[Cites 15, Cited by 0]
Bombay High Court
Pemino Co-Operative Housing Society ... vs New Deluxe Co-Operative Housing ... on 11 February, 2026
Author: Milind N. Jadhav
Bench: Milind N. Jadhav
2026:BHC-OS:3896
IA.731.2025 + IA.4573.2025.doc
Ajay
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION NO. 731 OF 2025
IN
SUIT NO. 21 OF 2025
New Deluxe Co-operative Housing Society Ltd. Applicant
.. (Orig. Plaintiff)
IN THE MATTER BETWEEN
New Deluxe Co-operative Housing Society Ltd. .. Plaintiff
Versus
Pemino Co-operative Housing Society Ltd. .. Defendant
WITH
INTERIM APPLICATION NO. 4573 OF 2025
IN
SUIT NO. 21 OF 2025
New Deluxe Co-operative Housing Society Ltd. Applicant
.. (Orig. Plaintiff)
IN THE MATTER BETWEEN
New Deluxe Co-operative Housing Society Ltd. .. Plaintiff
Versus
Pemino Co-operative Housing Society Ltd. .. Defendant
WITH
INTERIM APPLICATION NO. 6242 OF 2025
IN
SUIT NO. 21 OF 2025
Pemino Co-operative Housing Society Ltd. Applicant
.. (Orig. Defendant)
IN THE MATTER BETWEEN
New Deluxe Co-operative Housing Society Ltd. .. Plaintiff
Versus
Pemino Co-operative Housing Society Ltd. .. Defendant
....................
Mr. Virag Tulzapurkar, Senior Advocate a/w. Mr. Amit Mehta and
Mr. Vedant Rane, Advocates i/by Mr. Amit Mehta for Applicant /
Plaintiff.
Mr. Navroz Seervai a/w. Mr. Naushad Engineer, Senior Advocates
a/w. Mr. Pranav Narsaria, Mr. Abha Gokhale, Advocates i/by Desai
& Diwanji for Defendant.
....................
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IA.731.2025 + IA.4573.2025.doc
CORAM : MILIND N. JADHAV, J.
DATE : FEBRUARY 11, 2026.
JUDGMENT:
1. Heard Mr. Tulzapurkar, learned Senior Advocate for
Applicant / Plaintiff and Mr. Seervai, learned Senior Advocate for
Defendant.
2. Plaintiff - Society filed the present Suit seeking permanent
injunction against Defendant - Society and declaration of the
restrictive covenant in Indentures dated 15.10.1943 and 25.07.1944
as void, invalid and unenforceable.
3. Interim Application No.731 of 2025 is filed for interim reliefs
whereas Interim Application No.4573 of 2025 is filed for grant of leave
under Order II, Rule 2 of the Civil Procedure Code, 1908 and to
amend the Suit Plaint by Plaintiff - Society.
4. Interim Application No.6242 of 2025 is filed by Defendant -
Society for condonation of delay in filing Written Statement under
Order VIII Rule 1 of the Civil Procedure Code, 1908.
5. By consent of the parties, all three (3) Interim Applications
are taken up for hearing. Parties are referred to as 'Plaintiff' and
'Defendant' for convenience.
6. For the reasons stated, Interim Application No.4573 of 2025
is allowed in terms of prayer clause "a". Amendment is permitted to be
IA.731.2025 + IA.4573.2025.doc
carved out within one week from today. Reverification stands
dispensed with. Additional Written Statement only to the extent of the
amendment as permitted is allowed to be filed on service of the
amended Plaint in accordance with law.
7. For the reasons stated, Interim Application No.6242 of 2025
is allowed. Delay of 125 days stands condoned. Written Statement is
directed to be taken on record by the Department.
8. Interim Application No.731 of 2025 for interim reliefs is
taken up for hearing.
9. The relevant facts necessary for adjudication for grant of
interim reliefs in the present case are as follows:-
9.1. Plaintiff - Society is a Co-operative Housing Society duly
registered under Registration No. BOM/HSG/-220 of 1962 under the
Maharashtra Co-operative Societies Act, 1960. It is Plaintiff's case that
prior to 1950, Govindram Brothers Private Limited was the owner of
land admeasuring 3,016 square yards situated at Altamount Road,
Mumbai and out of the 3,016 square yards of land, Govindram
Brothers Private Limited sold and conveyed a portion thereof
admeasuring 1,900 square yards to Seksaria Industries Private
Limited.
IA.731.2025 + IA.4573.2025.doc
9.2. That by registered Agreement / Indenture dated 05.04.1963,
Seksaria Industries Private Limited sold, conveyed and transferred
land admeasuring 1,588.642 square meters i.e. equivalent to 1,900
square yards bearing Cadastral Survey No.5/664 of Malabar and
Cumballa Hill Division to Plaintiff - Society (for short "the suit
property") upon which a building comprising ground plus three (3)
storey was constructed by Plaintiff - Society and since then it is in
lawful possession and occupation thereof.
9.3. It is Plaintiff's case that its building constructed on the suit
property is more than 60 years old and has deteriorated over a period
of time. In view thereof, Plaintiff - Society resolved to undertake
redevelopment of the suit property. As part of redevelopment process,
Plaintiff - Society conducted a title search by its Advocate to ascertain
and confirm its title to the suit property, pursuant to which it issued
Public Notices dated 01.03.2024 in three newspapers viz; The Times of
India, The Indian Express and The Economic Times inviting claims,
demands and objections with respect to redevelopment of the suit
property by Plaintiff - Society.
9.4. On 20.03.2024, Plaintiff - Society addressed letter to
Defendant - Society inviting constructive suggestions and inputs in
relation to its proposed redevelopment, however no response to the
same was received. On 12.04.2024, Plaintiff - Society addressed a
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follow up letter to Defendant - Society intimating that since no
objections or suggestions were received from the Defendant - Society,
it would proceed further with its redevelopment plan, to which once
again there was no response.
9.5. On 16.04.2024, Defendant - Society in response to the
Public Notices issued by Plaintiff - Society, addressed a legal notice to
Plaintiff - Society opposing and objecting to its proposed
redevelopment of suit property on the ground that Defendant - Society
claimed to be a beneficiary of certain stipulations, agreements and
restrictive covenants qua the suit property. Defendant - Society
contended that Plaintiff - Society was prohibited from constructing
any building / structure exceeding a height of 30 feet asserting
existence of a restrictive covenant which was legally binding on the
Plaintiff - Society. Defendant - Society stated that Plaintiff - Society
was required to adhere to the said restriction without any exception
and any construction exceeding height of 30 feet on the suit property
would amount to breach of the restrictive covenant and Defendant -
Society was entitled to enforce it.
