Bombay High Court
Dolphine Developers vs Therakan David Joseph Since Deceased ... on 31 July, 2025
903(2).FA.1043.2025.doc
Digitally signed
ANANT by ANANT
KRISHNA NAIK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
KRISHNA Date: CIVIL APPELLATE JURISDICTION
NAIK 2025.08.01
19:11:08 +0530
INTERIM APPLICATION NO. 4137 OF 2025
IN
FIRST APPEAL NO.1043 OF 2025
Late Mr. Tharakan David Joseph (Since Deceased)
Thr. Lrs & Ors. .... Applicants
V/s.
M/s. Dolphin Developer & Ors. .... Respondents
WITH
INTERIM APPLICATION NO. 1507 OF 2025
IN
FIRST APPEAL NO.297 OF 2025
Dolphin Developers .... Applicant
V/s.
Therakan David Joseph (Since Deceased)
Thr. Lrs. & Ors. .... Respondents
WITH
INTERIM APPLICATION NO. 1508 OF 2025
IN
FIRST APPEAL NO. 1347 OF 2025
Dolphin Developers, Mumbai .... Applicant
V/s.
Therakan David Joseph (Since Deceased)
Thr. Lrs. & Ors. .... Respondents
****
Mr Vishwajeet Kapse a/w Mr Rajesh Singh, Ms Sarita Chaudhary & Mr
Dhananjay Kadam for Appellant in FA/1043/2025 and for Respondents in
FA/297/2025 & FA/1347/2025
Mr Surel Shah, Senior Advocate a/w Mr. Praveen Padwal, Mr Deepak
Shukla, Mr Praveen Kumar Maurya i/b BNS LEGAL for Appellant in
FA/297/2025 & FA/1347/2025 & for Respondents in FA/1043/2025
****
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903(2).FA.1043.2025.doc
CORAM : M. M. SATHAYE, J.
DATED : 31st JULY 2025
P.C.:
1. Heard learned Counsel for the parties.
2. The dispute involved is between the owner of the property and
Developer, which has led to filing of two Suits viz. S.C. Suit No. 1391 of
2013 by the owner of the property and S.C. Suit No. 2672 of 2013 by the
Developer involved. Admittedly, the property has been developed by the
developer under the registered development agreement dated 29/12/2010.
3. Suit is filed by the owner seeks declaration that the said development
agreement is valid, legal, subsisting and binding upon and enforceable
against the Developer and for injunction restraining the developer from
dealing with, disposing of, selling, alienating or creating third party interest
in respect of 4000 sq. ft. premises on the first floor of the building, agreed to
be given to the owner as consideration. Owner also seeks payment of
amount being amount of daily compensation agreed under the development
agreement, in case the developer is not able to construct the premises and
hand over the same to owner within the stipulated time. Suit filed by the
Developer is for declaration that owner/legal heirs are liable to pay
compensation at daily rate and for mandatory injunction directing the owner
or his legal heirs from removing the lathe machine from portion
admeasuring 5 feet x 10 feet.
4. Both the suits were tried together and by a common judgment dated
21/12/2024, the Suit filed by the Developer is dismissed and the Suit filed
by the owner is partly decreed only to the extent of directing the developer
to pay the compensation @ Rs.7,000/- per day from the date of filing of the
903(2).FA.1043.2025.doc
Suit till the realization alongwith interest.
5. FA/1043/2025 is filed by owner challenging non-grant of perpetual
injunction and declaration in his suit. FA/1347/2025 is filed by developer
against grant of money decree against it in owner's suit. FA/297/2025 is
filed by developer challenging the dismissal of its own suit.
6. The owner has filed interim application seeking extension of interim
order granted by Trial Court or for restraining the developer from selling,
alineating, dealing with, disposing of or creating third party interest in
respect of 4000 sq.ft. promised area on first floor under the development
agreement. The owner has also prayed for direction to Developer to deposit
money in this Court till possession is handed over.
