Case Note & Summary
The dispute arises out of a family arrangement among the Motwane family members regarding a larger property at Khar, Mumbai. On 31st March, 1990, the property was notionally divided into three plots: Plot A (795.176 sq m) conveyed to Late Hardevi Motwane and Defendant No.9; Plot B (1887.357 sq m) conveyed to the Plaintiffs, Defendant No.14, and others; and Plot C (793.263 sq m) conveyed to Defendant Nos.9 and 11. The Plaintiffs alleged that Defendant Nos.1 and 2, who acquired rights over Plot A, were carrying out illegal construction beyond the permissible FSI and in breach of the Development Agreement which required consent of all co-owners. The Plaintiffs sought an interim injunction to restrain construction and allotment of flats. The court, after hearing extensive arguments, found that the Plaintiffs had made out a prima facie case, the balance of convenience was in their favor, and irreparable loss would be caused if injunction was not granted. The court accordingly restrained Defendant Nos.1 and 2 from carrying out any further construction on Plot A and from allotting flats to third parties, pending the disposal of the suit. The court also directed the Municipal Corporation not to issue occupation certificate for the building on Plot A.
Headnote
A) Property Law - Interim Injunction - Prima Facie Case - The court examined whether the Plaintiffs had made out a prima facie case for grant of interim injunction restraining construction on Plot A, which was allegedly part of common property or subject to a Development Agreement. The court found that the Plaintiffs had raised serious triable issues regarding the validity of the Development Agreement and the extent of rights over Plot A. (Paras 1-10) B) Civil Procedure - Order XXXIX Rules 1 and 2 CPC - Balance of Convenience - The court held that the balance of convenience was in favor of granting injunction as the construction was at an advanced stage and any further progress would cause irreparable loss to the Plaintiffs if they ultimately succeeded. (Paras 11-20) C) Contract Law - Development Agreement - Breach - The court noted that the Development Agreement dated 31st March, 1990, between the parties contained clauses restricting construction on Plot A without consent of all co-owners. The alleged breach by Defendant Nos.1 and 2 in proceeding with construction without obtaining necessary approvals or consent constituted a prima facie breach. (Paras 21-30) D) Specific Relief Act, 1963 - Section 6 - Possession - The court observed that the Plaintiffs had not lost possession of Plot A, and the remedy under Section 6 was not applicable as the dispute was about the right to develop, not possession. (Paras 31-35)
Issue of Consideration
Whether the Plaintiffs are entitled to an interim injunction restraining Defendant Nos.1 and 2 from carrying out construction on Plot A and from allotting flats to third parties, pending the disposal of the suit.
Final Decision
The court allowed the Notice of Motion and granted interim injunction restraining Defendant Nos.1 and 2 from carrying out any further construction on Plot A and from allotting flats to third parties, pending disposal of the suit. The court also directed the Municipal Corporation not to issue occupation certificate for the building on Plot A.
Law Points
- Interim Injunction
- Prima Facie Case
- Balance of Convenience
- Irreparable Loss
- Common Property Rights
- Development Agreement
- Breach of Contract
- Specific Performance
- Section 6 of the Specific Relief Act
- 1963
- Order XXXIX Rules 1 and 2 of the Code of Civil Procedure
- 1908
