Bombay High Court
Kher Nagar Sai Prasad C.H.S. Ltd vs Pittie Antariksh Grl Pvt.Ltd on 25 April, 2025
Author: M. S. Karnik
Bench: M. S. Karnik
2025:BHC-OS:7030
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
COMMERCIAL APPEAL (L) NO. 9061 OF 2024
IN
INTERIM APPLICATION (L) NO. 27970 OF 2023
IN
COMMERCIAL SUIT (L) NO. 27651 OF 2023
Kher Nagar Sai Prasad C.H.S.
Building No.2, M.H.B. Colony,
Kher Nagar, Bandra (East),
Mumbai 400051. ... Appellant
Versus
Pittie Antariksh GRL Pvt. Ltd.
5th Floor, Dheeraj Plaza, 23 Hill Road,
Bandra (West), Mumbai-400050. .... Respondent
WITH
INTERIM APPLICATION (L) NO. 9359 OF 2024
IN
COMMERCIAL APPEAL (L) NO. 9061 OF 2024
IN
INTERIM APPLICATION (L) NO. 27970 OF 2023
IN
COMMERCIAL SUIT (L) NO. 27651 OF 2023
Kher Nagar Sai Prasad C.H.S.
Building No.2, M.H.B. Colony,
Kher Nagar, Bandra (East),
Mumbai 400051. ... Applicant
In the matter between :
Kher Nagar Sai Prasad C.H.S.
Building No.2, M.H.B. Colony,
Kher Nagar, Bandra (East),
Mumbai 400051. ... Appellant
Versus
PMB 1
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Pittie Antariksh GRL Pvt. Ltd.
5th Floor, Dheeraj Plaza, 23 Hill Road,
Bandra (West), Mumbai-400050. .... Respondent
****
Mr. Zal Andhyarujina, Senior Advocate a/w. Mr. Nishant
Shashidharan, Mr. Shrey Sancheti, Ms. Paluck Bengali and
Mr. Shreyas Moharir i/b Ashraf Diamondwala for the Appellant.
Mr. Sharan Jagtiani, Senior Advocate a/w. Mr. Karl Tamboly,
Ms. Pooja Kane, Ms. Shradha Achliya, Mr. Bharat Jain,
Mr. Anant Ratnaparkhi and Mr. Kavish Arora i/b IC Legal for
the Respondent .
****
CORAM : ALOK ARADHE, CJ &
M. S. KARNIK, J.
RESERVED ON : 9th APRIL, 2025
PRONOUNCED ON : 25th APRIL, 2025
JUDGMENT (PER M. S. KARNIK, J.) :
1. The challenge in this Commercial Appeal under Section
13 of the Commercial Courts Act is to the judgment and order
dated 1st February 2024 passed by the learned Single Judge of
this Court in the Interim Application seeking reliefs in terms of
prayer clauses (a) and (b) during the pendency of the
Commercial Suit filed by the Respondent/original plaintiff -
Pittie Antariksh GRL Pvt. Ltd. ('the developer' for short). By
the impugned order, the learned Single Judge made the
Interim Application absolute in terms of prayer clauses (a)
and (b) which read thus:-
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"(a) This Hon'ble Court be pleased to pass an interim and
temporary injunction against the defendant restraining the
defendant, its members, representatives, nominees, and
assigns/or from entering into any agreement, appointing
another developer for redevelopment of the defendant's
building and/or creating any third party rights in respect of
the Suit property.
(b) This Hon'ble Court be pleased to stay effect and
implementation of the defendant's letter dated 24th May 2023
and restrain the defendant and its members from acting in
furtherance of the said letter dated 24th May 2023."
2. In the Suit, the Respondent prayed for a declaration that
there is a valid, binding and subsisting contract between
the Respondent/original plaintiff - developer and the
Appellant/original defendant - Kher Nagar Sai Prasad
Co-operative Housing Society Ltd. ('society' for short) as
recorded in letters dated 30th August 2021 and 23rd October
2021. The relief for a decree of specific performance of
agreement as recorded in letters dated 30 th August 2021 and
23rd October 2021 was prayed for. A relief for declaration that
letter dated 24th May 2023 is illegal, contrary to law and
non-est is prayed for. Then a relief for a mandatory injunction
against the society and its representatives from creating third
party rights in the suit property; in the alternative for
compensation. The Interim Application was filed for reliefs
during the pendency of the Suit.
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3. Facts relevant to the decision in the Appeal are thus :-
Maharashtra Housing and Area Development Authority
('MHADA' for short) was the owner of a land admeasuring
1066.94 sq.mtrs. situated at Survey No.341(pt) and CS
No.604 (pt) at Khernagar, Bandra (East) ('suit land' for short)
alongwith a building (G + 2 storey) ('suit building' for short),
the property referred to as 'suit property' for short hereafter.
MHADA executed a Lease Deed in favour of the society for suit
land on 4th January 2016. On this date i.e. 4 th January 2016
MHADA also executed Sale Deed in favour of the society for
the suit building. The society floated a tender on 29 th March
2021 for redevelopment of the suit property and bids were
invited from the interested developers. The bid submitted by
the said developer was accepted. A Special General Body
Meeting of the society was held on 31 st July 2021 where the
Respondent/plaintiff was provisionally selected as the
developer by the society. An offer letter was issued by the
developer to the society on 4 th August 2021. A comfort letter
dated 7th August 2021 was issued to the developer by the
society inter alia stating that the final selection and
appointment of the plaintiff as a developer shall be done after
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complying with the procedure laid down under Section 79A of
the Maharashtra Co-operative Societies Act, 1960 ('Societies
Act' for short).
4. A revised offer letter dated 30 th August 2021 was issued
by the developer to the society. By the said offer letter, the
developer inter alia offered (i) additional area of 510 sq.ft.
MOFA carpet area to each existing member free of cost and
(ii) Rs.20,00,000/- as lumpsum hardship allowance to each
member. An email was addressed by the developer to the
society inter alia revising its offer on 20 th October 2021. By
the said revised offer letter, the developer inter alia offered (i)
additional area of 528 sq.ft. MOFA carpet area to each existing
member free of cost and (ii) Rs.16,00,000/- as lumpsum
hardship allowance to each member. On 21st October 2021 an
email was addressed by the society to the developer inter alia
stating that the members of the society were not agreeable to
the offer letter dated 20th October 2021 received from the
developer and instead the members have requested for
(i) additional area of 540 sq.ft. MOFA alongwith
Rs.17,00,000/- as lumpsum hardship allowance to each
member or (ii) additional area of 528 sq.ft. MOFA alongwith
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Rs.18,50,000/- as lumpsum hardship allowance to each
member. An email was addressed by the developer to the
society inter alia revising its offer on 23rd October 2021
whereby the developer offered (i) additional area of 528 sq.ft.
