[Cites 7, Cited by 0]
Bombay High Court
Jagdamba Co-Operative Housing Society ... vs M/S. Parisparsh Partnership Firm Thr. ... on 24 March, 2026
Author: Milind N. Jadhav
Bench: Milind N. Jadhav
2026:BHC-AS:13986
AO.179.2025.doc
Ajay
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO.179 OF 2025
WITH
INTERIM APPLICATION NO.3823 OF 2025
IN
APPEAL FROM ORDER NO.179 OF 2025
Jagdamba Co-operative Housing Society Ltd. .. Appellant
Versus
M/s. Parisparsh and Anr. .. Respondents
....................
Mr. R. M. Hardas a/w Ms. Ashwini B. Jadhav i/b Mr. Jagdish G.
Reddy, Advocates for Appellant.
Mr. S. S. Patwardhan, i/b Ms. Mrinal Shelar, Advocates for
Respondent No. 1.
....................
CORAM : MILIND N. JADHAV, J.
DATE : MARCH 24, 2026.
P.C.:
1. Heard Mr. Hardas, learned Advocate for Appellant and Mr.
Patwardhan, learned Advocate for Respondent No. 1. Appellant is
Defendant No.1 before the Trial Court.
2. Present Appeal from Order is filed challenging Order dated
25.04.2024 passed by Civil Judge (Senior Division) Kalyan, District
Thane in Application under Exhibit 5 filed in Special Civil Suit No.
134/2024 restraining Appellant from creating development rights in
favour of any another developer to develop suit property. Order dated
25.04.2024 is appended at Exhibit "A" at Page No. 16 of the Petition.
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For the sake of convenience, parties herein shall be referred to by their
nomenclature before the Lower Court.
3. Briefly stated, Defendant No.1 is a Co-operative Housing
Society named Shri Jagdamba CHS Ltd situated at Rajaji Path, 4 th
Cross Lane, Dombivili (East)- 421201, Taluka- Kalyan, District- Thane
(for short "suit property"). Plaintiff is M/s Parisparsh, a registered
partnership firm situated at 1st Floor, Shankeshwar CHS, Manpada
Road, Opp. Navjivan Hospital, Dombivli (East)- 421201, Taluka-
Kalyan, District- Thane. In 2018 Defendant No.1 invited quotations
from various builders and developers to redevelop the suit property as
they are old and dilapidated, however no developer wished to develop
the suit property since there was no direct access road available to the
suit property. Since Plaintiff was developing the adjacent property,
Defendant No.1 approached Plaintiff to redevelop the suit property
and held lengthy negotiations between May 2018 and May 2022. On
29.05.2021 Defendant No.1 issued Letter of Intent (for short "LOI") in
favour of Plaintiff. On 22.06.2021 Defendant No.1 passed resolution
for appointment of Plaintiff as Developer. On 25.04.2022 all members
of Defendant No.1 - Society gave their individual consents in favour of
Plaintiff.
3.1. Defendant No.1 approached Respondent No. 2 i.e. Deputy
Registrar of Co-operative Societies who issued No Objection Certificate
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(for short "NOC") dated 27.04.2022 for redevelopment of suit
property. Defendant No.1 delivered the same to Plaintiff after which
Plaintiff prepared draft Development Agreement and sent it to
Defendant No.1 on 08.05.2022.
3.2. Defendant No.1 addressed letters dated 05.12.2022 and
20.01.2023 and emails dated 12.05.2022 and 31.03.2023 to Plaintiff
seeking clarification of queries however no response was received.
3.3. In 2023, Plaintiff conducted structural audit of the suit
property, prepared building plan and undertook further steps toward
redevelopment. However Defendant No.1 did not sign and execute the
Development Agreement.
3.4. Plaintiff addressed letter dated 19.04.2023 to Deputy
Registrar seeking direction to Defendant No.1 to cooperate in the
process of redevelopment. On 06.07.2023 Plaintiff addressed to
Defendant No.1 Legal Notice through its Advocate for execution of
Development Agreement which is appended at page No. 141 of the
Petition.
