[Cites 13, Cited by 0]
Bombay High Court
Siddhagiri Apartment And Others vs Dushyant Haridas Mavani And Others on 7 April, 2026
2026:BHC-AS:16584
AO-863-2022+AO-917-2022
Siddhagiri Apt. Vs. Dushyant Malvani
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO. 863 OF 2022
WITH
APPEAL FROM ORDER NO. 917 OF 2022
1) Siddhagiri Apartment }
Condominium an Association }
of Apartment Owners in the Building }
"Siddhagiri", duly Registered, having its office }
at Siddhagiri D. K. Sandu Marg, Chembur, }
Mumbai 400 071. }
2) Mr. Rajan Pathare, }
Adult, Indian Inhabitant, aged 64, }
Having his address at Flat No. 1202, }
Siddhagiri, D.K. Sandhu Marg, Chembur, }
Mumbai 400 071. }
3) Mr. Rahul Paralkar }
Adult, Indian Inhabitant, aged 45, }
Having his address at Flat No. 901, }
Siddhagiri, D. K. Sandu Marg, Chembur, }
Mumbai 400 071. }
4) Mr. Jayesh Shah, }
Adult, Indian Inhabitant,aged 54, }
Having his address at Flat No. 1202, }
Siddhagiri, D. K. Sandu Marg, Chembur, }
Mumbai 400 071. }
5) Mrs. Krupa Pathare, }
Adult, Indian Inhabitant, aged 61, }
Having his address at Flat No. 601, }
Siddhagiri, D. K. Sandu Marg, Chembur, }
Mumbai 400 071. } ... Appellants
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Versus
1) Mr. Dushyant Haridas Mavani, }
adult, Indian Inhabitant, }
Having his address at 13, }
Krishna Niketan 3rd Floor 262, }
Sion Marg Road Sion (West), }
Mumbai 400 022 }
2) Mr. Shardul Dushyant Mavani, }
adult, Indian Inhabitant, }
Having his address at 13, }
Krishna Niketan 3rd Floor 262, }
Sion Marg Road Sion (West), }
Mumbai 400 022 }
3) Mr. Rahul Shah, }
Adult, Indian Inhabitant, }
Having his address at 601, }
Siddhagiri, D. K. Sandhu Marg, Chembur, }
Mumbai 400071 } ... Respondents
WITH
INTERIM APPLICATION NO. 17797 OF 2022
IN
APPEAL FROM ORDER NO. 863 OF 2022
WITH
INTERIM APPLICATION NO. 18282 OF 2022
IN
APPEAL FROM ORDER NO. 917 OF 2022
Siddhagiri Apartment & Ors. ... Applicants
In the matter between
Siddhagiri Apartment & Ors. ... Appellants
Versus
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Judgment dated 7th April 2026
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Siddhagiri Apt. Vs. Dushyant Malvani
Dushyant Haridas Mavani & Ors. ... Respondents
_______________________________________
Mr. Haresh Jagtiani, Senior Advocate, with Mr. Yashpal Jain & Mr. Pushpvijay
Kanoji, i/b Haresh Jagtiani & Associates, for the Appellants in both the
Appeals.
Dr. V.V.L.N. Sastry, with Dr. V.S.R. Sastry, i/b Lex India Juris, for the
Respondents in both the Appeals.
_______________________________________
CORAM : FARHAN P. DUBASH, J.
RESERVED ON : 11th MARCH 2026
PRONOUNCED ON : 07th APRIL 2026
JUDGMENT:
1. The present two appeals impugn a common order dated 1 st March
2021 ("impugned order") passed by the Trial Court rejecting two
separate Notices of Motion preferred by the original Plaintiffs in two
separate suits filed by them against the original Defendants ("flat
purchasers") seeking interim reliefs in respect of two flats purchased
by them in the Siddhagiri Apartment condominium of Plaintiff No.1
viz. Suit No. 2633 of 2018 relates to Flat No. 701 whilst, Suit No. 2634
of 2018 relates to Flat No. 801 ("said two flats").