MOFA carpet area to each existing member free of cost and
(ii) Rs.17,51,000/- as lumpsum hardship allowance to each
member.
5. A letter was addressed by the Authorised Officer,
Co-operative Societies dated 28th October 2021 inter alia
stating that the Special General Body Meeting of the society
was held on 24th October 2021 where, by more than 75%
majority of the society's members, the Respondent-plaintiff
was appointed as their developer.
6. On 31st October 2021 a letter was addressed by the
society to the developer confirming the appointment of the
plaintiff as the developer during the Special General Body
Meeting held on 24th October 2021 as per the terms and
conditions contained in the offer letters dated 30 th August
2021 read with 23rd October 2021. The developer's advocates
forwarded a draft development agreement and power of
attorney to the society on 5th January 2022. An email was
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addressed by the Society's advocates to the developer's
advocates stating that as discussed in the meeting held on
10th May 2022 the terms on (i) Time shall be essence of
contract and (ii) overall period of completion not to exceed
60 months needs to be incorporated in the draft. Further, it
was stated that the termination clause shall be discussed with
the Managing Committee. Again a letter was addressed by the
society on 11th May 2022 to the developer inter alia stating
that the termination clause shall be discussed in the Special
General Body Meeting and not in the Managing Committee
Meeting.
7. On 25th July 2022 the developer's advocate vide its email
forwarded a revised draft of development agreement to the
society. The society addressed an email on 26th July 2022 to
the developer forwarding the final drafts of development
agreement alongwith annexures. The society addressed an
email on 30th August 2022 to the developer requesting to
incorporate few points given by Pune Municipal Corporation
('PMC' for short) in the development agreement. The society
vide its letter dated 13th October 2022 requested the
Managing Director of the developer to remain present on 16 th
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October 2022 for a meeting to discuss certain points
regarding the redevelopment. The developer in turn by an
email dated 31st October 2022 addressed to the society
agreed for the meeting with their advocates on 2nd November
2022. The meeting was postponed. One of the members of
the society addressed a whatsapp message dated 8 th
November 2022 requesting for clarification on points
mentioned therein. The society by its email dated 7th
November 2022 informed the developer that they shall be
visiting the office of the developer on 8th November 2022 to
seek certain clarifications.
8. The developer on 11th November 2022 addressed an
email to the society stating that most of the queries of the
members of the society had been clarified by the developer
and requested the society to expedite the process of finalising
the development agreement. The developer forwarded a draft
development agreement to the society on 18th November
2022 pursuant to the meeting held between the parties.
The society replied to the aforesaid email on 19 th November
2022 and forwarded the finalised draft development
agreement to the developer. Then on 25 th November 2022 the
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society forwarded an email as regards the queries raised by
the PMC. The society vide its email dated 26 th December 2022
sought clarification on points mentioned in the said email. On
3rd January 2023 the society requested the developer to visit
the society's office on 8th January 2023 to resolve all pending
issues regarding redevelopment. The developer confirmed to
the society on 4th January 2023 that their top management
shall be attending the said meeting on 8 th January 2023.
The society vide its email dated 5th January 2023 stated that
they had sent the final draft development agreement on
26th December 2022 and awaiting the response of the
developer. The society requested that the meeting be held
with the lawyers to finalise the development agreement.
On 8th January 2023 the society vide its email confirmed that
at the meeting held, the developer had positively resolved all
the queries of the society and that it was proposed that
additional total area of 578 usable carpet area with no
additional cost shall be given to each member. The developer
by an email dated 13th January 2023 inter alia stated that the
new terms being proposed by the society for additional total
area of 578 usable carpet area were not acceptable to the
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developer and such increase in area cannot be without any
cost to the members. The developer also stated that if the
society insisted upon such terms then the developer would
have to relook/revise the agreed hardship compensation, rent,
bank guarantee and payment schedule. The society by an
email dated 16th January 2023 informed the developer that
the members were interested in increasing entitlement area
and were agreeable to revision of other commercial terms.
The society requested the developer to send the revised
terms. The developer by an email dated 23 rd January 2023
called upon the society to finalise the development
agreement, which was being delayed by the society. The
developer informed the society that other terms shall be
revised only upon the development agreement being finalised.
The society vide its email dated 27th January 2023 alleged
that there was no concluded contract between the parties yet
and the negotiations were still ongoing. The society called
upon the developer to fix a meeting on 3 rd or 4th February
2023 to discuss the commercial terms. The developer vide its
letter dated 9th February 2023 replied to the society stating
that there was a concluded contract between them and that
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based on such contract the developer had already undertaken
substantial work. By the said letter, the developer called upon
the society to immediately execute and register a
development agreement. The society by its communication
dated 28th February 2023 requested the developer to fix a
meeting to discuss the commercial terms. The meeting was
fixed on 13th March 2023. Then on 3 rd April 2023 the society
requested the developer to fix a meeting for discussing the
letter dated 25th March 2023 received from MHADA regarding
redevelopment on the said building. On 4 th May 2023 the
developer once again called upon the society to execute and
register the development agreement. The society addressed a
letter dated 24th May 2023 (Termination Letter) to the
developer terminating the plaintiff as its developer inter alia
on account of alleged delay by the developer in forwarding the
revised terms of redevelopment to the society. The developer
addressed a letter to the society on 12th June 2023 inter alia
stating that the termination was unlawful, illegal and bad in
law and reserved its right to address a detailed letter.
9. The developer sent a detailed letter dated 21 st June
2023 to the society disputing the contents of the purported
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termination letter and inter alia stated that they are the duly
appointed developer of the suit property and have invested
substantial costs towards the same. A public notice was issued
by the society inviting tenders from developers for
redevelopment of the suit property and hence the Suit was
filed on 25th September 2023. The Interim Application came
to be allowed by the learned Single Judge by the impugned
order dated 1st February 2024 which is under challenge in this
Appeal.
