Case Note & Summary
The matter arose from cross appeals filed before the High Court of Judicature at Bombay challenging an interim order passed by a learned Single Judge in a commercial suit concerning redevelopment of a co-operative housing society's building. The original Plaintiff, a real estate developer, entered into a registered Development Agreement and Power of Attorney with the original Defendant No.1, a co-operative housing society, on 16 December 2011 for redevelopment of the society's building at Kher Nagar, Bandra (East), Mumbai. The developer submitted proposals under the Development Control Regulations, 1991 and later under the Development Control and Promotion Regulations, 2034. Disputes arose over the terms of redevelopment, including carpet area and corpus amounts, and the society's members passed resolutions at various general body meetings. The society terminated the Development Agreement and Power of Attorney by letter dated 31 January 2023, after a Special General Body Meeting on 1 January 2023 resolved to do so. Subsequently, the society floated a tender and appointed a new developer, Defendant No.2. The original Plaintiff filed a commercial suit seeking a declaration that the Development Agreement remained valid and subsisting, challenged the termination notice, and prayed for specific performance and injunctions. In Interim Application (L) No. 28499 of 2023, the Plaintiff sought temporary injunction to restrain the society from appointing any other developer. By order dated 24 October 2024, the learned Single Judge refused to grant temporary injunction in favour of the Plaintiff, but while doing so noted that the tender floated by the society required the new developer to secure unconditional NOC from the Plaintiff, and directed Defendant No.2 to secure the Plaintiff's NOC. Both the Plaintiff and the society filed cross appeals: the Plaintiff challenged the refusal of injunction, and the society challenged the NOC condition. In the appeal, the Plaintiff's senior counsel argued that the Single Judge erred in holding that there was no concluded contract between the parties, as the original Development Agreement continued to govern the relationship and subsequent decisions were mere variations in commercial terms. The Plaintiff also contended that the society had acted with undue haste and lack of commercial morality, and relied on the judgment of the Supreme Court in Padia Timber Company Private Limited v. Board of Trustees of. The provided excerpt of the judgment ends during the Plaintiff's submissions, and the final decision of the Division Bench is not included in the text.
Headnote
A) Civil Procedure - Interim Injunction - Temporary Injunction in Suit for Specific Performance - Code of Civil Procedure, 1908, Order 39 Rules 1 and 2 (not expressly cited) - Plaintiff sought temporary injunction to restrain Society from appointing another developer pending suit; Single Judge refused injunction but imposed NOC condition on new developer. Held: Single Judge refused temporary injunction and directed NOC. (Paras 1, 4)
B) Contract Law - Formation and Validity - Concluded Contract and Variation - Indian Contract Act, 1872 (not expressly cited) - Plaintiff argued original Development Agreement dated 16 December 2011 remained concluded and subsequent SGM resolutions were variations; Single Judge held there was no concluded contract between parties. (Para 5)
C) Property/Redevelopment - Development Control Regulations - Redevelopment Proposal under DCR 1991/DCPR 2034 - Development Control Regulations, 1991 Regulation 33(5)(2)(c)(ii); Development Control and Promotion Regulations, 2034 Regulation 33(5) - Society submitted proposal under DCR 1991, later revised under DCPR 2034; disputes over discounted premium and enhanced RERA carpet area led to termination. (Paras 2-3)
D) Co-operative Law - Society Resolution and Termination - Development Agreement Termination - Maharashtra Co-operative Societies Act, 1960 (not expressly cited for section) - Society terminated Development Agreement and POA by resolution of SGM dated 1 January 2023 and letter dated 31 January 2023; Plaintiff challenged termination. (Paras 3-4)
Issue of Consideration
Whether the Plaintiff-Developer is entitled to a temporary injunction restraining Defendant No.1-Society from appointing any other developer for redevelopment; Whether the learned Single Judge erred in holding that there was no concluded contract between the parties; Whether the condition requiring Defendant No.2 to obtain Plaintiff's NOC for redevelopment work is valid; Whether termination of Development Agreement dated 16 December 2011 was valid
Final Decision
Not mentioned in provided text; Single Judge's order dated 24 October 2024 refused temporary injunction and directed Defendant No.2 to obtain Plaintiff's NOC.
Law Points
- Temporary injunction in specific performance suits
- Concluded contract requirement
- Development agreement termination
- NOC condition for new developer
- Prima facie case and balance of convenience
Case Details
2025 LawText (BOM) (08) 39
Commercial Appeal No. 45 of 2025 along with Commercial Appeal (L) No. 17320 of 2025 in Interim Application (L) No. 28499 of 2023 in Commercial Suit (L) No. 28114 of 2023
Alok Aradhe, CJ & Sandeep V. Marne, J
Mr. Ashish Kamat, Senior Advocate with Mr. Ranbir Singh and Mr. Eshan Patel i/b Prakash & Co., for Appellant in Commercial Appeal No. 45 of 2025 and for Respondent No.1 in Commercial Appeal (L) No. 17320 of 2025; Mr. Mayur Khandeparkar with Mr. Santosh Pathak, Mr. Devansh Shah, Mr. Chirag Thakkar and Ms. Riya Naurya i/b Law Origin, for Appellant in Commercial Appeal (L) No. 17320 of 2025 and for Respondent No.1 in Commercial Appeal No. 45 of 2025; Mr. Amogh Singh i/b Mr. Nimish Lotlikar, for Respondent No.2 in both Appeals
Huges Real Estate Developers LLP (Original Plaintiff/Appellant in Commercial Appeal No. 45 of 2025); Khernagar Adarsh Co-operative Housing Society Limited (Original Defendant No.1/Appellant in Commercial Appeal (L) No. 17320 of 2025)
Khernagar Adarsh Co-operative Housing Society Limited (Original Defendant No.1/Respondent in Commercial Appeal No. 45 of 2025); Huges Real Estate Developers LLP (Original Plaintiff/Respondent in Commercial Appeal (L) No. 17320 of 2025); Kumar Vibes LLP (Original Defendant No.2/Respondent in both appeals)
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Nature of Litigation
Commercial cross appeals arising from an interim order in a commercial suit for specific performance of a redevelopment agreement and injunction.
