to

establish or prove their case.

70) Since the allegations in the Plaint will have to be

considered to determine whether a prima facie case has been made out

and by the Plaintiffs that this detailed reference became necessary. We

do not think that in acting upon the Development Agreement executed

on 11th November, 2004 till the Resolution dated 24 th December, 2011,

the steps taken during this period including payments of sums to

MHADA can be lost sight of.

71) In that regard, Mr. Chidambaram and Mr. Chagla are right

in pointing out that the affidavits denote these payments. They are

right in relying on the preliminary agreement by the Society and which

is executed in favour of MHADA. They are also right in placing reliance

on the registration of Defendant No. 5. Prima facie, these events have

taken place. Their legality and validity is in issue but so long as they

stand, they cannot be brushed aside or ignored. The payments have

been made from 2004-2005 till 22nd June, 2010. These payments have

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been quite substantial. In such circumstances, the learned Judge was

right in his prima facie conclusion that the Plaintiffs have allowed the

Defendant No. 4 to act upon this Development Agreement and to make

payments to MHADA/State. Prima facie, long as these payments were

helpful and beneficial to the Appellants before us, they did not have any

complaint. The complaints started only when no steps were taken

allegedly by Plaintiffs and therefore an attempt was made to convene a

meeting of the members of the proposed Society.

72)

Mr. Chidambaram is therefore right in urging that Plaintiff

No. 1 allowed all this to take place. He had no quarrel or dispute with

Defendant No. 4 till December, 2011.

73) Once the allegations with regard to the meeting dated 24 th

December, 2011 are noted and the obligation in law on the Plaintiffs to

prove the same, then, until they are so proved and established, it would

not be proper to assume that they are correct. True it is that having

obtained a prime land or property in the Mumbai Suburbs, naturally

Defendant No. 4 moved in and took charge. Defendant No. 4 and its

partners took charge because property prices in Mumbai and the

Suburbs, that too in a posh locality like Versova, are increasing day by

day. To take advantage of this trend that Defendant No. 4 moved

swiftly and may have persuaded those interested to join and become a

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part of the project. Prima facie, it is only when the Defendant No. 4

took charge of the Society and brought in members and registered

Defendant No. 5 Society that the Appellants seem to have realised that

they would have to share the benefits of the project with several

persons and enrolled as members by Defendant No. 4. It is, prima facie,

therefore the reason for the allegation in the Plaint that the original

members, who came together to form the Society informed Plaintiff No.

1 that they would like to nominate others in their place. Some of these

members were no longer part of the Society or may have left this world.

However, in the absence of any details of how the changes in the

proposed Society of Plaintiffs came about, the learned Judge has rightly

faulted Appellant No. 1 at this prima facie stage for his conduct and in

not complaining till a certain stage. However, we are not in agreement

with Mr. Chidambaram and Mr. Chagla that at this prima facie stage the

learned Judge was justified in terming the conduct of Appellant No. 1

and other Plaintiffs, as malafide. That this litigation is sponsored or

that it is brought out by somebody else interested in the project are far

reaching conclusions and virtually knock out the Plaintiffs. That

somebody or sponsorer is termed as a Builder/Devleoper. Its name has

no where been placed on record by the contesting Defendants.

Therefore, at this stage it cannot be concluded that the Plaintiffs are a

front of a rival Builder and are acting at his behalf. These conclusions

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could have been avoided at this prima facie stage. When all that was

required to find out is as to whether the allegations in the Plaint and the

materials produced at the interlocutory stage are enough to grant an

interim relief on the basis of the settled principles noted above, then,

the learned Judge should have refrained from making observations and

passing remarks or commenting on the conduct of the

Appellants/original Plaintiffs and particularly in the terms found in the

impugned order.