10. Mr. Andhyarujina, learned Senior Advocate for the
society submits that the learned Single Judge committed an
error in coming to the conclusion that there was a concluded
contract on the basis of the letters dated 30th August 2021
and 23rd October 2021. Mr. Andhyarujina submitted that the
sequence of facts and events and the communications on
record is demonstrative of the fact that the negotiations were
ongoing and this is not a case of a concluded contract. It is
submitted that the final development agreement was not
signed by the parties. The developer was pressurising the
society to execute the final development agreement despite
the ongoing negotiations. Mr. Andhyarujina submitted that
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even the area to which each of the member would be entitled
was not finalised and therefore, this is not a case of a
concluded contract. Mr. Andhyarujina submits that considering
the overall cost of the project, a miniscule amount was
expended by the developer for the preliminary negotiations
which even the society had expended. According to him, this
cannot be regarded to mean the developer incurring
substantial cost towards the development of the property.
According to Mr. Andhyarujina the members are in possession
of their flats and the actual redevelopment work has not even
commenced. Mr. Andhyarujina in support of his submissions
relied on the decisions in Kalpataru Ltd. Vs. Middle Class
Friends Co-operative Housing Society Ltd. 1 and Kalpataru
Properties Pvt. Ltd. Vs. Majithia Nagar Co-operative Housing
Society Ltd.2
11. On the other hand Mr. Jagtiani in support of his
submissions invited our attention to the findings of the
learned Single Judge. Mr. Jagtiani submits that the findings of
the learned Single Judge are unassailable. Mr. Jagtiani
submitted that the discretion has been exercised by the
1 2021 SCC OnLine Bom 554
2 2014 SCC OnLine Bom 984
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learned Single Judge while granting the injunction on the well
established legal principles. Mr. Jagtiani submitted that the
contract in question is comprised in the final offer and
acceptance as between the parties leading to an appointment
of the plaintiff as a developer for carrying out the
redevelopment of the suit property. It is submitted that the
learned Single Judge was justified in coming to the conclusion
that there was a concluded contract between the parties as
the communications on record indicate that they contain all
essential terms both as to commercial terms and other
aspects concerning redevelopment of the suit property. The
conclusion and agreement as to all essential terms, as per the
impugned order rests with the society's letter dated 31st
October 2021. By this letter the society appointed the plaintiff
as a developer which was after exchange of various other
offer letters and negotiations. After the commercial terms
were agreed to between the parties, in respect of all essential
terms including area of flats, units to be allotted, corpus etc.
between January 2022 to January 2023, the parties
exchanged several communications in relation to finalisation
of development agreement. He submits that the society in its
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various communications including email and whatsapp
messages, sought clarification from the developer on various
terms. Specific clauses of the development agreement were
also discussed in the course of these communications. The
developer answered and addressed each of these clarifications
whereafter on 26th December 2022, the society sent final draft
of development agreement and requested the developer for a
personal meeting on 8th January 2023 to resolve all pending
issues. Mr. Jagtiani emphasised on the letter dated 8 th January
2023 of the society addressed to the developer which reads
thus :-
"With reference to the captioned subject, we would like to
first of all appreciate your presence on such a short notice for
meeting on 8-1-2023. We also appreciate most of the queries
or points as mailed to you earlier vide our mail dt. 12 th Dec.
2022 have been considered by you and we have got a
positive reply from your end on majority of the points. While
we have a oral confirmation to the same we request you to
kindly arrange to send a formal mail with regards to the
same.
Further it was discussed in our SGM with majority of the
members considering the offers which has been given in the
nearby vicinity by the developer's we are proposing an
additional area to be given of 50 sq. ft i.e., total area of 578
(Actual Usable Carpet Area) with no additional cost.
Awaiting a favourabie reply on this point as early as
possible."
12. Mr. Jagtiani submits that despite there being a closure on
the terms of the development agreement, the society sought
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to open the commercial negotiations which had resulted into a
concluded contract. It is then that there were communications
and the parties refuted each other's position. Mr. Jagtiani
submitted that the learned Single Judge after fully and
completely appreciating the matter from every possible
perspective both on facts and law by a reasoned order
granted the interim prayers. It is submitted that the learned
Single Judge in paragraph 14 of the impugned order noted the
question "Whether a finally signed Development Agreement is
necessary for presuming a concluded contract, particularly
when in its absence, material terms are already finalised
amongst the parties." He submits that the learned Single
Judge in answering this question has appreciated completely
the materials on record in paragraph 24 of the impugned
order. A further and detailed appreciation of factual material is
undertaken in the context of relevant legal principle in
paragraphs 25 to 28 of the impugned order. According to him,
the learned Single Judge rightly distinguished on facts, the
judgment of this Court in Kalpataru Ltd. Vs. Middle Class
Friends Co-operative Housing Society Ltd. (supra). Mr. Jagtiani
submitted that the learned Single Judge while recognising the
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freedom to negotiate rightly held that once the negotiations
have crystallised into a contract pursuant to acceptance of
offer then one cannot in the guise of negotiation contend that
there is no concluded contract. It is submitted that in view of
the detailed reasoning and appreciation of factual material by
the learned Single judge, this Appeal ought to be rejected as
the society is effectively seeking a re-appreciation of the
matter, without satisfying the tests applicable to appellate
jurisdiction as laid down in Wanders Ltd. & Anr. vs. Antox
India3; Ramakant Ambalal Choksi vs. Harish Ambalal Choksi 4;
Mohd. Mehtab Khan vs. Khushnuma Ibrahim Khan 5; Neon
Laboratories Ltd. vs. Medical Technologies Ltd.6; Shyam Sel &
Power Ltd. vs. Shyam Steel Industries Ltd.7 and World Crest
Advisors LLP vs. Catalyst Trusteeship Limited & Ors. 8 Mr.
Jagtiani made a fervent plea that this is not a fit case for
exercising appellate jurisdiction in respect of a judgment and
order which considers all the material facts and the law which
is a valid exercise of discretion. Mr. Jagtiani, learned Senior
Advocate for the developer pointed out that the developer had
3 1990 Supp SCC 727
4 2024 SCC OnLine SC 3538
5 (2013) 9 SCC 221
6 (2016) 2 SCC 672
7 (2023) 1 SCC 634
8 2022 SCC OnLine Bom 1409
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already obtained demarcation of the society's plot, Civil
Aviation NOC, appointed lawyer, architects, structural
consultants and MEP consultants, liasoning consultants, etc.
and incurred costs of Rs.1,22,70,600/- towards
redevelopment of the said property.
13. We have heard learned Senior Advocates at length.
We agree with Mr. Jagtiani that the scope of interference in
the appellate jurisdiction that we are exercising is narrow in
view of the well established legal principles laid down by the
Courts. Wanders Ltd. & Anr. vs. Antox India (supra) dealt with
the law in relation to the scope of an appeal against grant or
non-grant of interim injunction was referred to by the
Supreme Court in Ramakant Ambalal Choksi (supra).
