S.J. Kathawalla, J.@mdashThe above Suit is filed by the Plaintiff for (i) a declaration that the Suit Contract (Exhibits O, U and II to the Plaint) is valid, subsisting and binding upon the Defendants; (ii) a mandatory order and injunction directing Defendant Nos. 1 to 28 to comply with the Suit Contract (Exhibits O, U and II to the Plaint); (iii) an order directing Defendant Nos. 1 to 27 to sign and execute the Tripartite Agreements in terms of Clause 4 of the Second Supplemental Agreement (Exhibit-II to the Plaint); (iv) a mandatory order and injunction directing Defendant Nos. 1 to 28 to forthwith hand over quiet, vacant and peaceful possession of the property more particularly described in Exhibit-A to the Plaint, for the purpose of carrying out re-development thereof in accordance with the terms and conditions of the Suit Contract (Exhibits O, U and II to the Plaint); (v) a perpetual order and injunction restraining Defendant Nos. 1 to 28 from, in any manner selling, transferring, alienating, dealing with, disposing off and/or creating third party rights and/or encumbrances in respect of the property described in Exhibit-A to the Plaint; and (vi) to order and decree Defendant Nos. 1 to 27 to jointly and severally pay to the Plaintiff a sum of Rs. 28,85,76,232/-, as per the particulars of the claim (Exhibit-NNN to the Plaint) and a further sum of Rs. 5,35,781/- per day, till such time as Defendant Nos. 1 to 27 comply with the Suit Contract (Exhibits O, U and II to the Plaint) along with interest thereon at the rate of 21 per cent per annum till payment and/or realization. The Plaintiff has in the above Suit, also taken out Notice of Motion No. 859 of 2013, inter alia seeking interim reliefs i.e. directing Defendant Nos. 1 to 27 to execute the Tripartite Agreements in terms of Clause 4 of the Second Supplemental Agreement being Exhibit-II to the Plaint; for an order and injunction restraining Defendant Nos. 1 to 28 from in any manner selling, transferring, alienating, dealing with, disposing off and/or creating third party rights and/or encumbrances in respect of the property described in Exhibit-A to the Plaint or any part thereof and/or parting with possession thereof and/or obstructing, interfering with and/or creating hurdles in the re-development of the property, more particularly described in Exhibit-A to the Plaint; restraining Defendant Nos. 1, 3, 4 (a) & (b), 5, 7, 8 (a) & (b), 10, 11 (a) & (b) from resuming occupation of their respective premises and for appointment of Receiver in respect of the premises, more particularly described in Exhibit-A to the Plaint together with all powers under Rule 1 of Order XL of the Code of Civil Procedure, 1908, including the power to take physical possession thereof with police assistance if necessary, from Defendant Nos. 1 to 27 and/or any person found in possession thereof and to hand over the same to the Plaintiff for the demolition thereof and for redevelopment in accordance with the Suit Contract being Exhibits O, U and II to the Plaint.
2. The Plaintiff is a Developer and carries on the business of developing properties. Defendant No. 28 is a Co-operative Housing Society. Defendant No. 28 is the owner of land bearing CTS No. 717, 717/1 to 51 of Vile Parle Division of Vile Parle Village, Taluka Andheri, Mumbai Suburban District admeasuring about 4474 square metres and lying, being and situated at Hanuman Cross Road No. 2, Vile Parle (East), Mumbai-400 057 ("the Suit Plot") together with four buildings standing thereon comprising of 120 flats. The Suit Plot and the four buildings are hereinafter collectively referred to as "the Suit Property". These 120 flats belong to 116 members of Defendant No. 28. Defendant No. 28 has appointed the Plaintiff to redevelop the Suit Property. Defendant Nos. 1 to 11 (b), 13 to 24 (a) and 25(a) to 27 (non-co-operating Members) having in all 27 flats have certain differences with the Plaintiff and Defendant No. 28 as regards reduction of 80 square feet of area agreed to be given to the Members of the Defendant No. 28 Society by the Plaintiff towards Permanent Alternate Accommodation.
3. Briefly set out are the facts as narrated by the Plaintiff.
4. On 22nd September, 2009, Defendant No. 28 issued a tender inviting offers from various builders and developers for redevelopment of the Suit Property, inter alia representing that: (i) the area of the plot as per the Property Register Card was 5474 square metres.; and (ii) the buildings contained 26 corner flats having carpet area of 280 square feet each and 94 other flats having carpet area of 220 square feet each, i.e. the aggregate carpet area of the units comprised in the buildings was 27690 sq. ft. Defendant No. 28 sought additional carpet area of 180 sq. ft. free of cost, exclusive of elevation features, for all its Members. The developers were to put in their bid for other commercial terms which they would offer like corpus fund, shifting charges, bank guarantee amount, etc.
5. On 9th October, 2009, the Plaintiff submitted its bid on the basis that the area of the plot was 5474 sq. mtrs. On 6th June, 2010, a Special General Body Meeting ("SGBM") of Defendant No. 28 was convened to inter alia discuss the offers of three short-listed developers. The majority of the members present and voting, recommended acceptance of the offer of the Plaintiff.
6. On 27th June, 2010, in an SGBM of the Members of Defendant No. 28, 100 members representing 103 flats were present and unanimously appointed the Plaintiff as the developer for carrying out redevelopment of the Suit Property.
7. At the SGBM of Defendant No. 28 held on 6th February, 2011, the draft of the Development Agreement was discussed and approved.
8. On 6th March, 2011, the Development Agreement was executed between Defendant No. 28 and the Plaintiff. The same was duly stamped and registered. In the said Development Agreement, it was, inter alia, provided that:
(i) Defendant No. 28 has 120 Members, of which 26 Members occupied tenements admeasuring 280 square feet and 94 Members occupied tenements admeasuring 220 square feet, aggregating to 27,960 square feet i.e. 2597.54 square metres (excluding common areas).
(ii) the Developer shall re-develop the Suit Property on ''as is where is basis'' based on the area mentioned in the Property Register Card ("PRC") of 5474 square metres. The proposal is worked out based on PRC area.
(iii) the Developer shall be entitled to use, avail of and consume 1: 2 FSI for the area of 5474 sq. mtrs.
(iv) upon the Developer receiving IOD and purchasing and loading TDR, the Society and all its Members shall hand over possession of their respective tenements, subject to payment by the Developer of Hardship Compensation, Displacement Compensation and Bank Guarantee.
(v) the occupants of tenements admeasuring 220 square feet shall be provided Permanent Alternate Accommodation of 400 square feet and the occupants of tenements admeasuring 280 square feet shall be provided Permanent Alternate Accommodation of 460 square feet and a minimum 15% of existing carpet area as additional usable area constructed free of FSI shall also be provided.
(vi) the Developer and the Members shall enter into individual Tripartite Agreements.
(vii) the Developer is permitted to re-develop the Suit Property and sell surplus constructed flats (after deducting the Permanent Alternate Accommodation from construction) to third parties for residential purpose only and receive consideration for the same.
(viii) Displacement Compensation of Rs. 15,000/- per month shall be paid for the first 12 months in advance on and from the date of the Member vacating their flats and handing over possession to the Developer.
(ix) for the period between 13 to 24 months, postdated cheques shall be deposited by the Developer with the Society and the Society to release the same every month to the occupants.
(x) beyond 24 months till the receipt of Occupation Certificate, an amount of Rs. 20,000/- per month shall be paid to each of the occupants. The postdated cheques for the same, shall be deposited with the Society atleast a month prior to the expiry of the period of 24 months.
(xi) an amount of Rs. 15,000/- shall be paid to each of the 120 Members towards transportation costs.
(xii) within 15 days of written intimation by the Developer, the Members shall hand over vacant and peaceful possession of the existing premises and the Society shall hand over possession of the common areas to the Developer. However, the Developer shall issue such intimation only after execution of the Tripartite Agreements, loading of the entire TDR and issue of full IOD.
(xii) the Society and the Developer, while preparing the tender and quotation/revised offers have taken into account the area of the plot as per the current PRC provided by the Society.
(xiii) Bank Guarantee of Rs. 6,00,00,000/- shall be provided by the Developer in the manner set out in the Development Agreement.
Along with the execution of the said Development Agreement, a Power of Attorney was also executed by Defendant No. 28 in favour of the Partners of the Plaintiff, which is also stamped and registered.
9. On 9th August, 2011, the Plaintiff submitted plans finalized by Defendant No. 28 for approval of Municipal Corporation of Greater Mumbai ("the MCGM") under No. CHE/WS/0610K/337 (NEW). On 16th December, 2011, the first Supplemental Agreement was executed between the Society and the Plaintiff whereunder the Plaintiff was granted extension of six months to obtain an IOD from the MCGM. The same was duly stamped and registered.
10. In the interregnum, the Development Control Regulations for Greater Mumbai, 1991, were amended and fungible FSI was introduced. The Plaintiff by its letter dated 1st February, 2012, informed Defendant No. 28 that it was willing to provide Members of Defendant No. 28 with the benefits of fungible FSI for the rehabilitation component, against the original area in occupation of the Members.
11. On 1st June, 2012, the MCGM issued an IOD on the basis of 1 FSI that too while restricting the same to the extent of 0.75 till the PRC in words was submitted. On 2nd June, 2012, the Plaintiff forwarded a copy of the IOD dated 1st June, 2012 to Defendant No. 28.
12. On 3rd June, 2012, a representative of the Plaintiff attended a SGBM of Defendant No. 28 and expressed his willingness to make further payment as per the Development Agreement. At the said SGBM it was decided that after fulfilment of all conditions by the developer, the members shall have to give vacant possession of their premises between the period 15th September, 2012, and 30th September, 2012.
13. Defendant No. 28 issued a notice dated 10th September, 2012, informing its Members that the Plaintiff had as yet not been able to obtain the PRC in words. The Managing Committee and Development Committee were of the opinion that the Plaintiff should not be given permission to start the work until all the approvals were obtained. After having discussions with the developer, in the interest of the members further course shall be decided. Those Members who vacate between 15th September, 2012, and 30th September, 2012, would be given cheques dated 30th September, 2012, being compensation for a year, beginning from 15th September, 2012. No tripartite agreement was to be executed till then. Possession of the flats of the Members would be with Defendant No. 28. For any further information, the Members were requested to contact the Managing Committee or the Development Committee.