9.6. Upon receipt of legal notice dated 16.04.2024, Plaintiff -
Society by reply dated 22.04.2024 called upon Defendant - Society to
furnish and provide details and particulars of the alleged stipulations,
agreements, covenants and restrictions on the basis of which it
IA.731.2025 + IA.4573.2025.doc
claimed existence of the restrictive covenant.
9.7. In the interregnum, Plaintiff - Society appointed Architect
and Consulting Engineer to inspect the suit property for examination
of the structure and condition of its building. On receipt of Structural
Inspection Report dated 13.05.2024, Plaintiff - Society issued
advertisement dated 12.06.2024 in The Times of India newspaper
inviting tenders for redevelopment of the suit property. Plaintiff -
Society received inquiries / offers from reputed Developers, however
all such proposals were based on utilization of the maximum
permissible development potential of the suit property which involved
construction exceeding height of 30 feet. As no further response was
received from the Defendant - Society to the reply Plaintiff - Society
by letter dated 16.07.2024, proposed a meeting with Defendant -
Society to amicably resolve the issue raised by Defendant - Society.
However, Defendant - Society instead issued a Public Notice dated
22.08.2024 in The Times of India newspaper wherein in addition to
objections raised by them in the legal notice dated 16.04.2024,
reliance was placed on the Indenture dated 15.10.1943 as the source
of their purported right and entitlement to restrict the Plaintiff -
Society from constructing any structure exceeding 30 feet in height.
9.8. In response to the said Public Notice, Plaintiff - Society
addressed letter dated 28.08.2024 objecting to the said Public Notice.
IA.731.2025 + IA.4573.2025.doc
Plaintiff asserted that there was no such Indenture dated 15.10.1943
or it found mention or reference in any subsequent Agreement relating
to the suit property.
9.9. According to Plaintiff, Defendant - Society by issuing the
Public Notice created a roadblock in its redevelopment plan and
Developers who had expressed interest in redevelopment refrained
from proceeding unless a No-Objection Certificate was obtained from
Defendant - Society permitting redevelopment of the suit property
exceeding height of 30 feet.
9.10. Being aggrieved by the action of Defendant - Society and
apprehending hindrance / obstruction from Defendant - Society in its
proposed redevelopment of the suit property, Plaintiff - Society filed
present Suit and Interim Application No.731 of 2025 seeking interim
reliefs.
10. Interim Application No.731 of 2025 seeks the following
reliefs:-
"(a) That pending the hearing and final disposal of the present Suit, this
Hon'ble Court be pleased to pass an order of temporary injunction
thereby restraining the Defendant and/or its agents, servants and/or
any persons claiming through or under them from in any manner
interfering with or meddling with the rights of the Plaintiff Society in
appointing a Developer / Builder and entering into a Development
/ Redevelopment Agreement and also in approaching the Municipal
Corporation of Greater Mumbai for having the plans sanctioned
/approved in accordance with law in respect of redevelopment of
the said Property being carried out even beyond the height 30 feet.
(b) for costs of this Interim Application.
(c) for such other and further reliefs as this Hon'ble Court may deem fit
and proper in the facts and circumstances of the matter."
IA.731.2025 + IA.4573.2025.doc
11. Mr. Tulzapurkar, learned Senior Advocate for Plaintiff -
Society would submit that its building standing on the suit property is
more than 60 years old and redevelopment has become imperative. He
would submit that Plaintiff - Society consists of 23 members, most of
whom are senior citizens. He would submit that Defendant - Society
sought to obstruct its redevelopment by raising objection through its
Advocates letter dated 16.04.2024 and by issuing Public Notice dated
22.08.2024 thereby impeding Plaintiff - Society from utilising the full
development potential of the suit property.
11.1. He would submit that conduct of Defendant - Society clearly
demonstrated malafide intention. He would submit that Plaintiff -
Society issued 3 Public Notices in three different newspapers, however
no objections were raised by Defendant - Society. He would submit
that thereafter two specific letters were addressed to Defendant -
Society inviting suggestions and objections, however once again no
reply was received to the same. He would submit that only after a
delay of almost 78 days Defendant - Society issued a legal notice for
the first time alleging existence of an Indenture restricting Plaintiff -
Society from constructing any structure beyond the height of 30 feet
on the suit property. He would submit that despite seeking details of
the Indenture, no details were furnished due to which Plaintiff -
Society proceeded with its redevelopment plan by appointing
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Architect and Consultant Engineer for Structural Inspection / Report.
11.2. He would submit that pursuant thereto Plaintiff - Society
issued another Public Notice inviting claims / objections and called
upon Defendant - Society to hold meeting for amicable settlement. He
would submit that, instead Defendant - Society issued Public Notice
asserting for the first time existence of a restrictive covenant in the
Indenture dated 15.10.1943 without giving copy of the same. He
would submit that if Defendant - Society were beneficiary of the
restrictive covenant then such objection ought to have been raised in
the first instance, however it failed to do so. He would submit that
conduct of Defendant - Society is nothing but an afterthought
intended solely to stall redevelopment of the suit property.
11.3. He would submit that despite diligent efforts by Plaintiff -
Society the alleged restrictive covenant in the Indenture dated
15.10.1943 could not be traced. He would submit that no reference to
any such restrictive covenant was found in any subsequent title
document available with Plaintiff - Society. He would submit that if at
all any such restrictive covenant existed affecting the suit property,
then the same ought to have been registered. He would submit that
however on search conducted by Plaintiff - Society at the Office of the
Sub-Registrar of Assurances, no such registered document was either
found. Hence, he would submit that the restrictive covenant if
IA.731.2025 + IA.4573.2025.doc
assumed to subsist, then the same ought to have been expressly
transferred to the Defendant - Society in its title document which is
not the case. He would submit that the restrictive covenant if at all it
subsists cannot be absolute and override development of the suit
property with passage of time. He would submit that the restriction is
wholly repugnant to the interest created and absolute transfer of the
suit property in Plaintiff - Society's favour.
11.4. He would submit that the Public Notice created a serious
impediment to Plaintiff - Society's redevelopment as all interested
Developers withdrew and refrained from proceeding further and
insisted upon a No Objection Certificate from the Defendant - Society.