The Hon'ble Supreme Court discussed the scope of appellate
jurisdiction under Order XLIII of the Code of Civil Procedure
('CPC' for short). It is necessary to be mindful of the
observations of Their Lordships before forming an opinion
whether to interfere or not with the order passed by the
learned Single Judge in the exercise of the narrow scope
of appellate jurisdiction under Order XLIII of the CPC.
The relevant observations of the Hon'ble Supreme Court in
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Ramakant Ambalal Choksi (supra) are significant which read
thus :-
"20. Order 43 of the CPC specifies the orders against which
an appeal lies. Sub-Rule (r) of Rule 1 of the said order
provides that an appeal would lie against an order made
under Rules 1, 2, 2A, 4 and 10 of Order 39 of the CPC
respectively.
21. The law in relation to the scope of an appeal against
grant or non-grant of interim injunction was laid down by this
Court in Wander Ltd. v. Antox India P. Ltd., 1990 Supp SCC
727. Antox brought an action of passing off against Wander
with respect to the mark Cal-De-Ce. The trial court declined
Antox's plea for an interim injunction, however, on appeal the
High Court reversed the findings of the trial judge. This
Court, upon due consideration of the matter, took notice of
two egregious errors said to have been committed by the
High Court :
a. First, as regards the scope and nature of the
appeals before it and the limitations on the powers of
the appellate court to substitute its own discretion in
an appeal preferred against a discretionary order; and
b. Secondly, the weakness in ratiocination as to the
quality of Antox's alleged user of the trademark on
which the passing off action is founded.
22. With regards to (a), this Court held thus :
"In such appeals, the appellate court will not interfere
with the exercise of discretion of the court of the first
instance and substitute its own discretion, except
where the discretion has been shown to have been
exercised arbitrarily or capriciously or perversely, or
where the court had ignored the settled principles of
law regulating grant or refusal of interlocutory
injunctions ... the appellate court will not reassess the
material and seek to reach a conclusion different from
the one reached by the court below ... If the discretion
has been exercised by the trial court reasonably and in
a judicial manner the fact that the appellate court
would have taken a different view may not justify
interference with the trial court's exercise of
discretion."
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23. This Court, while arriving at the above findings, relied
on its earlier judgment in Printers (Mysore) v. Pothan Joseph,
1960 SCC OnLine SC 62 where it was held thus :
"[...] as has been observed by Viscount Simon LC in
Charles Osenton & Co v. Johnston - the law as to
reversal by a court of appeal of an order made by a
judge below in the exercise of his/her discretion is well
established, and any difficulty that arises is due only to
the application of well-settled principles in an
individual case."
24. It is pertinent to note that in Printers (supra) this
Court had held that ignoring relevant facts is also a ground
for interfering with the discretion exercised by the trial court.
Furthermore, Viscount Simon LC in Charles Osenton & Co v.
Johnston, [1942] A.C. 130, after stating the above, went on
to quote Lord Wright's decision in Evans v. Bartlam, [1973]
A.C. 473 :
"It is clear that the court of appeal should not interfere
with the discretion of a judge acting within his
jurisdiction unless the court is clearly satisfied that he
was wrong. But the court is not entitled simply to say
that if the judge had jurisdiction and had all the facts
before him, the court of appeal cannot review his order
unless he is shown to have applied a wrong principle.
The court must, if necessary, examine anew the
relevant facts and circumstances in order to exercise a
discretion by way of review which may reverse or vary
the order."
25. In Evans (supra) case, Lord Wright made it clear that
while adjudicating upon the discretion exercised by the trial
court, the appellate court is obliged to consider the case put
forward by the appellant in favour of its argument that the
trial court exercised its discretion arbitrarily or incorrectly in
the circumstances.
26. What flows from a plain reading of the decisions in
Evans (supra) and Charles Osenton (supra) is that an
appellate court, even while deciding an appeal against a
discretionary order granting an interim injunction, has to:
a. Examine whether the discretion has been properly
exercised, i.e. examine whether the discretion
exercised is not arbitrary, capricious or contrary to the
principles of law; and
b. In addition to the above, an appellate court may in
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a given case have to adjudicate on facts even in such
discretionary orders.
27. The principles of law explained by this Court in
Wander's (supra) have been reiterated in a number of
subsequent decisions of this Court. However, over a period of
time the test laid down by this Court as regards the scope of
interference has been made more stringent. The emphasis is
now more on perversity rather than a mere error of fact or
law in the order granting injunction pending the final
adjudication of the suit.
28. In Neon Laboratories Ltd. v. Medical Technologies Ltd.,
(2016) 2 SCC 672 this Court held that the Appellate Court
should not flimsily, whimsically or lightly interfere in the
exercise of discretion by a subordinate court unless such
exercise is palpably perverse. Perversity can pertain to the
understanding of law or the appreciation of pleadings or
evidence. In other words, the Court took the view that to
interfere against an order granting or declining to grant a
temporary injunction, perversity has to be demonstrated in
the finding of the trial court.
29. In Mohd. Mehtab Khan v. Khushnuma Ibrahim Khan,
(2013) 9 SCC 221 this Court emphasised on the principles
laid down in Wander (supra) and observed that while the
view taken by the appellate court may be an equally possible
view, the mere possibility of taking such a view must not
form the basis for setting aside the decision arrived at by the
trial court in exercise of its discretion under Order 39 of the
CPC. The basis for substituting the view of the trial court
should be malafides, capriciousness, arbitrariness or
perversity in the order of the trial court. The relevant
observations are extracted below:
"20. In a situation where the learned trial court on a
consideration of the respective cases of the parties and
the documents laid before it was of the view that the
entitlement of the plaintiffs to an order of interim
mandatory injunction was in serious doubt, the
Appellate Court could not have interfered with the
exercise of discretion by the learned Trial Judge unless
such exercise was found to be palpably incorrect or
untenable. The reasons that weighed with the learned
Trial Judge, as already noticed, according to us, do not
indicate that the view taken is not a possible view. The
Appellate Court, therefore, should not have substituted
its views in the matter merely on the ground that in its
opinion the facts of the case call for a different
conclusion. Such an exercise is not the correct
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parameter for exercise of jurisdiction while hearing an
appeal against a discretionary order. While we must
not be understood to have said that the Appellate
Court was wrong in its conclusions what is sought to
be emphasized is that as long as the view of the trial
court was a possible view the Appellate Court should
not have interfered with the same following the
virtually settled principles of law in this regard as laid
down by this Court in Wander Ltd. v. Antox India (P)
Ltd."