2. Appellant No. 1 / original Plaintiff No. 1 is the Association of Flat
Purchasers ("Condominium") that is stated to be duly constituted
under the provisions of the Maharashtra Apartment Ownerships Act,
1970 ("said Act") whilst Appellant Nos. 2, 4 and 6 are stated to be the
present members of its Board of Managers. Respondent No. 3 was
original Plaintiff No. 5, a former member of the Board of Managers of
the Condominium who is stated to have since, sold his flat after the
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impugned order was passed and has therefore been made a formal
party Respondent in the present appeals.
3. Briefly stated, two suits came to be instituted by the original Plaintiffs
before the Trial Court seeking an order against the flat purchasers that
they should be directed to pay all the outstanding dues of the said two
flats including inter alia, property tax and maintenance charges
together with interest thereon @ 18% per annum. The plaint also
seeks an order directing the flat purchasers to contribute towards and
deposit the proportionate property tax and maintenance charges w.e.f.
1st September 2018, together with a further prayer for withdrawal of
these amounts. The plaint seeks a further declaration of a valid and
subsisting charge on the said two flats to the extent of the amounts
claimed in the two suits.
4. Immediately after the two suits were filed, the original Plaintiffs
preferred the said Notices of Motion therein and sought the said main
reliefs that were claimed in the plaint, (except the amount of interest
claimed on the outstanding amounts @ 18% per annum), at the
interlocutory stage, as interim reliefs. By the common impugned order,
the Trial Court dismissed the said Notices of Motion and rejected the
reliefs sought therein, primarily on two grounds; Firstly, that there was
challenge to the very formation of the Condominium under the said
Act, instead of a Co-Operative Housing Society under the provisions of
the Maharashtra Ownership of Flats Act, 1963 ("MOFA") by the flat
purchasers in Suit No. 1938 of 2016 against the Condominium which
was pending before the Trial Court, and Secondly, that the said
Notices of Motion sought the final reliefs that were made in the plaint,
at the interim stage. Being aggrieved by the impugned order, the
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original Plaintiffs have preferred the present two appeals.
SUBMISSIONS OF THE APPELLANTS
5. Mr. Haresh Jagtiani, learned Senior Counsel appears for the
Appellants. He submits that the initial decision of the ad-hoc
committee in 2012 to form a Condominium and execute the requisite
Declaration dated 15th August 2012, which is duly registered as per the
provisions of the said Act, has also been confirmed and ratified by the
members of the Condominium in 2014. He points out that the
Siddhagiri building comprises ground plus 12 upper floors having 23
residential units of which, 18 flat allottees / purchasers have also
executed the requisite Deeds of Apartments, which have since been
registered. He submits that despite repeated requests from the
Condominium, the flat purchasers have refused to execute the
requisite Deed of Apartment in respect of the said two flats. He points
out that the occupancy certificate of the Siddhagiri building was issued
as far back as on 5 th June 2010, after the flat purchasers purchased the
said two flats sometime on or about 9th April 2009. He relies on a
possession letter dated 10th August 2010 and submits that the flat
purchasers have been in possession of the said two flats since then,
without making payment of their proportionate share of property tax
and maintenance charges which has resulted in the other apartment
owners being forced to pay their share.
6. He invites my attention to the impugned order and in particular, to
paragraph nos. 6 and 19 therein which contain a factually incorrect
statement that the flat purchasers had challenged the formation of the
Condominium by filing Suit No. 1938 of 2016 which is pending before
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the City Civil Court. He submits that the said suit has not been filed by
the flat purchasers but by some other persons / members of the
Siddhagiri building and which position has also been admitted by the
flat purchasers in paragraph 38 of their affidavit in reply filed in the
said Notices of Motion. On the contrary, he points out that the flat
purchasers have filed complaints before the Consumer Forum
challenging the formation of the Condominium. He therefore submits
that the Trial Court has erred in dismissing the said Notices of Motion
by relying on the said Suit No. 1938 of 2016 wherein the flat
purchasers are stated to have challenged the formation of the
Condominium when no such proceeding has admittedly been
instituted by them.