11.5. He would submit that Defendant - Society itself prior in
point of time comprised of ground plus three storeys, however four
additional floors were constructed by Defendant - Society in or about
the year 1966 on its own building exceeding height of 30 feet and yet
it sought to prevent Plaintiff - Society from redeveloping its property
in accordance with law by relying upon an unsubstantiated restrictive
covenant. He would submit that Plaintiff - Society is in lawful
possession of the suit property for more than six decades and grave
loss and irreparable harm would ensue if interim reliefs are not
granted. He would submit that Interim Application No.731 of 2025 be
therefore allowed in the interest of justice.
IA.731.2025 + IA.4573.2025.doc
12. Mr. Seervai, learned Senior Advocate for Defendant -
Society would draw my attention to the Affidavit-in-Reply dated
30.11.2024 filed on behalf of Defendant - Society by Mrs. Meher
Dave, Treasurer and Authorised Signatory of the Defendant - Society
appended at page No.27 and would submit that there exist an express
restrictive covenant that restricts Plaintiff - Society from constructing
any structure exceeding the height of 30 feet. He would submit that
the restrictive covenant is clearly reflected in the title documents
under which Plaintiff - Society has derived its title to the suit property.
12.1. He would submit that in the present case it is utmost
necessary to therefore advert to the background relating to derivation
of title by both Societies. He would submit that such examination
would prima facie clearly disclose the origin, scope and continued
subsistence of the aforesaid restrictive covenant against the Plaintiff -
Society.
12.1.1. He would submit that Phirozeshaw Darashaw Dubash ("PD
Dubash") and Bachubhai Phirozeshaw Dubash ("BP Dubash") were
owners of a large parcel of land admeasuring 11,983 square yards on
Altamount Road. He would submit that by registered Indenture dated
15.10.1943, PD Dubash and BP Dubash as "Vendors" sold and
conveyed land admeasuring 2,873.6 square yards out of the larger
portion in favour of Kaikushru Gazdar and Piroja Gazdar wherein
IA.731.2025 + IA.4573.2025.doc
under Clause 6, Vendors also being predecessors-in-title of Plaintiff -
Society agreed to a restrictive covenant that the plot marked as "Plot
of Cottages" shall not construct any structure exceeding 30 feet in
height. He would submit that the maps appended at Exhibits "A" and
"B" thereto clearly identify the Plaintiff - Society's land as the "Plot of
Cottages" where the Plaintiff - Society's building stands. He would
submit that the said covenant runs with the suit property i.e. land and
operates for the benefit of the Gazdars' land and for the remaining
part retained by PD Dubash and BP Dubash which was subsequently
conveyed to the Defendant - Society. Hence, he would submit that the
restrictive covenant has been in operation since 1943 and binds the
successors, heirs and assigns of the covenantor in this case.
12.1.2. With regard to sale of land / portion to Plaintiff - Society, he
would submit that by a registered Indenture (Conveyance) dated
25.07.1944, PD Dubash and BP Dubash "Vendors" sold and conveyed
land admeasuring 3,016 square yards out of the larger portion of land
to Govindram Brothers Limited. He would submit that in the said
Indenture at internal page No.10, it is expressly stated that Govindram
Brothers Limited - "Purchaser" shall not put up any structure
exceeding height of more than 30 feet. He would submit that in and
around 1950, Govindram Brothers Limited sold and conveyed the said
land admeasuring 3,016 square yards to Seksaria Industries Private
IA.731.2025 + IA.4573.2025.doc
Limited which was further sub-divided into sub-plots.
12.1.3. He would submit that by registered Indenture dated
05.04.1963, out of the 3,016 square yards, 1,900 square yards was
conveyed by Seksaria Industries Private Limited as "Vendors" and
Govindram Brothers Limited as confirming parties thereto in favour of
Plaintiff - Society wherein it is expressly set out that the sale was
subject to all stipulations, agreements, covenants and restrictions
contained in the original Indenture (Conveyance) dated 25.07.1944.
He would submit that the restrictive covenant therefore continues to
bind the suit property and restricts construction on Plaintiff - Society's
suit land beyond the height of 30 feet which was deliberately
concealed by Plaintiff - Society and thus Interim Application No.731 of
2025 being based on a false premise and suppression deserves to be
dismissed in the interest of justice with costs.
12.1.4. With regard to sale of land / portion to Defendant - Society,
he would submit that on 26.04.1945 PD Dubash and BP Dubash
"Vendors" sold and conveyed land admeasuring 3,762 square yards in
favour of Dinshaw Daruwalla, Frenny Daruwalla, Noshir Daruwalla,
Nadirshaw Sidhwa, Minocher Sidhwa and Pesi Daruwalla. He would
submit that the said sale was expressly made together with the benefit
of the stipulations, agreements, covenants and restrictions contained
in the Deed of Conveyance dated 15.10.1943 i.e. Gazdar's Indenture
IA.731.2025 + IA.4573.2025.doc
through which the restrictive covenant originated.
12.1.5. He would submit that on 09.01.1950 Dinshaw Daruwalla
and Frenny Daruwalla released their rights in the land in favour of
Noshir Daruwalla. He would submit that on 26.03.1962, Noshir
Daruwalla sold half of his share to Aloo Sidhwa. He would submit that
the remaining owners constructed a ground plus three (3) storey
building known as "Pemino" on the said land. He would submit that
on 28.04.1966 the owners entered into a Development Agreement
with Wadhumal Dalamal for further development of Pemino pursuant
to which the Defendant - Society came to be constituted. He would
submit that on 28.06.1972 the said land was partly conveyed to the
Defendant - Society.
12.2. He would submit that the benefit of the restrictive covenant
was expressly passed on to Defendant - Society's predecessor-in-title
under the sale deed dated 26.04.1945. He would submit that the
covenant contained in the Deeds of 1943 and 1944 is a covenant
running with the land and it was intended to enure to the benefit of
Defendant - Society's land. He would submit that the Deed of 1944
expressly stated that the covenant shall run with the premises and be
binding on the owners thereof. He would submit that covenants
running with the land are enforceable by any person in whom the
interest of the covenantee is vested irrespective of notice. He would
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therefore submit that the benefit of the said restrictive covenant was
expressly retained by the original Vendors while selling the land to
Plaintiff - Society's predecessor's under the Deed dated 25.07.1944.
12.3. In support of his submissions, he has referred to and relied
upon the decision of this Court in the case of Bomi Munchershaw
Mistry Vs. Kesharwani Co-operative Housing Society Limited 1 wherein
this Court has held that the restrictive covenant which runs with the
land since inception for the benefit of the covenantee and a specific
assignment of the covenant in favour of the covenantee is not required
and further held that multi-storeyed structures in the vicinity /
neighbourhood render the restrictive height covenant more valuable
and not obsolete. He has also referred to and relied upon the decisions
in support of the above proposition arrived at in the Judgments passed
by the English Courts in the case of In Re Union of London and Smith's
Bank Limited's Conveyance,2 Dyson v. Foster3, Rogers Vs. Hosegood 4,
Miles Vs. Easter5, Mathewson Vs. Ram Kanai Singh Deb 6 and Princy &
Another Vs. Jose 7 wherein Courts have held that such covenants are
enforceable by any person in whom the property of the covenantee is
vested for their benefit, irrespective of notice.
