Quashed

M/S. Shree Sai Developers Partnership Firm and Others v. M/S. Atlantic, Partnership Firm and Others

Bombay HC13 Dec 2024AO/862/2024

Case brief

AI extract

What is this about?

The High Court quashed interim injunction orders that restrained owners' property based on a specific performance suit by a third party. The court held that the Trial Court failed to consider the lack of privity of contract and the limited rights created in favor of the developer. The matter was remanded for fresh consideration of the interim applications.

What did the court decide?

Impugned orders quashed and set aside; matter remanded to Trial Court for fresh consideration of interim applications within 3 months.

M/S. Shree Sai Developers Partnership Firm and Others vs… — Specific Performance | Bombay HC (2024)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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(SR. NO.1) APPEAL FROM ORDER NO.849 OF 2024 WITH INTERIM APPLICATION NO. 15209 OF 2024

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Govind Dharma Bhoir and Ors. ...Appellants Versus M/s. Shree Sai Developers, A Partnership Firm And Others ...Respondents

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AND

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(SR. NO.2) APPEAL FROM ORDER NO. 862 OF 2024 WITH INTERIM APPLICATION NO. 15283 OF 2024

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M/s. Shree Sai Developers Partnership Firm And Others ...Appellants

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Versus

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M/s. Atlantic, Partnership Firm And Others ...Respondents

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AND

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(SR. NO.3) APPEAL FROM ORDER NO. 864 OF 2024 WITH INTERIM APPLICATION NO. 15286 OF 2024

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M/s. Shree Sai Developers And Others ...Appellants Versus

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M/s. Atlantic, Partnership Firm And Others ...Respondents

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AND

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(SR. NO.4) APPEAL FROM ORDER NO. 870 OF 2024 WITH INTERIM APPLICATION NO. 15294 OF 2014

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Changa Joma Bhoir (deceased) Through Others ...Appellants Versus

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M/s. Atlantic, A Partnership Firm And Others ...Respondents

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***

Mr. S.M. Gorwadkar, Senior Advocate a/w. Mr. Jeetenndra Sachhdev a/w. Mr. Abubakar Patel, Ms. Renuka Gorwadkar, i/b JS Legal for Appellants in AO/849/24 & AO/870/24 and Respondent Nos. 4 to 13 in AO/862/24 & AO/864/24.

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Mr. Atul Damle, Senior Advocate a/w Mr. Suresh Sabrad, Mr. Amey Sawant, Ms. Neha Zanje, Ms. Payal Vardam, Kinnari Raut i/b Pratik Sabrad, for Appellants in AO/862/24 & AO/864/24 and for Respondent Nos. 4 to 6 in AO/870/24 and for Respondent Nos. 1 to 3 AO/849/24.

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Mr. Mayur Khandeparkar a/w. Mr. Nishant Tripathi a/w Vaidehi Tripathi i/b Tripathi and Co. for Respondent Nos. 1 to 6 in AO/849/24, for Respondent Nos. 1 to 3 in AO/862/24, for Respondent Nos. 1 to 3 in AO/864/24 & for Respondent Nos. 1 to 3 in AO/870/24.

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CORAM : M.M. SATHAYE, J.

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DATE : 13^th DECEMBER, 2024

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P.C. :

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Heard learned counsel for the parties.

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These four appeals arise out of two impugned orders both dated 06.09.2024 passed by 2^nd Jt. Civil Judge, S.D. Belapur, Navi Mumbai below Ex.5 in two suits viz. Special Civil Suit No. 99 of 2024 and Special Civil Suit No. 100 of 2024. The appeals are filed either by owners or by M/s. Shree Sai Developers with whom agreements dated 25.08.2012 and 20.11.2009 are executed by the owners .

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The suits are filed by M/s. Atlantic, a partnership firm, basing its claim on the agreements dated 03.05.2013 and 28.10.2013. The

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suits are filed for specific performance of documents between M/s. Atlantic and M/s. Shree Sai Developers as well as between M/s. Shree Sai Developers and Owners.

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Apparently the owners are neither party nor signatory to the documents between M/s. Atlantic and M/s. Shree Sai Developers. Still, the impugned orders apparently proceed on the footing that M/s. Shree Sai Developers is entitled to sell, assign and transfer the property of the owners to third party. This requires consideration.

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Learned senior Advocate Mr. Gorwadkar appearing for Appellants/Owners submits that their contention that they are not party to the documents between M/s. Atlantic and M/s. Shree Sai Developers and that there is no privity of contract, is apparently not considered by the Trial Court. Prima facie the documents executed by the owners in favour of the M/s. Shree Sai Developers do not have any clause that entitles M/s. Shree Sai Developers to further to sell, assign and transfer the property. Prima facie the agreement dated 20.11.2009 does not even have description of subject matter property. Similarly prima facie, Clause 11 of Agreement dated 25.08.2012 is a nomination clause.

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However, since the suits are pending for decision on merits and parties are at interim stage, this Court is refraining from commenting any further about the documents executed between the parties at this stage. Be that as it may.

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By the impugned orders, not only the portion of land allotted to M/s. Atlantic through M/s. Shree Sai Developers are put under

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restraint, but the remaining property of the owners regarding which the documents between the owners and M/s. Shree Said Developers were executed, is also put under restraint.

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Since the stand of the owners about privity of the contract and ‘extent of power or rights created in favour of the M/s. Shree Sai Developers’ are not considered by the Trial Court, in my view, the impugned orders cannot be sustained as they stand.

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Viewed in the light of what is stated above, the interim applications need to be remanded to the Trial Court for fresh consideration. Hence, following order is passed.

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(A) The impugned Orders are quashed and set aside.

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(B) The learned Trial Judge hearing both the suits, is directed to consider the interim applications below Ex. 5 afresh, on their own merits, including consideration of the case of the owners about lack of privity and the nature and extent of rights created in favour of M/s. Shree Sai Developers to deal with the properties.

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(C) It is not in dispute that during the pendency of the applications below Ex. 5, parties were directed to maintain status quo under orders dated 06.05.2024 below Ex. 13 & 14 and the same was in operation till the impugned orders were passed. Since the applications are remanded for reconsideration, the said orders of status quo dated 06.05.2024 will operate during the pendency of the hearing of

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the applications.

(D) Learned Trial Judge is directed to hear the applications below Ex. 5 as expeditiously as possible, preferably within a period of 3 months from today.

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Needless to mention that legal effect of the documents inter-se the parties will be considered by the Trial Judge in accordance with law, without being influenced by what is stated in this order.

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Appeal from Orders and pending interim applications are disposed of in above terms. No costs.

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All concerned to act on duly authenticated or digitally signed copy of this order.

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(M.M. SATHAYE, J.)

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M/S. Shree Sai Developers Partnership Firm and Others v. M/S. Atlantic, Partnership Firm and Others

Case brief

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M/S. Shree Sai Developers Partnership Firm and Others v. M/S. Atlantic, Partnership Firm and Others

Case brief

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What did the court decide?

What the court decided

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