7. Mr. Jagtiani adds that the Trial Court has also erred in refusing the
reliefs on the premise that since they were the final reliefs sought by
his clients in the plaint, the same could not be granted at the
interlocutory stage. He contends that it is an erroneous legal premise
that final reliefs can never be granted by a Court at an interlocutory
stage and invites my attention to judicial precedents which prescribe
otherwise. In support, he relies on the decision of the Supreme Court
in the case of Deoraj v. State of Maharashtra and Ors.1. He also relies
on the decision of this Court passed in Vilas Gopal Dongare v.
Municipal Commissioner, Kalyan Dombivali Municipal Corporation 2
and on the decision of the Delhi High Court in Vishal Gupta v. L&T
Finance Limited 3 .
8. He submits that the claim of his clients could never be said to be time-
1 (2004) 4 SCC 697
2 Order dated 12th June 2024 passed in Writ Petition No. 4116 of 2022
3 2009 SCC Online Del 2806
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barred and in that regard, relies on the decision of this Court in Giri
Chaya Co-operative Housing Society Ltd. v. Sushila Lalivala 4 and in
Aspandiar Rashid Irani v. Pasayadan Co-operative Housing Society
Ltd.5. He also invites my attention to the decision of the Supreme
Court in Dorab Cawasji Warden v. Coomi Sorab Warden and Ors. 6 and
a subsequent decision in Zenit Mataplast Private Limited v. State of
Maharashtra7 and submits that all the ingredients that are required to
be satisfied by a party claiming equitable relief of interlocutory
mandatory injunction in a suit have been satisfied by his clients in the
present case.
9. Mr. Jagtiani, therefore urges that the impugned order cannot be
sustained and is required to be set aside by this Court which should
instead grant the reliefs sought by his clients in the two Notices of
Motion.
SUBMISSIONS OF RESPONDENT NOS. 1 AND 2
10. Dr. Sastry, learned Counsel appears for the flat purchasers and opposes
the present two appeals. He supports the impugned order and submits
that the Trial Court could never have granted the reliefs sought in the
said two Notices of Motion inasmuch as, if the reliefs sought therein
were granted at the interlocutory stage, it would have indirectly
resulted in the two suits being decreed without any trial and without
requiring the original Plaintiffs to prove the case with which they had
approached the Trial Court and their entitlement to the final reliefs
sought in the plaint. Instead, he points out that the flat purchasers
4 Order dated 16th October 2025 passed in Writ Petition No. 11466 of 2023
5 2026 SCC Online Bom 186
6 (1990) 2 SCC 117
7 (2009) 10 SCC 388
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have raised several and significant defenses disputing such entitlement
which is required to be considered and adjudicated upon by the Trial
Court before any reliefs can be granted in favour of the Condominium
in the suit.
11. Dr. Sastry is at pains to point out that the Condominium was formed
by only a select few members / flat purchasers and his clients were
deliberately excluded from such formation process. He adds that his
clients are also not signatories to the Declaration nor have they
executed the requisite Deeds of Apartment. He therefore contends that
his clients are neither members of the Condominium nor liable to
make any payment to it. Instead, he points out that in the registered
Agreements under which his clients purchased the said two flats, it
was contemplated that the flat purchasers of the Siddhagiri building
would form a Co-Operative Housing Society and submit to the
jurisdiction of the MOFA and hence, the action of select members in
the formation of the Condominium and submitting to the provisions of
the said Act is not acceptable to and/or binding on his clients. He
therefore relies on the provisions of the MOFA and contends that until
such Co-Operative Housing Society is formed, the Promoter is required
to bear all the expenses and outgoings and therefore, his clients are
not liable for the amounts claimed in the suit.