Remedy Sought
Plaintiff-Developer sought temporary injunction to restrain Society from appointing another developer; Society sought removal of NOC condition imposed on new developer.
Filing Reason
Society terminated Development Agreement dated 16 December 2011 and appointed new developer; Plaintiff challenged termination and sought specific performance.
Previous Decisions
Single Judge of Bombay High Court by order dated 24 October 2024 refused temporary injunction to Plaintiff but directed Defendant No.2 to obtain Plaintiff's NOC.
Issues
Whether Plaintiff-Developer is entitled to a temporary injunction restraining Defendant No.1-Society from appointing any other developer for redevelopment
Whether the learned Single Judge erred in holding that there was no concluded contract between the parties
Whether the condition requiring Defendant No.2 to obtain Plaintiff's NOC for redevelopment work is valid
Whether termination of Development Agreement dated 16 December 2011 was valid
Submissions/Arguments
Plaintiff's senior counsel argued that the Single Judge erred in not granting injunction despite rejecting the Society's delay claim; delay was the only reason for termination and was found erroneous.
Plaintiff contended that the original Development Agreement dated 16 December 2011 remained a concluded contract and subsequent SGM decisions were mere variations in commercial terms, not requiring execution of a separate agreement.
Plaintiff submitted that the Society terminated the Development Agreement with undue haste and lack of commercial morality; the SGM resolution did not impose conditions as reflected in the Society's letter dated 3 December 2022.
Plaintiff relied on the judgment of the Supreme Court in Padia Timber Company Private Limited v. Board of Trustees of in support of the proposition that upon acceptance of a new condition by the proposer, a contract gets completed.
Ratio Decidendi
Not mentioned in provided excerpt.
Judgment Excerpts
These are cross-appeals filed by the Plaintiff and Defendant No.1-Society, challenging the order dated 24 October 2024 passed in Interim Application (L) No. 28499 of 2023 by which the learned Single Judge has refused to grant temporary injunction in favour of the Plaintiff-Developer to restrain the Defendant No.1-Society from appointing any other developer for redevelopment of Society’s building.
While refusing to grant temporary injunction in favour of the Plaintiff, the learned Single Judge has noted the stipulation in the tender floated by the Society, requiring the new developer to secure unconditional NOC from the Plaintiff.
In support of his contention that upon acceptance of a new condition by the proposer, a contract gets completed, Mr. Kamat would rely upon the judgment of the Apex Court in Padia Timber Company Private Limited Versus Board of Trustees of.
Procedural History
16 December 2011: Development Agreement and Power of Attorney executed between Plaintiff and Society. 21 September 2012: Society submitted proposal to MHADA under DCR 33(5)(2)(c)(ii). September 2018: DCPR 2034 implemented. 30 April 2019: Administrator appointed for Society. 13 November 2020: Plaintiff submitted revised proposal under DCPR 2034. 31 October 2021: AGM accepted revised proposal. 16 November 2021: Society informed Plaintiff of acceptance. 22 March 2022: Society informed Plaintiff about Managing Committee constitution and Administrator discharge. 27 June 2022: Plaintiff submitted revised offer with RERA carpet area 508 sq ft and corpus Rs.9 lakh per member. 25 July 2022: Society communicated revised offer not approved. 13 August 2022: Plaintiff informed society revised offer was final. 16 October 2022: SGM requested increase in carpet area; Plaintiff increased to 520 sq ft and communicated on 16 November 2022. 27 November 2022: SGM approved redevelopment proposal of 16 November 2022. 3 December 2022: Society conveyed decision and called for documents within 21 days. 14 December 2022: Plaintiff claimed clarification. 1 January 2023: SGM resolved to terminate Development Agreement. 31 January 2023: Society terminated Development Agreement and POA. 20 February 2023: Society floated tender for new developer. 17 September 2023: SGM resolved to appoint Defendant No.2 as new developer. 2023: Plaintiff filed Commercial Suit (L) No. 28114 of 2023 and Interim Application (L) No. 28499 of 2023. 24 October 2024: Single Judge refused temporary injunction and directed NOC. Cross appeals filed thereafter.
Acts & Sections
- Limited Liability Partnership Act, 2008:
- Maharashtra Co-operative Societies Act, 1960:
- Development Control Regulations, 1991: Regulation 33(5)(2)(c)(ii)
- Development Control and Promotion Regulations, 2034: Regulation 33(5)