3.5. On 26.07.2023 Defendant No.1 addressed reply to Plaintiff's
Legal Notice stating that Plaintiff failed to reply to Defendant No.1's
communication and denied entering into any contract with Plaintiff as
there was no registered Development Agreement. Defendant No.1
stated that the contract was liable to be terminated without any
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reason.
3.6. On 18.08.2023 Plaintiff addressed reply to Defendant No.1
stating that communication sent by Plaintiff was never delivered to
Plaintiff. Plaintiff also stated that all formalities were complied with
and redevelopment work could begin.
3.7. Defendant No.1 did not co-operate with Plaintiff and began
to search for another developer to redevelop the suit property. Hence
Plaintiff filed Special Civil Suit No. 134/2024 in the Court of Civil
Judge (Senior Division) Kalyan for specific performance of the above
oral contract along with Application for temporary interim injunction.
3.8. The Court of Civil Judge (Senior Division) Kalyan, passed
Order dated 25.04.2024 allowing Plaintiff's Application for injunction
and restrained the Plaintiff from creating development rights in favour
of any other developer to develop the suit property.
3.9. Hence the present Petition by the Plaintiff - Developer.
4. Mr. Hardas, learned Advocate for Appellant - Defendant
No.1 would submit that the impugned order is bad in law, passed
without consideration of material on record and against the principles
of natural justice. He would submit that prima facie suit is not
maintainable as it is filed for seeking specific performance of the
alleged oral agreement and contract appointing Plaintiff as Developer
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for redevelopment of suit property.
4.1. He would submit that Defendant No.1 has not executed
any registered and / or un-registered agreement i.e. like Development
Agreement or Memorandum of Understanding (for short "MOU") or
Power of Attorney etc. in favour of Plaintiff and merely Letter of Intent
has been issued on 29.05.2021 of which clause (3) states that
Defendant No.1 reserves its rights to cancel the LOI without any
reason.
4.2. He would submit that the LOI merely indicates a party's
intention to enter into a contract with the other party in future and no
binding relationship between the parties at that stage emerges and
totality of circumstances have to be considered in each case. He would
submit that it is no doubt possible to construe the Letter of Intent as a
binding contract, if such an intention is prima facie evident from its
terms, but it is not so in the present case. He seeks to rely upon the
decision of the Supreme Court in the case of South Eastern Coalfields
Ltd and others Vs. S. Kumar's Associates AKM (JV) 1 in support of his
above proposition.
4.3. He would submit that Plaintiff neglected to give
clarifications sought by Defendant No.1 on various issues raised by
Defendant No.1 via letters and emails but to no avail.
1 2021 SCC OnLine SC 486
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4.4. He would submit that Defendant No.1 held negotiations
with Plaintiff in respect of redevelopment of suit property but as
Plaintiff did not co-operate, Defendant No.1 - Society passed an
unanimous resolution to cancel the LOI which was issued in favour of
Plaintiff.
4.5. He would submit that Plaintiff had submitted plans for
development of suit property to the Kalyan-Dombivli Municipal
Corporation (for short "K.D.M.C.") without approval from Defendant
No.1 which is contradictory to the terms of Government Resolution
dated 04.07.2019 issued by the Co-operation Department of the
Government of Maharashtra which provided guidelines for
redevelopment of old buildings.
4.6. He would submit that on the basis of unanimous resolution
passed by Defendant No.1 - Society for cancellation of LOI, NOC
which was granted by Respondent No. 2 i.e. Deputy Registrar was
cancelled. Hence Defendant No.1 has every right to appoint a new
developer to redevelop the suit property.
4.7. He would submit that no right, title or interest in the
immovable property can be conferred on any party much less the
Plaintiff without a registered document and no title could be
transferred with respect to the suit property on the basis of the
unregistered LOI. He would submit that the Registration Act, 1908
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provides that a document which requires compulsory registration
under the said Act, if not registered would not confer any right, much
less a legally enforceable right to approach a court of law on its basis.
He would submit that in this case no such document is executed in
favour of Plaintiff so it cannot seek specific performance or any
substantive right, title or interest in respect of the suit property.