14. From 15th September, 2012, onwards, Members of Defendant No. 28 started vacating their respective rooms. Possession was handed over to Defendant No. 28 Society and not the Plaintiff-developer. The Plaintiff had issued cheques dated 30th September, 2012, to Defendant No. 28 towards displacement compensation and one time shifting charges.
15. The Plaintiff by its letter dated 22nd September, 2012, addressed to Defendant No. 28 recorded that the concerned Department of the Government of Maharashtra had refused to confirm the area of the plot in words as there was a substantial variation in the area of the plot as mentioned in the PRC and its actual area (which was about 1000 sq. mtrs. less). The Plaintiff also requested Defendant No. 28 to fix a meeting to discuss this aspect. Thereafter, on 30th September, 2012, Defendant No. 28 convened a SGBM to, inter alia, discuss the implications of the reduction in area of the plot. Defendant Nos. 1, 2 (a), 3, 4 (b), 5, 6(a), 7, 8 (b), 9 (b), 10, 11 (a) and (b), 13 (a), 14 (b), 15 (a) & (b), 16 (a) & (b), 17, 18, 19 (b), 21 and 27 attended/were represented. The representatives of the Plaintiff explained their views. The Members of Defendant No. 28 proposed a reduction of 9600 sq. ft. carpet area from the Permanent Alternate Accommodation they were to receive from the Plaintiff. The representatives of the Plaintiff accepted this proposal.
16. Defendant No. 28 by its letter dated 10th October, 2012, forwarded to the Plaintiff a list of the individual members Permanent Alternate Accommodation area showing a reduction of 80 sq. ft. from each Permanent Alternate Accommodation, in order to give effect to the resolution passed at the SGBM held on 30th September, 2012. Again, in the SGBM of Defendant No. 28 Society held on 28th October, 2012, it was resolved not to proceed further with the redevelopment till the corrected PRC was issued. In view thereof, Defendant No. 28 by its letter dated 29th October, 2012, informed the Plaintiff of the Resolution passed at the SGBM held on 28th October, 2012. The Plaintiff therefore by its letter dated 20th November, 2012, suggested various alternatives to go on with the project. Thereafter, on 25th November, 2012, SGBM of Defendant No. 28 was again held. Drafts of the second Supplemental Agreement and the individual Tripartite Agreement were forwarded with the notice convening the same. Defendant Nos. 2 (a), 3, 5, 6 (a), 8(b), 9 (b), 10, 11 (a), 13 (a), 14 (b), 15 (a), 16 (b), 17, 18, 19 (b), 21 to 23, 25 (b) and 26 (c) were present thereat. At the said meeting, it was resolved that if there was increase in the area of the plot in the future, 50% thereof would be given to Defendant No. 28. The draft of the second Development Agreement was also approved by the majority of Members.
17. On 3rd December, 2012, the second Supplemental Agreement was executed. The same was duly stamped and registered. It was provided in the second Supplemental Agreement, inter alia, as follows:
(i) In the PRC, the area of the said property is mentioned as 5474 sq. mtrs., the actual in-situ area of the said property is 4624 sq. mtrs. and notwithstanding the same, according to the original city survey records, the plot can be certified to have an area of not more than 4474 sq. mtrs. The PRC therefore needs to be corrected and owing to the discrepancy, the area available for redevelopment has been reduced.
(ii) The Developer and the Society had negotiated terms and the Development Agreement was executed on the basis of the area mentioned in the PRC, i.e., 5474 sq. mtrs. However, owing to imminent reduction in the area there was renegotiation and in the SGBM held on 30th September, 2012, a resolution was passed whereby, an area of 9600 sq. ft. was reduced from the Permanent Alternate Accommodation, which the Members of Defendant No. 28 were to receive from the Plaintiff.
(iii) As per the revised area, the Society has agreed to reduce an area of 80 sq. ft. (carpet area) from each Permanent Alternate Accommodation. Also, the letter dated 10th October, 2012, stood confirmed.
(iv) The process of obtaining corrected PRC area in words shall consume some time. Till then, the Developers shall be permitted to use basic FSI upto 1: 0.75 and commensurate TDR of 1: 0.75. Till corrected PRC is issued, the Developer shall be able to consume maximum FSI of 1: 1.5.
(v) The Developer has furnished to the Defendant No. 28 Society, Certificate of M/s. Square Consultant, Project Architect, certifying that 1.5 FSI proposed to be immediately consumed shall be sufficient to construct the Permanent Alternate Accommodation.
(vi) Even if the plot area is reduced below 4474 sq. mtrs., and even if the development potential reduces further, the Developer shall not seek further amendments.
(vii) Permanent Alternate Accommodation of 397 sq. ft. shall be provided to members occupying tenements of 220 sq. ft. and Permanent Alternate Accommodation of 478 sq. ft. shall be provided to members occupying 280 sq. ft.
(viii) The Members of the Society will hand over vacant and peaceful possession of their respective premises to the Developer subject to:
(a) IOD of 1.5 FSI issued;
(b) Permissible TDR loaded and requisite certificate provided;
(c) Specific and clear certificate of the Project Architect, that all the Permanent Alternate Accommodations are fully covered under the IOD;
(d) Certificate issued by the Project Architect about loading of TDR and feasibility of construction of Permanent Alternate Accommodations;
(e) Tripartite Agreements for Permanent Alternate Accommodations;
(f) Developers having furnished Bank Guarantees as per the Development Agreement.
(ix) If the PRC is further amended and if the area is more than 4474 sq. mtrs. and (a) if revision occurs before issuance of plinth level Commencement Certificate, the Developer shall avail of TDR for increased area and part with 50% of the additional area in favour of the Society by increasing the size of Permanent Alternate Accommodations; and (b) if revision occurs after issuance of plinth level Commencement Certificate, the Developer shall avail of TDR for increased area and consume the same for construction of additional free sale areas and sell the same to third parties, subject to the Developer paying the Society Rs. 25,000/- per sq. ft. of carpet area before selling such premises.
(x) In fungible area calculations, common passage and common toilet blocks are excluded due to lack of evidence that they were included in FSI consumed during original construction.
(xi) If prior to issuance of plinth level Commencement Certificate, it is found that these areas were included in the FSI originally consumed, the Developer will unconditionally provide the additional fungible area to all 120 members.
(xii) Save and except what is stated in the Second Supplemental Agreement, the Development Agreement and the First Supplemental Agreement shall be binding.
18. On 13th December, 2012, the Plaintiff completed the Deduction and Loading of TDR. Thus the construction now permissible on the plot was 4474 + 4474 = 8948 sq. mtrs. floor space.
19. On 5th January, 2013, Defendant No. 28 allotted Permanent Alternate Accommodation to its Members as per the fresh plans which had been submitted after the Second Supplemental Agreement and in respect of which IOD was received on 21st January, 2013.
20. By its letter dated 21st January, 2013, the Plaintiff informed Defendant No. 28 that it had received the IOD for the revised plans for construction, by utilization of TDR also to the extent of 1.5 FSI. Thereafter, the Members of Defendant No. 28 began the process of executing individual Tripartite Agreements.
21. The Plaintiff by its letter dated 12th February, 2013, addressed to Defendant No. 28 pointed out that it had performed its obligations under the Suit Contract, including payment of rent for temporary alternate accommodation. Despite that, some of the Members of Defendant No. 28 had not executed the Tripartite Agreements. In respect of those Members who had not executed the Tripartite Agreements, the Plaintiff pointed out that if they did not execute the Tripartite Agreements till 16th February, 2013, the Plaintiff may have to consider taking action.
22. The Defendant No. 28 by its letter dated 28th February, 2013 addressed to the Plaintiff accepted, acknowledged and admitted that the Plaintiff had completed the necessary steps and performed its obligations under the Suit Contract. Defendant No. 28 also recorded that despite having consented to the appointment of the Plaintiff as the Developer for the project and the various resolutions passed in the numerous meetings, some of its Members were not co-operating as more particularly set out therein. Defendant No. 28 expressed its eagerness to go ahead with the project and requested the Plaintiff to take necessary action. The Plaintiff finally by its Advocates'' letters dated 28th March, 2013 called upon Defendant No. 1, 2 (a), 3, 4 (a), 5, 6 (a), 7, 8(a), 9 (a), 10 and 23 to execute the individual Tripartite Agreements.
23. On 9th April, 2013, MCGM approved the rectified plans submitted by the Plaintiff. By its letter dated 11th April, 2013, the Plaintiff in compliance with clauses 4 (i) (c) and (d) of the Second Supplemental Agreement forwarded copies of the Certificate issued by the Architect to Defendant No. 28. According to the Plaintiff, the Defendant Nos. 1, 2(a), 3, 4 (a), 5, 6 (a), 7, 8 (a), 9 (a), 10 and 23 by their Advocates'' separate letters dated 18th April, 2013, accepted and admitted the Development Agreement and the first Supplemental Agreement. However, the said Defendants through their Advocates made several false and frivolous allegations and have raised several illegitimate and untenable demands therein.
24. On 3rd May, 2013, the Collector, Mumbai Suburban District passed an order confirming that the area of the Suit Plot is 4474 sq. mtrs., which order has been stayed in an Appeal filed by the Society which owns a plot adjacent to the Suit Plot.
25. The Plaintiff filed the present Suit on 29th April, 2013, seeking the aforestated reliefs and also moved the Court for urgent ad-interim reliefs, when ad-interim orders dated 3rd May, 2013, and 7th May, 2013, were passed. Thereafter, the Defendants filed their respective replies to which the Plaintiff has filed its rejoinder and affidavits in sur-rejoinder and sur-sur-rejoinder.
