Bombay High Court
Manas Shelter Pvt. Ltd vs Madhavlal Narayanlal Pittie (Since ... on 24 June, 2025
2025:BHC-OS:9308
Neeta Sawant COMAP(L)-14951-2024-FC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL APPELLATE DIVISION
COMMERCIAL APPEAL (L) NO. 14951 OF 2024
WITH
INTERIM APPLICATION (L) NO.18090 OF 2024
Manas Shelter Pvt. Ltd. ....Appellant
(Orig. Plaintiff)
: Versus :
1. Mr. Madavlal Narayanlal Pittie (since
deceased through his heirs)
1A. Vivek Madhavlal Pittie Substituted in
place of original Defendant No.1
Madhavlal Narayanlal Pittie, having its
office at World Trade Center-I 10 th Floor,
Cuff Parade, Mumbai-400005.
2. Chief Officer, MBR and R Board MHADA,
Griha Nirman Bhavan, Bandra East
Mumbai -400034
3. Municipal Commissioner through
Municipal Corporation of Greater
Mumbai, Suit Division, Ward No.D-3789,
Mumbai, 400034
4. Sanjay Krishna Kadam Secretary of
Sahayojana CHS (proposed) presently
residing at transit accommodation
standing on immovable property bearing
City Survey No.321 of Tardeo Division,
Path Baburao Marg, Falkland Road, Lower
Parel, Mumbai-400034.
5. Dilip Kumar Shah (proposed purchaser),
...Respondents
137, Gulal Wadi, Mumbai 400004.
(Original Defendants 1A to 5)
Page No.1 of 18
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Neeta Sawant COMAP(L)-14951-2024-FC
Mr. Rajendra Pai, Senior Advocate with Mr. Akshay R. Pai, Mr. Aloukik
R. Pai, Mr. Saharsh Sakhre, Ms. Prajakta Shringarpure and Ms. Siddhi Bhosale
i/b. Ms. Bina R. Pai, for the Appellant.
Mr. Zal Andhyarujina, Senior Advocate and Mr. Naushad Engineer,
Senior Advocate with Mr. Hursh Meghani, Ms. Shreya Jha, Mr. Anrun
Unnikrishnan and Ms. Urvi Gulechha i/b. Jadeja & Satiya, for Respondent
No.1A.
Mr. P.G. Lad with Ms. Aparna Kalathil, for Respondent No.2-MHADA.
Ms. Vaishali Ugale i/b. Ms. Komal R. Punjabi, for Respondent No.3-MCGM.
Mr. Vishwajit P. Sawant, Senior Advocate with Mr. Prabhakar M. Jadhav
and Mr. A.P. Mahadik, for Respondent No.5.
CORAM : ALOK ARADHE, CJ &
SANDEEP V. MARNE, J.
Judgment Reserved On : 17 June 2025.
Judgment Pronounced On : 24 June 2025.
JUDGMENT :
(Per Sandeep V. Marne, J.)
1) This Appeal is filed under the provisions of Section 13(1A)
of the Commercial Courts Act, 2015 challenging the Order dated
27 March 2024 passed by the learned Single Judge of this Court
allowing Interim Application No. 4794 of 2022 filed by Defendant
No.1A for vacation of interim injunction under the provisions of Order
XXXIX Rule 4 of the Code of Civil Procedure, 1908 (the Code). By
impugned order dated 27 March 2024, the learned Judge has vacated
the order of interim injunction granted in favour of the Appellant-
Plaintiff vide order dated 15 June 2015 passed in Notice of Motion
(Lodg.) No. 2370/2014.