4.8. He would submit that Plaintiff has made an alternate prayer
before the court of Civil Judge (Senior Division) Kalyan, for seeking
compensation of amount of Rs.64,25,242/- but has not placed any
prima facie evidence on record to show as to how this alleged amount
was spent by it.
4.9. He would submit that even if any amount would have been
paid to Defendant No.1 by Plaintiff, even then no right could have
accrued to Plaintiff to develop the suit property in the absence of a
registered Development Agreement.
4.10. He would submit that Letter of Intent dated 29.05.2021
disclosed three major conditions, viz; (i) that it was issued with the
intention to discuss further terms and conditions for finalization of the
draft Development Agreement, (ii) that Defendant No.1 reserved its
right to cancel the LOI without assigning any reason before execution
of the Development Agreement and (iii) that LOI would be valid only
after signing of Development Agreement and Power of Attorney.
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Hence he would contend that Defendant No.1 - Society has rightly
cancelled the agreement before execution of the Development
Agreement and Plaintiff does not have any legal right to claim
development rights in the suit property.
4.11. He would submit that LOI means declaring preliminary
commitment of one party to do business with another party and hence
LOI is issued. He would submit that offer letter was issued by Plaintiff
and it was accepted by Defendant No.1 but subsequently certain
clarifications were sought by members of Defendant No.1 - Society
to which Plaintiff failed to respond despite repeated requests via
letters and emails. He would submit that before revocation of NOC,
Defendant No.1 - Society issued letters dated 05.12.2022 and
20.01.2023 to which Plaintiff - Developer did not revert.
4.12. He would submit that members of Defendant No.1 -
Society though had given their individual consents, in the facts of the
present case since no Development Agreement has been executed in
favour of Plaintiff - Developer, then as per the LOI, Defendant No.1
can revoke such consents in the interest of its members.
4.13. He would submit that the Court of learned Civil Judge
(Senior Division) Kalyan, has come to the erroneous conclusion that
both Defendant No.1 - Society and Plaintiff - Developer are interested
in developing the suit property and members of Defendant No.1 -
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Society would get newly constructed flats for accommodation, and if
injunction was granted, members of the Defendant No.1 - Society
would not be affected, and if injunction was refused then Plaintiff -
Developer would lose the project, and its reputation was based on that
project. He would submit that based on such erroneous findings the
Court of Civil Judge (Senior Division) Kalyan has allowed Plaintiff's
Application below Exhibit 5 without consideration of merits of the
matter where Defendant No.1 - Society has no privity of contract or
any registered document with the Plaintiff - Developer.
4.14. He would submit that Plaintiff - Developer gave false
promise that it would provide access to the suit property from the
adjacent property, which was being developed by it whereas one of the
member of the adjacent society objected to the same resulting in
Plaintiff not taking any steps to provide the access road.
4.15. He would submit that Defendant No.1 is a duly registered co-
operative housing society under the Maharashtra Co-operative
Societies Act (for short "MCS Act") and therefore it cannot have an
agreement with the Plaintiff.
4.16. He would submit that the Court of Civil Judge (Senior
Division) Kalyan, should not have granted order of injunction
restraining the Defendant No.1 from creating development rights and
restraining its members from development of their property, as they
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are the owners of the suit property, especially when the suit property
building is in a dilapidated condition and due to the impugned interim
order, future of members of the society is affected.
4.17. In support of his above submissions, Mr. Hardas has referred
to and relied upon the following decisions of the Bombay High Court;
(i)Heritage Lifestyle And Developers Ltd. Vs. Cool Breeze Co-operative
Housing Society Ltd. and others 2 and (ii)Mannalal Vs. Upendrakumar
and others3.
5. PER CONTRA, Mr. Patwardhan, learned Advocate appearing
on behalf of Plaintiff, would oppose the Appeal From Order. At the
outset, he would submit that the Impugned Order does not suffer from
any defect of arbitrariness, caprice or perversity and the Court of Civil
Judge Senior Division did not ignore any of the settled principles of
law regulating grant or refusal of interlocutory injunction. He would
also submit that law on interference in Interim Orders of injunction
passed by the Courts is well settled by the Supreme Court and he relies
upon the decision of this Court in the case of Wander Ltd. And Anr.