74)

We are of the opinion that even the allegations, which are

now made and by amending the Plaint, would have to be proved. The

allegations with regard to the agreement being not stamped or

insufficiently stamped and therefore cannot be received in evidence

need not detain us. The disputed portion of the agreement is

commencing from the recital after 2 pages of the agreement and from

page 3. In clause (1) there appears to have been an addition of certain

words and at page 3 of the agreement 7700 square feet (built up) area

to be given free of cost by the party of the second part, namely Samarth

Development Corporation to Apna Ghar Co-operative Housing Society

Limited (proposed) are prima facie inserted. This flies in the face of the

Consent Terms in Suit No. 3429 of 1991 and particularly Exhibit 'B'

thereto and the order of the Hon'ble Supreme Court. Thus, a tenement

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of 700 square feet was to be constructed for the purpose of this Society

and how this figure of 7700 square feet has been inserted and the

change is brought about, in what circumstances, would have to be

established by the parties at the trial. To that extent, the burden will

have to be also on the contesting Defendants prima facie. However, we

have perused the disputed portions of the Development Agreement

dated 11th November, 2004. What has been termed as interpolations

and whether those have been signed and counter signed or initials

appearing at the foot of the pages are that of the Plaintiffs would have

to be proved only at the trial and by leading evidence. Thus, the

allegations of interpolation, forgery and fraud would have to be proved.

Whether the allegations as set out in the Plaint are sufficient or there

are no particulars of this forgery and fraud in the pleadings are factors,

which must be determined only at the trial. Suffice it to note that the

allegations having been made much after the execution of the

Development Agreement and in relation to some of the clauses and

pages thereof. The learned Judge was right in holding that there is no

prima facie case in favour of the Appellants/original Plaintiffs. The

Court cannot presume these allegations and made after amendment to

the Plaint as true and correct. Even with regard to the relief that can be

granted it must await until the Plaintiffs avail of the opportunity to

establish and prove their case. We are of the opinion that the Plaintiffs

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themselves have started a parallel proceeding. They have made

allegations of fraud and forgery not only in relation to the Development

Agreement against original Defendant No. 4 but Defendant No. 5 as

well. So also, they have challenged the registration of Defendant No. 5

Society. These proceedings may have culminated in an order against

the Plaintiffs, but they challenged the same right upto this Court. Being

unsuccessful in this Court, they have carried the matter to the Hon'ble

Supreme Court. The Hon'ble Supreme Court directed status quo to be

maintained with regard to possession of the plot. Therefore, it is not as

if any immediate prejudice would be caused by not protecting the

alleged claim of the Plaintiffs in the Suit. Suffice it to note that

interlocutory orders do not attain finality as is contemplated in relation

to final orders and Decrees. The provisions and particularly Order

XXXIX Rule 4 of the Civil Procedure Code, 1908 enable the parties to

seek variation or modification of interlocutory orders, if they satisfy the

Court that there are change in the circumstances. Then, the Court can

exercise its powers and the discretion as provided in law. In appropriate

cases, the Court can pass fresh interim orders as well. Therefor, it is not

as if no interim order being presently granted that the Plaintiffs would

suffer. They have an opportunity till the Suit is pending, to invoke the

jurisdiction as above. Clarifying that whenever any such attempt is

made, the Court will consider the application/s in that behalf on its own

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merits and in accordance with law we say nothing further. We also

clarify that no equities are created in favour of the Defendants by

refusal to grant interim reliefs. All steps, actions and measures

including payments made pursuant to the Development Agreement, the

registration of the Co-operative Society will have to abide by the final

orders of the Hon'ble Supreme Court in the pending proceedings and

equally in this Suit.

75) Having perused the lengthy order of the learned Single

Judge and finding that the learned Judge was right in refusing the

interim reliefs on the grounds noted above, we are of the view that the

Appeal can succeed only in part. We do not wish to say anything with

regard to the pleas raised by Mr. Chidambaram and Mr. Chagla about

delay and laches. Suffice it to note that though the Development

Agreement was executed on 11th November, 2004, there was no

question of any rights crystallising till January, 2008, even after January,

2008, as we have held prima facie there was no quarrel and dispute till

December, 2011. However, the Suit being based on several events

including those taking place in December, 2011, we do not express any

opinion as to whether the claim therein is barred by limitation.

