Case Note & Summary
The appellants, Mrs. Sarika Paresh Mehta and Mr. Paresh Ratilal Mehta, original plaintiffs, entered into an agreement with the respondent, ERA Realtors Private Limited, for purchase of flat No. 506 in building 'Omkar Alta Monte', Malad (East), Mumbai, with a total area of 3098 sq.ft. The appellants paid a substantial amount of Rs.1,00,43,603 to the respondent. The dispute arose regarding the actual carpet area: the appellants claimed that the respondent represented the carpet area to be 3097.69 sq.ft, while the respondent contended that the carpet area was only 1549.94 sq.ft and the remaining area comprised of niche, duct, slabs, flower beds, elevational features, and AHU as per the sanctioned plan. No further agreement as contemplated under the Maharashtra Ownership of Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (MOFA Act) was executed. The appellants filed a suit in October 2013 seeking specific performance of the agreement and other reliefs under the MOFA Act. They also filed a Notice of Motion seeking an interim injunction restraining the respondent from selling, transferring, alienating, or creating third party rights in the suit flat. The trial court dismissed the Notice of Motion and refused ad-interim relief. The appellants then filed an appeal before the High Court. The High Court, after hearing both sides, held that the appellants had made out a strong prima facie case, the balance of convenience was in their favour, and they would suffer irreparable loss if the injunction was not granted. The court set aside the trial court's order and granted an injunction restraining the respondent from selling, transferring, alienating, or creating third party rights in the suit flat until the disposal of the Notice of Motion or until further orders. The court directed the trial court to dispose of the Notice of Motion expeditiously, preferably within four weeks.
Headnote
A) Specific Performance - Interim Injunction - Prima Facie Case - Balance of Convenience - Irreparable Loss - The court considered whether the purchaser had made out a strong prima facie case for grant of ad-interim injunction restraining the developer from alienating the suit flat. The court held that the purchaser had paid substantial consideration and the dispute over carpet area required trial, and that balance of convenience was in favour of granting injunction to protect the subject matter of the suit. (Paras 5-7) B) Maharashtra Ownership of Flats Act, 1963 - Agreement for Sale - Carpet Area - Representation - The court noted that the agreement mentioned total area of 3098 sq.ft but the developer claimed carpet area was only 1549 sq.ft, while the purchaser alleged representation of 3097 sq.ft carpet area. The court held that the dispute over actual carpet area and the failure to execute a further agreement under MOFA Act raised serious triable issues. (Paras 3-4) C) Civil Procedure Code, 1908 - Order 39 Rules 1 and 2 - Ad-Interim Relief - The court held that the trial court's refusal to grant ad-interim relief was erroneous as the purchaser had made out a prima facie case and the balance of convenience was in favour of protecting the property from alienation pending disposal of the suit. (Paras 5-7)
Issue of Consideration
Whether the trial court erred in refusing ad-interim relief restraining the developer from selling or creating third party rights in the suit flat pending disposal of the suit for specific performance under the MOFA Act.
Final Decision
The High Court allowed the appeal, set aside the trial court's order dated 15 November 2013, and granted an injunction restraining the respondent from selling, transferring, alienating, or creating third party rights in the suit flat until the disposal of the Notice of Motion or until further orders. The trial court was directed to dispose of the Notice of Motion expeditiously, preferably within four weeks.
Law Points
- Specific performance
- Interim injunction
- Prima facie case
- Balance of convenience
- Irreparable loss
- Maharashtra Ownership of Flats Act
- 1963
- Carpet area representation
- Agreement for sale