V/s. Antox India P. Ltd4 in support of this submission.
5.1. He would submit that facts of the case are to be asserted on
the basis of the acts of parties. He would submit that even though
there may not be a registered Development Agreement in the present
2 2014 (3) Mh.L.J.
3 2009 SCC OnLine Bom 1809
4 1990 SCC OnLine SC 490
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case, it ispo facto does not mean that in the present facts Plaintiff's
case is not sustained. He would submit that in the present case society
accepted the detailed commercial offer of the Plaintiff by affirmative
acts like passing an unanimous General Body Resolution and
thereafter each member of the Society having given individual
consents to the Plaintiff. He would submit that the commercial offer is
dated 18.06.2021, unanimous General Body Resolution is dated
22.06.2021 and further additional benefits offered by the Plaintiff to
the Society are contained in the letter dated 24.04.2022. He would
submit that in this background, the individual consent given by each
member of the Society to the Plaintiff constitutes a valid and binding
contract. Next clinching fact argued by him is the NOC issued by the
Deputy Registrar of the Co-operative Societies after following the due
process of law under the MCS Act, 1960. He would submit that Special
General Meeting passed a fresh General Body Resolution in presence
of designated officer appointed by the Deputy Registrar of the Co-
operative Societies pursuant to which after filing of the Statutory
Report, Registrar issued NOC paving the way for development. In the
above context he would therefore submit that execution and
registration of the Development Agreement was a mere formality.
5.2. He would submit that Defendant No.1 - Society has claimed
that they wrote two letters dated 05.12.2022 and 20.01.2023 and
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emails dated 12.05.2022 and 31.03.2023 seeking clarification and
Plaintiff - Developer neglected the same. This fact he would submit is
factually incorrect because no such letters and emails were delivered
to Plaintiff and such record was created by Society with ulterior
motive. He would submit that although the above letters were never
received, Plaintiff - Developer had agreed to fulfill the additional
demands contained therein of which cognizance is taken by the
learned Civil Judge (Senior Division) Kalyan. He would submit that
the Court of Civil Judge (Senior Division) Kalyan, has prima facie
found these letters and emails to be created documents as opined in
paragraph No. 31 of the Impugned Order.
5.3. He would submit that Defendant No.1 - Society has relied
on a subsequent General Body Resolution dated 11.02.2023 in which
decision to terminate the contract was taken. He would submit that no
such General Body meeting was even held as Defendant No.1 - Society
did not produce the minutes of that meeting before the Trial Court,
neither it had mentioned about the meeting dated 11.02.2023 in its
reply dated 26.07.2023 to the suit notice dated 06.07.2023.
5.4. He would submit that Plaintiff - Developer is ready and
willing to undertake the work of redevelopment; and has incurred
expenditure of Rs. 64,25,242/- on the project, including substantial
time and energy. He would submit that readiness of Plaintiff is
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inferred from the preplanned access to Defendant No.1 - Society from
the adjacent plot of land which belonged to Plaintiff - Developer. He
would submit that Plaintiff has accepted all terms of Defendant No.1 -
Society including even those which were contained in the subsequent
letters that were never received by Plaintiff.
5.5. He would submit that Defendant No.1 - Society through
their Advocate have stated in the High Court that they have appointed
another developer during the pendency of the appeal, but they have
not produced any particulars about the same. He would submit that if
any such transaction has taken place during pendency of trial, a
transferee pendente is not proper party to suit. He would submit that
Defendant No.1 - Society has not obtained leave from the Court of
Civil Judge (Senior Division) Kalyan or the High Court before creating
such third party right.