26. Mr. Chinoy the Learned Senior Advocate appearing for the Plaintiff has at the outset correctly submitted that as held in a plethora of judgments passed by this Court, the present Suit filed by the Developer is maintainable. In fact the Hon''ble Supreme Court has in the case of
27. Mr. Chinoy, has first taken me through the aforestated dates and events in the matter and submitted that the non-co-operating Members do not have any grievance as regards the first Development Agreement dated 6th March, 2011, executed between Defendant No. 28 and the Plaintiff, and also the first Supplemental Agreement executed by and between the Plaintiff and Defendant No. 28 dated 16th December, 2011. He submitted that the objection raised by the non-co-operating Members pertains to the Resolution passed at the SGBM of Defendant No. 28 convened on 30th September, 2012, where the Members of Defendant No. 28 proposed a reduction of 9600 sq. ft. of carpet area from the Permanent Alternate Accommodation they were to receive from the Plaintiff. He submitted that the said Resolution was passed after the Members of the Society realized that the first Development Agreement dated 6th March, 2011 and the first Supplemental Agreement dated 16th December, 2011, were on the basis that the area of the plot as per the PRC was 5474 sq. mtrs. and the Developer had agreed to provide the Permanent Alternate Accommodation to the Members of the Society on the basis that the Developer shall be entitled to use, avail and consume 1: 2 FSI for the area of 5474 sq. mtrs. However, subsequent thereto, it was realized that there was a substantial variation in the area of the plot as mentioned in the PRC, and its actual area was less by about 1000 sq. mtrs.. Mr. Chinoy submitted that the non-cooperating Members also have a grievance qua the SGBM of Defendant No. 28 held on 25th November, 2012, when the draft for the second Development Agreement was approved by the majority. The non-co-operating Members also have a grievance qua the second Supplemental Agreement executed by and between the Plaintiff and Defendant No. 28 whereunder it was, inter alia, agreed that the Members were to accept Permanent Alternate Accommodation which would be 80 sq. ft. less than what was agreed to be provided to them under the first Development Agreement. Mr. Chinoy submitted that the Defendant No. 28 Society had invited bids for redevelopment of their property on the basis that the Suit Plot admeasures 5474 sq. mtrs. In view thereof, all the 27 bids received by the Defendant No. 28 Society from various bidders including the Plaintiff were necessarily made on the basis of the plot area being 5474 sq. mtrs. In fact, the Development Agreement [Clause 7 (i)] expressly stipulated that the Developer shall be entitled to use, avail and consume 1: 2 FSI for the area of 5474 sq. mtrs. The plot area being 5474 sq. mtrs. was accordingly the basis of the Agreement and it was a specific term of the Agreement that the Developer/Plaintiff would be entitled to use 1: 2 FSI (i.e. FSI + TDR for the area of 5474 sq. mtrs.). The reduction in the plot by 1000 sq. mtrs. (i.e. 4474 sq. mtrs.), necessarily caused substantial loss to the Plaintiff/Developer and entitled them to compensation/seek reduction of the area offered to the Members, which position cannot be affected/altered by allegations (albeit incorrect) that the Plaintiff was somehow aware in 2010 that the area was not 5474 sq. mtrs. but only for 4474 sq. mtrs. Mr. Chinoy further submitted that reduction of the plot area by 1000 sq. mtrs. i.e. 10700 sq. ft., has resulted in a reduction/loss of saleable area to the Plaintiff/developer of 20000 sq. ft. (FSI and TDR) as also an additional loss of 35 per cent i.e. 7000 sq. ft. fungible area aggregating to 27000 sq. ft. The reduction of the flat areas by 80 sq. ft. per member in the flat to be allotted to them under the second Supplementary Agreement did not give any additional benefit to the Plaintiff. It only reduced the loss suffered by the Plaintiff by 9600 sq. ft. i.e. approximately 35 per cent of the total area lost. Mr. Chinoy has therefore submitted that the Plaintiff has suffered substantial loss of approximately 20000 sq. ft. even after the reduction of flat area by 80 sq. ft. under the second Supplemental Agreement.
28. Mr. Chinoy has, on behalf of the Plaintiff, further submitted that the allegation advanced by the non-co-operating members that a majority of the members of Defendant No. 28 agreed to the Resolution passed at the SGBM held on 30th September, 2012, since they having already vacated their flats were confronted with the fait accompli, is incorrect and only 29 members out of the total 116 members of the Defendant No. 28 had vacated their flats before the SGBM held on 30th September, 2012. The rest including most of the non-co-operating Members vacated and encashed the cheques for compensation only thereafter. Moreover, possession of their respective rooms was given to Defendant No. 28 and not to the Plaintiff, while they received cheques towards compensation for a year in advance. Mr. Chinoy further submitted that the meetings held on 30th September, 2012, 28th October, 2012, and 25th November, 2012, were all SGBMs duly convened by giving notice. Resolutions passed thereof are decisions of the General Body of Defendant No. 28. They are binding on the non-co-operating Members. The Resolutions passed at the SGBM held on 30th September, 2012, were accepted by Members of Defendant No. 28 including the non-co-operating Members. A perusal of the e-mails dated 2nd October, 2012, 8th October, 2012, and 15th October, 2012, addressed by Defendant No. 15 (b) and Defendant No. 19 (b) respectively (Exhibits-G, H and I to the Society''s first affidavit) advocating acceptance of reduction in flat area, having regard to the reduction in plot area by 1000 sq. mtrs. would show that they were not written by persons who agreed to the decisions taken on 30th September, 2012, under any threat or intimidation as alleged by the non-co-operating Members.
29. Mr. Chinoy further submitted that no doubt upon execution of the first Development Agreement dated 6th March, 2011, Members of Defendant No. 28 in possession of 220 sq. ft. and 280 sq. ft. respectively were entitled to 400 sq. ft. and 460 sq. ft. of Permanent Alternate Accommodation. However, even after reduction of 80 sq. ft. of area from the area earlier agreed to be provided to the Members under the first Development Agreement, the area which the Members of the Defendant No. 28 were provided as the Permanent Alternate Accommodation was of 397 sq. ft. and 478 sq. ft. respectively. The Members of Defendant No. 28 also became entitled to the fungible component of the FSI under the amended DCR upon execution of the second Supplemental Agreement. Mr. Chinoy therefore submitted that the majority of the Members of Defendant No. 28 realised that the entire loss caused due to the area of the Suit Plot being less by 1000 sq. mtrs. than the area set out in the PRC cannot be borne by the Plaintiff Developer and therefore correctly agreed to share a part thereof by agreeing to accept a reduction of 80 sq. ft. per flat under the second Supplemental Agreement. It is submitted that the non-co-operating Members have taken a totally unreasonable stand that despite the plot area being found short by 1000 sq. mtrs. than that mentioned in the PRC, the Plaintiff Developer should continue to provide the area earlier agreed to be provided on the basis of the area mentioned in the PRC. Mr. Chinoy has also submitted that the allegations advanced on behalf of the non-co-operating Members that the Plaintiff knew that the plot area was not 5474 sq. mtrs. when the same was substantially less, is totally incorrect. Mr. Chinoy submitted that this allegation is based on the plan dated 17th December, 2012, submitted by the Plaintiff to the BMC which bears a note that the plot had been surveyed on 15th April, 2010, and is found to have been an area of 4474 sq. mtrs. Mr. Chinoy has submitted that the plan was submitted in December 2012, i.e., after the Plaintiff had learnt that the area of 5474 sq. mtrs. was incorrect and that the area was probably 4474 sq. mtrs. Both, the plan and the above statement are ex-facie incorrect. The plan was therefore corrected by the letter dated 27th February, 2013, (page 702 of the rejoinder) and the rectified plans were approved on 9th April, 2013. Mr. Chinoy has submitted that the letter dated 30th June, 2010, relied on by the Defendants, refers to a plain table survey i.e., survey of structures and not measurement of the plot. Mr. Chinoy further submitted that the affidavit dated 16th March, 2011, does not mention the area of the said plot and the date of the survey. Mr. Chinoy further submitted that the survey conducted on 5th August, 2011, was a M.R. survey and not measurement of the Suit Plot. In a M.R. survey, only the boundaries of the Suit Plot are ascertained and not measurement of the Suit Plot. This is clear from the perusal of the MR survey done, which is at page 703 of the rejoinder. It is submitted that the allegations regarding payment to Janardhan Bombale in July 2010, is false and unsubstantiated. As explained by the Plaintiff in its affidavit in sur-sur-rejoinder at page 837, the payment referred to at page 375 of the plaint was made by the Plaintiff to Shri Bombale for table survey mentioned in the letter dated 30th June, 2012. No measurement of the area of the plot was done during this table survey. Mr. Chinoy has therefore submitted that the Plaintiffs are entitled to the reliefs sought in the Notice of Motion. It is submitted that the balance of convenience is also in favour of the Plaintiff. Grave and irreparable harm, loss, damage, injury and prejudice will be caused to the Plaintiffs, if the reliefs sought by the Plaintiff are not granted. No harm, loss, damage, injury and prejudice will be caused to the non-co-operating Members, if this Court grants the relief sought in the Notice of Motion.
30. Mr. Madon, the Learned Senior Advocate appearing for the Defendant No. 28 Society has taken this Court through certain documents in support of his contention that the Members of the Defendant No. 28 Society including the non-co-operating Members were aware about the discrepancy in the area of the Suit Plot and the tender document and the Development Agreement were executed on the basis of the area of the Suit Plot as mentioned in the PRC. Mr. Madon submitted that on 8th April, 2010, six members of the Society had complained to the Sub-Registrar of the Societies, K/East Ward inter alia alleging that in the Annual General Meeting of the Society held on 19th December, 2009, the resolution relating to reconstruction of building was put forward at the eleventh hour and the Society has given a go by to the Government Circular dated 3rd January, 2009. Thereafter at the instance of 25 members including Defendant Nos. 6 (a) and 16 (a), a SGBM was convened on 30th April, 2010. 77 members of Defendant No. 28, including Defendant Nos. 4 (a), 6 (a), 7, 8(a), 9 (a), 10, 11 (a), 14 (a), 15 (a), 16 (a), 17, 18, 19(b), 20 (for self and on behalf of Defendant No. 27), 22, 23, 25 (a) and 25 (c), were present, when it was resolved that the decision to redevelop the Suit Property was taken prior to the Government Circular dated 3rd January, 2009; the other steps for choosing the developer had been taken in accordance with the Government Circular dated 3rd January, 2009; all the information in that regard was given in writing to the Members of Defendant No. 28 and all further steps including appointment of the Developer would be taken as per the Government Circular dated 3rd January, 2009. None of the non-co-operating Members who were present opposed the same. Eventually, the complainants informed the Deputy Registrar that they were satisfied with the steps taken till then. The Deputy Registrar therefore closed the proceedings on 11th June, 2010.