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2) Brief facts leading to filing of the present petition are that
Defendant No.1 was appointed as a Receiver in Suit No.224/1961 filed
for partition of ancestral joint family properties. In his capacity as the
Court Receiver, Defendant No.1 executed MOU dated 21 May 2002 with
Mr. Nitin Karambelkar who allegedly owns and controls the Plaintiff-
Company. On 16 December 2003, Development Agreement was
executed between the Plaintiff and original Defendant No.1 for carrying
out the redevelopment of the suit property. On 8 December 2006,
Municipal Corporation issued Intimation of Disapproval for carrying
out construction of new building. Plaintiff completed construction of
transit camp for tenants at the site and entered into Tri-Partite
Agreements dated 19 November 2007 with the tenants. The last tenant
vacated the structure on 15 July 2009. Commencement Certificate was
issued by the Municipal Corporation on 27 November 2009. On
18 March 2011, a revised NOC was issued by MHADA stipulating
condition of completion of construction within 30 months. Plaintiff
completed the construction upto plinth level. On account of inability of
the Plaintiff to carry out further construction, original Defendant No.1
issued notice dated 16 July 2013 terminating the Development
Agreement and the Power of Attorney. Plaintiff filed Commercial Suit
No. 344/2015 inter alia challenging the termination notice dated
16 July 2013 and seeking a declaration that the Development Agreement
and the Power of Attorney were valid and subsisting. Plaintiff filed
Notice of Motion (L.) No. 2370/2014 in the suit seeking temporary
injunction. By order dated 15 June 2015, the learned Single Judge of this
Court allowed the said Motion in terms of prayer clauses (a) and (c)
thereby restraining the Defendants from acting upon termination notice
dated 16 July 2013 and from obstructing redevelopment of the suit
property. Original Defendant No.1 filed Appeal before the Division
Bench challenging order dated 15 June 2015, which was withdrawn
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with liberty to file application under Order XXXIX Rule 4 of the Code
for vacation of the interim injunction. Accordingly, Defendant No.1 took
out application for vacation of interim injunction under Order XXXIX
Rule 4 of the Code, which was dismissed on 14 March 2017. The
Appeal preferred by Defendant No.1 challenging the order dated
14 March 2017 was also dismissed. Special Leave Petition challenging
the order of the Appeal Court was also dismissed by the Hon'ble
Supreme Court on 6 August 2018.
3) After waiting for 4/5 years, Defendant No.1A filed Interim
Application No. 4794/2022 once again seeking vacation of interim
injunction granted vide order dated 15 June 2015 under the provisions
of Order XXXIX Rule 4 of the Code alleging that Plaintiff did not take
any steps for redevelopment of the suit property despite passage of nine
long years after grant of temporary injunction. Plaintiff opposed the
application by filing Affidavit-in-Reply. The learned Single Judge has
proceeded to allow Interim Application No. 4794/2022 by impugned
order dated 27 March 2024 and has vacated the interim injunction
granted in favour of the Plaintiff vide order dated 15 June 2015. The
present Appeal challenges order dated 27 March 2024 passed by the
learned Single Judge. The Plaintiff also filed application seeking
clarification/modification of order dated 27 March 2024, which has
been rejected by the learned Single Judge by order dated 15 April 2024,
which is also subject matter of challenge in the present Appeal.
4) Mr. Pai, the learned senior advocate appearing for the
Appellant would submit that the learned Single Judge has grossly erred
in entertaining and allowing application preferred by Defendant No.1A
for vacation of interim injunction under Order XXXIX Rule 4 of the
Code even though similar application earlier filed was rejected and such
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rejection being upheld both by the Appeal Court as well as by the
Hon'ble Apex Court. That filing of successive applications for vacation
of temporary injunction is not maintainable. He would submit that the
learned Single Judge has erroneously recorded a finding of absence of
continued readiness and willingness on the part of the Appellant to
perform the contract ignoring the position that temporary injunction
staying termination notice was never premised on the aspect of
readiness and willingness. He would invite our attention to the
termination notice to demonstrate that there was no allegation of
absence of readiness and willingness to perform the contract therein.
That therefore the aspect of readiness and willingness could not have
been taken into consideration while deciding application under Order
XXXIX Rule 4 of the Code. He would submit that the learned Judge has
erroneously held that the Plaintiff/Appellant lacks the financial
wherewithal to carry out the development activity. That the learned
Judge has ignored the position that Petitioner also operates Manas
Resorts, which has sound financial position. That the learned Judge has
failed to take into consideration financial status of sister concerns of the
Plaintiff. That in any case, financial status of a developer is irrelevant
consideration for the purpose of deciding the issue of vacation of
temporary injunction. He would submit that the ground of non-
payment of municipal taxes raised by Defendant No.1A for seeking
vacation of interim injunction has already been rejected by the learned
Single Judge. So far as the notice issued by MHADA under Section
91-A of the Maharashtra Housing and Area Development Act, 1976 (the
Act) is concerned, Mr. Pai would contend that the Petitioner has
challenged the said notice and secured stay to the said notice. That
therefore issuance of the said notice cannot be a relevant factor for the
purpose of deciding application for vacation of temporary injunction.