1 1992 SCC OnLine Bom 483
2 (1933) Ch.611
3 1909 AC 98
4 (1900) 2 Ch. D.388
5 (1931. U. 546)
6 1898 R. 2163
7 2009 SCC OnLine Ker 1262
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12.4. He would submit that Plaintiff's contention that Defendant -
Society has no locus to enforce the covenant on the ground that it was
not specifically assigned under the Deed of 1972 is wholly
misconceived. He would submit that the said contention proceeds on
the erroneous assumption that the restrictive covenant is personal in
nature. He would submit that the Deed of 1972 conveyed undivided
shares together with all rights, lights, liberties, privileges, easements,
advantages and appurtenances which necessarily includes the benefit
of the restrictive covenant. He would submit that Plaintiff - Society
has failed to establish any prima facie case and in that view of the
matter, Interim Application No.731 of 2025 deserves to be dismissed
on the face of record.
13. Considering the submissions emanating from various
documents presented and argued before me, I have permitted the
learned Senior Advocates to address the questions raised by the Court
in Rejoinder and Sur-Rejoinder submissions.
14. Mr. Tulzapurkar, learned Senior Advocate for Plaintiff -
Society would draw my attention to the Affidavit-in-Rejoinder dated
31.12.2024 filed on behalf of Plaintiff - Society by Mr. Sunil Mehta,
Treasurer and Authorised Signatory of the Plaintiff - Society appended
at page No.142 onwards to contend that the restrictive covenant relied
upon by Defendant - Society specifically of the present nature
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necessarily operates between a covenantor whose land bears the
burden and a covenantee whose land enjoys the benefit i.e.
corresponding respectively to the servient and dominant. He would
submit that the question that arises before the Court is who has the
benefit of the said restrictive covenant and whether can the Defendant
- Society have benefit of the same against Plaintiff - Society's land?
He would submit that such covenants do not operate in vacuum or
generally at large but bind only identifiable parties in respect of clearly
identifiable properties. He would submit that unless both the burden
and benefit of the covenant are shown to specifically subsist and have
been validly passed to the party asserting such rights thereunder, until
then no enforceable claim can arise in that regard.
14.1. He would submit that under the Indenture dated
15.10.1943, PD Dubash and BP Dubash as owners of larger parcel of
land conveyed 2,873.6 square yards to Gazdars. He would submit that
it is necessary to consider that Clause 6 of the said Indenture imposed
a height restriction of 30 feet upon PD Dubash and BP Dubash in
respect of a plot described as "Plot for Cottages" to be measured from
a specified point marked on a plan annexed to the Indenture. He
would submit that PD Dubash and BP Dubash were the covenantor
bearing the burden and Gazdars were the sole covenantee enjoying the
benefit of the said covenant.
IA.731.2025 + IA.4573.2025.doc
14.2. He would submit that the plan annexed to the 1943
Indenture, which could only identify the "Plot for Cottages" and the
point from which the restriction of the height is to be calculated is
admittedly not produced or is placed on record. He would submit that
in the absence of the said plan, the covenant lacks certainty as neither
the area, nor the boundaries or C.S. number of the "Plot for Cottages"
can be ascertained. He would therefore submit that the covenant is
vague and incapable of enforcement and the burden of establishing its
enforceability lies entirely upon the Defendant - Society. He would
submit that the 20 meter wide road was not in existence before the
said restrictive covenant was introduced in the Indenture dated
15.10.1943. He would submit that the structure of Clause 6 in the
1943 Indenture is clear that the restrictive covenant was personal to
PD Dubash and BP Dubash. He would submit that insofar
enforceability of the covenant is concerned, the 1943 Indenture does
not expressly state that it will bind the heirs, executors, administrators
and assigns, in respect of the height restriction. He would submit that
this distinction clearly evidences the intention that the height
restriction was not to bind assigns and therefore it did not run with the
suit property.
14.3. In support of his submissions, he has referred to and relied
upon the decision of the Supreme Court in the case of Administrator of
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the Specified Undertaking of the Unit Trust of India and Another Vs.
Garware Polyester Ltd.8 and specifically on paragraph No.29 of the
said decision wherein Court held that a negative covenant requires
strict construction and cannot be given a passing by interpretation.
14.4. He would submit that by the Indenture dated 26.04.1945,
PD Dubash and BP Dubash conveyed 3,762 square yards to Daruwalla
and Sidhwa i.e. Defendant - Society's predecessors-in-title. He would
submit that the 1945 Indenture transfers only such benefits as were
held by PD Dubash and BP Dubash under the 1943 Indenture. He
would submit that the height restriction was not a benefit held by PD
Dubash and BP Dubash but a burden upon him and therefore it could
not have been transferred. He would submit that the 1945 Indenture
contains no reference to the Indenture dated 25.07.1944 or to the
"Plot for Cottages".
14.5. He would submit that Defendant - Society's title deed dated
28.06.1972 by which the Pemino land (Defendant - Society's Plot)
was conveyed does not refer to either the 1943 or the 1944 Indenture.
He would submit that absence of any express reference of transfer of
the restrictive covenant in the Defendant - Society's own title
document conclusively establishes that no benefit of any restrictive
covenant ever vested in the Defendant - Society. He would submit that
Defendant - Society therefore lacks locus to enforce any such covenant
8 (2005) 10 SCC 682
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against the Plaintiff - Society though in his usual fairness he has
accepted that the restrictive covenant would apply to Plaintiff -
Society's plot of land but disagree as to whether Defendant - Society
can or has the right to enforce it. In support of this submission, he has
referred to and relied upon the decision of the Karnataka High Court
in the case of Motilal J. Boal Vs. The Corporation of City of Bangalore
and Another9 wherein Court held that mere intention to transfer
cannot confer any right. He would submit that Court further held that
unless the expression and language employed in the deed of sale
clearly indicate not mere intention but the actual effectuation of such
intention and in absence of such transfer, the purchasers cannot be
vested with the benefit of such covenant.
