Case Note & Summary
The appellant, Our Lady of Vailankanni and Perpetual Succour Cooperative Housing Society Ltd., filed a suit (SC Suit No.875 of 2011) in the City Civil Court, Mumbai, seeking a mandatory injunction and execution of a deed of conveyance against the respondent, St. Michael's Church, a public charitable trust, which owned the land on which the society's buildings were situated. The society claimed that under the Maharashtra Ownership of Flats Act, 1963 (MOFA), the church was obligated to execute a conveyance in its favor. The society also filed Notice of Motion No.957 of 2011 seeking interim relief. The trial court dismissed the notice of motion on 04.05.2016, holding that the society failed to make out a prima facie case. Aggrieved, the society appealed to the Bombay High Court. The High Court examined the provisions of MOFA, particularly Section 11, which imposes an obligation on a promoter to execute a conveyance in favor of the society after the society has paid the full consideration. The court noted that the church was the owner of the land but had not developed it; the development was carried out by a third party developer, Suraj Estate Developers Pvt. Ltd. The society did not produce any evidence to show that the church was a 'promoter' under MOFA or that the society had paid the full consideration for the land. The court also considered the principles for granting a mandatory injunction at an interim stage, which requires a strong prima facie case and balance of convenience in favor of the applicant. The court found that the society failed to establish these requirements. Consequently, the High Court dismissed the appeal, upholding the trial court's order. The court also disposed of the civil application.
Headnote
A) Civil Procedure - Mandatory Injunction - Prima Facie Case - The court considered the principles for granting a mandatory injunction at an interim stage, requiring a strong prima facie case and balance of convenience in favor of the applicant. The appellant failed to establish that the respondent was a 'promoter' under MOFA or that the society had paid full consideration for the land. (Paras 1-9) B) Property Law - Conveyance - Section 11 of Maharashtra Ownership of Flats Act, 1963 - Obligation of Promoter - The obligation to execute a deed of conveyance under Section 11 MOFA arises only if the promoter has developed the land and the society has paid the full agreed consideration. The appellant did not produce evidence of payment or that the respondent was the promoter. (Paras 2-9) C) Trust Law - Public Charitable Trust - Ownership of Land - The respondent, a public charitable trust, was the owner of the land. The court noted that the trust had not developed the property; the development was done by a third party developer. Hence, the trust could not be compelled to execute a conveyance under MOFA. (Paras 2-9)
Issue of Consideration
Whether the appellant/plaintiff cooperative housing society is entitled to a mandatory injunction directing the respondent/defendant church trust to execute a deed of conveyance in respect of the land on which the society's buildings are situated, under the Maharashtra Ownership of Flats Act, 1963.
Final Decision
The appeal is dismissed. The order dated 04.05.2016 passed by the Learned 2nd Additional Principal Judge, City Civil Court, Mumbai, dismissing Notice of Motion No.957 of 2011, is upheld. Civil Application No.798 of 2016 is disposed of accordingly.
Law Points
- Maharashtra Ownership of Flats Act
- 1963
- Section 11
- Conveyance
- Promoter
- Cooperative Housing Society
- Mandatory Injunction
- Notice of Motion
- Prima Facie Case
- Balance of Convenience
- Irreparable Loss
