Case Note & Summary
The appellant, Sukruti Apartment Co-operative Housing Society Ltd., was formed by flat purchasers of a building constructed by the promoter, Sukruti Builders, on a plot of land purchased in 1979. The promoter had sold flats under individual agreements, which contained a recital that the building was constructed on a portion of the land, excluding the land under the bungalow. The society applied to the Competent Authority under Section 5A of the Maharashtra Ownership Flats Act, 1963 (MOFA) for a certificate to enforce unilateral execution of conveyance. On 31st May 2016, the Competent Authority issued such a certificate under Section 11(4) of MOFA. The respondent, Tirumala Developers, who claimed to have purchased the remaining portion of the land (including the bungalow) from the original owners, filed a suit in the City Civil Court, Bombay, challenging the validity of the certificate. Pending the suit, the trial court on 7th April 2021 stayed the implementation of the certificate. The society appealed against this interim order under Order 43 Rule 1(r) of the CPC. The High Court analyzed the facts and found that the trial court had not properly considered the prima facie case, balance of convenience, and irreparable loss. The certificate was issued after hearing all parties, including the respondent, and the society had a statutory right to conveyance. The High Court held that the stay order was unsustainable and set it aside, allowing the appeal.
Headnote
A) Civil Procedure - Interim Stay - Order 43 Rule 1(r) CPC - Appeal against order granting stay - The appellant challenged the trial court's order staying the implementation of the Competent Authority's certificate under Section 11(4) of MOFA - The High Court held that the trial court failed to consider that the certificate was issued after hearing all parties and that the society had a prima facie right to conveyance - The stay was set aside as it caused irreparable loss to the society (Paras 1-10).
B) Maharashtra Ownership Flats Act, 1963 - Section 11(4) - Competent Authority's Certificate - Unilateral Execution of Conveyance - The Competent Authority issued a certificate under Section 11(4) in favour of the society for enforcing unilateral execution of conveyance deed - The High Court held that such certificate is a statutory right and cannot be lightly stayed without considering the scheme of the Act (Paras 1-5).
Issue of Consideration
Whether the trial court was justified in staying the implementation of the Competent Authority's certificate under Section 11(4) of the Maharashtra Ownership Flats Act, 1963, pending suit.
Final Decision
The High Court allowed the appeal and set aside the trial court's order dated 7th April 2021 staying the implementation of the Competent Authority's certificate. The interim application for stay was disposed of.
Law Points
- Section 11(4) of Maharashtra Ownership Flats Act
- 1963
- Order 43 Rule 1(r) CPC
- prima facie case
- balance of convenience
- irreparable loss
Case Details
2022 LawText (BOM) (03) 57
APPEAL FROM ORDER NO. 326 OF 2021
Mr. A.G. Damle, Senior Advocate i/by. Ms. Leena Patil, Advocate for the appellant. Mr. Mayur Khandeparkar a/w. Mr. Maulik Tanna and Ms. Disha Dave, Advocate for respondent no.1.
Sukruti Apartment Co-op Hsg. Soc. Ltd.
Tirumala Developers, District Dy. Registrar Co-operative Societies, Sukruti Builders, Kishor Associates
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Nature of Litigation
Civil appeal against an interim order granting stay of implementation of a certificate issued under Section 11(4) of the Maharashtra Ownership Flats Act, 1963.
Remedy Sought
The appellant (society) sought setting aside of the trial court's order dated 7th April 2021 which stayed the implementation of the Competent Authority's certificate.
Filing Reason
The appellant challenged the trial court's interim stay order on the ground that it failed to consider the statutory scheme and the society's prima facie right to conveyance.
Previous Decisions
The Competent Authority under Section 5A of MOFA issued a certificate on 31st May 2016 in favour of the appellant for enforcing unilateral execution of conveyance deed. The respondent filed a suit challenging the validity of the certificate. The trial court on 7th April 2021 stayed the implementation of the certificate pending suit.
Issues
Whether the trial court was justified in granting stay of the Competent Authority's certificate under Section 11(4) of MOFA without considering the prima facie case, balance of convenience, and irreparable loss.
Submissions/Arguments
The appellant argued that the certificate was issued after hearing all parties and the society had a statutory right to conveyance, and the stay caused irreparable loss.
The respondent argued that the certificate was invalid as the society was not entitled to conveyance of the entire plot, and the balance of convenience was in favour of maintaining status quo.
Ratio Decidendi
The trial court failed to consider that the Competent Authority's certificate under Section 11(4) of MOFA is a statutory right of the society and was issued after hearing all parties. The society had a prima facie case for conveyance, and the balance of convenience was in its favour, as the stay caused irreparable loss by delaying the conveyance. Therefore, the interim stay was unsustainable.
Judgment Excerpts
On 31st May 2016, Competent Authority under Section 5A of the Maharashtra Ownership Flats Act, 1963, in exercise of powers under Section 11(4) of the said Act, issued a Certificate, in favour of Sukruti Apartment Co-operative Housing Society Limited-appellant, for enforcing unilateral execution of conveyance deed.
Feeling aggrieved by that order, appellant-defendant no.1, has challenged it, in this appeal under Order 43(1)(r) of the Civil Procedure Code.
Procedural History
The Competent Authority issued a certificate under Section 11(4) of MOFA on 31st May 2016. The respondent filed a suit in the City Civil Court, Bombay, challenging the certificate. On 7th April 2021, the trial court granted an interim stay of the certificate. The appellant filed an appeal under Order 43 Rule 1(r) CPC on 21st March 2022, which was allowed by the High Court.
Acts & Sections
- Maharashtra Ownership Flats Act, 1963: Section 5A, Section 11(4)
- Code of Civil Procedure, 1908: Order 43 Rule 1(r)