14.6. He would submit that under the Indenture dated
25.07.1944, PD Dubash and BP Dubash conveyed land to Govindram
Brothers Private Limited subject to a height restriction in favour of PD
Dubash and BP Dubash. He would submit that under the Deed dated
05.04.1963, Plaintiff - Society acquired title subject to the said
covenant. He would submit that if at all the covenant subsisted the
benefit thereof remained solely with PD Dubash and BP Dubash and
could never have passed on to the Defendant - Society. He would
submit that there is no privity of contract between the Plaintiff -
Society and the Defendant - Society in respect of the 1943 Indenture.
9 1961 Mysore Series 675
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14.7. He would submit that Defendant - Society's case that
Plaintiff - Society's land must necessarily be the "Plot for Cottages" is
wholly unsustainable as total / combined area of the Gazdar plot, the
Govindram plot and the Daruwalla and Sidwa plot aggregates only to
9,651 square yards, leaving a balance of 2,332 square yards from the
original 11,983 square yards which is unaccounted. He would submit
that neither the area nor the C.S. number of the "Plot for Cottages" is
identified in any document and there is a possibility that the
unaccounted land constitutes the said plot. He would therefore submit
that the Defendant - Society has failed to discharge its burden of proof
on this issue.
14.8. He would submit that the plea of limitation raised by
Defendant - Society is wholly untenable in law. He would submit that
the cause of action arose only in the year 2024 when for the first time
Defendant - Society asserted the alleged restrictive covenant and
obstructed the redevelopment of the suit property by issuing a Public
Notice dated 22.08.2024. He would submit that mere existence of a
covenant in an old title document does not by itself set limitation in
motion unless and until the same is sought to be enforced which was
done for the first time in the year 2024 by the Defendant - Society. In
support of this submission he has referred to and relied upon the
decision of the Supreme Court and this Court in the case of Daya
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Singh and Another Vs. Gurudev Singh (Dead) by LRS and Others 10 and
Geeta Patkar Vs. Chandrakant Kantilal Shah and Others 11 wherein
Court has held that cause of action for the purpose of Article 58 of the
Limitation Act, accrues only when the right asserted in the suit is
infringed or there is a clear and unequivocal threat to infringe that
right asserted by the Plaintiff, in the suit. Hence, he would submit that
the cause of action to file the suit accrued to the Plaintiff - Society for
the first time after the receipt of legal Notice dated 16.04.2024 and
issuance of Public Notice dated 22.08.2024 by Defendant - Society
and hence it cannot be said that it was barred by the law of limitation.
14.9. He would submit that the character of the entire locality on
Altamount Road has undergone a complete and irreversible
transformation with high-rise development on all surrounding plots,
including the Defendant - Society's own property which has been
extended from three (3) to seven (7) storeys. He would submit that
the restrictive covenant therefore cannot be enforced against the
Plaintiff - Society in view of the "Doctrine of Obsolescence" as the said
doctrine postulates that if there is a total change in the character of
the locality, property or neighbourhood, the negative restriction ought
to be deemed as obsolete and therefore cannot be enforced. He would
submit that Plaintiff - Society's building is more than 60 years old,
dilapidated and occupied by senior citizens and therefore requires
10 (2010) 2 SCC 194
11 2015 (6) Mh.L.J. 692
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immediate redevelopment. He would submit that Plaintiff - Society's
land is separated from the Defendant - Society's land by a 20 meter
wide road and the Defendant - Society therefore has no easementary
rights with regard to the suit property.
14.10. Mr. Tulzapurkar in support of his submissions in Rejoinder
has referred to and relied upon the following citations and decisions of
the Courts:-
(i) Bhagwat Prasad Vs. Damodar Das and Others12;
(ii) Roshan Lal Jeevraj Sethia Vs. Manoj Kumar Sohan Lal
Pugalia and Others13;
(iii) B.D. Ramble Vs. Micheal K. Lal14;
(iv) Sayers Vs. Collyer15;
(v) Pashmina Co-operative Housing Society Ltd. Vs. Latif
Mohamed Hassambhoy of Bombay Indian Inhabitant
and Others16;
(vi) Krushna Kishore Bal Vs. Sankarsan Samal and Others17;
14.11. He would submit that the Defendant - Society has failed to
establish any subsisting or enforceable right under the alleged
restrictive covenant and no prima facie case or locus is made out to
restrain the Plaintiff - Society from redevelopment of the suit
property. He would therefore submit that the interim relief as prayed
be granted in the interest of justice.
12 1976 SCC OnLine All 411
13 2015 (4) RLW 2781
14 1948 SCC OnLine Ajm 28
15 1882 S, 1004.
16 2024 SCC OnLine Bom 76
17 1973 SCC OnLine Ori 197
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15. Mr. Seervai, learned Senior Advocate for Defendant -
Society would draw my attention to the Affidavit in Sur-Rejoinder filed
on behalf of Defendant - Society by Mrs. Meher Dave, Treasure and
Authorised Signatory of the Defendant - Society dated 22.01.2025
from page No.172 onwards and would submit that the Plaintiff -
Society has suppressed true and correct facts and documents including
its own title deeds dated 25.07.1944 and 05.04.1963 which expressly
contain the restrictive covenant. He would submit that despite being
fully aware of the said covenant, Plaintiff - Society created an
impression in the Suit Plaint that there was no restriction prohibiting
construction on its land beyond 30 feet height. He would submit that
suppression of these documents was conscious and deliberate to
mislead the Court. He would submit that it was only after the
Defendant - Society pointed out the said documents in the Affidavit-
in-Reply the Plaintiff sought amendment of the Suit Plaint. In support
of his submission he has referred to and relied upon the decisions of
the Supreme Court in the case of Bhaskar Laxman Jadhav and Others
Vs. Karamveer Kakasaheb Wagh Education Society and Others 18,
Kishore Samrite Vs. State of Uttar Pradesh and Others19 and Oswal
Fats and Oils Limited Vs. Additional Commissioner (Administration),
Bareilly Division, Bareilly and Others 20 wherein it is held that a litigant
18 (2013) 11 SCC 531
19 (2013) 2 SCC 398
20 (2010) 4 SCC 728
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cannot choose which facts are material for adjudication and is
therefore under a duty to make full disclosure of all relevant facts. He
would submit that a party who does not approach the Court with clean
hands and suppresses material facts is not entitled to be heard or to
claim any interim or equitable relief.