31. Mr. Madon on behalf of Defendant No. 28 also submitted that it was the practice of Defendant No. 28 to confirm all the minutes of every SGBM held each year at the Annual General Meeting. It was also the practice of Defendant No. 28 to circulate the draft minutes of meetings to the Members for inviting objections after the meeting. No objection had been received by Defendant No. 28 in the SGBM held on 30th September, 2012. In the SGBM held on 25th November, 2012, Defendant No. 11 (a) had sent a letter calling upon the Society to treat his vote cast in the SGBM as two, one for each of the flats. No other objection from the non-co-operating Members was received. Defendant No. 15 (b) had by his e-mail dated 2nd October, 2012 (Exhibit-G at page 280), and Defendant No. 9 (b) had by his e-mails dated 8th October, 2012, and 15th October, 2012 (Exhibits-H and I at pages 282 and 284), showed that the SGBM held on 30th September, 2012, and Resolutions passed thereat had been accepted and were being acted upon. Defendant Nos. 10, 11 (a), 14 (b), 15 (b), 16 (b), 18, 19 (b) and 22 were Members of the Development Committee of Defendant No. 28 where the subject of the second Supplemental Agreement was extensively discussed and it was after discussion that the Managing Committee and Development Committee of Defendant No. 28 convened the SGBM on 25th November, 2012, for approving the draft of the second Supplemental Agreement. In fact, Defendant No. 19 also accepted the draft of the second Supplemental Agreement which is clear from e-mails dated 15th October, 2012, and 20th October, 2012 (Exhibit-W at Page 343). Defendant No. 28 confirms that to protect the interest of its 93 Members, the Society had requested the Plaintiff to take action against the non-co-operating Members. Defendant No. 28 also confirmed that the non-co-operating Members had made false statements in their replies in respect of the correspondence/proceedings in September 2003, regarding reduction in the area of the Suit Plot and the lack of knowledge of the Members of Defendant No. 28 about the discrepancy in the area of the Suit Plot.
32. Mr. Madon further submitted that the objections raised by the non-cooperating Members are baseless and untenable. It is submitted that the majority of the Members of Defendant No. 28 Society have, after considering their interest, passed the Resolutions dated 30th September, 2012, and 25th November, 2012, in accordance with the law and pursuant to the second Supplemental Agreement being approved by the majority at the SGBM held on 25th November, 2012. The Plaintiff and the Defendant No. 28 Society have accepted the second Supplemental Agreement dated 3rd December, 2012, which is also duly stamped and registered. Mr. Madon has submitted that a substantial number of non-co-operating Members have accepted compensation for alternate accommodation on and after 30th September, 2012, and are therefore not entitled to oppose the Resolutions of the Society dated 30th September, 2012, and 25th November, 2012, or the execution of the second Supplemental Agreement dated 3rd December, 2012. It is submitted that 93 Members of the 116 Members of the Society have already vacated their respective tenements and are residing elsewhere. The Plaintiff has borne their expense of seeking temporary alternate accommodation elsewhere by payment of compensation toward alternate accommodation till date and will be continuing to pay the same, and in the event of the reliefs sought by the Plaintiff not being granted, grave and irreparable loss, damage, injury and prejudice will not only be caused to the Plaintiff-Developer, but also to the Society and its 93 Members who have already given up possession of their respective tenements and are staying outside along with their family members in the hope of getting Permanent Alternate Accommodation on ownership basis in the near future. It is submitted that the balance of convenience is therefore in favour of the Plaintiff and the Society and its 93 Members as against the 27 non-co-operating Members who have raised certain objections which, as submitted hereinabove, are completely baseless and untenable.
33. The Learned Advocates appearing for the non-co-operating Members have submitted that the Plaintiff had knowledge of the fact of the plot area being less than the area recorded in the PRC. It is submitted that the Plaintiff has pleaded that he came to know about the area being less by 1000 sq. mtrs. than that shown in the PRC, from the concerned authority when he was trying to load the TDR. However, this pleading cannot be accepted since the Plaintiff has not produced any document indicating which authority informed him about the same and when. As against this, in the course of arguments, upon a query raised by the Court, the Plaintiff informed the Court that it became aware of the discrepancy in plot area "between June to August, 2012". It is submitted that if the Plaintiff who is a Developer by profession had gained knowledge in June 2012, of the plot area being less by 1000 sq. mtrs. than what is provided in the PRC, he would not have waited till September and he would not have offered cheques by mid-September 2012, without re-negotiating the contract. The Plaintiff therefore waited for majority of the Members to vacate and make their alternate arrangements elsewhere either on the basis of cheques supplied by him or on their own. Thus, the Plaintiff almost made it impossible for Defendant No. 28 to think or decide to the contrary to what it wanted to do, at the time of the General Body Meeting dated 30th September, 2012. It is in this background that the so-called majority decision was taken in the meeting of 30th September, 2012. It is submitted that several Members on second thought realized that everything was not going in the correct direction and therefore in the meeting dated 28th October, 2012, once again unanimously decided to stay their hands till the so-called discrepancy was finally resolved. Even though there was no material change between 28th October, 2012, and 25th November, 2012, on insistence of the Plaintiff, Defendant No. 28 decided to give a go bye to its own decision of 28th October, 2012, and approved the second Supplemental Agreement in its SGBM held on 25th November, 2012.
34. It is further submitted on behalf of the non-co-operating members that the Plaintiff has at various places admitted in writing about carrying out survey/measurement as follows:
(i) In the plan dated 22nd January, 2013, there is an endorsement that the survey of the Suit Plot was carried out on 15th April, 2010. This plan (Exhibit-B at page 52 of the Affidavit-in-reply of the Defendants dated 19th May, 2012) is signed by the Partner of the Plaintiff. This date of 15th April, 2010, is further corroborated from the Plaintiff''s own letter dated 30th June, 2010, wherein the Plaintiff categorically accepts "having carried out survey". Again, as can be seen from Exhibit-LLL to the Plaint (Page 375), the Plaintiff has paid professional fees on 5th July, 2010, to Mr. Janardhan Bombale, obviously for carrying out the work of measurement. This also substantiates that measurement was done some time prior to July 2010, and possibly on 15th April, 2010.
(ii) On an application, the concerned Officers from the City Survey Department had on 5th August, 2011, carried out "some sort of survey" at the cost of the Plaintiff, which survey has ultimately resulted into Collector''s order dated 3rd May, 2013. The order dated 3rd May, 2013, indicates that it was the Plaintiff who was holding the Power of Attorney of Defendant No. 28 and for all purposes looking after the said survey and its ultimate conclusion.
(iii) In the Affidavit affirmed by the Plaintiff on 16th March, 2011 (Page 737 to the Affidavit in sur-rejoinder dated 9th June, 2013, of the Defendants), the Plaintiff has categorically stated: "In order to verify the area I have also carried out survey of the said plot through my Architect to ascertain the correctness of the area. The said area is _____ sq. mtrs.
According to the Defendants, the aforesaid facts clearly indicate that some time before 16th March, 2011, the Plaintiff measured the area so as to test the "correctness of the area". There is no denial or explanation by the Plaintiff in its pleadings about this affidavit. It is submitted that this silence on the part of the Plaintiff clinches the issue that prior to 16th March, 2011 "(most probably on 15th April, 2010, itself)", the Plaintiff had measured the area through his Architect for the purpose of ascertaining the correctness of the area.
35. It is therefore submitted on behalf of the Defendants that the above facts indicate that the Plaintiff was aware of the exact plot area on 15th April, 2010, i.e. almost 11 months prior to entering into the Development Agreement dated 6th March, 2011. It is submitted that it is therefore unbelievable that a professional developer like the Plaintiff would not take any steps for verifying the details given by Defendant No. 28 during the long period of 9 months, i.e. between the selection date and execution of the Development Agreement. It is submitted that, it will therefore have to be held that the Plaintiff was aware not only of the discrepancy in the area but also the exact area of the plot much prior to entering into the Development Agreement on 6th March, 2011. The Defendants have further submitted that on 6th January, 2011, the concept of fungible area came into effect. Thus, the Plaintiff got additional saleable area to the extent of 65 per cent of the plot area and the area of "sale component" increased to a great extent than that expected by the Plaintiff on 6th March, 2011, and this would certainly take care of the Plaintiff''s "unexpected loss because of discrepancy in area". Thus, there was no need for deviating from the Development Agreement dated 6th March, 2011.
36. The Defendants have further contended that as of today, there is no certainty about the actual area of the plot. At some places, the Plaintiff has shown the area measured to be 4474 sq. mtrs. and at the same time Plaintiff has shown actual area of 4786.53 sq. mtrs as per IOD dated 8th April, 2013. The Property Card indicates area to be 5474 sq. mtrs. It is submitted that on this background, it is not understood as to how the Plaintiff has calculated his so-called loss. It is submitted that unless the Plaintiff is absolutely sure about the actual area of the plot, there is no point in anticipating his loss or profit, as the case may be. Even today, the corrected property card has not come into existence in view of the challenge in the order passed by the Collector dated 3rd May, 2011 by the adjoining Society. Thus, the present Suit is filed by the Plaintiff on the assumption that he is likely to get lesser area for development whereas, the actual area is yet to be determined and as such the Suit is premature.
37. It is next submitted on behalf of the Defendants that, as a matter of fact, it was clearly stated in the tender document that the area "as per the Property Card" is 5474 sq. mtrs. and therefore while executing the Development Agreement with the Power of Attorney, power was given to the Plaintiff to get the property measured and also to remove the defects in title, if any. It is submitted that the Plaintiff has therefore undertaken the project of redevelopment in respect of the Suit Property with his free will and with full knowledge in respect of the area of the property owned by Defendant No. 28. It is submitted that the Plaintiff therefore cannot turn from the promise given by it in the Development Agreement.
