Appeal against dismissal of injunction prayer. Bench held no concluded contract existed as the society rescinded approval via resolution before signing the agreement; appeal dismissed.
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APP335-12
IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO.335 OF 2012 IN NOTICE OF MOTION NO.1394 OF 2012 IN
SUIT NO.1330 OF 2012
Mr.Gopi Gorwani … Appellant VERSUS Jeevan Prabha Co-operative Housing Society Ltd. and ors. … Respondents
Mr.Venkatesh Dhond, Senior advocate i/b Raval Shah & Co.for appellant. Mr.Sanjay Jain i/b Mustafa Kachwala, for respondent No.1. Mr.Simil Purohit i/b Ganesh & Co., for respondent No.3.
CORAM : MOHIT S. SHAH, C.J. & N.M. JAMDAR J. Thursday, August 30, 2012.
P.C.
This appeal filed by the original plaintiff takes exception to the order passed by the trial Judge of this Court dated 4 April 2012 dismissing the Notice of Motion taken out by the appellant praying for an order of injunction pending the suit.
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APP335-12
appellant contended that in view of the resolutions passed by the Society and the correspondence entered into between the parties, there is a concluded contract between the Society and the appellant. Appellant contended in the suit that inspite of the concluded contract, the Society in a Special General Meeting held on 22 July 2011 unanimously passed a resolution that the appellant is not to be awarded a contract of redevelopment of the Society's property. The plaintiff took out a Notice of Motion bearing No.1394 of 2012, praying for appointment of a receiver and for a direction that the Society be ordered not to deal with any other developer in respect of the re-development of the Society premises.
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learned counsel drew our attention to the resolution dated 31 March 2011 passed in the Special General Meeting of the Society. According to the learned counsel a decision was taken to appoint the appellant as a developer. Learned counsel submitted that after this decision, the appellant acted on the said resolution and resolved certain pending issues with the occupants of the flats and the garage. Learned counsel submitted that the appellant invested his time, energy and money in clearing off the obstacles for the redevelopment of the property. The appellant also obtained no objection certificate from the Deputy Registrar of Cooperative Housing Societies and thus for all practical purposes the Society had entrusted the work of redevelopment to the appellant. It was urged by the learned counsel that in view of this contract the appellant is entitled to specific performance and interim protection during the pendency of the suit. On the other hand, Mr. Jain for the Society contended that though there was a resolution in favour of the appellant, it was only a preliminary decision and the Society had not finally decided to entrust the work of redevelopment to the appellant. The learned counsel supported the order passed by the learned trial Court. Learned counsel also drew our attention to the letter dated 22 July 2011 written to the appellant in which the Society had pointed out to the appellant that there were several inconsistencies, contradictions in the draft Development Agreement submitted by the appellant. In the said letter the Society had also made a grievance that the appellant had unilaterally tried to take over the garage from a tenant when the appellant was only entitled to negotiate the price, and the Society had lost confidence in the appellant.
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into between the parties clearly indicates that the Development Agreement between the parties was not signed. Before the Development Agreement could be signed the Society by it's resolution dated 22 July 2012 decided not to continue with the appellant as their developer. Thus the Society decided not to enter into any agreement with the appellant. The initial resolution dated 31 March 2011; it appears, was merely a decision to explore the possibility of redevelopment through the appellant. This resolution and subsequent correspondence indicates that final decision of entrustment of development work to the appellant was yet to be taken. The learned trial Judge has rightly held that the contention of the appellant may at the most give rise to a money claim for damages. Ultimately the work of redevelopment of a Housing Society is such that the Society must have confidence in its developer. Once the members of the Society had by a unanimous resolution, before executing the final agreement, decided not to get the premises developed through the appellant, the Society cannot be forced to get the redevelopment work done through appellant, when prima facie there is no concluded contract. The balance of convenience is also not in favour of the appellant as work of redevelopment is now already entrusted to respondent No.3.
CHIEF JUSTICE
N.M.JAMDAR, J.
Mlns
2 issues framed by the court
Whether a concluded contract existed between the appellant developer and the housing society based on resolutions and correspondence.
Whether an injunction pending the suit was warranted given the lack of a finalized development agreement.
3 provisions across 3 enactments
Mr.Gopi Gorwani
Jeevan Prabha Co-operative Housing Society Ltd.
Respondent No.3
MOHIT S. SHAH
N.M. JAMDAR
As recorded by the court registry
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