15.1. He would submit that it is settled law that a party cannot be
permitted to "blow hot and cold" or "approbate and reprobate" as the
"doctrine of approbate and reprobate" being a facet of the equitable
"doctrine of election", bars a party from accepting and rejecting the
same instrument or transaction. He would submit that once a party
with full knowledge has accepted and acted upon the benefits thereof,
it stands estopped from denying its validity or binding effect. He
would therefore submit that the Plaintiff-Society having enjoyed the
fruits of the arrangement cannot now assail the same and is therefore
disentitled to any interim reliefs. In support of his above submissions
he has referred to and relied upon the following decisions of the
Supreme Court in the case of Union of India and Others Vs. N.
Murugesan and Others21, Rajasthan State Industrial Development and
Investment Corporation and Another Vs. Diamond and Gem
Development Corporation Limited and Another 22 and Karam Kapahi
and Others Vs. Lal Chand Public Charitable Trust and Another23.
21 (2022) 2 SCC 25
22 (2013) 5 SCC 470
23 (2010) 4 SCC 753
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15.2. He would submit that even though this Court by order dated
27.01.2025 allowed the Plaintiff - Society's Interim Application for
amendment, Court has expressly kept open the Defendant - Society's
contention that the suit was filed by suppressing material facts and
documents. He would submit that the Court expressly kept open the
contention that the amended reliefs were barred by limitation. He
would submit that the restrictive covenant is admittedly reflected in
the Plaintiff - Society's own title document and Plaintiff - Society was
fully aware of the same since inception. He would submit that on this
ground alone the Interim Application deserves to be dismissed.
15.3. He would submit that Plaintiff - Society sought to challenge
the restrictive covenant contained in the Indenture dated 25.07.1944
while completely avoiding any challenge to the covenant contained in
its own Indenture dated 05.04.1963. He would submit that the
restrictive covenant was expressly passed onto Plaintiff - Society under
its Indenture dated 05.04.1963 and therefore it continues to bind the
Plaintiff - Society. He would submit that it is impermissible for Plaintiff
- Society to accept title under the said Indenture and challenge a
binding condition contained therein which is to its disadvantage which
existed since the year 1963. He would submit that due to the
restrictive covenant that runs with the land, Plaintiff - Society's
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predecessor-in-title had purchased the land at a lower price, whereas
Defendant - Society's predecessor-in-title purchased the adjoining land
from the same owners at a much higher price within a period of nine
(9) months which is clearly reflected in both the documents which are
now placed on record and perused by the Court.
15.4. He would submit that, Plaintiff - Society's case is clearly
barred by limitation under Article 58 of the Limitation Act, 1963 which
clearly prescribes a period of three (3) years from the date when the
right to sue accures. He would submit that Plaintiff - Society was
aware of the restrictive covenant since 1963 and approached the Court
only in 2024 i.e. after a lapse of almost 61 years. He would submit
that the amended suit is therefore clearly barred by limitation and
even the maximum permissible period of limitation stands expired. He
would submit that mere change in neighbourhood does not render the
restrictive covenant infructuous or unenforceable. He would therefore
submit that Plaintiff - Society failed to establish any prima facie case
and permitting construction on its plot beyond the height of 30 feet at
the interim stage would cause irreparable prejudice to Defendant -
Society and would amount to grant of final reliefs at the interim stage
and therefore in that view of the matter, the Interim Application
deserves to be rejected.
15.5. He would submit that it is pertinent to note that the interim
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reliefs prayed for by the Plaintiff - Society are in the nature of final
reliefs prayed for in the Suit Plaint and are therefore impermissible in
law.
15.6. In these circumstances, he would submit that the restrictive
covenant is binding and enforceable. He would submit that the
Plaintiff - Society is guilty of suppression and gross delay and has
failed to make out any prima facie case. He would therefore submit
that the Interim Application deserves to be dismissed.
16. I have heard Mr. Tulzapurkar, learned Senior Advocate for
Applicant / Plaintiff and Mr. Seervai, learned Senior Advocate for
Defendant and with their able assistance perused the record of the
case. Submissions made by both the learned Senior Advocates at the
bar have received due consideration of the Court.
17. At the outset, it is seen that Interim Application No.731 of
2025 is filed by the Plaintiff - Society seeking interim reliefs. With
regard to validity and subsitence of the restrctive covenant it is seen
that the Plaintiff - Society derived title to the suit property under a
registered Indenture dated 05.04.1963 which expressly records that
the conveyance is subject to all stipulations, agreements, covenants
and restrictions contained in the earlier Indenture dated 25.07.1944.
The Indenture dated 25.07.1944, in turn, expressly incorporates a
height restriction of 30 feet. Prima facie, the restrictive covenant has
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travelled through successive conveyances and stands reflected in
Plaintiff - Society's own chain of title. I have perused these documents
with the able assitance of Mr. Seervai and Mr. Tulzapurkar has also
accepted this position.
18. The submission of Plaintiff - Society that the restrictive
covenant cannot be enforced in the absence of a specific assignment of
the covenant in favour of the Defendant - Society cannot be accepted
at the interim stage. Where the conveyances in favour of both the
Plaintiff - Society and the Defendant - Society expressly refer to the
earlier Indentures and convey the property together with all rights,
liberties, easements, advantages and appurtenances, a prima facie
inference arises that the stipulations and restrictions contained in the
earlier Indentures were intended to bind and benefit all successors-in-
title. An express reiteration of the covenant in every subsequent deed
is not a sine qua non for its prima facie continuance, particularly when
the deeds incorporate earlier documents by specific reference to them.
19. The Plaintiff - Society has specifically argued that the
Indenture dated 1972 under which the Defendant - Society derived its
title does not expressly state that the restrictive covenant stood
assigned or passed in favour of the Defendant - Society. This
submission, prima facie, cannot be accepted. The said argument is
refuted by the very contents of the Indenture dated 1972 itself, which
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expressly records that the conveyance is subject to and together with
the binding nature and benefits of the stipulations, covenants and
restrictions contained in the earlier Indenture executed by its
predecessor-in-title dated 26.04.1945.
20. On perusal of the Indenture dated 26.04.1945 at internal
page No.5, it is seen that it expressly incorporates all the rights,
liberties, privileges, advantages and appurtenances which in turn
includes the restrictive covenant in question. Once the Indenture of
1972 expressly acknowledges and adopts the binding effect and
benefits of the earlier Indenture, it is not open to the Plaintiff - Society
to contend that the restrictive covenant did not enure for the benefit of
the Defendant - Society merely because the covenant is not in
verbatim reproduced in the 1972 Indenture. Prima facie, the covenant
stands preserved and transmitted through the chain of title and
continues to bind and benefit the successors-in-title, including the
Defendant - Society.
21. In support of the above, attention is drawn to the decision of
the Kerala High Court in the case of Princy & Another (supra).