He would submit that Defendant No.1/1A have colluded with MHADA
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in ensuring that NOC is not issued for completion of the work. That
NOC was for both the requirements of 3.00 FSI as well as for renewal of
permissions. MHADA had flatly refused to issue such NOCs on account
of obstruction created by Defendant No.1/1A. That pendency of the
litigation was cited by the first Defendant for the purpose of ensuring
that MHADA does not issue the requisite NOC. He would submit that
immediately after vacation of the temporary injunction, MHADA has
swiftly issued NOC to Defendant No.1A on 25 November 2024. That if
such NOC was to be issued to the Appellant, it would have completed
the construction. That failure to carry out construction is thus
attributable to Defendant No.1/1A and not to the Plaintiff. That
Plaintiff has invested huge sum of money towards part execution of the
project and has accommodated the tenants in transit accommodations.
That Plaintiff is ready and willing to complete the construction on the
basis of NOC issued by MHADA on 25 November 2024 and needs to be
given an opportunity to complete the construction. That the Plaintiff is
willing to abide by all the conditions put by this Court for completion of
the construction in a timely manner. He would therefore submit that
the injunction which was operational for over 9 years is required to be
restored for the purpose of enabling the Plaintiff to complete the
construction. He would accordingly pray for setting aside the
impugned order passed by the learned Single Judge. Alternatively, he
would submit that the Application for vacation of injunction be restored
for fresh decision by remanding the proceedings before the Trial Judge.
5) The Appeal is opposed by Mr. Andhyarujina, the
learned senior advocate appearing for Respondent/Defendant No.1A.
He would submit that the learned Single Judge has made a detailed
analysis of the developments that have occurred after grant of
temporary injunction vide order dated 15 June 2015. That he has
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recorded cogent reasons for vacation of the interim injunction under
Order XXXIX Rule 4 of the Code. That there is no element of perversity
in the findings recorded by the learned Single Judge warranting
interference by this Court in exercise of appellate jurisdiction. He would
submit that the suit of the Plaintiff is in the nature of suit for specific
performance as he had challenged the termination notice and sought
declaration about Development Agreement being legal and subsisting.
Once the Plaintiff secured interim injunction on termination of the
Development Agreement, it is incumbent for him to demonstrate
continued readiness and willingness to perform the contract.
In support of his contention, he would rely upon judgment upon
judgment of the Apex Court in U.N. Krishnamurthy (since deceased)
through Legal Representatives Versus. A. M. Krishnamurthy 1.
He would submit that the Plaintiff has failed to perform its obligations
contained in the Development Agreement and has not carried out any
development activities during the past nine long years after securing an
order of injunction in his favour. That the learned Judge has recorded a
finding of absence of financial wherewithal of the Plaintiff to complete
the construction. That the said findings are well supported both by
documents as well as conduct of the Plaintiff. That the Plaintiff had
failed to pay the requisite fees to MHADA on account of which the
NOC was not being renewed. That Plaintiff alone is responsible for
non-issuance of NOC and cannot be permitted to take benefit of its own
wrong. That the action of the Plaintiff in not carrying out construction
at the site ultimately evoked notice by MHADA under Section 91-A
threatening acquisition of the suit property. That the learned Judge has
rightly taken into consideration the said aspect and has vacated the
injunction so as to ensure that the property is not acquired by MHADA.
That the redevelopment has been taken to its logical end.
(2023) 11 SCC 775
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Mr. Andhyarujina would submit that much water has flown after
passing of the impugned order and that Defendant No.1A has taken
various steps towards commencement of further construction at the suit
property. That MHADA has issued NOC dated 25 November 2024 with
FSI 3.00, which is extended till 31 December 2025. Lastly, Mr.
Andhyarujina would submit that the Appellate Court would be in
loathe in interfering in exercise of jurisdiction by the Trial Court by
undertaking the exercise of reassessment of material on record.
In support, he would rely upon judgments of Apex Court in Punjab and
Sind Bank Versus. Frontline Corporation Ltd. 2 and Wander Ltd. and
another Versus. Antox India P. Ltd. 3 He would pray for dismissal of the
Appeal.
6) We have also heard Mr. Sawant, the learned senior advocate
appearing for Respondent No.5, Mr. Lad the learned counsel appearing
for MHADA and Ms. Ugale, the learned counsel for MCGM.
7) Rival contentions of the parties now fall for our
consideration.
