9911796707
TMI Blog2018 (8) TMI 1238X X X X Extracts X X X X X X X X Extracts X X X X ..... rms dated 25th September, 2017 between respondent Nos.1 and 2 inter partes. 2. The relevant facts are as follows: Respondent No.1/plaintiff was appointed by one Andheri Kamgar Nagar Cooperative Housing Society Ltd. (for short, "the Society') under a Development Agreement dated 6th October, 1996 as a developer under the Slum Development/ Rehabilitation Scheme to develop the suit property in question, being a plot of land situated at Versova Link Road, Taluka Andheri and bearing Survey No. 139, City Survey No. 1319 (Part) admeasuring 8892 sq. mts. or thereabouts as per Indenture of Lease dated 31st March, 1993 and 9402 sq. mts. as per City Survey Records. One part of the suit property was for constructing tenements free of charge for project-affected persons and the balance property could be used to develop and sell the balance FSI. Respondent No.1 then executed an Agreement for Sub-Development dated 22nd September, 1999 with respondent No.2/defendant No.1, transferring the benefits of development rights in the suit property, with the consent of the aforementioned Society, to respondent No.2 after keeping aside 15,000 sq. ft. for itself i.e. respondent No.1. 3. Subsequently, respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent No.1 also sought to appoint a Court Receiver to take charge of the premises in the suit property comprising its 22,500 sq. ft. constructed area. An ad-interim, consent order was passed on 3rd December, 2012, in the said Notice of Motion No. 147 of 2013, whereby respondent No. 2 and the appellant agreed to not dispose of or create third party rights in respect of 8 flats in the completed Wings "A" and "B" of the building and 4 flats in the under-construction Wing "C" of the building, totaling 12 flats. 5. The parties filed their respective replies and rejoinders in the suit and notice of motion. The appellant"s stance was that he had completed his contractual obligations and offered respondent No.2 its entitlement of 45% area in the constructed buildings but respondent No.2 had failed to take possession of the same. The subsequent delay in construction of Wing "C" of the building was due to the failure of respondent No.2 to obtain a Commencement Certificate for Wing "C", resulting in losses to the appellant. Owing to this breach committed by respondent No.2, it was no longer entitled to its 45% share in the constructed area and as a consequence, respondent No.1 was not en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n under the Agreement but that refund of the said deposit was not, in any way, connected with handing over of the respondent No.2"s entitlement of flats. In any event, respondent No.2 had offered to refund the said deposit in exchange for possession of the flats due to it, which the appellant had refused. 8. By an interim order dated 12th October, 2016, the sole arbitrator made prima facie observations that construction of Wing "C" in the building situated on the suit property had been delayed owing to respondent No.2"s failure to obtain the Commencement Certificate for the same. Further, respondent No.2 had allowed the appellant to construct only 88 flats so far, which worked out to 72% of the total area to be constructed. On that basis, the arbitrator was of the opinion that respondent No.2 could not receive its entire 45% share in the constructed area of 88 flats, which worked out to 31.6 flats, but instead, would receive 72% of its 45% share which worked out to 28.5 flats. From these 28.5 flats, 12 flats were to be kept aside for respondent No.1 as directed in the High Court"s ad-interim order dated 3rd December, 2012 and thus, respondent No.2 was entitled to 16.5 flats. Out o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y held liable to compensate the appellant for damages, the same could not be recovered from the said 12 flats as these flats were ultimately and rightfully due to respondent No.1 (original plaintiff) and out of bounds for the appellant. The Single Judge rejected the appellant"s argument that since respondent No.1 claimed through respondent No.2, any breach by respondent No.2 would automatically affect the entitlement of respondent No.1 as well. 13. The question as to whether respondent No.2 was obligated to hand over possession of 8 flats to respondent No.1 as per the settlement agreement dated 4th November, 2016 and the Consent Terms dated 25th September, 2017 and whether the appellant had to hand over the keys of the said flats to respondent No.1, were answered by the Single Judge in the affirmative, with the finding that respondent No.2 was the rightful owner of the balance 39.6 flats, including the 8 flats, out of the 88 constructed flats, and that the appellant had no rights over the same. The point of respondent No.2 being the rightful owner of the 8 flats was based on the following aspects: a. Respondent No.2 alone was entitled to develop the suit property as the letter of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f of the appellant that respondent Nos.1 and 2 had entered into the Consent Terms dated 27th September, 2017 with a view to defeat the appellant"s claim. Unless respondent No.2 completed its entire obligations with respect to the building still under construction in the suit property, respondent No.1 was not entitled to receive its 8 flats as per the Consent Terms. The appellant further contended that the handing over of 8 flats to respondent No.1 was, in effect, a final relief since nothing further remained in the suit and the interim order of the Single Judge was in fact a final order and that the confirmation of the arbitral tribunal"s order had no effect on the proceedings before the Single Judge. These arguments were countered by respondent No. 1 which inter alia submitted that the actual dispute was between the appellant and respondent No.2 and that it (respondent No.1) was being made to suffer for such dispute. Respondent No.1 contended that the main development agreement had been executed between the Society and respondent No.1 and the rights of the other parties flowed through such agreement. Hence, there was nothing wrong in the Single Judge moulding reliefs in its