Atishay Realtors Pvt. Ltd. vs Kidwai Nagar Co-Operative Housing Society (Proposed) (Thr. Promoters) And Ors.

1 This appeal has been preferred by the original plaintiff â€"Company which is aggrieved by the order passed by the trial Court rejecting its Notice of

Motion and refusing to grant the prayers made therein.

2 It is the case of the original plaintiff that it is a Company incorporated under the provisions of the Companies Act, 1956 and is carrying on business

of construction and development of properties. The suit property is Municipal Colony consisting of Building No.4/12, of ground and three upper floors

(224 Flats) situated at R.A. Kidwai Road, Wadala, Mumbai 400 031, admeasuring approximately 1077989 sq. meters (2.6 Acres). The suit property is

owned by the Municipal Corporation of Greater Mumbai. It is pleaded that the same comprises of about 14 buildings which are occupied by various

tenants of the Municipal Corporation. The said tenants proposed to form a housing Society which is defendant No.1. According to the plaintiff, the

said proposed Society intended to redevelop the suit property and on that basis, the plaintiff submitted its Feasibility Report. After considering the

same, the matter progressed and there was exchange of various communications between the plaintiff and the defendant No.1. The defendant

No1.ÂSociety, thereafter, appointed PGV Project Management Consultants Pvt. Ltd. as the Project Management Consultant (PMC). It also

submitted its report. On 31st March 2014, the plaintiff contends that a Development Agreement as well as a document of Irrevocable Power of

Attorney was executed between the plaintiff and the defendant No.1ÂSociety. The same was duly notarized. There were again subsequent

communications between the parties and the plaintiff claims to have incurred expenditure of Rs.70 Lakhs towards the reÂdevelopment of the

property. The plaintiff learnt that the Society along with the Director of the PMC were however trying to deprive it of its rights. Apprehending the

same and on learning that the Society was looking for another developer, the plaintiff filed suit seeking a declaration that the Development Agreement

as well as the document with regard to grant of Irrevocable Power of Attorney, both dated 31st March 2014, were legal and valid and were binding on

the defendant No.1. An injunction was sought seeking to restrain the defendant No.1ÂSociety from entering into any fresh agreement with a new

developer for reÂ​development of the property.

In that suit, the plaintiff moved a Notice of Motion praying that during the pendency of the suit, the society be restrained from entering into any

agreement with another developer.

3 Reply was filed by the defendant Nos.1 to 7, 10 and 11 to the said Notice of Motion. It was denied that there was any agreement between the

parties as pleaded by the plaintiff. There was mere exchange of correspondence between the parties. It was denied that any Development Agreement

or document of Irrevocable Power of Attorney, dated 31st March 2014 was executed between the parties. It was further pleaded that in absence of

any resolution of the General Body of the Society, no such Development Agreement or document of Irrevocable Power of Attorney could have been

executed. Thus, according to the said defendants, in absence of any concluded contract, the plaintiff was not entitled to any relief whatsoever.

4 The trial Court, after considering the respective submissions, prima facie, held that the documents on record did not indicate existence of any

concluded contract between the parties. In absence of the Development Agreement being placed before the Court, the contentions as sought to be

raised by the plaintiff were not accepted. It was, thus, held that as the plaintiff had failed to make out any primaÂfacie case to indicate existence of

any legal right in its favour, it was not entitled for any interim relief. By the order dated 9th October 2018, the said Notice of Motion came to be

dismissed. Being aggrieved, the original plaintiff has filed the present appeal.

5 Shri H.R. Pawar, learned counsel for the appellant submitted that the trial Court committed an error in not granting any relief as prayed for in the

Notice of Motion. Referring to various documents placed on record, it was submitted that the plaintiff had taken various steps towards reÂ‐

development of the property and had spent an amount of Rs.70 lakhs in that regard. The Society was not justified in claiming that there was no

concluded contract between them. Reference was also made to various communications entered into after 31st March 2014 to indicate that there

existed a Development Agreement between the parties on the basis of which an Irrevocable Power of Attorney came to be granted in favour of the

plaintiff. The custody of those documents was with PMC and the plaintiff could not be prejudiced on account of failure to place those documents on

record. It was further submitted that even in the light of the reply given by the concerned defendants in the Notice of Motion, it could be gathered that

there existed such an agreement. Moreover, it was not mandatory for the plaintiff to hold a General Body meeting for entering into such agreement.

Considering the fact that substantial amount had been invested by the plaintiff in the reÂdevelopment of the said property, a case of grant of interim

relief had been made out. Permitting any other developer to come into the picture would seriously prejudice the plaintiff.

6 Shri Surel S. Shah, learned counsel for the respondents supported the impugned order. According to the learned counsel the suit as filed, could not

be said to be a suit for specific performance in the light of prayers made in the plaint. There was no relief of specific performance sought. The

defendant no.1 was merely a proposed Society and in absence of the Development Agreement as well as the Irrevocable Power of Attorney, which,

according to the plaintiff had been executed, the trial Court was justified in holding that there was no concluded contract between the parties. Even if

it was assumed that the custody of those documents was with PMC, it was expected that the plaintiff would have retained copies of the same. Merely

by relying on exchange of various communications, the plaintiff had sought interim relief which was rightly refused by the trial Court. It was, thus,

submitted that there was no reason to interfere with the impugned order.

7 I have heard the learned counsel for parties at length and have perused the documents placed on record. From the plaint averments, it can be seen

that the plaintiff has sought to rely upon the Development Agreement as well as document granting Irrevocable Power of Attorney, both dated 31st

March 2014. According to the plaintiff, the originals of those documents were kept with the Director of the PMC and the same were not returned to

the plaintiff. The plaintiff also relied upon communications with the Notary Public to contend that said documents were notarized. The existence of

these two documents has been specifically denied by the contesting defendants. It is also their case that there was no resolution of the General Body

approving execution of the said two documents. It is, thus, evident from the record that as of date, the aforesaid two documents are not available for

perusal of the Court.

8 As regards various communications between the parties preceding 31st March 2014 and thereafter, primaÂfacie, the same indicate negotiations

between the parties towards executing the said Development Agreement. Merely by perusing those documents, it is not possible at this stage to arrive

at a primaÂfaice conclusion that there was a concluded contract between the parties resulting in execution of the Development Agreement and

granting an Irrevocable Power of Attorney thereby creating rights in favour of the plaintiff.

9 The trial Court, after considering all these communications, has primaÂfacie, found it difficult to hold existence of any concluded contract between

the parties. I do not find that the said finding, as recorded, though primaÂfacie, warrants interference. Further, it has been rightly observed that the

aspect of reÂdevelopment cannot be stalled in the light of the material available on record. Considering the nature of the reliefs sought in the suit, the

aspect of compensating the plaintiff, in case it ultimately succeeds, is an option which is still available. Thus, on reconsidering the matter, I find that the

trial Court did not commit any error in refusing to grant any interim relief in favour of the plaintiff. The discretion in that regard has been judiciously

exercised.

10 By clarifying that the observations made in the order passed by the trial Court as well as in this order are only for the purposes of considering the

prayer for grant of interim relief and by further directing the trial Court to decide the suit on its own merits without being influenced by any of the

observations as made, the Appeal from Order stands dismissed with no order as to costs. Pending Civil Applications also stand disposed of.

The learned counsel for the respondents, on instructions, states that for a period of four weeks from today, the present position would be maintained.

Statement accepted.

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