38. It is submitted on behalf of the Defendants that the Plaintiff was fully aware on 15th April, 2010, that the area of the plot under consideration was 4474 sq. mtrs. The Plaintiff had suppressed this fact from the Municipal Corporation and has obtained an IOD dated 1st June, 2012, where the Corporation had considered the area of the plot to be 5474 sq. mtrs. It is submitted that the Plaintiff got the IOD issued only with a view to show that within 16 months i.e. extended time period it had secured IOD. However, the said IOD dated 1st June, 2012, was restricted to only 75 per cent of the plot area and that too without loading TDR. Thus, the members of Defendant No. 28 were made to believe by the Plaintiff that the Plaintiff had got full IOD as per the Development Agreement dated 6th March, 2011, read with the first Supplemental Agreement dated 16th December, 2011. It is submitted that the Plaintiff was under a legal obligation to submit the property card in words along with the application seeking IOD in respect of the plot under consideration.
39. It is submitted on behalf of the Defendants, that the Defendant No. 28 Society had issued a circular dated 10th September, 2012 (Exhibit-D pg. 733 of the Affidavit in sur-rejoinder of the Defendants dated 9th June, 2013). It is submitted that based on the said circular, all the Members including the Defendants vacated and handed over possession of their respective tenements to Defendant No. 28 and have accepted the compensation. It is further submitted by the Defendants that the Plaintiff is trying to show that the meeting dated 30th September, 2012, was convened by Defendant No. 28, in view of the letter dated 22nd September, 2012. However, on the Plaintiff''s own showing, the said letter dated 22nd September, 2012, was received by Defendant No. 28 only on 29th September, 2012, and as such there was no question of calling for a meeting after receipt of the said letter. In view thereof, the collusion between the office-bearers of the Society and Plaintiff becomes crystal clear, since the Office-bearers of the Society had issued notice of the SGBM and the said notice was prepared on 23rd September, 2012, itself. It is submitted that the Plaintiff and Defendant No. 28 have mischievously communicated the reduction of the area only at the last minute, i.e. the date on which most of the Members have vacated their premises and/or made alternate arrangement for accommodation and have no other option but to support the Plaintiff and Defendant No. 28. It is submitted that the agenda of the meeting held on 30th September, 2012, along with the letter dated 22nd September, 2012, and the notice dated 23rd September, 2012, goes to show that the Plaintiff and the office-bearers of Defendant No. 28 were hand in glove. The Members present were completely misled by the office-bearers of the Defendant No. 28 as well as the Plaintiff and therefore 66 Members ultimately succumbed to the pressure and agreed for a settlement. A perusal of the draft minutes of the said meeting also indicates that false representations were made to the Members by the Office-bearers of the Society as well as the Plaintiff. It is submitted that till date, the draft minutes of the meeting held on 30th September, 2012, have not been confirmed and in fact the draft minutes were circulated for the first time along with the letter dated 5th January, 2013, for perusal and suggestion of the Members. It is submitted that the Defendants have already filed disputes before the Co-operative Court on 20th June, 2013, challenging the Resolutions dated 30th September, 2012, and 25th November, 2012. It is submitted that the office-bearers of Defendant No. 28 without awaiting confirmation of the minutes have gone ahead and executed the second Supplemental Agreement, according to the wishes of the Plaintiff thereby, giving away valuable rights of the Members of Defendant No. 28. It is submitted that the second Supplemental Agreement is thus vitiated in law. It is further submitted that if one peruses the agenda fixed for the meeting dated 30th September, 2012, and the ultimate Resolutions recorded in the draft minutes, it would indicate that the decisions taken are completely different from the agenda specified in such meeting. It is submitted that since the subject of agenda of the meeting dated 30th September, 2012, was completely different, Members present therein had no occasion to even think about the Resolution which has been ultimately stated to have been passed in the said meeting.
40. The Defendants have further submitted that on 30th September, 2012, the Plaintiff had handed over the cheques for Displacement Compensation. Since they had already vacated their respective tenements and shifted to rented accommodation, they had to accept the offered cheques. The Defendants being layman could not understand the consequence of acceptance of cheques for Displacement Compensation. Later on they realized that they were deceived by the Plaintiff and the office-bearers of Defendant No. 28. It is submitted that the second Supplemental Agreement was executed by and between the Plaintiff and the office-bearers of Defendant No. 28, despite it being unanimously resolved at the meeting held on 28th October, 2012, that the members will not proceed unless the corrected property card is received. It is submitted that the Defendants were wrongly called upon to execute individual Tripartite Agreements which are not in consonance with the provisions of MOFA, 1963 and the Suit Contract. It is submitted that clauses 8 and 13 of the draft individual Tripartite Agreement are contrary to the intimation sent by the Society on 10th September, 2012.
41. It is further submitted on behalf of the Defendants that the Plaintiff has failed to obtain the permission from the Civil Aviation Department, which is vital and mandatory. It is also submitted that the Plaintiff being a Developer is not entitled to the relief of specific performance of the Suit Contract and appointment of a Court Receiver. It is further submitted that if the Co-operative Court decides the dispute filed by the Defendants on 28th June, 2012, in respect of the Resolutions dated 30th September, 2012, and 25th November, 2012, all actions taken by the Plaintiff and Defendant No. 28 would be rendered null and void. It is submitted that the Plaintiff by pressing for interim relief is trying to pre-empt contrary adjudication by the Cooperative Court which is the only competent Court. It is submitted that the Plaintiff is seeking final relief at the interim stage which will virtually render the decision in the Co-operative Court infructuous. It is therefore submitted that the present Notice of Motion be dismissed with costs.
42. I have considered the submissions advanced by the learned Advocates appearing for the parties.
43. The Suit Plot, as set out in the first Development Agreement, has been carved out of a larger plot of land which prior to 3rd March, 1977, belonged to one Shri Ramanand Co-operative Housing Society Ltd. The said Society had purchased the said larger property by a Deed of Conveyance dated 11th April, 1959 which was duly registered with the Sub-Registrar of Assurances at Bandra. By an order dated 3rd March, 1977 of the District Deputy Registrar Co-operative Societies, Bombay, the said Shri Ramanand Co-op. Hsg. Soc. Ltd. came to be divided into three distinct Cooperative Housing Societies viz. (i) Ramanand Co-op. Hsg. Soc. Ltd.; (ii) Hanuman Ramanand Co-op. Hsg. Soc. Ltd. and (iii) Datta Ramanand Co-op. Hsg. Soc. Ltd. i.e. the Defendant No. 28 Society herein, and in pursuance thereof, Defendant No. 28 Society came to be registered under Registration No. BOM/HSG/5074 dated 3rd March, 1977. Also by the said order of bifurcation dated 3rd March, 1977, the assets of the said erstwhile Shri Ramanand Co-op. Hsg. Soc. Ltd. came to be divided amongst the three above said Societies as provided therein and the Defendant No. 28 Society herein became entitled to the absolute ownership of the said land admeasuring 5474 sq. mtrs. as per the Property Registrar Card along with structures standing thereon, and in pursuance thereof the City Survey Officer by Mutation Entry dated 29th June, 1978 issued separate property register card in the name of the Defendant No. 28 Society showing them as the holder of the said property bearing CTS Nos. 717, 717/1 to 51.
44. The said plot has four buildings standing thereon comprising of 120 flats. These 120 flats belong to 116 members of Defendant No. 28 Society. Out of the said 120 flats, 94 flats are admeasuring 220 sq. ft. each and 26 corner flats admeasure 280 sq. ft. each. The carpet area of the tenements aggregates to 27690 sq. ft. As set out in the Affidavit of Defendant No. 28 dated 31st May, 2013, the Society and its members including most of the Defendants were well aware since the year 2003 that the suit plot does not admeasure 5475 sq. mtrs. but in fact admeasures much less. This problem pertaining to the area was discussed threadbare by the members of the Society in their SGBM held on 16th March, 2008, including Defendant Nos. 1, 6A, 7, 8 (B), 11A, 13A, 14A, 15A, 18, 21, 22, 23, 24 (A) and (B), 25 (A) and 26 (A). The four buildings on the suit plot are about 49 years old and in a dilapidated condition. Therefore on 22nd September, 2009, Defendant No. 28 issued a tender inviting offers from various builders and developers for redevelopment of the suit property. However, in the summary sheet provided to the bidders by the Society, it was stated therein that the existing plot area as per P.R. Card is 5474 sq. mtrs. and that the Society expected from the bidders an additional free of cost carpet area to be provided to every member (exclusive of any elevational features) admeasuring 180 sq. ft. The Society therefore expected the bidders to provide 26 flats admeasuring 460 sq. ft. carpet area to its members occupying flats of 280 sq. ft. each and 94 flats admeasuring 400 sq. ft. carpet area to 94 occupants occupying 220 sq. ft. each. The developers were to put in their bid, the other commercial terms which they were offering like corpus fund, shifting charges, bank guarantee amount, etc.
45. Defendant No. 28 Society in response to its tender inviting offers received 27 offers including that of the Plaintiff developer. All the 27 offers received from the bidders were on the basis that the area of the plot was 5474 sq. mtrs. as represented by the Defendant No. 28 Society. It is most pertinent to note that in the covering letter of the Plaintiff dated 9th October, 2009, under which the Plaintiff forwarded its proposal for redevelopment, the Plaintiff categorically recorded that "... we are pleased to offer our proposal for redevelopment of your Society plot based on the inputs provided by the Society".