8) Plaintiff filed suit seeking declaration that the Development
Agreement and Supplementary Agreement dated 16 December 2003
and Power of Attorney dated 22 May 2002 executed by the first
Defendant in its favour are valid and subsisting and that the
termination letter dated 16 July 2013 is illegal. In his suit, Plaintiff was
granted order of temporary injunction on 15 June 2015 in terms of
prayer clauses (a) and (c) in Notice of Motion (L.) No. 2370/2014. The
said prayer clauses read thus :-
2023 SCC OnLine SC 470
1990 (Supp) SCC 727
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(a) that pending the hearing and final disposal of the Suit this Hon'ble
Court be pleased to restrain the Defendant No.1 and/or his agents,
servants, representatives and/or any person(s) claiming by, through or
under him howsoever and whomsoever from in any manner acting
upon the termination Notice dated 16th July 2013 and/or in any way
obstructing the continuation of the project for redevelopment of the
suit property undertaken by the Plaintiff in accordance with the
Development Agreement dated 16/12/2003;
(c) that pending the hearing and final disposal of the Suit the Defendant
No.1 and/or his representatives, servants and agents and/or any
person(s) claiming by, under or through him, howsoever and
whomsoever, be restrained by an Order of temporary injunction from
in any manner transferring, alienating, selling or disposing and/or
parting with possession, and/or creating any third party right,
interest or license or encumbering or creating charge or otherwise
dealing with the suit property described at Exhibit "A" hereto;
9) As observed above, the Appeal filed against the order dated
15 June 2015 was withdrawn with liberty to file application for vacation
of injunction under Order XXXIX Rule 4 of the Code. However,
Defendant No.1 did not succeed in his attempt to have temporary
injunction vacated and his application under Order XXXIX Rule 4 of the
Code was dismissed by the learned Single Judge on 14 March 2017. The
Appeal preferred against the order dated 14 March 2017 was dismissed
by the Division Bench and even SLP preferred by the first Defendant
was dismissed by the Apex Court on 6 August 2018. Mr. Pai has
contended that once Defendant No.1 failed in his attempt to have the
temporary injunction vacated under Order XXXIX Rule 4 of the Code
upto the Hon'ble Apex Court, it was impermissible for him to maintain
fresh application for the very same purpose in the year 2022. We are
however unable to agree with this submission. Merely because one
application for vacation of temporary injunction is rejected by the Trial
Court, such an order would not operate as res judicata for entertaining
subsequent application seeking same relief, but on a different cause of
action. Though the second Proviso to Rule 4 of Order XXXIX imposes a
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bar on variation/discharge/or setting aside of order for injunction
granted after giving opportunity of hearing to the party, it carves out an
exception where the discharge, variation or setting aside is necessitated
due to change in circumstances or where the Court is satisfied that the
order has caused undue hardship to that party. It would be relevant to
reproduce Order XXXIX Rule 4 of the Code, which provides thus :-
O.XXXIX - Temporary Injunctions and Interlocutory Orders
Rule 4. Order for injunction may be discharged, varied or set aside.-
Any order for an injunction may be discharged, or varied, or set aside by
the Court, on application made thereto by any party dissatisfied with
such order:
Provided that if in an application for temporary injunction or in any
affidavit supporting such application, a party has knowingly made a
false or misleading statement in relation to a material particular and
the injunction was granted without giving notice to the opposite
party, the Court shall vacate the injunction unless, for reasons to be
recorded, it considers that it is not necessary so to do in the interest of
justice:
Provided further that where an order for injunction has been
passed after giving to a party an opportunity of being heard, the
order shall not be discharged, varied or set aside on the application
of that party except where such discharge, variation or setting aside
has been necessitated by a change in the circumstances, or unless the
Court is satisfied that the order has caused undue hardship to that
party.
10) In the present case, Interim Application No.4794/2022 filed
by Defendant No.1A was premised on change in circumstances, as well
as hardship faced by Defendant No. 1. The changed circumstances in
which the application was filed are discussed in the latter part of the
judgment. In that view of the matter, there was no bar for maintaining
second application for vacation of interim injunction filed under the
provisions of Order XXXIX Rule 4 of the Code. The submission made
on behalf of the Appellant in this regard therefore deserves rejection.
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11) The application of Defendant No.1A for vacation of
temporary injunction was essentially premised on five grounds as
under :-
(i) That Plaintiff failed to take any steps for carrying out
development/construction of the building after grant of
temporary injunction.
