Court ruled that temporary injunctions can enforce development agreements even against minority occupants obstructing redevelopment, especially when prior claims against obstruction were dismissed on grounds of limitation.

Sandeep V. Marne, J.

1) This is an Interim Application filed by the Plaintiff seeking temporary injunction in a Suit filed for enforcement of a registered Development Agreement dated 11 November 2022 executed in its favour by Defendant No.1-Society for redevelopment of property known as ‘Parekh Market’ situated at M.G. Road, Ghatkopar (East), Mumbai. Plaintiff has encountered a situation where, though 70 out of 88 occupants have already vacated and surrendered possession of their respective premises and 3 out of 5 building are already pulled down, Defendant Nos. 2 to 16 have refused to vacate and handover possession of their respective premises. By way of temporary injunction, Plaintiffs are seeking direction against Defendant Nos.2 to 16 to vacate possession of their respective premises and for appointment of Court Receiver in respect of those premises.

2) Brief facts leading to filing of the case are that by an Indenture of Conveyance dated 8 February 1979, Kanji Khatau Trust (Trust) conveyed the suit land and the structure standing therein to M/s. Shri Padmanabh Builders (Padmanabh). One building constructed by the Trust of ground plus one floor comprising of 9 shops on ground floor and 4 offices on first floor already existed on the plot (trust building/Wing D). Tenancies were created in respect of nine shops, whereas four offices on first floor were sold on ownership basis. Padmanabh constructed three Wings A, B and C in two phases. Padmanabh constructed G+2 Building No. 2 comprising of shops offices and residential flats (Wing A); G+3 Building No. 3 comprising of shops offices and residential flats (Wing B) and G+2 Building No. 4 comprising of shops and offices (Wing C). The shops, offices and flats were sold by Padmanabh to purchasers on ownership basis. By Agreement dated 1 October 1989, Padmanabh granted development rights in favour of another developer viz. Kanaiyalal Madhavji Thakkar (Defendant No.2) to the extent of FSI admeasuring 2455 sq.ft. As per the terms and conditions of that Agreement, the purchasers of the wing/building constructed by Defendant No.2 were to become members of the Society formed by unit purchasers of buildings constructed by Padmanabh. Defendant No. 2 constructed Building No. 5 of G+ 6 (Wing E) comprising of shops and offices. In addition to undertaking construction of an additional building, Defendant No.2 purchased the nine tenanted shops in the Trust building from Padmanabh by Agreement dated 11 November 1991. This is how Defendant No.2 acquired ownership of 9 Shops in the old building of Trust and also secured a right to construct a building by use of FSI to the extent of 2455 sq.ft. Defendant No.2 contends that in addition to the Agreement dated 1 October 1989, there was another Supplemental Agreement dated 31 December 1992, and Power of Attorneys, under which he became entitled to exploit the entire FSI potential in respect of land admeasuring 3,578 sq.mtrs.

3) On 5 June 1992, Defendant No.1-Society was formed by the flat purchasers of buildings constructed (Wings B to D) by Padmanabh. By the year 2000, Defendant No.2 completed construction of Wing-E building comprising of ground plus 6 floors having 11 commercial units and 2 commercial shops aggregating to 13 commercial units. Defendant No. 3 is the proprietary concern of second Defendant. Defendant Nos. 2 and 3 sold 8 commercial offices and 2