46. Admittedly, a peculiar aspect qua the functioning of the Defendant No. 28 Society is that every decision of the Society would be taken at a General Body Meeting i.e. either at the Annual General Body Meeting ("AGBM") or at a Special General Body Meeting ("SGBM"). Therefore on 27th June, 2010, in a SGBM of the members of Defendant No. 28 attended by 100 members representing 103 flats, the Plaintiff was unanimously appointed as the Developer to redevelop the suit property. Defendant No. 28 issued a Letter of Intent in favour of the Plaintiff on 18th July, 2010, and on 6th February, 2011, at a SGBM of Defendant No. 28, the draft Development Agreement was discussed and approved. It is pertinent to note that at this stage though there was no difference of opinion/dispute pertaining to the exact plot area between the members of the Society inter se and/or the Plaintiff and the members of the Society, 66 members voted in favour of the Development Agreement, 10 members voted against the same and one member remained neutral. The member who remained neutral is Defendant No. 5 herein. The members who voted against the Development Agreement included Defendant Nos. 9 (a) and (b), 15 (a) and (b), 17, 18, 19 (a) and (b). However, not a single member made any mention of the fact that the actual area of the suit plot was much less than what was shown in the property card, though the same was to their knowledge. Since the majority of the members present and voting at the SGBM held on 6th February, 2011, approved the Development Agreement, the same was executed between Defendant No. 28 and the Plaintiff on 6th March, 2011 and was also duly stamped and registered. From the reading of the said Development Agreement dated 6th March, 2011, it is clear that Defendant No. 28 as well as the Plaintiff has agreed therein that 94 tenants occupying 220 sq. ft. shall be provided Permanent Alternate Accommodation ("PAA") of 400 sq. ft. and 26 tenants occupying 280 sq. ft. each shall be provided PAA admeasuring 460 sq. ft. each. It was also categorically agreed and provided in the Development Agreement that the proposal is worked out on the basis of the PRC area of 5474 sq. mtrs. and the Developer shall be entitled to use, avail of and consume 1: 2 FSI for the area of 5474 sq. mtrs.
47. On 9th August, 2011, the Plaintiff has submitted plans finalised by Defendant No. 28 Society for approval of MCGM under No. CHE/WS/061 OK/337. On 16th December, 2011, the first Supplemental Agreement (pursuant to the Resolution passed at a SGBM held on 4th December, 2011) was entered into, where under the Plaintiff was granted six months extension to obtain the IOD from the MCGM. In the interregnum, the Development Control Regulations for Greater Mumbai, 1991 were amended and fungible FSI was introduced. The Plaintiff by its letter dated 1st February, 2012, informed Defendant No. 28 that it was willing to provide members of Defendant No. 28 with the benefits of the fungible component of FSI available against the original area in occupation of members.
48. On 1st June, 2012, the MCGM issued an IOD on the basis of one FSI that too while restricting the same to the extent of 0.75 till the PRC in words was submitted. A copy of the said IOD dated 1st June, 2012, received from the MCGM was forwarded to Defendant No. 28 Society by the Plaintiff immediately on the next day i.e. 2nd June, 2012. On 3rd June, 2012, at a SGBM of Defendant No. 28, the representative of the Plaintiff expressed his willingness to make further payment as per the Development Agreement. The said SGBM was attended by 84 members and it was decided at the said SGBM that after fulfilment of all conditions by the Developer, the members shall have to give vacant possession of their premises between the period 15th September, 2012 and 30th September, 2012. It is therefore clear that there was no pressure exerted on the members to hand over possession of their premises to the Developer until fulfilment of all the conditions by the Developer. In fact, on 10th September, 2012, Defendant No. 28 issued a circular to its members pertaining to the redevelopment project informing the members that they were informed by the Developer that to get the plot area entered in figures in the Property Card and to ascertain the exact plot area, is time consuming and in this regard correspondence is being exchanged with the authorities. The members were advised by the Society that though this may not come in the way of the redevelopment, the Managing Committee and the Redevelopment Committee are of the view that if all the documentation is not complete as per the Development Agreement, the Developer should not be given permission to start the work. It was also provided that after having discussions with the Developer, in the interest of the members further course of action would be decided. It was further recorded that members vacating their premises between 15th and 30th September, 2012, will receive compensation of Rs. 1,95,000/- for one year in advance. Members who have taken additional area from the Developer were not to pay any amount to the Developer. The members shall also not execute any agreements with the Developer. The corpus fund already received from the Developer would be retained by the Society. The premises handed over by the members to the Society shall also be retained by the Society.
49. The aforestated facts show that after the Resolution was passed at the SGBM dated 3rd June, 2012, wherein the members had agreed that upon the Developer complying with the conditions set out in the Development Agreement, the members shall give possession of their respective tenements to the Developer between 15th September, 2012, and 30th September, 2012, the Defendant No. 28 Society upon realising that setting out the actual plot area in words in the P.R. Card along with ascertainment of the actual plot area as regards which correspondence was still being exchanged with the authorities, would be time consuming, the Society immediately brought these facts to the attention of its members. In fact, the Society, keeping in mind the interest of its members, informed its members that the Society, subject to discussions with the Plaintiff Developer, even after disbursing cheques for compensation in lieu of temporary alternate accommodation to the members who vacate between 15th September, 2012 and 30th September, 2012, will retain their flats and not hand over the same to the Developer until all the documentation required under the Development Agreement is complied with and the members will also not pay any amounts to the Developer for the additional area sought to be purchased by the members from the Developer. Since there was no compulsion on the members to hand over possession of their respective flats between 15th September, 2012 and 30th September, 2012, after receipt of the said circular dated 10th September, 2012, from the Society, only 29 out of 116 members vacated their respective premises and handed over the same to the Society (and not to the developer) between 15th September, 2012 and before the SGBM held on 30th September, 2012.
50. Again, the Plaintiff Developer by its letter dated 22nd September, 2012, addressed to the Defendant No. 28 Society recorded that the concerned department of the Government of Maharashtra has refused to confirm the area of the plot in words as there was a substantial variation in the area of the plot as mentioned in the PR Card and its actual area (which was about 1000 sq. ft. lesser) and also requested Defendant No. 28 to fix up a meeting to discuss this aspect. Defendant No. 28 convened a SGBM on 30th September, 2012, to inter alia discuss the implications of the reduction in area of the plot which was attended by 90 members. At the said meeting, the representative of the Developer explained to the members that in the Property Card the Suit Plot is shown admeasuring 5474 sq. mtrs. and even if on that day a new Property Card is applied for, the area shown therein would be 5474 sq. mtrs., though in fact the area of the Suit Plot is less by around 1000 sq. ft. In view of this difference in area, there is a loss of about more than 20000 sq. ft. in construction to the Developer. Out of this loss, the members should agree to at least bear the loss of 10000 sq. ft. The representative of the Developer also informed the members that when the MCGM introduced fungible FSI, at that time the Developer has on his own allotted additional 35 per cent area against the original area in occupation of the members because of which 94 occupants have been allotted 77 sq. ft. and 26 flat purchasers have been allotted 98 sq. ft. more than what is agreed/provided in the Development Agreement dated 6th March, 2011. In view thereof even if the members of the Society agreed to share 50 per cent of the loss caused qua the construction area in view of the reduction in the plot area, they will be getting almost the same area as originally agreed under the Development Agreement dated 6th March, 2011. After substantial discussions in the form of questions and answers, 66 members (i.e. majority of the members present and voting) agreed that the Society should give up an aggregate area of 9760 sq. ft. i.e. each member should give up 80 sq. ft of the area which would have come to their share in the event of the plot area being 5475 sq. mtrs., as represented by the Society to the Plaintiff. Interestingly, after the view of the majority members was ascertained, the members again felt that they should give up only 50 per cent of the said 9760 sq. ft. area. The Developer was therefore again called in the meeting room and informed about the view of the members. The Developer expressed his inability to accept the offer of the members to share 50% of the 9760 sq. ft. area i.e. giving up 40% of the area (instead of 80%) from that coming to their share as Permanent Alternate Accommodation, and left the meeting by thanking the Society and its members. The members thereafter again discussed the issue and 61 members (majority of the members present and voting) agreed that the Society should sacrifice an area admeasuring 9760 sq. ft. i.e. each member should make a sacrifice of 80 sq. ft. area out of the total area which would have come to their share as Permanent Alternate Accommodation had the suit plot area been 5474 sq. mtrs. Thereafter Defendant No. 28 Society by its letter dated 10th October, 2012, forwarded to the Plaintiff a list of individual members PAA to give effect to the resolution passed at the SGBM held on 30th September, 2012.
51. On 28th October, 2012, again a SGBM of Defendant No. 28 Society was called which was attended by 85 members and it was resolved therein that the Society and its members should wait till the corrected PR Card was issued before proceeding further with the redevelopment. The decision taken at the meeting was informed by Defendant No. 28 to the Plaintiff by its letter dated 29th October, 2012. The Developer by its letter dated 28th November, 2012, suggested various alternatives to go on with the project. The Developer also inter alia proposed to freeze the plot area at 4474 sq. mtrs. and further proposed that if the area received by the Society in the revised PR Card is less than 4474 sq. mtrs. the Plaintiff will not come back to the Society for any further reduction in free area and will absolve all the losses due to the reduction of the plot area. However, if the plot area so received by the Society in the revised P.R. Card is more than 4474 sq. mtrs, the Plaintiff will share the benefits in 50: 50 proportion thereby the Society would get an additional area equivalent to the direct increase. The Plaintiff further proposed that if the additional area is received till the construction of the plinth i.e. almost 7/8 months from the start of the work, the Plaintiff will add this additional area to the flats of 120 members and if the additional area is received after the plinth construction, the Plaintiff will pay the Society at the rate of Rs. 25,000/- per sq. ft. of carpet area. At the said SGBM, the second Development Agreement was also approved by the majority. It is clear beyond any doubt that because of the letter dated 28th November, 2012, received from the Developer by the Society suggesting various alternatives to go on with the project, the Society called its SGBM on 25th November, 2012, and the members after considering the proposal of the Plaintiff changed its earlier decision dated 28th October, 2012.
52. The second Supplementary Agreement was thereafter executed between the Plaintiff and the Society on 3rd December, 2012. Under the second Supplementary Agreement, pursuant to the Resolution passed at the SGBM held on 30th September, 2012, it was decided that 94 members of the Society would be handed over PAA admeasuring 397 sq. ft. and 26 members shall be allotted PAA admeasuring 478 sq. ft. in lieu of their existing tenements. The second Supplementary Agreement also provided that the Society and its members will hand over vacant and peaceful possession to the Developer subject to: (a) IOD of 1.5 FSI issued; (b) permissible TDR loaded and requisite certificate provided; (c) specific and clear certificate of the Project Architect that all the PAAs are fully covered under the IOD; (d) Certificate issued by Project Architect about loading of TDR and feasibility of construction of PAAs; (e) Tripartite Agreements for PAAs; (f) Society members handing over vacant and peaceful possession; and (h) Developers having furnished Bank Guarantees as per Development Agreement.