Similarly, we do not endorse the views of the learned Single Judge and

at the prima facie stage on the locus of Appellant No. 1 to maintain the

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Suit. If the Appellant No. 1-original Plaintiff No. 1 is asserting that he

has been erroneously and wrongfully removed as the Chief Promoter of

the proposed Society and by the alleged Resolution of December, 2011,

then, so long as he is unsuccessful in proving the allegations in the

Plaint, it cannot be held that he has no locus. Prima facie there is

substance in the contention of Mr. Samdani that insofar as the affairs of

the proposed Society are concerned and prior to its registration under

the Maharashtra Co-operative Societies Act, 1960, the relief against

removal as Chief Promoter and exclusion from the affairs of the

proposed Society can be claimed only in the Civil Suit. If the

registration is held to be valid and legal, then, alone the issue of locus

may arise. There as well, the outcome of the proceedings is unknown.

Hence, it would not be proper to express any opinion at this stage as to

whether Plaintiff No. 1 has locus to maintain the Suit or not. That issue

can always be decided at the hearing of the Suit. For, it touches the

maintainability thereof.

76) We have found substance in the submission of the

contesting Defendants with regard to Plaintiff No. 1's and other

Plaintiffs' standing by and allowing the steps pursuant to the execution

of the Development Agreement being taken and challenging them

belatedly. Therefore, the denial of interim reliefs on that ground and by

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holding that no prima facie case is made out insofar as that aspect is

concerned, would have to be maintained. It is accordingly maintained.

77) Mr. Samdani's reliance upon certain Judgments must be

noted. In the Judgment of a Division Bench of the High Court of

Gujarat in the case of Shri. Ramji Mandir Narsinhji and Ors. vs. Narsinh

Nagar Co-operative Housing Society Ltd., Navsari and Ors. reported in

AIR 1979 Gujarat 134, the principle laid down is that the contract

between a non existent Co-operative Society on whose behalf someone

purports to act is a nullity, it gives rise to no cause of action. This

Judgment deals with a case where the agreement executed by the

Plaintiff Society, which was a proposed Society, could be said to be

conclusive and binding, enabling it to seek specific performance thereof.

Applying the relevant test and to the given facts and circumstances that

the Division Bench concludes that a Co-operative Society becomes a

legal person after it is registered and it is after its registration that it

acquires the capacity to enter into contract. There is no provision in the

Co-operative Societies Act, 1960, under which the Promoters of a

Society can act on behalf of the Society before it has been registered

and has come into existence. In the present case, this principle can

apply only after the Plaintiffs are able to substantiate and prove their

allegations regarding registration of Defendant No. 5. It is not

necessary to invoke the tests and principles laid down at this stage.

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78) Similarly, the reliance placed on a Judgment of the Hon'ble

Supreme Court affirming the view taken by the High Court of Gujarat in

the case of Shri. Ramji Mandir Narsinhji and Ors. (supra) also does not

render any assistance at this stage. Then reliance is placed by

Mr.Samdani on a two Judge Bench Judgment of the Hon'ble Supreme

Court in the case of Madhvi Amma Bhawani amma and Ors. vs.

Kunjikutty Pillai Meenakshi Pillai and Ors. reported in (2000) 6 SCC

301. This Judgment also would have no application at this stage. We

are not deciding the question as to whether any incidental finding on

issues not raised would amount to res-judicata. That is essentially to

buttress the argument of Mr. Samdani that the Suit in the present case

does not raise the same questions and matters which are involved in the

proceedings challenging the registration of Defendant No. 5 Society. We

have proceeded on the footing that the Appellants could have raised all

the contentions irrespective of any overlapping pleas and raised in the

Writ Petition. For, the Suit claims broad and wide reliefs and is not

restricted to merely challenging the registration of the Society.

Therefore, we have proceeded on this very principle.

79) Then, reliance is placed upon a Judgment on meeting of

Board of Directors, convened without proper notice to the Directors

[Kamalkumar Dutta and Anr. vs. Ruby General Hospital Ltd. and Ors.

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(2006) 7 SCC 613]. We are of the opinion that we have disallowed

interim reliefs to the Appellants and maintained the order of the

learned Single Judge upon a prima facie conclusion that the Appellants

have not disputed execution of the Development Agreement dated 11 th

November, 2004, they have allowed at least the alleged non-

interpolated parts of the same to be acted upon and further, the

Appellants have yet to successfully demolish the registration of

Defendant No. 5 Society. We have also not held in favour of the

Appellants and at this stage on the preliminary agreement. Suffice it to

note that the steps having been taken in furtherance of the 2004

agreement and substantial payments made to MHADA that we did not

grant any interim relief. The prima facie satisfaction arrived by us is

also based on the Appellants, particularly Plaintiff No. 1 not questioning

such of the clauses of the Development Agreement, in which there are

no interpolations but a reading of which discloses that a Developer is

invited and involved actively. It has been conferred some rights and

those rights created in its favour have been extensively noted by us.