30. This Court in Shyam Sel & Power Ltd. v. Shyam Steel
Industries Ltd., (2023) 1 SCC 634 observed that the
hierarchy of the trial court and the appellate court exists so
that the trial court exercises its discretion upon the settled
principles of law. An appellate court, after the findings of the
trial court are recorded, has an advantage of appreciating the
view taken by the trial judge and examining the correctness
or otherwise thereof within the limited area available. It
further observed that if the appellate court itself decides the
matters required to be decided by the trial court, there would
be no necessity to have the hierarchy of courts.
31. This Court in Monsanto Technology LLC v. Nuziveedu
Seeds Ltd., (2019) 3 SCC 381, observed that the appellate
court should not usurp the jurisdiction of the Single Judge to
decide as to whether the tests of prima facie case, balance of
convenience and irreparable injury are made out in the case
or not.
32. The appellate court in an appeal from an interlocutory
order granting or declining to grant interim injunction is only
required to adjudicate the validity of such order applying the
well settled principles governing the scope of jurisdiction of
appellate court under Order 43 of the CPC which have been
reiterated in various other decisions of this Court. The
appellate court should not assume unlimited jurisdiction and
should guide its powers within the contours laid down in the
Wander (supra) case.
35. Any order made in conscious violation of pleading and
law is a perverse order. In Moffett v. Gough, (1878) 1 LR 1r
331, the Court observed that a perverse verdict may
probably be defined as one that is not only against the
weight of evidence but is altogether against the evidence. In
Godfrey v. Godfrey, 106 NW 814, the Court defined
"perverse" as "turned the wrong way"; not right; distorted
from the right; turned away or deviating from what is right,
proper, correct, etc.
comapl.9061-2024.odt
36. The expression "perverse" has been defined by various
dictionaries in the following manner:
a. Oxford Advanced Learner's Dictionary of Current
English, 6th Ed.
Perverse - Showing deliberate determination to
behave in a way that most people think is wrong,
unacceptable or unreasonable.
b. Longman Dictionary of Contemporary English -
International Edition
Perverse - Deliberately departing from what is
normal and reasonable.
c. The New Oxford Dictionary of English - 1998 Edition
Perverse - Law (of a verdict) against the weight
of evidence or the direction of the judge on a point of
law.
d. New Webster's Dictionary of the English Language
(Deluxe Encyclopedic Edition)
Perverse - Purposely deviating from accepted or
expected behavior or opinion; wicked or wayward;
stubborn; cross or petulant.
e. Stroud's Judicial Dictionary of Words & Phrases, 4th
Ed.
Perverse - A perverse verdict may probably be
defined as one that is not only against the weight of
evidence but is altogether against the evidence.
37. The wrong finding should stem out on a complete
misreading of evidence or it should be based only on
conjectures and surmises. Safest approach on perversity is
the classic approach on the reasonable man's inference on
the facts. To him, if the conclusion on the facts in evidence
made by the court below is possible, there is no perversity. If
not, the finding is perverse. Inadequacy of evidence or a
different reading of evidence is not perversity. (See:
Damodar Lal v. Sohan Devi, (2016) 3 SCC 78)
42. ...The failure of the High Court in pointing out any
perversity in the order of the trial court is a glaring reminder
of why the High Courts must exercise their appellate
jurisdiction against interlocutory orders involving the exercise
of discretion of the trial court with great caution and
mindfulness. High Courts must not lightly set aside the
decision arrived at by the trial court in exercise of its
discretion unless the order of the trial court fails to satisfy
the parameters as delineated by us in the preceding
paragraphs. The failure to engage with these crucial aspects
comapl.9061-2024.odt
renders the High Court's order deficient, detracting front the
objective of rendering substantive and reasoned justice."
14. As observed by Their Lordships in paragraph 26,
an Appellate Court, even while deciding an Appeal against
the discretionary order granting an interim injunction, has
to : (a) Examine whether the discretion has been properly
exercised, i.e. examine whether the discretion exercised is not
arbitrary, capricious or contrary to the principles of law; and
(b) In addition to the above, an appellate court may in a given
case have to adjudicate on facts even in such discretionary
orders. In the light of the observations made by the Supreme
Court, over a period of time the test laid down by the
Supreme Court as regards the scope of interference has been
made more stringent. The emphasis is now more on
perversity rather than a mere error of fact or law in the order
granting injunction pending the final adjudication of the suit.
The appellate court should not assume unlimited jurisdiction
and should guide its powers within the contours of law laid
down in the Wander (supra) case. We should be mindful that
in exercise of our appellate jurisdiction against interlocutory
orders involving the exercise of discretion of the trial court,
the same has to be with great caution and mindfulness.
comapl.9061-2024.odt
We cannot lightly set aside the decision arrived at by the
learned Single Judge in exercise of its discretion unless the
order of the court fails to satisfy the parameters as delineated
by the Supreme Court in Ramakant Ambalal Choksi (supra).
Bearing these well settled principles in mind we proceed to
examine whether there is any scope for interference with the
discretion exercised by the learned Single Judge while
granting an injunction in favour of the developer.
15. The question before the learned Single Judge was
"Whether a finally signed Development Agreement is
necessary for presuming a concluded contract, particularly
when in its absence, material terms are already finalised
amongst the parties." The learned Single Judge undertook
the appreciation of the factual materials in the context of the
legal principles stated in the impugned order. The learned
Single Judge considered and appreciated the following
material :-
(I) Revised offer letter dated 30th August 2021 issued
by the developer to the society whereby the developer
offered (i) additional area of 510 sq.ft. MOFA carpet area
to each existing member free of cost and (ii)
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Rs.20,00,000/- as lumpsum hardship allowance to each
member.
(II) Further revised offer dated 23rd October 2021
whereby the developer while revising its offer informed
the society that it was willing to offer (i) additional area
of 528 sq.ft. MOFA carpet area and (ii) Rs.17,51,000/-
as lumpsum hardship allowance.
(III) Acceptance of offers dated 30th August 2021 and
23rd October 2021 vide appointment letter dated 31 st
August 2021 issued by the society to the developer
appointing the plaintiff as the developer.
(IV) The email dated 8th January 2023 addressed by the
society to the developer stating that all issues are
resolved.