Relevant paragraph Nos.9 and 10 are reproduced herein below for
immediate reference:-
"9. Then the question is whether the deceased first appellant
being an assignee from the covenantee, the additional appellants
could enforce the negative covenant in Ext. A2 without a specific
assignment of the benefit of the covenant in favour of the deceased
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first appellant? Exhibits A1, A3 and A4 as per which she acquired
title do not specifically assign the benefit of the covenant provided
under Ext. A2. Collins L.J. stated in Rogers v. Hosegood, (1900) 2
Ch. D. 388 thus:
"......these authorities establish the proposition that, when
the benefit has been once clearly annexed to one piece of
land, it passes by assignment of that land, and may be said to
run with it, in contemplation as well of equity as of law,
without proof of special bargain or representation on the
assignment. In such cases it runs, not because the conscience
of either party is affected, but because the purchaser has
bought something which inhered in, or was annexed to the
land bought". (Emphasis supplied)
Following these observations the Calcutta High Court in Mathewson
v. Ram Kanal Singh Deb, (1909) XXXVI ILR Calcutta 675 held thus:
.........one very important test whether the benefit of burden
of a covenant or contract in any particular case runs with the
land or not is whether such covenant or contract in its
inception binds the land. It is does, it is then capable of
passing with the land to subsequent assignees, if it does not,
it is incapable of passing any mere assignment of the
land......" (Emphasis supplied)
Therefore, if the covenant bound the land at the inception it goes
with the land for the benefit of the assignee of the covenantee and a
specific assignment of the covenant in favour of the assignee (of the
covenantee) is not required.
10. Halsbury's Laws of England, Vol. 14, 3rd Edn. Page 564 states
as regards covenants running with the land in equity that the
equitable doctrine relating to restrictive covenants is confined to
covenants of a negative nature. It states that:
"Where a vendor retains land which is sufficiently defined
and which is capable of being benefited by the covenant at
the time when it is imposed, and the covenant is expressed to
be for the benefit of that land and every part thereof, then the
benefit of the covenant is annexed to the land and passes on
a subsequent conveyance of the land or any part thereof
without express mention, even though the purchaser is not
aware of the existence of the covenant. It constitutes an
equitable interest in the land and passes, not on the ground
that a subsequent purchaser has expressly bought it, but
because it inheres in or is annexed to the land which he has
brought. Moreover, although the covenant is not taken for the
benefit of the defined land "or any part thereof", yet the
benefit will pass on an assignment of part, if the conveyance
shows an intention that the" covenant should be annexed to
each part of the land".
In this case it is seen from Ext. A1 and A2 that the covenant not to
construct any portion of the building within a space of 12 fingers
from the common wall on either side was stipulated for the
protection of the common wall (as it then stood) which was
necessary for enjoyment of the respective portions of the building.
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That covenant being negative in character bound the land at the
very inception and hence in my view runs with the land for the
beneficial enjoyment of which it was imposed. Hence, a specific
assignment of the benefit of the covenant in favour of the assignees
of the covenantee is not required. That apart, Exts. A1, A3 and A4
show that while assigning the southern portion of the building and
the land to Enasu, John and appellant No. 1, respectively all rights
of the vendor (which should include the benefit of the covenant
imposed on the respondent under Ext. A2) in the property was
conveyed to the purchasers. Hence the assignee of the covenantee
was entitled to enforce the covenant against the respondent."
22. The submission of the Plaintiff - Society that the restrictive
covenant cannot be enforced in the absence of privity of contract
between the Plaintiff and Defendant also cannot be accepted at this
stage. The doctrine relating to covenants running with the land does
not rest solely on privity of contract between the present parties. The
enforceability of such covenant is examined on the basis of the
intention of the original parties, the nature of the covenant, and the
manner in which the covenant has been preserved and transmitted
through the chain of title. Prima facie, the documents relied upon by
the Defendant - Society indicate that the restrictive covenant was
intended to bind its successors and assigns and to run with the land. It
constitutes an equitable interest in the land and passes, not on the
ground that a subsequent purchaser has expressly bought it, but
because it inheres in or is annexed to the land which he has bought.
23. Plaintiff - Society has further contended that even if the
restrictive covenant is assumed to subsist, the Defendant - Society is
not the beneficiary thereof. However, the Plaintiff - Society has not
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been able to state / identify as to who, according to it, is entitled to
enforce the covenant if Defendant - Society is to be excluded. This
uncertainty itself demonstrates that the issue of enforceability and
identification of the beneficiary is a matter requiring trial. Once the
Plaintiff - Society admits that the restrictive covenant runs with its
own land, the question as to who is entitled to enforce it cannot be
conclusively determined at the interlocutory stage in the Interim
Application.
24. It is also significant that while the Plaintiff - Society has
sought to challenge the restrictive covenant contained in the
Indentures of 1943 and 1944, it has not challenged the covenant as
expressly incorporated in its own title deed document dated
05.04.1963. A party cannot be permitted, at least at the interim stage,
to approbate and reprobate by accepting title under a document while
simultaneously disputing a binding condition contained therein. Prima
facie the Plaintiff - Society is bound by the terms under which it has
derived its title.
25. Plaintiff - Society's argument that the absence of the map
annexed to the Indenture dated 15.10.1943 and subsequent changes
in the physical features of the locality, including the existence of a 20-
meter wide road which was not in existence at the time of the original
covenant, render the covenant vague and unenforceable. These
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submissions undoubtedly raise triable issues as these are disputed or
disputable questions of facts. However, at the interim stage, the Court
cannot ignore the fact that the restrictive covenant has consistently
found place in the chain of title documents culminating in the Plaintiff
- Society's own conveyance of 1963. Prima facie, this indicates that
the predecessors-in-title were ad idem that the restriction would
continue to bind the land notwithstanding subsequent changes in the
surroundings.
26. On perusal of the pleadings, affidavits and documents on
record, it is further necessary to examine the foundational basis on
which the Plaintiff - Society has approached this Court.
27. It is seen that the Plaintiff - Society initially approached this
Court on the categorical footing that no restrictive covenant existed in
respect of the suit property. This assertion formed the very foundation
of the Interim Application as filed alongwith the Suit Plaint on
26.09.2024. However, only after the Defendant - Society pointed out
the existence of a restrictive covenant in the Plaintiff - Society's own
title documents, Plaintiff - Society accepted the existence of such
restrictive covenant and shifted its stand to contend that even if the
said restrictive covenant did exists qua the Plaintiff - Society's land,
the Defendant - Society has no locus to enforce the same. This change
of stand on the fundamental issue cannot be ignored at the interim
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stage. As in view of the doctrine of election a party who accepts a
benefit under a deed must adopt the whole contents of that
instrument. It is settled principle of law that a person cannot say at
one time that the transaction is valid and then turn around and say it
is void for the purpose of securing some other advantage.