7. The developer has filed interim applications seeking stay to the decree
of payment and for direction to owner to remove the lathe machine from
5'x10' portion of suit premises.
8. It is not disputed that during the pendency of the present First
Appeals, the Developer has sold the area on first floor to the proposed
Respondent Nos. 2, 3 and 4 who are sought to be added as party
Respondents. The draft amendment is moved by learned counsel for the
owner for the said purpose. The draft amendment also proposes to add
Respondent No. 5 with whom the Developer had tried to enter into
transaction in respect of 1400 sq.ft. on the first floor, by way of letter of
allotment, but it is stated across the bar on the instructions that the deal
could not go through. It is in these circumstances, that the owner has
pressed interim application for injunction.
9. Learned Counsel Mr. Kapse (for the owner) has invited this Court's
903(2).FA.1043.2025.doc
attention to paragraphs 41 and 42 of the impugned judgment. It is
submitted that on appreciation of evidence, the Trial Court had concluded,
in essence, that non-handing over of the two structures with lathe machine
was not fatal to the development as agreed, and for the purpose of removing
of lathe machine, the developer had filed a motion, which was fought up to
Supreme Court where parties were directed to maintain status quo. The
order of Hon'ble Supreme Court dated 15/03/2016 is pointed out. He has
further drawn attention of this Court to the order dated 08/05/2013 passed
by Trial Court by which the Developer was restrained from creating third
party interest in respect of built-up area admeasuring 4,000 sq.ft. of the first
floor of the concerned building. It is not disputed that this order is not
challenged by the developer and continued during the pendency of the Suit.
10. Learned senior counsel Mr. Shah (for the developer) has submitted
that the suit as filed by the owner is not for specific performance or
possession and seeks mere declaration, injunction and recovery of daily
compensation. He submitted that such suit is not maintainable. He
submitted that in view of what is observed in paragraph 49 of the judgment,
it is clear that the owner also contributed in not permitting smooth progress
of development and therefore injunction should not be granted.
11. Learned counsel Mr. Kapse submitted that if the developer is seeking
stay to the decree of compensation or even admission of appeal, it must be
directed to deposit the amount due as on today.
12. I have considered the submissions and have gone through the records.
13. It is necessary to permit impleadment of the proposed Respondent
Nos. 2 to 5 in the facts and circumstances narrated above.
903(2).FA.1043.2025.doc
14. Amendment is accordingly permitted. The Appellants/owner is
permitted to implead the proposed Respondent Nos. 2 to 5 in FA/1043/2025
as well as pending Interim Application filed by owner. Amendment to be
carried out during the course of the day.
15. Considering the nature of controversy it is seen prima facie that the
owner has not got anything so far because the consideration was only 4000
sq.ft area on 1st floor of developed building. It is admitted that the developer
has created third party interest in first floor premises (whether full 4000
sq.ft or otherwise) after impugned decree and during pendency of the
present appeals. Therefore, it is necessary to implead and restrain the
persons in possession and claiming to be the owners thereof until further
hearing in the Applications.
16. Learned senior counsel Mr. Shah submits on instructions that the
developer is not pressing for ad-interim stay, as on today, so far as money
decree is concerned, but seeks admission of appeal being first appeal.
17. It is therefore clarified that there is no ad-interim/interim stay to the
money decree passed in S.C. Suit No. 1391 of 2013 and the Plaintiff/Owner
is at liberty to proceed with the execution to that extent.
18. Issue notice to all Respondents, including the proposed Respondents,
returnable on 29/08/2025. In addition to Court's notice private notice is
permitted. Affidavit of service to be filed before the returnable date.
19. Learned Advocates of the respective parties, who are present before
the Court waive service.
20. In the meantime, proposed Respondent Nos. 2, 3 and 4 are restrained
from creating further third party interest and parting with possession of the
903(2).FA.1043.2025.doc
property in their possession which is on the 1 st floor of the subject matter
building.
21. Stand over to 29/08/2025 for further consideration of interim
applications.
(M. M. SATHAYE, J.)