5.6. In support of his above submissions, Mr. Patwardhan has
referred to and relied upon the decisions of the Supreme Court in
Sunil Gupta Vs. Kiran Girhotra and others5. and Trimex International
Fze Ltd. Vs. Vedanta Aluminium Ltd.6
6. I have heard Mr. Hardas, learned Advocate for Appellant -
Defendant No.1 and Mr. Patwardhan, learned Advocate appearing on
behalf of Respondent No.1 - Plaintiff and with their able assistance,
5 2007 SCC OnLine SC 1230
6 (2010) 3 SCC
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perused the record of the case. Submissions made by learned
Advocates at the bar have received due consideration of the Court.
7. At the outset it is seen that substantive right of Plaintiff -
Developer emanates from a series of acts beginning with the first
meeting held for re-development on 27.05.2018, thereafter with the
Society accepting the offer by its letter dated 06.05.2022. It is seen
that in between these two dates extensive negotiations took place
between the parties supported by written correspondence, revision of
offer by Developer, specific resolution having been passed by the
General Body of the Society accepting the revised offer and written
acknowledgment of the same by way of individual consents given by
each member of the Society to the Developer for redevelopment. It is
seen that Society addressed letter dated 08.04.2022 to the Deputy
Registrar of Co - operative Housing Societies seeking deputation of
Statutory Officer to be present during the Special General Body
meeting held by the Society for appointment and confirmation of
developer. It is seen that the Statutory Officer appointed by Deputy
Registrar of Co-operative Societies attended the Special General
Meeting and filed Statutory Report recommending appointment of
Plaintiff - Developer. The Deputy Registrar, on the basis of
recommendation submitted by the Statutory Officer addressed letter
dated 27.04.2022 granting permission for redevelopment and
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appointment of Plaintiff as Developer and the Society thereafter finally
accepted the offer after above trials and tribulations. Pursuant to this
the draft Development Agreemennt was shared with the Society for
execution though it is true that Development Agreement is not
executed, what is crucial is that substantial steps were taken by both
the parties to fructify re-development over a substantial period of time.
There is no denial of the fact that LOI dated 25.09.2021 was issued by
the Society in favour of Developer for re-development. In that view of
the matter and case of the Developer being supported by adequate and
substantial documentary evidence and overwhelming correspondence
entered into by the Society, case of the Society that there was no
written contract or Development Agreement and hence specific
performance cannot be granted. The principle element of contract
namely offer and acceptance are prima facie satisfied by virtue of the
admitted acts of the parties. The Impugned Order below Exhibit "5"
delves upon each and every facet of redevelopment contained in the
negotiations between the parties which was exchanged between the
parties. From the record it is clearly seen that Plaintiff - Developer
commenced development on the adjacent plot and the Society became
interested in joining the re-development and approached the Plaintiff.
The issue of access to the Society's plot and the adjacent plot being
developed was discussed between the parties and thereafter Project
Management Consultant was appointed by the Developer qua Society's
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redevelopment pursuant to which commercial terms were discussed
and LOI was issued by the Society on 29.05.2021 by following the due
process of law. It is seen that after the LOI was given, the same prima
facie constituted an acceptance of the offer by the Society after
substantial negotiations and counter - offers culminating into the final
offer letter dated 26.01.2022. Thereafter in response to this members
of the Society acknowledged the offer and issued individual
acceptance / consent letters all dated 25.04.2022 in favour of the
Developer and accordingly on 08.05.2022 draft Development
Agreement was exchanged between parties for execution. From the
above it is prima facie seen that once negotiation between the parties
culminated in the acceptance of the offer duly acknowledged by the
affirmative acts of the Society then a prima facie case is clearly made
out by the Developer for grant of injunction. The learned Trial Court
while passing the Impugned Order below Exhibit "5" has returned
cogent reasons on the aspect of prima facie case having been made out
and the balance of convenience being entirely in favour of the
Developer.
8. In view of the above observations and findings, order is
passed by the Civil Judge (Senior Division), Kalyan allowing
temporary injunction restraining Defendant No.1 - Society from
creating development rights in favour of another Developer and
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appointing a new Developer for development of the suit property. It is
seen that Plaintiff - Developer filed suit for specific performance of
contract along with an application seeking temporary interim
injunction on the aforementioned grounds. It is seen that the dispute
between the parties Defendant No.1 - Society and Plaintiff -
Developer arose from the process of redevelopment of the building on
suit property.