12. He candidly admits that the said Suit No. 1938 of 2016 has not been
filed by his clients but by other members of the Siddhagiri building. He
however submits that the said suit is pending before the City Civil
Court in which the formation of the Condominium has specifically
been questioned and the said issue is under challenge and pending
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adjudication. He points out that his clients have filed two complaints
before the District Consumer Forum being Case Nos. CC/111/2024
and CC/117/2024 which seek similar reliefs including inter alia the
formation of the condominium. He submits that these complaints are
pending adjudication. Considering this, he submits that the reliefs
sought in the said Notices of Motion could never have been granted by
the Trial Court.
ANALYSIS AND FINDINGS
13. I have heard both parties at some length and gone through the entire
record that has been placed before this Court. After careful
consideration and for the reasons more particularly recorded
hereinbelow, I am of the opinion that there is no infirmity with the
impugned order and the view taken therein by the Trial Court.
14. Admittedly, even though the Declaration has been executed on 15 th
August 2012 and registered before the Sub-Registrar of Assurances as
prescribed under the said Act and 18 Deeds of Apartment have also
been executed and registered by some of the members of the
Siddhagiri building, no such Deeds of Apartment have been executed
by the flat purchasers in respect of the said two flats.
15. Since the two suits rely on the provisions of the Maharashtra
Apartment Ownership Act 1970, it would be profitable to consider
some of its relevant provisions:
(i) The said Act applies only where the sole owner or all owners
submit the property to the said Act by executing a Declaration;
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(ii) An Apartment owner derives rights under the Declaration;
(iii) Execution of Deed of Apartment by each Apartment Owner is
contemplated under Section 5;
(iv) Compliance with the Declaration and Bye-laws is enforceable
under Section 7;
(v) Common expenses are chargeable to the Apartment Owner
proportionately under Section 10; and
(vi) Binding effect of decisions of the Association of Apartment
Owners is provided in Section 24.
16. Hence, it is clear that the said Act would apply only to property, the
sole owner or all the owners of which, submit the same to the
provisions of the said Act, by duly executing and registering a
Declaration as provided therein. In the present case, the flat
purchasers have raised a specific plea that they were excluded from
this process. Whilst it is true that they have not filed the said Suit No.
1938 of 2016, it is not disputed that the said Suit has in fact been filed
by some other member/s who, like the flat purchasers, have not
executed the said Declaration or the Deed of Apartment in respect of
their flats in the Siddhagiri building. It is also not in dispute that the
said Suit challenges the formation of the Association of Apartment
Owners of the Condominium, and the same is still pending
adjudication before the Trial Court.
17. Similarly, it is also not in dispute that the flat purchasers have instead
made a similar challenge before the District Consumer Forum in which
they have filed two complaints which are pending adjudication. Hence,
they have also challenged the execution of the Declaration and the
submission of the property to the provisions of the said Act on various
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grounds, including inter alia that their registered Agreements under
which they purchased the said two flats did not provide for such
submission but instead, required the formation of a Co-Operative
Housing Society.
18. The flat purchasers have not accepted the formation of the Association
of Apartment Owners of the Condominium and as a result, have
disputed its authority to demand and claim any monies including inter
alia property tax and maintenance charges in respect of the said two
flats. Accordingly, the reference and reliance on the said Suit as having
been filed by the flat purchasers in the impugned order, as one of the
grounds for dismissing the said Notices of Motion would not entirely
vitiate it and/or render it vulnerable for being set aside.
