Case Note & Summary
The appeal arises from a suit filed by the respondent (original plaintiff) against the appellant (original defendant) seeking a permanent injunction restraining the defendant from constructing additional floors on a commercial building known as 'Mahinder Chambers' situated at Chembur, Mumbai. The plaintiff had purchased two units and two car parking spaces in the building under agreements dated 23.03.2001. The defendant had represented that the building would consist of basement, ground, and one upper floor as per sanctioned plans, and agreed to form a co-operative society of purchasers. However, the defendant constructed two additional floors without consent of the plaintiff or other purchasers, and in 2010 sought further additions from the Municipal Corporation. The plaintiff filed a suit and a notice of motion for interim injunction, which was granted by the trial court. The defendant appealed. The High Court upheld the trial court's order, finding that the plaintiff had a prima facie case, balance of convenience was in favor of plaintiff, and irreparable loss would be caused if construction was allowed. The court noted that the additional construction altered the character of the building and affected common areas and facilities. The appeal was dismissed with costs.
Headnote
A) Property Law - Injunction - Unauthorized Construction - Specific Relief Act, 1963, Section 38 - Purchaser of units in a building sought injunction against developer from constructing additional floors without consent - Court held that the plaintiff has a prima facie case as the additional construction alters the character of the building and affects common areas and facilities - Balance of convenience lies in favor of plaintiff as irreparable loss would be caused if construction is allowed - Held that the trial court's order granting injunction was proper (Paras 2-10).
B) Contract Law - Agreement to Form Society - Breach of Contract - Indian Contract Act, 1872, Section 73 - Developer agreed to form a co-operative society of purchasers but failed to do so - Court noted that the developer's failure to form society and unauthorized construction amounts to breach of contract - Held that the plaintiff is entitled to seek enforcement of the agreement (Paras 3-8).
C) Civil Procedure - Interim Injunction - Balance of Convenience - Code of Civil Procedure, 1908, Order 39 Rules 1 and 2 - Court considered balance of convenience and irreparable loss - Held that if additional construction is allowed, it would be difficult to restore status quo and would cause irreparable loss to plaintiff (Paras 9-10).
Issue of Consideration
Whether the trial court was justified in granting interim relief restraining the defendant from constructing additional floors on the building without the consent of the plaintiff and other purchasers, and whether the plaintiff has a prima facie case for such relief.
Final Decision
Appeal dismissed with costs. The order of the trial court granting interim injunction is upheld.
Law Points
- Right of purchaser to seek injunction against unauthorized construction
- Balance of convenience
- Prima facie case
- Irreparable loss
- Specific performance of agreement to form society
- Alteration of building character without consent
Case Details
Appeal from Order No.175 of 2012 in Notice of Motion No.2380 of 2011 in B.C.C.C.S.C. Suit No.2224 of 2011 with Civil Application No.219 of 2012
Mr. A.V. Anturkar a/w. Mr. Mahesh Menon, Mr. S.A.Oak and Mr. Vilas Bane, Advocates i/b. Mr. Mahesh Memon & Co. for the Appellant. Mr. Simil Purohit a/w. Mr. Manish Doshi, Mr. Gauraj Shah and Ms Azmin Irani, Advocates i/b. M/s.Vimadalal and Company, for the Respondent.
Vidhi Builders Private Limited
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Nature of Litigation
Civil suit for permanent injunction restraining defendant from constructing additional floors on a commercial building without consent of plaintiff and other purchasers.
Remedy Sought
Plaintiff sought interim injunction restraining defendant from carrying out further construction of additional floors on the building.
Filing Reason
Defendant constructed two additional floors without consent of plaintiff and other purchasers, and sought further additions from Municipal Corporation, altering the character of the building and affecting common areas and facilities.
Previous Decisions
Trial court granted interim injunction in favor of plaintiff. Defendant appealed against that order.
Issues
Whether the plaintiff has a prima facie case for grant of interim injunction restraining the defendant from constructing additional floors.
Whether the balance of convenience lies in favor of the plaintiff and whether irreparable loss would be caused if injunction is not granted.
Submissions/Arguments
Appellant argued that the trial court erred in granting injunction as the plaintiff had no right to restrain construction on the developer's own property.
Respondent argued that the additional construction altered the character of the building, affected common areas, and was without consent, causing irreparable loss.
Ratio Decidendi
A purchaser of a unit in a building has a right to seek injunction against the developer from making unauthorized construction that alters the character of the building and affects common areas and facilities, especially when the developer had agreed to form a co-operative society and the construction is without consent of the purchasers. The balance of convenience lies in favor of the purchaser as irreparable loss would be caused if construction is allowed.
Judgment Excerpts
The appeal is preferred by the original defendant against the grant of certain reliefs in the notice of motion taken out by the plaintiff.
According to the plaintiff, at the time of agreement for sale, the defendant had declared that the construction would consist of basement, ground and one upper floor as per the building plans.
The construction of additional two floors was without any consent or intimation either to the plaintiff or to the other purchasers of the Units nor this development was shown in the original sanctioned plan.
Procedural History
Plaintiff filed B.C.C.C.S.C. Suit No.2224 of 2011 and Notice of Motion No.2380 of 2011 for interim injunction. Trial court granted injunction. Defendant filed Appeal from Order No.175 of 2012 and Civil Application No.219 of 2012. High Court heard and dismissed the appeal on 14.02.2012.
Acts & Sections
- Specific Relief Act, 1963: Section 38
- Indian Contract Act, 1872: Section 73
- Code of Civil Procedure, 1908: Order 39 Rules 1 and 2
