M isc. Application No.

484/19
ln
Appeal No. 4T006000000031756

BEFORE THE MAHARASHTRA REAL ESTATE

APPELLATE TRIBUNAI- MUM BAI
Misc. Application No. 484119 (Stay) @
M.A. No. 335/19 (Vacation of flat & breach of order)
In
Appeal No. AT006000000031756

1) Mr. Kaushal M. Haria & Ors.

2) Mr. Girsh K Chheda & Ms. Meghna
D Visaria & Mr. Devang H Visaria
3) Ms. Velbai P Haria Applicants

BETWEEN

M/s. New Sangeeta CHS Ltd. ,.. Appellant

Versus

Mr. Kaushal M. Haria & Ors. ... Respondents

Adv. Pawan Pandey for Appellant.
Adv. Nilesh Ga/a for Respondent No. 1 to 3.
Adv. Pinkesh lain for Respondent No. 4.

CORAM : INDIRAJAIN J., CHAIRPERSON &

s.s. SANDHU, MEMBER (A)
DATE : 25th MARCH,2021.
(THROUGH VrDEO CONFERENCTNG)

ORDER BELOW MISC. APPLICATION NO. 484 OF 2019.

[PER: S. S. SANDHU, MEMBER (A)]

Heard learned counsel for the parties in respect of

Misc. Application No. 484 of 2019 for granting interim reliefs as
mentioned in para 2 below.

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2. Factsin brlef for the purpose of disposal of this

Application are that Appellant Society (Society) undertook
redevelopment of its old building in the name of "New Sangeeta
Co-operative Housing Society" via Development agreement
executed with Respondent No. 4 (Developer) in this Appeal.
Applicants claim to have purchased flat Nos. 602,302 and 202
in the sale component from the Developer vide agreements for
sale (AFS) in the year 2016. Dispute arose between Society and
Developer leading to arbitral proceedings and subsequently
termination of developer by the Society. Applicants herein filed
complaint with MahaRERA. Vide an interim order dated
27.12.20L8 Authority directed the Society not to create third
party rights in the aforesaid disputed flats and to maintain
status-quo till final order in the complaint. Authority passed
impugned order dated 06.08.2019 thereby directing the
Society, being a Promoter, lo inter alia join Applicants as
members and give possession of the respective flats with
occupancy certificate (OC). In Appeal by the Society, Tribunal
granted stay to the impugned order on 22.10.20L9. Subsequent
thereto, Applicant preferred this application on 14.11.2019
and pending hearing and final disposal of present Appeal
sought interim reliefs as follows:

i) Temporary injunction restraining Society from creating,

selling, encumbering and/or creating third-party rights, tiUe and
interest in respect of entire area from 8th floor to 13th floor
available for further construction and also the flat No. 402 held

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Appeal No. AT006000000031756

as a guarantee in addition to flat Nos. 602,302 and 202 of

purchased by Applicants.

ii) Temporary injunction restraining the Society from carrying

out any further construction of the building without approval of
MahaRERA and submitting any plans without consent of
allottees and present applicants.

3. During hearing of Application, learned counsel for

Applicants contended that:

i) Authority passed the interim order dated 27.L2.2018 in the

complaint proceeding which was also attended by Advocate Mr.
Pawan Pandey for Society for the first time. The said order is
neither challenged not got rectlfied by the Society. In utter
disregard and breach of the interim order, Society and its
members including Secretary of Society occupied the aforesaid
flats purchased by Applicants. It has also created third party
rights by selling flat No. 701 to one Bhupendra Shah which
Society has tried to camouflage under the guise of leave and
license agreement.

ii) In view of stay order of this Tribunal dated 22.10.2019, each

and every Member of the Society has occupied the flats
including those allotted to Applicants in the building completed
up to 7th floor out of amounts paid by Applicants. The Society
is further rendered entitled to construct the bullding ancl sell
balance area with additional FSI made permissible under New
DCPR, 2034 and due to change in Development Rules. Thus,
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Appeal No. AT006000000031756

Society now enjoys double benefits illegally and has turned into
a profit-making entity.

iii) As per approved plans prior to agreements executed by

Applicants, flats purchased by Applicants are saleable flats and
not the rehab flats contrary to the claim of Society that flat No.
302 occupied by its member is a rehab flat. Also, the claim of
the Society that the said flats were occupied by its members in
June, 2018 i.e., prior to order dated27.L2.2018 is false as at
the maternal time neither the flats were complete to be
possessed by members nor water supply was available for
completing construction.

iv) The judgment of Vaidehi Akash Housing pvt. Ltd. Vs.

New DN Nagar CHS Union Ltd. & Others. LQ 2014 HC
1904 Bombay HC Decided on 01.12.2014 relied upon by
Society is an interim order and being prior to RERA is not
applicable to the facts and circumstances of this case
particularly In view of provisions of Section 15 of RERA
mandating prior consent of two-third allottees before transfer
of a project and first right of refusal to allottees under Section
8 of RERA to complete balance work of a project on lapse or
revocation of project registration.
It is accordingly argued that as the flats purchased
by Applicants are occupied by Society/Members, injunctions as
prayed be granted till final disposal of Appeal.