19. In any event, the Trial Court was also justified in refusing the interim
reliefs sought in the said Notices of Motion which inter alia include an
order directing the flat purchasers to deposit the entire outstanding
amount towards property tax and maintenance charges set out in
Exhibit 'K' to the plaint and also for an order permitting withdrawal of
the said amount. The said reliefs also include an order directing the
flat purchasers to contribute and deposit the proportionate amount
towards property tax and maintenance charges for the period
commencing September 2018 onwards and for a further order
permitting them to withdraw the said amount that may be deposited
from time to time. The said reliefs also include a declaration that there
is a valid and subsisting charge on the said two flats to the extent of
the said unpaid amounts.
20. At this interlocutory stage, the Condominium has not proved the said
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amounts claimed by them. Whilst it may be that they have produced
and relied upon some bill and/or computerised statement in support of
the monthly amount, the said amount has not yet been proved by
them. Prima facie, I do not read any blanket admission of the said
amount by the flat purchasers in the letters dated 20 th September 2016
and/or 6th October 2016 that are relied upon by the Appellants. In fact,
in the letter dated 10th August 2010 addressed by the flat purchasers at
the time of taking possession, there is an express reference that they
would regularly make payment of the charges of monthly
maintenance, rent and taxes to the proposed Co-Operative Housing
Society. Hence, before any order of deposit can be made in their
favour, the original Plaintiffs would necessarily be required to prove
the quantum of the said amounts of property tax and maintenance
charges by leading cogent evidence in support thereof. The original
Defendants would be entitled to dispute such amount and also be
cross-examine the witness/es of the original Plaintiffs who may lead
evidence to prove the said amount and/or also lead their own
evidence in that regard, if they so desire. Accordingly, the Trial Court
was perfectly justified in rejecting such interim reliefs on the ground
that by filing mere affidavits, at the interlocutory stage, the original
Plaintiffs had not successfully proved the said amounts.
21. Moreover, as also correctly held by the Trial Court, in the facts of the
present case, the two suits filed by the original Plaintiffs essentially
seek only monetary reliefs which cannot be granted at the
interlocutory stage, if the original Plaintiff prove their entitlement to
the said amounts claimed in the plaint, they would succeed in not only
recovering the said amounts from the flat purchasers but would also
be adequately compensated by interest which has also been claimed on
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such outstanding amount @ 18% per annum. Hence, the Trial Court
has correctly recorded that no prima facie case is made out by the
original Plaintiffs and also that the balance of convenience does not lie
in their favour and that no irreparable loss would be caused to them if
the interim reliefs sought by them are not granted at this stage.
22. Considering this, the decisions in Deoraj (supra), Vilas Gopal Dongare
(supra) and Vishal Gupta (supra) which prescribe that in certain cases,
it would be permissible for Courts to grant interim reliefs even though
it may amount to the grant of final relief itself are of no assistance to
the original Plaintiffs and can easily be distinguished on facts.
Moreover, as held in Deoraj (supra), such reliefs could be granted only
when it is satisfied that at the end of the trial, it would not be able to
vindicate the cause of justice. Further, such power is exercised
sparingly and only where denial of relief would defeat justice itself. In
the present case, as more particularly held above, I am of the view that
since the two suits essentially seek monetary reliefs, the original
Plaintiffs would be adequately compensated by awarding interest that
has been claimed by them.
23. Insofar as the decisions in Giri Chaya (supra) and Aspandiar Rashid
Irani (supra) are concerned, they deal with the issue of limitation and
since there is no finding on this issue in the impugned order, I do not
propose to go into and deal with the same. That brings us to the
decisions in Dorab Cawasji Warden (supra) and Zenit Mataplast
(supra), there cannot be any dispute on the essential ingredients that
are required to be considered by a Court before the grant of interim
reliefs, as enunciated therein. Unfortunately, as already held above, in
the present case, the original Plaintiffs have failed to make out a case
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which would otherwise entitle them to the interim reliefs sought in the
said Notices of Motion.
24. Having regard to the above consideration, analysis and findings, the
present two Appeals are dismissed. There shall be no order as to costs.
( FARHAN P. DUBASH, J. )
Ajay Jadhav
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