(ii) Subsequent events indicating that there was absence of
continued readiness and willingness on the part of the
Plaintiff to perform the contract.
(iii) Plaintiff lacked financial wherewithal to carry out any
construction at the site.
(iv) Plaintiff failed to discharge burden of paying additional
taxes demanded by the Municipal Corporation thereby
indicating his unwillingness to abide by the Development
Agreement.
(v) Plaintiff failed to take necessary steps to pursue the matter
with MHADA and was responsible for issuance of notice
under Section 91-A of MHADA Act endangering the the
suit property of being acquired.
12) The learned Judge has accepted four out of the above five
grounds and has rejected the ground of Plaintiff's failure to discharge
the burden of paying additional taxes demanded by MCGM. In respect
of the four grounds urged by Defendant No.1A for seeking vacation of
interim injunction, the learned Judge has recorded elaborate reasons.
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13) So far as the first ground of failure to take any steps
towards carrying out construction at the site is concerned, Mr. Pai is fair
in admitting that the Plaintiff has indeed not carried out any
construction at the site after securing order of interim injunction dated
15 June 2015. Therefore, there is no factual dispute about Plaintiff's
failure to carry out any construction at the site after 15 June 2015.
Therefore there can be no element of perversity in the findings recorded
by the learned Judge on the first ground of failure to carry out
construction after 15 June 2015.
14) So far as the second ground of Plaintiff's failure to
demonstrate continued readiness and willingness is concerned, the
learned Judge has considered the pretext cited by the Plaintiff about
MHADA being responsible for its inability to carry out construction at
the site. Plaintiff has blamed MHADA for not issuing the requisite
NOC on account of which the construction was allegedly stuck. The
learned Judge has however refused to accept the said pretext holding
that Plaintiff was essentially seeking MHADA's NOC for enhanced FSI
of 3.00 and that nothing prevented the Plaintiff from continuing the
construction with available 2.5 FSI. The learned Judge has also blamed
the Plaintiff for not taking any action in respect of MHADA's refusal to
issue the NOC. We also find that Plaintiff did nothing except writing
five letters to MHADA. Even those five letters are written with
substantial gaps. The first two letters are written on 3 June 2016 and
7 June 2016. Thereafter, there was silence on the part of the Plaintiff for
three longs years whereafter he addressed two more letters dated
27 February 2019 and 25 March 2019. The fifth and the last letter dated
21 December 2022 was written by the Plaintiff to MHADA only after
Defendant No.1A took out Interim Application No. 4794/2022 for
vacation of interim injunction. In our view, therefore the learned Judge
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has rightly rejected the pretext of construction being held up on account
of MHADA not issuing the NOC.
15) It is seen that Plaintiff also took the defence that Defendant
No.1/1A continued misusing pendency of litigation for preventing
MHADA from issuing the NOC. The learned Judge has rightly
observed that no interim stay was granted in the then pending
Appeal/SLP preferred by Defendant No.1/1A which could have
prevented the Plaintiff from continuing with the construction. In fact,
we find that Plaintiff could have easily rendered pending challenges of
Defendant No.1/1A infructuous by carrying out and completing the
construction at the site. Far from doing so, Plaintiff took calculated
chances and did not add even a brick at the suit site.
16) In our view, therefore the learned Judge has rightly held
that the Plaintiff failed to demonstrate continued readiness and
willingness to perform the contract. The Learned Judge has rightly
relied upon judgment of the Apex Court in N. P. Thirugnanam (Dead)
by LRS. Versus. Dr. R. Jagan Mohan Rao and others 4 in which the Apex
Court has held that continuous readiness and willingness on the part of
the Plaintiff is a condition precedent for grant of relief of specific
performance.
17) The position is reiterated in recent judgment of the
Apex Court in U. N. Krishnamurthy (supra) in which it is held in
paragraphs-45 to 50 as under :-
45. It is settled law that for relief of specific performance, the plaintiff has to
prove that all along and till the final decision of the suit, he was ready and
willing to perform his part of the contract. It is the bounden duty of the
plaintiff to prove his readiness and willingness by adducing evidence. This
(1995) 5 SCC 115
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crucial facet has to be determined by considering all circumstances including
availability of funds and mere statement or averment in plaint of readiness
and willingness, would not suffice.