16. According to the learned Single Judge the society
appointed the plaintiff as a developer because there was a
consensus on the commercial aspect. The learned Single
Judge therefore held that this amounts to a final/concluded
contract as the intention of the society and execution of
development agreement was just a formality pursuant to
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contract having come into existence on exchange of the offer
and its acceptance as well as the acceptance of the revised
offer by the members of the society. Further, in paragraphs 26
and 27 of the impugned order, the learned Single Judge held
that the contract between the parties was concluded on
material terms and just because some members were of the
opinion that they are entitled to some additional area, they
cannot wriggle out of the concluded contract. The learned
Single Judge then on consideration of the relevant legal
principles and the decisions cited by the learned counsel,
distinguished on facts the decision of this Court in Kalpataru
Ltd. Vs. Middle Class Friends Co-operative Housing Society
Ltd. (supra) in paragraph 28, by holding that in Kalpataru Ltd.
(supra) there was absence of consensus on the essential
requirements of the contract and the form, nature and the
precise configuration of the members component. Learned
Single Judge contrasted the decision in Kalpataru Ltd. (supra)
with the facts of the present case by observing in paragraph
29 that all terms of the development agreement having been
agreed upon in the present case, but what remain was only
the agreement being inked by the parties. The other
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distinguishing feature in the case of Kalpataru Ltd. (supra)
according to the learned Single Judge was the definition of
'contract' and based on which the Court has held that
execution of the development agreement was not a mere
formality, but a term of the bargain. In the context of the
narrow scope of exercise of the appellate jurisdiction, we need
to examine the relevant materials on record.
17. It is significant to note that the tender document issued
by the society in April 2021 inviting interested developers to
submit their bids contained the points on which an agreement
was to be arrived at between the parties for there to be a
concluded contract between them. Apart from the commercial
terms, these included the following:
(i) approval of the design and specifications of the
rehab component by the society [clauses 2.3, 2.4, 2.5,
2.7.8, 3.1.b., 3.1.c. 3.1.e., 3.1.f., 3.2.4., 4.b., 4.d., 4.f.,
4.13 and sections-6 to 8],
(ii) no creation of charge, lien or mortgage against the
society's property [clause 2.7.3.],
(iii) the non-assignability and non-transferability of the
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development rights [clauses 3.2.5 and 6.1],
(iv) indemnity to be given by the developer [clauses
3.3 xi), 4.31 and the proforma contained in Section-10],
(v) suspension of work on notice by the society
[clauses 3.7 and 4.26],
(vi) cancellation of the agreement [clause 3.8],
variation of terms [clause 3.9],
(vii) defect liability period [clauses 3.10 and 5.35],
(viii) consequences of delay in completion [clause 3.14],
(ix) additional carpet area to be provided at a
discounted rate [clause 4.5],
(x) submission of a detailed bar chart (which would form
part of the development agreement) [clauses 4.27 and
4.33.b.],
(xi) insurance [clause 6.1],
(xii) list of amenities and facilities [Section 9] - this was
explicitly made subject to changes and modifications as
per negotiation, and
(xiii) submission of performance guarantee [proforma
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contained in Section-11].
18. It is pertinent to note that the negotiations between the
parties was still ongoing. The final development agreement
was yet to be signed by the parties. However, the learned
single judge has extensively referred to the proposals dated
30th August 2021 and 23rd October 2021 of the developer to
the society offering the additional area and the hardship
allowance. The learned Single Judge was therefore of the
opinion that based on these letters, the society in its special
general body meeting having appointed the plaintiff as the
developer was an indicator to there being a concluded
contract between the parties.
19. We would have otherwise been slow in interfering with
the impugned judgment and order of the learned Single
Judge. However, it is not possible for us to overlook the
various aspects referred to hereinbefore in the tender
documents which were yet to be deliberated and negotiated
upon, for it is only then that the final development agreement
was to be signed between the parties for there to be a
concluded contract. The aforesaid communications referred to
by the learned Single Judge are silent on all the above
comapl.9061-2024.odt
matters. If the developer's case of specific performance is
accepted, the society can and will not have any say on the
construction details of the rehab component. The appointment
of the developer in the facts of the present case cannot
partake the character of a concluded contract in the absence
of the essential terms still under negotiation. In the present
case, whether there is a concluded contract or not cannot be
determined merely on the basis of an appointment of the
developer by the society based on the proposals and offers
prior to the appointment of the developer but in our opinion,
with respect, the learned Single Judge committed a
fundamental error in not considering the relevant clauses of
the tender document and the events post the appointment of
the developer which should have formed the basis for coming
to the conclusion whether there is a concluded contract or not
between the parties. We thus find that there is a complete
absence of consideration of the relevant materials, various
compliances of the tender document referred to hereinbefore
and also in the contextual facts of the present case, the
materials post the appointment of the developer and the
termination thereof which compels us to agree with the
comapl.9061-2024.odt
submissions of Mr Andhyarujina, learned Senior Advocate for
the society that there is absolutely no warrant in the present
case to prima facie find that there is a concluded contract
between the parties. It is for this reason that we have
narrated the facts in detail in our judgment.
20. Even as on 8th January 2023 there was a meeting
between the developer and the society to resolve the issue of
the additional total area of 578 sq.ft. usable carpet area and
the response of the developer dated 13th January 2023 that
the new terms now being proposed by the society for
additional total area of 578 usable carpet area were not
acceptable to the developer. The developer on 23 rd January
2023 called upon the society to finalise the development
agreement which according to the developer was delayed by
the society. The developer informed the society that other
terms shall be revised only upon the development agreement
being finalised. The developer insisted that the there was a
concluded contract between the parties and that the society
should immediately execute and register the development
agreement, which can be seen from the letter dated 9 th
February 2023. It was thereafter on 24th May 2023 the
comapl.9061-2024.odt
plaintiff's appointment as a developer was terminated on
account of alleged delay by the developer in forwarding the
revised terms of redevelopment to the society.
21. It is also material to note that in the Special General
Body Meeting held on 31st July 2021, the members of the
society provisionally selected the plaintiff as a developer to
carry out redevelopment. By the communication dated
7th August 2021, the society informed the developer that he
had been provisionally selected as a developer for the project.