28. Attention in this regard is drawn to the decision of the
Supreme Court in the case of Rajasthan State Industrial Development
and Investment Corporation and Another (supra) . Relevant paragraph
Nos.15 and 16 of the said decision are reproduced hereinbelow for
immediate reference:-
"15. A party cannot be permitted to "blow hot-blow cold", "fast and
loose" or "approbate and reprobate". Where one knowingly accepts the
benefits of a contract, or conveyance, or of an order, he is estopped
from denying the validity of, or the binding effect of such contract, or
conveyance, or order upon himself. This rule is applied to ensure
equity, however, it must not be applied in such a manner so as to
violate the principles of what is right and of good conscience.
16. Thus, it is evident that the doctrine of election is based on the
rule of estoppel--the principle that one cannot approbate and
reprobate is inherent in it. The doctrine of estoppel by election is one
among the species of estoppels in pais (or equitable estoppel), which is
a rule of equity. By this law, a person may be precluded, by way of his
actions, or conduct, or silence when it is his duty to speak, from
asserting a right which he would have otherwise had."
29. It is pertinent to note that such conduct of Plaintiff cannot
be treated as a mere oversight. The initial denial and subsequent
acceptance of the restrictive covenant goes to the root of the matter. A
party which approaches the Court on an incorrect factual basis and
corrects its stand only after being confronted with its own
documentary material cannot seek interim relief in equity.
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30. At the outset, it is apparent that the Plaintiff - Society
suppressed material facts with regard to the restrictive covenant. It is
settled principle of law that a party approaching a Court must state
correct facts and come with clean hands. Where pleadings are founded
upon information, the source of such information must be disclosed. A
suit filed on misconceived and misleading facts to achieve an ulterior
purpose amounts to an abuse of the due process of Court. A party
seeking equity must do equity and no litigant can play "hide and seek"
with the Courts and adopt "pick and choose" by concealing material
facts from the Court.
31. Plaintiff - Society has relied upon correspondence addressed
to the Defendant - Society seeking suggestions in relation to
redevelopment. Prima facie, there was no legal requirement for the
Plaintiff - Society to do so or seek suggestions from the Defendant -
Society in respect of redevelopment of its own property. Such action is
completely unusual and unheard of. The said correspondence appears
to be nothing more than an attempt to ascertain whether objections
against the Plaintiff - Society qua the very restrictive covenant would
be raised by the Defendant. Such conduct does not assist the Plaintiff
- Society in establishing any right to interim relief atleast in my
opinion. In today's times Developers appointed for redevelopment
conduct a thorough due diligence. Plaintiff's own case is that all
Developers who had shown interest in Plaintiff's redevelopment had
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withdrawn and called upon Plaintiff to obtain NOC from the
Defendant which itself signifies that Plaintiff was fully aware about the
restrictive covenant hurdle.
32. The mere fact that other buildings in the vicinity have
increased their height or have undergone redevelopment cannot, by
itself, be a determinative factor for granting interim relief to Plaintiff -
Society. Change in neighbourhood or surrounding development does
not automatically render a restrictive covenant obsolete or
unenforceable. Whether the doctrine of obsolescence applies and
whether the covenant has lost its purpose or materially affects the
rights and enjoyment of the Defendant - Society's land, are issues
requiring evidence and detailed examination and can only be
adjudicated at trial on issues.
33. With regard to the issue of limitation, attention is drawn to
the decision of the Supreme Court and this Court in the case of Daya
Singh and Another (supra) and Geeta Patkar (supra). In this case, I
am of the opinion that Plaintiff - Society's right to sue under Article 58
of the Limitation Act, 1963 accrued when a clear and unequvivocal
threat to infringe that right by Defendant - Society arose i.e. when
they objected to redevelopment of the suit property vide letter dated
16.04.2024 addressed by Defendant - Society. Therefore, in so far as
the issue of limitation is concerned, prima facie, at this stage, this
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Court is inclined to accept Plaintiff - Society's submission that the
cause of action arose in the year 2024 when the Defendant - Society
first asserted the restrictive covenant in the context of Plaintiff's
redevelopment. Mere existence of a covenant in an old documents
does not, by itself, give rise to a cause of action. To that limited extent,
the Suit cannot be rejected at the threshold on the ground of law of
limitation, keeping all contentions of the Defendant - Society open to
be agitated since limitation would be a mixed question of law and
facts.
34. However, the above prima facie view on limitation does not
justify grant of interim relief to Plaintiff - Society either. The reliefs
sought by Plaintiff - Society at the interim stage are however in the
nature of final reliefs. Grant of such reliefs would amount to
permitting redevelopment beyond the application of the restrictive
covenant and height restriction which would result in irreversibly
altering the status of the suit property even before rights of the parties
are finally adjudicated on trial.
35. It is also relevant to note that Plaintiff - Society derived title
under documents which expressly refer to stipulations, agreements
and restrictions as alluded to hereinabove. Hence at this stage, the
Plaintiff - Society cannot be permitted to accept the benefit of title
while seeking to avoid the conditions attached thereto. The balance of
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convenience does not lie in permitting construction or redevelopment
beyond the height restriction at this stage, as the same would cause
irreversible consequences. Needless to state that Plaintiff - Society is
entitled to redevelopment otherwise upto height restriction of 30 feet.
36. In the aforesaid circumstances, this Court is of the prima
facie view that the Plaintiff - Society has clearly failed to establish a
strong prima facie case for grant of interim relief. The balance of
convenience does not lie in its favour and irreparable prejudice would
be caused to the Defendant - Society if such reliefs are granted.
Conduct of the Plaintiff - Society is also not completely honest in
approaching this litigation.
37. In view of the above prima facie findings, Interim
Application No.731 of 2025 is liable to be rejected. It is clarified that
all observations made herein are prima facie in nature and confined
only to the adjudication of the Interim Application. All rights and
contentions of the parties are otherwise expressly kept open to be
decided on evidence at the trial of the Suit.
38. Interim Application No.731 of 2025 is dismissed.
39. Interim Application No.4573 of 2025 is allowed.
40. Interim Application No.6242 of 2025 is allowed.
[ MILIND N. JADHAV, J. ]
Ajay
AJAY TRAMBAK
TRAMBAK UGALMUGALE
UGALMUGALE Date:
2026.02.11
12:23:50 +0530