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Appeal No. AT006000000031756

4. Per contra, learned counsel for Non-applicant

opposed the application by submitting that

i) Application deserves to be dismissed as there is no

provision to take out such application in the Appeal filed by
Non-Applicants'. Since Applicants did not get favourable order
in Appeal this application is filed to defeat the stay already
granted to impugned order vide Tribunal's order dated
22.10.20t9.

ii) Applicants have neither preferred Appeal against order nor

such reliefs have been prayed before the Authority at the time
of passing the order.

iii) Nature of transactions between Developer and these

Applicants involving no MOU prior to sale agreements,
agreements executed on payment of token amount of Rs.

51000/- as against the total consideration of Rs. 96 lacs,

provision for exorbitant penalty @ Rs. 6000 per day for failure
to deliver timely possession etc. shows that these are dummy
and not genuine transactions. Applicants claim to have paid
95o/o amount but produced no bank statements in
substantlation. No flat admeasuring area of 69.19 sq. mtr. as
claimed to have been purchased by Applicants is available or
constructed in the building for enforcing the agreement for
sale.

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iv) On 27.12.20L8, advocate Mr. Pandey for the Society was

travelling outside MLrmbai. Hence an application was filed with
MahaRERA seeking adjournment. Yet the interim order dated
27,72.2018 granting status quo appears to have been passed
showing him to be present mala-fidely. Much prlor to the
alleged status quo order, Society through its advocate had
replied to Applicants' advocate on 12.07.2018 that disputed
flats already stood allotted with possession given to Society
members. Applicants suppressed this fact in the complaint and
managed to procure interim order. Erstwhile Developer in its
letter dated 29.08.2016 also informed Deputy Registrar
Cooperative Societies that flat No. 302 is a rehab flat assigned
to existing Member of the Society. Considering these facts there
is no breach of order dated 27.12.2018 as the flats already
stood allotted to and possessed by Society and its members.
Even the status quo granted vide interim order also submerged
in the final order dated 14.08.2018 and rendered ineffective.
No injunction or status quo as such was granted in the final
order. In the aforesaid circumstances, there is neither breach
of interim order nor any propriety to consider grant of
injunction as prayed by Applicants.

v) As categorically held by the Hon,ble Bombay High Court in

the case of Vaidehi Akash and Goregaon pearl CHSL Vs. Dr.
Seema Mahadev Paryekar&Ors. AOA (St) No. 22L43ot
2019 Decided on L4lLOl2019 by Hon. Bombay High
Court, third party purchasers cannot seek specific pedormance
against Society as there is no privity of contract between the

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Society and third-party purchasers. Accordingly, the application

of Applicants deserves to be dismissed with heavy cost.

5. From above submissions of the parties and

documents submitted on record the only point that emerges for
our consideration is whether Application for injunction deserves
to be allowed. Our answer to the point is in the negative for the
following reasons.

6. Applicants claim to have purchased 3 flats only in

the project currently being executed by the Society. Thus, their
stake and grievance if at all, in the project ought to be limited
only to their rights to those 3 flats. However, as may be seen
from para 2 above, the reliefs sought by Applicants in the
application are completely disproportionate to injury that is

likely to their interests and therefore cannot be considered. It

is further observed that there is sufficient material on record to
show that much before the interim order was passed, the flats
claimed have been purchased by Applicants, particularly flat
No. 302 earmarked for a Society Member by the erstwhile
developers, are allotted and/or possessed by Society Members.
It appears that advocate for applicants was also informed on
12.07.2107 that in the arbitral proceedings between the Society
and Developer, the Developer has taken responsibility to repay
the amount received from Applicants and they should
) accordingly avail remedy from the Developer.
./l
+
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7. Furthermore, the interim order was effective till

passing of the final order only and the injunctions granted
therein were not continued in the final order passed on
06.08.2018. So, there is no question of reviving the said reliefs
or allowing the same again particularly in view of the fact that
as resolved in arbitral proceedings Society is already allowed to
proceed to complete the project so as to secure the interests
of its members and other stake holders who contribute
financially by booking the flats in the project.

B. On the point of law also Applicants do not have a

sound case to seek the reliefs in view of the law laid down by
the Hon'ble Bombay High Court in the case of Vaidehi (supra)
and reiterated in a recent judgment in the case of Goregaon
Pearl CHSL (supra). It is held therein that Society, not having
privity of contract with purchasers from the erstwhile
Developer, cannot be treated as developer or promoter for
foisting any liability arlsing out of contractual transactions
between Applicants and erstwhile Developer. The ratio of this
judgment was considered by Tribunal while granting stay to the
impugned order on 22.10.2019. Settled position has not
changed since then. As rightly argued by the Society, Applicants
have filed this Application in fact to defeat the purpose of the
stay already granted in favour of Society. We are not inclined
to allow the same as it would adversely affect the execution
and completion of the project and would thus jeopardise the
interests of Society and its members and various other
stakeholders in the project.

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9. In view of observations as above, we do not see any

merit in the application and same therefore deserves to be

dismissed. We answer the point accordingly and pass the

following order.

ORDER

(i) Misc. Application No. 484 of 2019 is dismissed.

(ii) No costs.

(s. NDHU (rND K, AIN, J)