It was also mentioned that the final selection of the plaintiff as
a developer for the project would be done after following the
procedure laid down in the Government Resolution dated
22nd February 2019 issued under Section 79A of the Societies
Act. The developer submitted a revised offer letter on
30th August 2021 whereby it offered to provide the society /
its members, inter alia, rehab premises admeasuring 510
sq.ft. MOFA carpet area (including fungible area) each;
lumpsum hardship allowance of Rs.27,00,000/-; interim
compensation of Rs.35,000/- per member until handing over
of the new component. By an email dated 21st October 2021,
the society informed the developer that the offer of 528 sq.ft.
comapl.9061-2024.odt
area and hardship compensation of Rs.16,00,000/- was not
accepted in the Special General Body Meeting held on
20th October 2021. Therefore, the developer was called upon
to submit an enhanced offer. On 23rd October 2021, the
developer submitted a revised offer, whereby it offered to
provide each existing member 528 sq.ft. MOFA carpet area
and lumpsum hardship allowance of Rs.17,51,000/- (the
revised offer) . In this letter, the developer recorded that
"all other terms and conditions to be discussed mutually
between society and us". The developer made this offer final
only on "terms and commercial aspects of our offer as
confirmed by the Society Managing Committee and all Society
Members".
22. Thus, we find that other aspects of redevelopment were
yet to be negotiated between the parties. We are of the
opinion that such an offer and its acceptance did not
constitute a final binding contract in the facts of this case.
Further, by revising the offer, it is clearly seen that the
developer was aware that the negotiation process on
commercial terms was ongoing and tentative considering the
offers that were being received by other societies in the
comapl.9061-2024.odt
neighbourhood. In the Special General Body meeting called
on 24th October 2021 for compliance with the guidelines laid
down in the Government Resolution, the Society's general
body accepted the revised offer and appointed the respondent
as its developer. The Deputy Registrar, Co-operative Societies,
MHADA by its letter dated 28th October 2021 confirmed the
plaintiff's appointment as a developer in the Special General
Body Meeting held on 24th October 2021. We are in agreement
with the submissions of learned Senior Advocate Mr.
Andhyarujina that this can at the highest be a confirmation of
plaintiff's appointment as a developer and not of a concluded
contract having been arrived between the parties. This letter
confirms that the society had complied with one of the stages
of redevelopment that is appointment of a developer.
However, it is pertinent to note that the G.R. contemplates
execution of a development agreement as a separate stage in
the redevelopment process. The G.R. does not treat the
development agreement as a mere formal written document,
whose execution has no effect on the redevelopment process.
23. By the letter dated 31st October 2021, the society
comapl.9061-2024.odt
recorded that the majority of its members had accepted the
terms and conditions of the purported letter agreement and
appointed the plaintiff as developer for the redevelopment
project on the basis thereof. As per the developer's case,
which is accepted by the learned Single Judge, the
negotiations between the parties stood culminated on this day
when the parties had arrived at a concluded contract. The
learned Single Judge was of the opinion that further
negotiations did not alter this position. Relevant in this
context is Clause 4.4 of the tender which provides that the
development agreement is one of the sequence of activities
prior to commencement of work. The development agreement
was to be made in reference to, inter alia, the tender, bank
guarantee, indemnity bond, all proposed plans with section
and elevations and any other document as may be desired to
protect the interest of the society and the members. Further,
Clause 5.11 of the tender (General Conditions of Contract)
defined 'Project' to mean and include, inter alia, a
development agreement. As per Clause 5.17 thereof, the work
order would be issued only after, inter alia, the developer has
signed the development agreement. Clause 5.19 thereof
comapl.9061-2024.odt
defined 'contract' as the agreement papers, details of
company/firm, all the proformas and the tender documents
together with the letter of intent, any other document
specifically indicated in the tender and culminating into the
formal development agreement.
24. In our opinion, on an overall conspectus of the matter,
the finding of the learned Single Judge that the execution of a
development agreement was a mere formality, is patently
erroneous. In our opinion, there could not be a concluded
contract in the facts of the present case in the absence of a
formal development agreement. We agree with the
submissions of the learned Senior Advocate for the society
that it was an inexorable term of bargain between the parties.
Even before all the terms and conditions are agreed upon by
way of a development agreement, the redevelopment process
then cannot be left in the hands of the developer which would
virtually have the effect of leaving the members of the society
to the mercy of the developer. It is for this precise reason
that the only conclusion at this stage on the basis of the
materials which can be arrived at in the facts of the present
case is that for there to be a concluded contract between the
comapl.9061-2024.odt
parties, the essential requirement is an execution of a formal
development agreement between the parties. But for this,
against the order passed by the learned Single Judge, we
would have been very slow in interfering with the
discretionary orders.
25. Even in the meeting held on 10th May 2022 between the
lawyers and representatives of the parties, the draft of the
development agreement was discussed. According to the
developer, all the terms and conditions of the development
agreement were finalised, except three clauses, i.e., (i) Time
being of the essence; (ii) period of completion shall not
exceed 60 months, subject to force majeure; (iii) termination
clause. It is thus clear that the draft of the development
agreement was being discussed even as on 10th May 2022.
According to the developer the aforesaid clauses are non-
essential terms. This is misplaced. Hence, even as on 10 th May
2022 there was no existence of a concluded contract. By the
email dated 26th July 2022 the society forwarded what stood
as the "final draft of the development agreement" to the
developer for discussion. According to the developer, the new
members of the Appellant's Managing Committee had
comapl.9061-2024.odt
changed most of the terms and conditions of the development
agreement, which were allegedly discussed and agreed by the
parties. Thereafter, meetings were held between the parties
and their advocates to discuss the draft of the development
agreement.
26. Even as on 17th December 2022, the developer
responded to demands raised in the society's email dated
12th December 2022. The developer assured the society that it
would consider the rent revision and incorporate the same in
the development agreement which was to be intimated in due
course. This in our opinion is a vital commercial term, for
unless the same is decided upon, the reluctance on the part of
the society to execute the development agreement is
understandable. On 4th January 2023, the developer
confirmed that its top management team will attend the
meeting with the society on 8th January 2023 to discuss the
pending issues regarding the draft development agreement.
On 6th January 2023 the developer forwarded two options of
the proposed tentative floor plans showing the members units
and floor plan layout for approval of the society. It shows that
even the floor plan and layout were not yet finalised.
comapl.9061-2024.odt
The plans and specifications of the rehab component were not
final. In our opinion, with respect, these materials are
completely overlooked by the learned Single Judge while
coming to the conclusion that there is a concluded contract
between the parties and hence we are inclined to interfere.