Hence, this Judgment is of no assistance at this stage. Besides this, all

allegations have yet to be proved.

80) Similar is the position with regard to the Judgment in the

case of (Firm) Radha Kishan Jaikishan and Ors. vs. Municipal

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Committee, Khandwa reported in AIR 1934 Privy Council 62. For the

same reasons, we need not refer to The Law of Unincorporated

Associations and Similar Relations by Sydney R. Wrightington of the

Boston Bar, relied upon by Mr. Samdani. In the view we have taken, it

is not necessary to the settled tests enabling this Court to interfere with

an interlocutory order in its appellate jurisdiction. We have applied

these very tests.

81) Now, coming to the final order, there, the learned Single

Judge has expressly commented on the manner in which the litigation

has been initiated and prosecuted. At page 65 of the order under the

headings "Conclusion, Order and Costs", the learned Single Judge held

as under:-

"88. There is no manner of doubt in my mind that the Plaintiffs cannot possibly be said to have made out any sort of prima facie case. In this assessment, I have not had any regard at all to the previous ad-interim order, or the order of another learned single Judge of this Court dismissing Kulkarni's Writ Petition. The facts and submissions as I have set them out alone lead ineluctably to this

conclusion. Given the expenditure made by SDC and the formation of the 5 th Defendant Society, and, too, the fact that among the Defendants are those who appear, prima facie, to be the original promoter members of the Society, the balance of convenience cannot possibly be said to be with the Plaintiffs. Indeed, it is against them. As to irretrievable prejudice or injury being caused to the Plaintiffs, there is none. Not one of Kulkarni's fellow claimants is shown even

prima facie to be promoter members of the Society. They have, between them, paid not a farthing toward the allotment of the land or its attendant costs. For four years, between 2008 and 2012, they sat indolent and idle. None of the tests for the grant of interlocutory orders can be said to be satisfied. This is on the assumption that the Plaintiffs are entitled to final reliefs, and that the interim reliefs they seek are a step in aid of those. As I have noted, there is prima facie material to indicate that the Plaintiffs' attempt is to bypass a statutory prohibition and to achieve in a circuitous manner that which they failed to do directly. Reliefs must be denied to the Plaintiffs.

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89. There remains the issue of costs. As I have noted, everything points to this being a sponsored litigation, with Kulkarni having lent his name to some other entity. On his account alone, huge amounts have had to be spent in defending

this and associated litigations. The present litigation is one I have found to be without the faintest glimmer of merit. It is precisely the kind of litigation - speculative, lacking in bona fides, sponsored, an abuse of the process of law

and of the Court, and perhaps even a fraud on the Court -- that our Supreme Court has repeatedly decried and deprecated, even said should be visited with exemplary and penal costs. These should, in my view, be paid to SDC, the 4th Defendant, and the Apna Ghar Co-operative Housing Society Ltd, the 5th Defendant, the two parties most affected. I quantify these costs at Rs.20 lakhs

payable to each of these Defendants. Though it may seem high, it is undoubtedly an infinitesimal fraction of the costs actually incurred in opposing this Notice of Motion: SDC's statement of costs and expenses includes an amount of about Rs.3 crores on litigation alone. It is true that SDC, too, is a developer, but it is one with a history of contractual rights that prima facie it

appears to have discharged. The costs that I have ordered are little more than a drop in the ocean of the litigation costs that Kulkarni and his fellow claimants have foisted on the contesting Defendants.