53. On 13th December, 2012, the Plaintiff completed the "reduction and loading of TDR". Thus the construction now permissible of the plot area was 4474 + 4474 = 8948 sq. mtrs. On 5th January, 2013, Defendant No. 28 allotted PAA to its members as per the fresh plans which have been submitted after the second Supplementary Agreement and in respect of which IOD was received on 21st January, 2013. The Plaintiff by its letter dated 21st January, 2013, informed the Defendant No. 28 that it had received the IOD for revised plans for construction by utilisation of TDR also to the extent of 1.5 FSI. However, the non-co-operating members did not execute the Tripartite Agreement and also refused to comply with the terms agreed by the Society on behalf of the members, which resulted in the filing of the present Suit.
54. From the aforestated facts and events it is clear that the Society and its members including most of the non-co-operating members are since the year 2003 aware that the area of the Suit Plot mentioned in the property card i.e. 5474 sq. mtrs. is incorrect. In the SGBM held on 16th March, 2008, this issue of discrepancy in the area was discussed in detail. However, these facts were not revealed to the Plaintiff. The Plaintiff Developer has attempted to get the Suit Plot area ascertained and has carried out extensive correspondence in this regard with the relevant authorities as recorded by the Society in its circular dated 10th September, 2012, addressed to its members. Though the Plaintiff Developer has in the second Supplementary Agreement frozen the plot area to 4774 sq. mtrs., he has continued to pursue the issue pertaining to the ascertainment of the exact plot area and it is only on 3rd May, 2013 that the Collector, Mumbai Suburban District passed an order confirming that the area of the Suit Plot is 4474 sq. Mtrs. Even this order has been stayed in an Appeal filed by a Society owning a plot neighbouring to the Suit Plot. It is therefore clear that the job of getting the exact area of the Suit Plot ascertained, involved a complicated process and the Plaintiff Developer has continuously pursued the matter with the concerned authorities and obtained their final decision in the matter. The extent of the problem can be gauged from the fact that after a very time consuming process when the Collector confirmed the area by his order dated 3rd May, 2013, an Appeal filed therefrom by the Society owning the neighbouring plot has been admitted and is pending till date. The Plaintiff Developer was correct in not immediately accepting that the plot area admeasured less than what was shown in the PR Card, when he was so informed by the authorities, and is justified in taking all action/steps to convince the authorities otherwise. In fact, in the year 2003, when the Society was informed that the Suit Plot area was less than the area shown in the PR Card, even the Society had refuted the stand taken by the authorities and had sought an appointment to convince the authorities that it is not so.
55. In view thereof the Plaintiff Developer was certainly not expected to immediately rush to the Society and its members to modify the terms of the Agreement. However, as set out hereinabove, the Plaintiff Developer has right from 2nd June, 2012 informed the Defendant No. 28 Society about the problems pertaining to the plot area not mentioned in words in the Property Card, the limited IOD therefore issued by the MCGM on 1st June, 2012, and the attempts made by the Plaintiff to get the exact plot area ascertained. The Society too has in turn by issuing circulars and calling SGBMs from time to time passed on the relevant information to its members, and have always taken decisions (by majority) which would protect the interest of all its members. Before a single member of the Society handed over the possession of his/her respective premises, the Society by its circular dated 10th September, 2012, informed its members that getting the area mentioned in words in the P.R. Card and also getting the exact plot area ascertained will take time and in this regard correspondence was being exchanged with the authorities and the Society was of the view that the Developer should not be given permission to start the work as per the Development Agreement until the documentation is complete. The members were told that in the event of them handing over possession of the premises between 15th September, 2012 and 30th September, 2012, the same would be retained by the Society and not handed over to the Developer, though the members would be receiving compensation from the Developer towards alternate accommodation for 12 months in advance. In view thereof, only 29 members handed over possession of their respective flats of their own free will to the Society (and not to the Developer) prior to 30th September, 2012. The Developer again by his letter dated 22nd September, 2012, informed the Society that the plot area appears to be substantially less than 5474 sq. mtrs. and a meeting in this regard be called to discuss the issue. Accordingly, a meeting was called on 30th September, 2012 and the members by majority agreed to give up 80 sq. ft. of area from the Permanent Alternate Accommodation which was to be allotted to them. Therefore, the Plaintiff Developer as well as the Society have throughout been fair and transparent in their dealings with each other and with the members and it cannot be said that the Plaintiff Developer or the Society has misrepresented facts or taken any advantage of the members having already handed over their possession to the Society/Developer or that the members were forced/intimidated or threatened in any manner whatsoever. That the allegations made by the non-co-operating members against the Developer and the Society for misrepresentation, collusion, threat, intimidation, etc. are incorrect, is not only supported by the documents on record but also by the e-mails exchanged by the non-co-operating members themselves as mentioned/submitted by the learned Advocates appearing for the Plaintiff as well as the Defendant No. 28 in their affidavits as well as written submissions. The allegations of the non-co-operating members being lay persons and not knowing the consequences of cheques that they have accepted towards compensation, are equally false and incorrect and cannot be accepted. The allegation of the non-co-operating members that since the letter dated 22nd September, 2012, addressed by the Plaintiff to the Society requesting the Society to fix a meeting of its members to discuss the aspect of substantial variation in the plot area was received by the Society only on 29th September, 2012 and the SGBM was fixed by the Society on 30th September, 2012, by its notice dated 23rd September, 2012, shows that the Plaintiff and the Society were hand in glove and acting against the interest of the members is also baseless and untenable. Mr. Chinoy has explained that the Plaintiff had informed the Secretary of Defendant No. 28 about the discrepancy in the area of the suit plot telephonically on 23rd September, 2012. In any event in a matter of such importance it is obvious that the Plaintiff developer would first orally convey the development to the Society followed by an official communication. The same also finds support in paragraph 2 (at page 261 of the Plaint) of the letter dated 20th November, 2012, addressed by the Plaintiff to the Society.
56. It is also submitted on behalf of the non-co-operating members that the Plaintiff was aware of the exact plot area as on 15th April, 2010, i.e. almost 11 months prior to entering into the Development Agreement dated 6th March, 2011, in view of the following:
(i) In the plan dated 22nd January, 2013 (Exhibit-B at page 52 of the affidavit in reply of the Defendants dated 19th May, 2012) there is an endorsement that the survey of the Suit Plot was carried out on 15th April, 2010, which is signed by the Partner of the Plaintiff;
(ii) The date of 15th April, 2010, is further corroborated from the Plaintiff''s own letter dated 30th June, 2010, wherein the Plaintiff categorically accepts "having carried out survey".
(iii) The Plaintiff has paid professional fees on 5th July, 2010 to Mr. Janardhan Bamble obviously "for carrying out work of measurement";
(iv) The concerned Officers from the City Survey Department had on 5th August, 2011 carried out "some sort of survey" at the cost of the Plaintiff, which survey has ultimately resulted into Collector''s order dated 3rd May, 2013;
(v) In the affidavit affirmed by the Plaintiff on 16th March, 2011 (Page 737 of the affidavit in sur-rejoinder dated 9th June, 2013 of the Defendants), the Plaintiff has categorically stated "in order to verify the area I have also carried out survey of the said plot through my Architect to ascertain the correctness of the area. The said area is _______ sq. mtrs.
It is therefore submitted on behalf of the non-co-operating members that the Plaintiff was aware of the discrepancy of the area much prior to entering into the Development Agreement on 6th March, 2011. The Plaintiff had suppressed these facts from the MCGM and had obtained an IOD dated 1st June, 2012, from the Corporation on the basis of the area of the plot being 5474 sq. mtrs. It is submitted that the Plaintiff got the IOD issued only with a view to show that within 16 months i.e. extended time period it had secured the IOD. However, the said IOD dated 1st June, 2012, was restricted only to 75 per cent of the plot area and that too without loading TDR. The plan submitted by the Plaintiff to the Corporation dated 17th December, 2012, bears a note that the plot had been surveyed on 15th April, 2010 and is found to have an area of 4474 sq. mtrs.
57. As submitted by Mr. Chinoy, on 10th April, 2010, the offer of the Plaintiff was not even accepted by the Defendant No. 28 Society. Again, the Plan was submitted by the Plaintiff to the MCGM on 17th December, 2012 i.e. after the Plaintiff had learnt that the area of 5474 sq. mtrs. was incorrect and that the area was probably 4474 sq. mtrs. However, the plan is incorrectly prepared on the basis of the plot area being 5474 sq. mtrs. and contains the incorrect statement that the plot area had been surveyed on 15th April, 2010 and the area works out to 4474 sq. mtrs. and tallies with the area stated in the Property Register Card. The area shown in the Property Register Card is admittedly 5474 sq. mtrs. till date. Therefore the area of 4474 sq. mtrs. can never be said to tally with the area mentioned in the Property Card, on 15th April, 2010 or on 17th December, 2012, when the plan was submitted. In view thereof, as submitted by Mr. Chinoy, both the plan and the statement are ex facie incorrect. In fact, the Plan was therefore corrected under cover of a letter of the Plaintiff addressed to the MCGM dated 27th February, 2013 (page 702 of the rejoinder) and the rectified plans were approved on 9th April, 2013. The letter dated 30th June, 2010, relied on by the non-co-operating members as submitted by Mr. Chinoy, refers to a plain table survey i.e. survey of structures and not measurement of the plot. The affidavit dated 16th March, 2011, does not mention the area of the said plot and the date of the survey and therefore establishes the fact that the survey was in fact not carried out. The survey conducted on 5th August, 2011 was a M.R. Survey and as submitted by Mr. Chinoy, in a M.R. Survey only the boundaries of the Suit Plot are ascertained and not measurement of the Suit Plot. This is clear from perusal of the M.R. Survey done, which is at page 703 of the rejoinder. As regards the allegations pertaining to payment to Shri Janardhan Bamble in July, 2010, as explained by the Plaintiff in its affidavit-in-sur-rejoinder on page 837, the payment referred to at page 375 of the plaint was made by the Plaintiff to Shri Bamble for table survey mentioned in the letter dated 30th June, 2012. No measurement of the area of the plot was done during the table survey. In view thereof, the above submissions advanced on behalf of the non-co-operating members viz. that the Plaintiff was aware of the discrepancy in area and in fact the actual area much before execution of the first Development Agreement and despite this knowledge the Plaintiff got the IOD issued on the basis of the Suit Plot admeasuring 5474 sq. mtrs., only with a view to show that the Plaintiff has obtained the IOD within 16 months is incorrect and cannot be accepted.