We are in agreement with the learned Senior Advocate for the
society that the essential terms of a development agreement
would also be the time within which the developer would hand
over of the rehabilitation component, the specification of the
rehabilitation area such as its position, the floors, etc. and the
consequences of delay in furnishing the rehabilitation
component. The letter agreements dated 30th August 2021
read with a revised offer letter dated 30 th October 2021
heavily relied upon by the learned Single Judge do not
indicate any agreement on inter alia the specifications of the
rehabilitation component, the nature and details and
specifications of the amenities and/the consequences of
default. Each of these letters expressly states that all other
terms and conditions are to be discussed mutually between
the parties clearly indicating that the issue was not anywhere
near to a concluded contract. Even if the revised offer of
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23rd October 2021 is perused, it expressly proceeds on the
basis that "There won't be any further negotiation on the
terms and commercial aspects of our offer as confirmed by
the Society Managing Committee and all society members"
which clearly indicates that the offer and the revised offer
were only on the commercial terms and conditions and not
the other conditions necessary for development. It is evident
that a number of terms and conditions remained to be
decided between the parties.
27. We find force in the submission of learned Senior
Advocate for the society that through the letter dated
31st October 2021 the developer merely stood as the
successful tenderer which was the conclusion of the tender
process and nothing more. The next stage of the contractual
process necessarily involved a development agreement
between the society and the developer which admittedly
never fructified and was in the process of negotiation. The
G.R. dated 22nd February 2019 referred to by us hereinbefore
is an indicator which recognises two distinct stages first of
selection and the second is of executing a development
agreement. The opinion of the learned Single Judge that there
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is a concluded contract between the parties, with respect, is in
the teeth of the tender conditions and the statutory conditions
stipulated in the G.R. dated 4th July 2019.
28. Let us analyze the decision in Kalpataru Ltd. Vs. Middle
Class Friends Co-operative Housing Society Ltd. (supra) which
was distinguished by the learned Single Judge. The relevant
paragraphs in Kalpataru Ltd. Vs. Middle Class Friends
Co-operative Housing Society Ltd. (supra) read thus :-
"5. The question is in this general background. There is a
Lol between the parties. Kalpataru is to redevelop the
Society's property. The Lol specifically says there is to be a
further agreement, and it says what that further agreement
is to contain. The Lol is, however, itself detailed and complex.
Kalpataru maintains that even if the further agreement is not
finalized -- the parties have not reached a consensus on it --
the Lol itself is sufficiently detailed as to the rights of the
parties. It is, on its own, capable of specific performance.
While that is certainly for the arbitral tribunal to consider, the
fact that the Lol contemplates a further agreement does not
ipso facto render the Lol incapable of specific performance. In
other words, according to Kalpataru, every agreement that
requires a further agreement is not unenforceable only for
that reason. The Lol is a 'concluded contract'. The later
agreement is a non-essential term of the bargain the parties
struck.
45. Projects like these always have two components. The
first is the rebuilding of the Society's homes. This is the
members' component. They must get their newly constructed
flats. These must be to the members' (and their Society's)
specifications and liking. The rationale is that the property is,
after all, that of the Society. The chosen developer does not
get to dictate to members what their flats should be like, how
they should live or what kind of parking they must accept.
That choice is, and is only, that of the members and the
Society. The present contract, as we have seen, envisages
precisely this when it says that Kalpataru is to give members
a range of options from which to choose. The second
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component is the free-sale component, Kalpataru's (or any
developer's) incentive and profit-centre. Here, the Society
may have next to no say. The second component is
consideration from the Society for the first. Viewed in
reverse, the developer's rights to the second component of
free-sale component is the consideration for it providing to
members and the Society, free of charge, the first component
of members' housing designed to the members' specifications
and liking. Consequently, if there is no agreement on the first
component -- the layout, the floor plans, the flat
dimensioning and layouts, the amenities, the parking -- the
project cannot and does not proceed. This is the essence of
the DA. In the contract documents other than the DA, this
has not been specified. It remained to be done, and this is
the reason drafts of the DA were being constantly exchanged
and revised.
46. The legal consequence must, therefore, logically be
that the DA is an essential requirement. It is not an idle
formality. The project cannot proceed without it -- there is
simply no agreement on what is to be built for the members'
component. If this be so, Kalpataru's case must fail entirely.
Add to this the fact that in its petition Kalpataru expresses it
willingness to complete the DA on such terms as this Court or
the arbitral tribunal may decide and it is clear that the DA is
no idle nice-to-have document but is of the very essence.
That suggestion, incidentally, is preposterous for it is not for
any court or tribunal to step into the agreement-making
arena.
47. Most fundamentally, what this tells us is that there is
no consensus ad idem on an essential requirement of the
contract: the form, nature and precise configuration of the
members' component. Kalpataru cannot brush this aside.
60. The DA is not an idle formality. The fullness of the
terms of the construction were not agreed. They were to be
part of the DA. Even the final terms of 'termination by the
Society' are inchoate, and Kalpataru's draft suggestion on
that in clause 19 of the draft DA is utterly preposterous,
untethered to any rational concept of law and wholly
unmoored from every concept of justice or of contracting
parties being on an equal footing. The DA is not just
required. It is an essential condition of the contract. Indeed,
it is a fundamental term of the contract.
(emphasis supplied)
comapl.9061-2024.odt
29. The decision in Kalpataru Ltd. Vs. Middle Class Friends
Co-operative Housing Society Ltd. (supra) is completely in
support of the society. The decision in Kalpataru Ltd. Vs.
Middle Class Friends Co-operative Housing Society Ltd.
(supra) is applicable to the facts of the present case and not
possible to be distinguished.
30. We are therefore of the opinion that the developer has
failed to make out a prima facie case for the reasons
aforementioned, even the balance of convenience is in favour
of the society as the essential terms and conditions apart from
several other terms and conditions were being negotiated and
had not reached finality. Even so far as the irreparable loss is
concerned, no irreparable loss will be caused to the developer
as the claim for damages has been made by the developer in
the Suit. The developer having incurred expenditure on
negotiations, payment of lawyers fees and other
miscellaneous expenses, in the absence of the development
work having actually commenced, cannot be a factor
favouring the developer in getting an injunction against the
society.
comapl.9061-2024.odt
31. The Appeal is therefore allowed. The impugned order
dated 1st February 2024 of the learned Single Judge is
quashed and set aside. Interim Application (L) No.9359 of
2024 is disposed of.
32. Interim Application (L) No.27970 of 2023 in the Suit
stands rejected.
(M. S. KARNIK, J.) (CHIEF JUSTICE)
33. At this stage learned counsel for the Respondent
requested for staying this order for a period of four weeks.
34. We are not inclined to accede to the said request. The
request is rejected.
(M. S. KARNIK, J.) (CHIEF JUSTICE)
Signed by: Pradnya Bhogale
Designation: PA To Honourable Judge