46. In this case, the respondent-plaintiff has failed to discharge his duty to
prove his readiness as well as willingness to perform his part of the contract,
by adducing cogent evidence. Acceptable evidence has not been placed on
record to prove his readiness and willingness. Further, it is clear from the
respondent-plaintiff's balance sheet that he did not have sufficient funds to
discharge his part of contract in March 2003. Making subsequent deposit of
balance consideration after lapse of seven years would not establish the
respondent-plaintiff's readiness to discharge his part of contract. Reliance may
be placed on Umabai v. Nilkanth Dhondiba Chavan [Umabai v. Nilkanth Dhondiba
Chavan, (2005) 6 SCC 243] wherein this Court speaking through S.B. Sinha, J.
held that deposit of amount in court is not enough to arrive at conclusion that
plaintiff was ready and willing to perform his part of contract. Deposit in
court would not establish plaintiff's readiness and willingness within
meaning of Section 16(c) of Specific Relief Act. The relevant part of the
judgment is reproduced below : (SCC p. 260, para 45)
"45. ... Deposit of any amount in the court at the appellate stage by the
plaintiffs by itself would not establish their readiness and willingness
to perform their part of the contract within the meaning of Section
16(c) of the Specific Relief Act."
47. It is, therefore, patently clear that the respondent-plaintiff has failed to
prove his readiness to perform his part of contract from the date of execution
of the agreement till date of decree, which is a condition precedent for grant
of relief of specific performance. This Court finds that the respondent-plaintiff
was not entitled to the relief of specific performance.
48. The respondent-plaintiff may have been willing to perform his part of
contract. It however appears that he was not ready with funds. He was
possibly trying to buy time to discharge his part of contract.
49. In Bhavyanath v. K.V. Balan [Bhavyanath v. K.V. Balan, (2020) 11 SCC 790]
cited by Mr Raju to contend that the respondent-plaintiff was entitled to relief
of specific performance and the courts had rightly granted such relief, the
plaintiff had filed the suit for specific performance three days after the last
day for execution of the sale deed. In this case however, the respondent-
plaintiff waited for nearly 3 years and filed the suit for specific performance
just before expiry of the limitation period. Furthermore, in Bhavyanath v. K.V.
Balan [Bhavyanath v. K.V. Balan, (2020) 11 SCC 790] the plaintiff had adduced
cogent evidence to prove his readiness and willingness to discharge his part
of the contract and to prove that he had sufficient funds to discharge his
obligation. No such evidence has been adduced by the respondent-plaintiff in
this case either to show his readiness or to prove that sufficient funds were
available with him to enable him to discharge his part of contract.
Therefore, Bhavyanath v. K.V. Balan [Bhavyanath v. K.V. Balan, (2020) 11 SCC
790] is of no assistance to the respondent-plaintiff.
50. In view of foregoing, this Court is of the considered opinion that the
respondent-plaintiff was not entitled to the relief of specific performance. The
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trial court and the High Court erred both in law and on facts in granting such
relief.
18) Since the Apex Court has considered several decisions
while rendering the judgment in U.N. Krishnamurthy, it is not
necessary to discuss the ratio of the judgments in Satya Jain (Dead)
through LRS. and others Versus. Anis Ahmed Rushdie (Dead) through
LRS and others5 and Ardeshir Mama Versus. Flora Sasoon6 relied upon
by Mr. Andhyarujina.
19) So far as the third ground of financial position of the
Plaintiff is concerned, the learned Judge has analyzed the documents
produced before him and has found that the Plaintiff did not carry out
any business activity nor earned any revenue from its operations and
had negligible fixed assets showing only few thousand rupees in the
Balance Sheet. The learned Judge found that the Plaintiff did not incur
any expenses towards any work in progress. It appears that the Plaintiff
did not employ even a single employee during the past nine long years
after securing interim injunction. The learned Judge has refused to take
into account the factum of completion of a project in Igatpuri by the
Plaintiff by recording a finding that the said project was completed in
the year 2013. In our view, therefore the findings recorded by the
learned Judge about Plaintiff having weak financial condition and its
incapacity to carry out further construction at the site do not suffer
from any perversity.
20) As far as the fourth contention of Plaintiff's failure to pay
municipal taxes is concerned, the same has been rejected by the learned
Judge.
(2013) 8 SCC 131
AIR 1928 PC 208
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21) Now we turn to the fifth and the last ground of issuance of
notice under Section 91-A by MHADA. It is seen that the notice dated
11 May 2023 was issued by MHADA under the provisions of
Section 91-A of the Act threatening to acquire the suit property on
account of non-completion of redevelopment project. The suit property
has tenants, who are languishing in transit camp since the year 2009.