favou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion to prayer (c) above, this Hon'ble Court be pleased order, decree and direct the Defendants to pay damages of Rs. 173,47,53,425/- (Rupees One Hundred Seventy Three Crores Forty Seven Lacs Fifty Three Thousand Four Hundred Twenty Five Only) as set out in particulars of Claim at Exhibit "M" to the plaint. e) This Hon'ble Court be pleased to pass an order of Mandatory and Permanent Injunction against the Defendants, their servants, agents, assigns and/or any other person acting through or under them from in any manner directly or indirectly dealing with or disposing of or alienating or parting with the possession of or creating third party rights in respect of the premises coming to the share of the Defendants in Wings "A" & "B" of the building "Bay-View" situated on the property described in Exhibit "A" to the plaint without first delivering to the Plaintiff, the possession of 22500 sq.ft. constructed areas per SRA sanctioned plan with proportionate car parking space in the form of 12 flats in Wings "A" and "B" of the building "Bay -View" situated on the property described in Exhibit "A" to the plaint and 24 car parking spaces." 20. During the pendency of the suit for aforementi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its of the case and keeping all the contentions of the parties open. (i) The Defendants shall not sell, dispose of, alienate, encumber, part with possession and/or create third party rights in respect of 4 flats in Wing "A" and 4 flats in Wing "B" which flats are already constructed and occupation certificate is obtained in respect of the same. The said 8 flats are identified on the sanctioned plan which is taken on record and marked "X" for identification. (ii) The Defendants shall also not sell, dispose of, alienate, encumber, part with possession and/or create third party rights in respect of 4 flats in Wing "C", the construction of which is in progress. The said four flats are identified on the plan tendered in Court and marked "X". (iii) It is clarified that the above 12 flats pertain to 45 per cent share in flats of Defendant No.1 as per the agreements entered into by and between Defendant Nos.1 and 2. The Defendant No.2 has informed the Court that Defendant No.2 will be contending that Defendant No.1 is not entitled to their 45 per cent share in the flats so constructed on the ground that Defendant No.1 has allegedly not complied with their obligations under the Agreement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 10th March, 2003 and respondent No.1/plaintiff could be accommodated only against those flats. Asking the appellant to hand over additional 8 flats and 16 parking spaces by way of mandatory order, would be to superimpose the liability of respondent No.2/defendant No.1 on the appellant for discharging its obligation qua respondent No.1/plaintiff in relation to the agreement entered between them dated 22nd September, 1999 and including Settlement Agreement dated 4th November, 2016 and Consent Terms dated 25th September, 2017, to which the appellant is not a party. 24. That apart, the learned Single Judge as well as the Division Bench have committed fundamental error in applying the principle of moulding of relief which could at best be resorted to at the time of consideration of final relief in the main suit and not at an interlocutory stage. The nature of order passed against the appellant is undeniably a mandatory order at an interlocutory stage. There is marked distinction between moulding of relief and granting mandatory relief at an interlocutory stage. As regards the latter, that can be granted only to restore the status quo and not to establish a new set of things diffe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sence of special circumstances, it will not normally be granted. However, if the case is clear and one which the court thinks ought to be decided at once, or if the act done is a simple and summary one which can be easily remedied, or if the defendant attempts to steal a march on the plaintiff, such as where, on receipt of notice that an injunction is about to be applied for, the defendant hurries on the work in respect of which complaint is made so that when he receives notice of an interim injunction it is completed, a mandatory injunction will be granted on an interlocutory application." 26. The principle expounded in this decision has been consistently followed by this Court. It is well established that an interim mandatory injunction is not a remedy that is easily granted. It is an order that is passed only in circumstances which are clear and the prima facie material clearly justify a finding that the status quo has been altered by one of the parties to the litigation and the interests of justice demanded that the status quo ante be restored by way of an interim mandatory injunction. (See Metro Marins and Another Versus Bonus Watch Co. (P) Ltd. and Others (2004) 7 SCC 478, K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eement dated 4th November, 2016 and Consent Terms dated 25th September, 2017 with respondent No.2, cannot be the basis to set up a claim against the appellant and, especially because complying with the directions in the impugned order would result in bestowing advantage on respondent No.2 who has failed to discharge its obligation under the agreement dated 10th March, 2003 with the appellant. 31. In view of the above, we have no hesitation to conclude that the High Court committed manifest error and exceeded its jurisdiction in granting interlocutory mandatory injunction against the appellant. 32. Accordingly, the impugned judgment and order passed by the High Court deserves to be set aside but while doing so, we deem it appropriate to revive the ad-interim order passed by the Single Judge of the High Court on 3rd December, 2012 in Notice of Motion No.147/2013 and as corrected on 17th December, 2012, which shall operate until the disposal of the suit or until it is modified by the High Court on account of subsequent developments, if any, as and when occasion arises. 33. While parting, we make it clear that the observations made in this judgment are only for considering the matte ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