90. The Notice of Motion is dismissed with costs as indicated."

82) To our mind, having made these observations, but

qualifying them on occasions by the word "prima facie" is not enough to

justify making them and to draw the conclusion that the litigation is

sponsored or commenced on behalf of somebody else. That somebody

is yet to be identified. The sponsorer is not known and not named. The

litigation has several shades and to our mind, important of which is the

property or prime land. That till date is not handed over. We have

already not approved that part of the learned Single Judge's order,

where he concludes that the conduct of the Plaintiffs is malafide. We

have also held that for interim or prima facie satisfaction it was not

necessary for the learned Judge to have made any comments or

observations with regard to the nature of the litigation and it being

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totally frivolous, speculative, false and driven by a outsider. More so in

the absence of clinching evidence. This is too critical and adverse a

comment and to be recorded on the basis of the material placed at the

interlocutory stage. The allegations have yet to be proved by the

parties. As held by the Hon'ble Supreme Court, one cannot hold a mini

trial at an interlocutory stage. In the circumstances, while clarifying

that none of these observations and conclusions nor the tentative and

prima facie findings shall influence the outcome of the Suit or the trial

thereof, we are of the opinion that there was also no justification for

imposing such huge costs. The Hon'ble Supreme Court, in the case of

Satyapal Singh vs. Union of India and Anr. reported in AIR 2010 SC

1138 held as under:-

".....

5. Exemplary costs are levied where a claim is found to be false or vexatious or where a party is found to be guilty of mis-representation, fraud or suppression of facts. In the absence of any such finding, it will be improper to punish a litigant with exemplary costs. When the appellate court did not chose to levy any costs while dismissing the appeal filed by the petitioner

after nine years of pendency with interim stay, the High Court, while dismissing the writ petition at preliminary hearing, ought not to have levied exemplary costs with reference to the period of pendency before the Appellate Court. We do not find any ground on which the exemplary costs of Rs.50,000/- could be sustained. Levy of exemplary costs on ordinary litigants, as punishment for merely for approaching courts and securing an

interim order, when there was no fraud, misrepresentation or suppression is unwarranted. In fact, it will be bad precedent. ....."

83) We are of the opinion that going by these principles and

assuming costs could be imposed at an interlocutory stage, still, they can

be imposed provided the claim is found to be false or vexatious or when

the parties are found guilty of mis-representation or suppression of facts.

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Even if the prima facie allegations are not established and proved, it will be

difficult to conclude that the claim as raised is utterly false or totally

vexatious or frivolous. The Suit itself cannot be thrown out at an

interlocutory stage in all cases. Therefore, asking a party to pay Rs.20 lacs

as costs for having approached the Court with a claim, which could not be

prima facie established and proved is too harsh. That being too harsh,

excessive and not justifiable, we set aside that part of the order and

direction of the learned Single Judge. Thus, while maintaining his

conclusions with regard to the absence of a prima facie case, balance of

convenience and on the original Plaintiffs suffering no loss or injury, we

proceed to allow this Appeal in part. It is allowed accordingly. There will

be no order as to costs.

84) Before parting, we bring to the notice of all concerned

something, which is very serious and yet fundamental to this case. The

land or property which is claimed by the Appellants/original Plaintiffs and

contesting Defendant Nos. 4 and 5 to be their property and exclusively is a

public property. It is a land or property which could not have been

obtained privately, because its allotment and grant is subject to the powers

conferred in the State vide several laws, including the Maharashtra Land

Revenue Code, 1966. There are certain rules and regulations and

particularly the Maharashtra Land Revenue (Disposal of Government

Lands) Rules, 1971, which would enable allotment of Government lands

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and public properties on certain terms and conditions. Paramount in all

this is public interest and ordinarily no public property is allotted except by

inviting bids and offers from the public. The intent is that if a public

property or land belonging to the Government is to be disposed of, it

should fetch the price prevailing in the market. Grant of Government land

or public property to private parties without this process is an exception

and can never be the Rule. In the present case, it would be vital to note

that Oshiwara Land Development Company filed together with Plaintiff

No. 1 and some others a Suit in this Court in the year 1981. That was not

decreed till the order of the Hon'ble Supreme Court in 2008. The Consent

Decree of the Hon'ble Supreme Court is apparent and clear. We have

reproduced the important clauses, which would enable the parties to

derive benefits of allotment subject to the terms and conditions therein.

That Decree passed in the year 2008 and in relation to Government/public

land and public property has yet not been executed by the Decree Holder.