This had prompted MHADA to initiate acquisition proceedings under
Section 91-A of the Act. Mr. Pai has attempted to salvage the situation
by submitting that Petitioner filed Writ Petition (L.) No. 15175/2023
before the Division Bench of this Court and secured stay against the
notice dated 11 May 2023. Mr. Andhyarujina has submitted that in his
capacity as owner, even Defendant No.1A has challenged Notice dated
11 May 2023 before this Court. Be that as it may. The learned Judge has
considered issuance of notice under Section 91-A of the Act as a factor
against the Plaintiff. We do not find any element of perversity in the
findings recorded by the learned Judge about Plaintiff's failure to carry
out any construction at the site despite availability of FSI of 2.50. The
learned Judge has rightly concluded that if the Project is not carried
forward by vacating the temporary injunction, there is a threat of
acquisition of suit property by MHADA.
22) We thus find that the learned Judge has recorded cogent
reasons while passing the impugned order dated 27 March 2024. We are
not inclined to interfere in discretion exercised by the learned Single
Judge in exercising power under Order XXXIX Rule 4 of the Code.
In fact, we are convinced that the facts and circumstances of the present
case are such that interference by the learned Single Judge was
warranted by vacating the interim injunction granted in favour of the
Plaintiff. Plaintiff cannot be permitted to secure interim injunction
against termination of its agreement and do nothing towards
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performance of his obligations under that agreement. Plaintiff's conduct
has resulted in redevelopment process being stuck for over 22 long
years. The tenants are made to languish in transit camps after they
vacated the tenanted premises in the year 2009. The learned Judge has
rightly stepped in so as to ensure that the redevelopment process is
completed. Plaintiff's interest is sufficiently protected by the fact that
the Plaintiff has also sought a monetary decree against Defendant No.1
in the sum of Rs.120 crores in prayer clause (f) of the suit.
23) It is well settled position of law that the Appellate Court
would not be justified in interfering in exercise of discretion by the Trial
Court and substitute its own discretion unless the discretion is shown
to have been exercised arbitrarily, capriciously or by ignoring the settled
principles of law regulating grant or refusal of interlocutory injunction.
The Apex Court in Punjab and Sind Bank (supra) has held in paras-27
and 28 as under :-
27. It has been held by this Court in Wander [Wander Ltd. v. Antox India
(P) Ltd., 1990 Supp SCC 727] that the appellate court would not
interfere with the exercise of discretion of the court of 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. It has been held that an
appeal against exercise of discretion is said to be an appeal on
principle. It has further been held that 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 one reached by that court was
reasonably possible on the material. It has been held that 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.
28. Undisputedly, in the present case, while vacating the interim relief
granted vide order dated 15-7-2013, the Single Judge had held that the
relief claimed by the plaintiff could not have been granted in view of
the provisions of Section 34 of the Sarfaesi Act. As such, the Single
Judge had passed the said order on the basis of a statutory bar. As
observed earlier, the scope in which a civil suit is maintainable as
24 June 2025
Neeta Sawant COMAP(L)-14951-2024-FC
determined by this Court in Mardia Chemicals [Mardia Chemicals
Ltd. v. Union of India, (2004) 4 SCC 311] is very limited. The case of the
respondent/plaintiff would not come within the said limited scope.
As such, we are of the considered view that the Division Bench has
grossly erred in interfering with the discretion exercised by the Single
Judge.
24) We find that the use of discretion by the learned Single
Judge is neither arbitrary, capricious or perverse nor has the learned
Single Judge ignored settled principle of law regulating grant or refusal
of interlocutory injunction. We are therefore not inclined to interfere in
the discretion exercised by the learned Single Judge. The Order passed
by the learned Single Judge is unexceptionable. The Appeal is devoid of
merits. It is accordingly dismissed without any orders as to costs.
25) With dismissal of the Appeal, Interim Application (L.)
No.18090/2024 taken out for stay and directions becomes infructuous.
The same also stands disposed of.
[SANDEEP V. MARNE, J.] [CHIEF JUSTICE]
Digitally
signed by
NEETA
NEETA SHAILESH
SHAILESH SAWANT
SAWANT Date:
2025.06.24
17:44:52
+0530
24 June 2025
