27-IA-1894-2021 IN S-163-2021.DOC

Arun

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

INTERIM APPLICATION NO. 1894 OF 2021

IN

SUIT NO. 163 OF 2021

Mohammed Kalim Sahiruddin Siddiqui

…Plaintiff

Versus

Royal Realtors & Ors

…Defendants

Mr Akshay Patil, with Mohan Salian, i/b MGS Legal, for the

Plaintiff.

Dr Abhinav Chandrachud, i/b MA Rahman, for Defendants Nos. 4,

6 & 7.

Mr Malhar Zatakia, with

Abdullah M, i/b

Ali Bubere, for Defendant

No. 8.

CORAM:G.S. PATEL, J

DATED: 6th October 2021

PC:-

1.

I am not inclined to grant ad-interim or interim reliefs to the

Plaintiff in this matter. The Suit is for specific performance. The

Plaintiff claims that under an Agreement for Sale dated 6th January

2016 between the Plaintiff and Defendants Nos. 1 to 3, the Plaintiff

agreed to purchase Flat No. 702, on the 7th floor of Royal Touch,

CS No. 1773, Byculla Division, 11 Sankli Street, 3rd Cross Lane,

Byculla, Mumbai 400 008. The 1st Defendant is the developer

Page 1 of 3

6th October 2021

ARUN

RAMCHNDRA

SANKPAL

Digitally signed

by ARUN

RAMCHNDRA

SANKPAL

Date: 2021.10.07

09:51:21 +0530

27-IA-1894-2021 IN S-163-2021.DOC

partnership firm of which the Defendants Nos. 2 and 3 are the

partners.

2.

The 4th Defendant is the tenants’ association that owns the

building. Defendants Nos. 5, 6 and 7 are office bearers of the 4th

Defendant association. Dr Chandrachud appears for Defendants

Nos. 4, 6 and 7.

3.

The 8th Defendant is the original tenant. He has been allotted

Flat No. 702.

4.

The Plaintiff represented by Mr Patil complains that the

tenant could never been accommodated in Flat No. 702. Not only is

it of a larger area than that to which the tenant was entitled, but this

very flat was the subject matter of the Agreement between the

Plaintiff and the 1st Defendant developer. The developer had been

given rights by the owner association to create third party rights. He

did in fact create such rights in favour of the Plaintiff. Therefore, the

submission goes, injunctive and other reliefs should be granted even

against the tenant.

5.

There does not seem to be sufficient clarity as to the validity

of the Agreement that of which specific performance is sought. Dr

Chandrachud points out that in a separate arbitration proceedings

between the owner and the developer, it was contended that the

Agreement on which the Plaintiff relies and of which he today seeks

performance was in truth a financing agreement. Whether or not

this is correct is another matter. But the arbitral order is that only

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6th October 2021

27-IA-1894-2021 IN S-163-2021.DOC

the purchasers or allottees disclosed to the owner/tenants’

association can be said to have any rights over premises in the

building. The Plaintiff’s name does not feature in that list. In fact, it

is only 8th Defendant who has been certified by MHADA. The

actual date of that certification is immaterial, because the

certification speaks to a pre-existing tenancy and not subsequent

rights.

6.

In these circumstances, I do not think it is possible to say that

the Plaintiff has made out a prima facie case for the grant of an

injunction, let alone for the appointment of a Court Receiver. It

cannot be said that the balance of convenience is with the Plaintiff.

On any fair assessment, it is the 8th Defendant and the 4th

Defendant that will be far more prejudiced if relief is granted than

the Plaintiff would be if relief is refused. After all, one cannot lose

sight of the fact that the Plaintiff is an incoming owner, not one who

has been dishoused by the development. The 8th Defendant, on the

other hand, is a previous tenant whose only shelter would be

jeopardised if relief is granted to the Plaintiff. Further, the

transaction in question is between the Plaintiff and the 1st

Defendant developer, not with the Tenants’ Association.

7.

The IA is dismissed. There will be no order as to costs.

8.

All concerned will act on producti