Its enforcement is yet to commence and in the meanwhile, there is a

litigation in relation to this land, namely Suit No. 1096 of 2009 by M/s.

Byramjee Jeejeebhoy Pvt. Ltd., who had claimed this land as their own.

That Suit is also pending. If that Suit is also pending so also no steps

having been taken by the parties/Decree Holders in Suit No. 3429 of 1991

for enforcement and execution of the Decree in their favour till date, then,

we are surprised as to how the Government and a public body, namely

MHADA have remained silent, stood by and not taken the requisite steps

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expected of them in law. If public interest and public good overrides

everything and conflicting private interests should not result in the State

being deprived of these properties, then, the least that was expected from

the State and MHADA was to file an affidavit either before the Trial Court

or before us and clarify their stand. There is substance in the complaint of

Mr. Samdani, learned Senior Counsel that the State and MHADA allowed a

prime land in Mumbai to be locked in litigation and that too at the behest

of Builders and Developers. The allegations of the beneficiaries against

each range from misapplication or usurping of the property to fraud and

forgers. Civil and criminal proceedings are pending. Yet, no stand is taken

by the MHADA or the State. If such is the response and reaction from

them, then we shudder to think as to how it can be termed as a welfare

state and expected to protect welfare of its citizens. Even now, the time

has not gone, inasmuch as the Hon'ble Supreme Court has directed that

status quo be maintained in relation to this prime plot of land in Mumbai

Suburban District. Therefore, it is still open for the State and MHADA to

take steps and if necessary to put an end to the allotment, if any, or to

make appropriate applications either before the highest Court in the

Country or while resisting the execution and enforcement of the Decree.

We do not think that the State is prevented from doing so, even if the

Builders and Developers have invested some amount in the project or have

taken preliminary steps in pursuance of a Development Agreement. That

being an private arrangement, nothing can prevent the State in law from

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protecting the public interest and entitlement. We are emboldened to say

so because, even now the proceedings are pending before the Hon'ble

Supreme Court in the shape of a challenge to an order of the learned

Single Judge passed in a Writ Petition being Writ Petition No. 4882 of

2013, decided on 5th June, 2013. The Hon'ble Supreme Court has, in the

pending challenge to this order, directed as under:-

"Post it after four weeks for final disposal on non-miscellaneous day. In the meantime, issue notice indicating as to why the matter be not heard and disposed of finally.

Status-quo shall remain effective until further order on the land in question which is allotted to Apna Ghar Co-operative Housing Society through the

petitioner - Chief Promoter (Proposed)."

85) It has been fairly stated by all parties that this order has been

continuing till date. This order has been continuing and the above

proceedings are pending in the Hon'ble Supreme Court. If that is how the

interim order of the Hon'ble Supreme Court is continued, then, all the

more the State is not prohibited from stepping in. Beyond this, we do not

observe anything nor say anything more.

86) Let a copy of this order be placed before the Principal

Secretary, Revenue and Forest Department, Government of Maharashtra

and the Chief Executive Officer of the Maharashtra Housing and Area

Development Authority (MHADA). The Registry to act accordingly and

forward it.

87) After this Judgment was pronounced, Mr. Samdani - Senior

Counsel appearing for the Appellants submits that on 11 th November, 2014

there is an ad-interim order passed by this Division Bench, directing

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MHADA not to handover possession of the suit property. That order may

be continued for a period of 8 weeks to enable the Appellants to peruse

this Judgment and consider challenging it in the higher Court.

88) This request is vehemently opposed by Mr. Doctor - Senior

Counsel appearing for original Defendant No. 5 Society and Mr. Madon -

Senior Counsel appearing for original Defendant No. 4 Developer. They

submit that having lost at both stages, before the Single Judge and

Division Bench, such an order would seriously prejudice both parties and

equally delay the development and construction work.

89) Having noted the request made by Mr. Samdani and

opposition of Mr. Doctor and Mr. Madon, we are of the opinion that

interest of justice would be served if we continue the order dated 11 th

November, 2014 for a period of 4 weeks from today. It shall not be

continued thereafter. No application for extension of the same would be

entertained.

(A.A.SAYED, J.) (S.C.DHARMADHIKARI, J.)

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