58. As regards the contention of the non-co-operating members that there is no need for the Defendant to deviate from the Development Agreement dated 6th March, 2011, since the Plaintiff would also gain from the fungible FSI which came to be allotted in view of the amendments to the Development Control Regulations, the fungible FSI allotted has been agreed to be shared by the Developer with the members of Defendant No. 28 Society. The fungible component of FSI in relation to the free sale component is available to the Plaintiff upon paying a premium to the MCGM. As submitted by Mr. Chinoy, it is not a windfall gain as sought to be contended by the non-co-operating members. Assuming that the area of the suit plot was 5474 sq. mtrs., the Plaintiff would still have been able to obtain the same on payment. In that case, Defendant No. 28 could not have been heard to say that they are entitled for additional consideration for the same. The availability of the fungible component of FSI in respect of the free sale area cannot be treated as a set off for reduction in the area of the suit plot. In any event, the total loss caused in construction of the area due to decrease in area of the Suit Plot is already agreed to be shared between the Plaintiff and the members of Defendant No. 28 Society as per the Resolution passed by majority of the members of Defendant No. 28 Society on 30th September, 2012. In view thereof, the argument advanced on behalf of non-co-operating members cannot be accepted.
59. The submission of the non-co-operating members that as of today there is no certainty about the actual area of the plot, and the present Suit is filed by the Plaintiff on the assumption that he is likely to get lesser area for development whereas the actual area is yet to be determined and as such the Suit is premature, is also untenable and baseless. In view of the uncertainty qua the area of the suit plot, the parties i.e. the Plaintiff and the members of the Society have by majority agreed to freeze the area as mentioned in the second supplementary Agreement dated 3rd December, 2012 at 4474 sq. mtrs. and have also provided therein as to how they would be dealing with the additional area. Most importantly, in the said second Supplementary Agreement it is provided that even if the final area of the Suit Plot being ascertained in future at an area less than 4474 sq. mtrs., the Plaintiff Developer shall not approach the Defendant No. 28 Society and/or its members with a proposal to reduce the area promised to be allotted to them under the second Supplementary Agreement as PAA. It is pertinent to note that this Court has repeatedly given an option to the non-co-operating members to have the Suit Plot measured by an architect of their choice, but they have for reasons best known to them declined to do so.
60. As regards the submission of the non-co-operating members that the Plaintiff has undertaken the project of redevelopment in respect of the Suit Property with its free will and with full knowledge in respect of the area of the property owned by Defendant No. 28, and the Plaintiff now cannot turn from the promise given by it in the Development Agreement, as set out in the earlier paragraphs of this order, the Society had made a representation to all the bidders including the Plaintiff that the Suit Plot admeasures 5474 sq. mtrs. as set out in the property records. All the bidders including the Plaintiff gave their bids to the Society on the basis of the Suit Plot admeasuring 5474 sq. mtrs. The representation made by the Society to the bidders/Plaintiff turned out to be incorrect and resulted in loss of area proposed to be constructed on the suit property. The problem was discussed threadbare at a SGBM of Defendant No. 28 Society held on 30th September, 2012 and it was decided by majority of the members present and voting that the members would make a sacrifice of 80 sq. ft. from the area agreed to be allotted to them as permanent alternate accommodation on the basis of the plot area being 5474 sq. mtrs., which has now turned out to be 4474 sq. mtrs. In view thereof the non-co-operating members who are only 27 out of 116 members cannot be heard to say that the Plaintiff has turned away from what is agreed in the Development Agreement.
61. The non-co-operating members have also submitted that the draft minutes of the meeting indicates the false representation made to the members by the office-bearers of the Society as well as the Plaintiff. It is submitted that till date the draft minutes of the meeting held on 30th September, 2012 have not been confirmed and in fact the draft minutes were circulated for the first time along with the letter dated 5th January, 2013 for perusal and suggestion of the members. It is also submitted that the Defendants have already filed disputes before the Co-operative Court on 20th June, 2013 challenging the Resolutions dated 30th September 2012 and 25th November, 2012. It is submitted that the office-bearers of Defendant No. 28 without awaiting confirmation of minutes have gone ahead and executed the second Supplemental Agreement according to the wishes of the Plaintiff thereby giving away valuable rights of the members of Defendant No. 28. It is also submitted that if one peruses the agenda fixed for the meeting dated 30th September, 2012 and the ultimate resolution recorded in the draft minutes, it would indicate that the decisions taken are completely different from the agenda specified in such meeting. It is submitted that since the subject of the agenda of the meeting dated 30th September, 2012, was completely different, members present therein had no occasion to even think about the resolution which has been ultimately stated to have been passed in the said meeting. It is submitted that the non-co-operating members have been wrongly called upon to execute the Tripartite Agreement. It is also submitted that the permission from the Civil Aviation Department is not obtained till date.
62. The above allegations of the non-co-operating members cannot be accepted. The non-co-operating members have approached the Co-operative Court in June 2013 i.e. after the Notice of Motion was fixed for hearing before this Court and have failed to obtain any reliefs from the Co-operative Court till date. Therefore the only intention of the non-co-operating members in approaching the Co-operative Court at this belated stage is to use the same as an excuse to delay the hearing of the present Notice of Motion and in turn delay the work of redevelopment of the Suit Property. The fact remains that the SGBMs were held and the Resolutions were passed thereat. The Resolutions continue to be in force and effect till date. The Defendant No. 28 was certainly not required to wait for execution of the second Supplemental Agreement until the minutes of the earlier meeting were confirmed at the next SGBM as per the practice of the Society. The allegation that the members present at the meeting had no occasion even to think about the Resolution which had been ultimately stated to have been passed in the meeting is belied by the detailed deliberations recorded in the minutes of the meeting. Admittedly the draft minutes of the meeting held on 30th September, 2012 were circulated on 5th January, 2013 for perusal and suggestion of the members. Except for the complaint of the 27 non-co-operating members, that too after filing of the present Suit, none of the members have complained that they have been misled by the Society or the Plaintiff on any count whatsoever. The allegation of the non-co-operating members that they were wrongly called upon to execute individual Tripartite Agreements also cannot be accepted. As submitted by the Plaintiff, they are required to obtain permission from the Civil Aviation Department before obtaining the Commencement Certificate and the Plaintiff is in the process of obtaining the same.
63. In the circumstances it is clear that out of 120 members 93 members have already given up their present accommodation to the Society and have started residing elsewhere for which the Plaintiff Developer has been paying huge sums of money every month towards compensation for alternate accommodation. In addition as set out in detail in Ex. LLL of the Plaint, the Plaintiff has incurred an aggregate sum of Rs. 22,95,68,776/- (Rupees Twenty two crores ninety five lakhs sixty eight thousand seven hundred seventy six only) for carrying out the work set out in paragraph 60 of the Plaint. The buildings are admittedly in a dilapidated condition and because of the 27 non-co-operating members, the entire redevelopment project has come to a halt. In fact because of the dilapidated condition of the building, most of the non-co-operating members are also not residing in their respective flats but are residing elsewhere and are adopting a dog in the manger policy. The majority of the members have no quarrel in having the redevelopment project executed through the Plaintiff as per the terms contained in the second Development Agreement. The majority of the members also have no grievance qua the conduct of the meeting and the resolutions passed thereat. The non-co-operating 27 members being an admitted minority cannot stall/obstruct the redevelopment project as held by this Court in several of its decisions. The resolutions passed by the majority of the members at the General meetings of the Society are binding on the non-co-operating members. The Plaintiff is therefore prima facie entitled to the relief of specific performance of the Agreements annexed at Exs. ''O'', ''U'' and ''II" to the Plaint and have also made out a strong prima facie case for grant of interim reliefs in their favour. The balance of convenience is completely in favour of the Plaintiffs and the large number of members of the Defendant No. 28 Society who, along with their family members are out of their premises since almost a year and waiting to get new ownership premises upon redevelopment. Under such circumstances even if certain interim and final reliefs are overlapping, the grant of interim reliefs being in the interest of a huge majority of the members and their families who have left their present accommodation and are residing elsewhere since the last one year, cannot be denied.
64. In the circumstances, I pass the following order:
(i) The Court Receiver, High Court, Bombay, is appointed Receiver in respect of the Suit Property;
(ii) The Plaintiff Developer shall on or before 3rd October, 2013, furnish the Bank Guarantee to the Defendant No. 28 Society as provided in the Suit Agreements and also make payment to the non-co-operating members as agreed under the Suit Agreements, on or before 3rd October, 2013;
(iii) The Defendant No. 28 Society shall, on 3rd October, 2013, hand over all the flats in possession of the Society to the Court Receiver who shall in turn after confirming that the Plaintiff has furnished the agreed Bank Guarantee to the Defendant No. 23, hand over possession of the same to the Plaintiff Developer for the purpose of commencing the redevelopment project;
(iv) The non-co-operating members who have not executed the Tripartite Agreements shall execute the Tripartite Agreements on or before 3rd October, 2013;
(v) The non-co-operating members who have retained possession of their flats shall on or before 3rd October, 2013, hand over possession of their respective flats to the Court Receiver and the Court Receiver shall in turn hand over possession of the same to the Plaintiff Developer for the purpose of commencing the redevelopment project.
(vi) In the event of any non-co-operating member/s not handing over possession of their respective flat/s to the Court Receiver as directed herein, to enable the Court Receiver to further hand over the same to the Plaintiff Developer, the Court Receiver shall take forcible possession of the flat/s from such non-cooperating member/s or any person found in possession of such flat/s, if necessary with police assistance, and hand over the same to the Plaintiff Developer.
65. The Notice of Motion is accordingly disposed of. After the order was pronounced, the Learned Advocate appearing for Defendant Nos. 1 to 11 and 23 has submitted that though the possession of the respective flats of Defendant Nos. 1 to 11 and 23 is retained by the Society, certain belongings including medicines of the said Defendants have remained in their respective flats. In view thereof, the Society shall allow the members to remove the belongings which are listed by the Court Commissioner in his report submitted to this Court in May, 2013.