9. In view of Section 79-A of MCS Act, guidelines are issued by
Government of Maharashtra that as per Government Resolution dated
04.07.2019 Development Agreement has to be executed within three
months. It is seen that on the offer letter being issued by Plaintiff
dated 26.01.2022 each member of Defendant No.1 - Society has
individually given their consent for redevelopment of the building in
the suit property which prima facie means Defendant No.1 - Society
accepted the offer implicitly. It is seen that no modifications in terms
and conditions were asked to be made by members of Defendant No.1
- Society; thus Respondent No. 1 was entitled to develop the property
in terms of the offer letter dated 26.01.2022.
10. It is seen that Defendant No.1's major concern is the
approach road from the adjacent property which is a difficult part in
redevelopment. Defendant No.1 had approached Kalyan-Dombivli
Municipal Corporation seeking permission for the road but it was
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rejected, whereas Plaintiff had agreed to provide for the approach road
through the adjacent property and it has even been mentioned as a
relevant clause in the draft of Development Agreement exchanged
between the parties.
11. From the above, it is prima facie seen that over a period of
more than 2 years, the Developer and the Society exchanged their
offer and counter offer and acceptance by the Society was complete
and fructified and only when the draft Agreement was sent for
execution, the Society reneged from executing it. It is seen that LOI
was given in 2021, Project Management Consultant was appointed by
the Developer and Resolutions were passed by the General Body of the
Society thereafter fructifying the offer and all members of the Society
giving their individual consents in writing to the Developer. The
Deputy Registrar was also approached and the Designated Officer of
the Registrar attended the Special General Meeting of the Society
confirming appointment of the Developer. Accordingly report was
made to the Deputy Registrar, who accorded the necessary permission
for re-development. If the Society is allowed to resile from its stand
after happening of the aforesaid events, it would amount to rejecting
the Developer's case at the threshold, especially when the Society has
not denied any of the aforementioned events / incidents /
correspondence. Hence, since a prima facie case is clearly made out for
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grant of injunction, the findings returned by the learned Trial Court on
this ground are upheld and confirmed. In the present facts, grounds of
balance of convenience and irreparable loss are both in favour of the
Developer as Society has informed the Court across the bar through
their Advocate that it is in talks with another developer.
12. Thus on overall consideration of the factual matrix, the
negotiations between the Developer and Society as alluded to
aforesaid prima facie show that there was a clear acceptance of the
offer of the Developer by the Society and conduct of the Society being
noticed by the Trial Court as stated in paragraph No.31 of the
impugned order, the challenge to the Exhibit "5" Order deserves to
fail. The Exhibit "5" Order is a well reasoned, cogent order which does
not call for any interference whatsoever. It is therefore upheld and
confirmed. Resultantly, Appeal from Order filed by Defendant No.1 -
Society fails.
13. Appeal from Order stands dismissed. Pending Interim
Application is also accordingly dismissed.
[ MILIND N. JADHAV, J. ]
14. After the above order is pronounced in Court, Mr. Hardas
persuades the Court to stay this order in view of the fact that Exhibit
"5" order itself was stayed for sometime when Defendant No. 1-Society
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had approached the Supreme Court previously. He would submit that
Society would like to test the legality and validity of this order before
the Supreme Court.
15. The request made by Mr. Hardas is vehemently objected to
by learned Advocate for Plaintiffs. However, in view of the trajectory
of the matter, I am inclined to accede to the request made by Mr.
Hardas and stay the operation of this order for a period of four weeks
from today. Needless to state that in view of this order, the order
passed below Exh. 5 by the learned Trial Court shall stand stayed for a
period of four weeks from today to enable Defendant No.1 - Society
to test the legality and validity of this order.
[ MILIND N. JADHAV, J. ]
Ajay
AJAY AJAY TRAMBAK
TRAMBAK UGALMUGALE
UGALMUGALE Date: 2026.03.24
18:53:32 +0530
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