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2011 DIGILAW 18 (BOM)

Ekta Supreme Corporation v. Vimla Kapoor

2011-01-06

S.C.DHARMADHIKARI

body2011
Judgment :- P.C. With the consent of parties and their counsel this motion is heard and disposed off finally by this order. This is a notice of motion for interim reliefs in a suit filed by the plaintiffs -developers and builders, for a declaration that defendant Nos.1 to 3 are jointly and severally bound by the covenants and representations made by them to the plaintiffs in terms of development agreement dated 26th July 2006 read with supplemental agreement dated 5th April 2010 Exh.D-1 and D-2 to the plaint and are bound and liable to vacate the flat Nos.1, 2, 3 and 8 so as to enable the plaintiffs to demolish the building. 2. By prayer clause (b) permanent injunction is claimed in the following terms:- "28. (a) That it be declared that the defendant Nos.1 to 3 are jointly severally bound by the covenants and representations made by them to the plaintiffs in terms of the development agreement dated26/4/2006 read with supplemental agreement dated 5/4/2010 being Exh.D-1 and D2 to the plaint and are bound to vacate the said flat Nos.12, 18, and 3 and that defendant Nos.1 to 3 be accordingly jointly and/or severally ordered and directed to vacate the said flats occupied by them and to hand over quiet, vacant and peaceful possession thereof to the plaintiffs for the purpose of demolition of the existing building as contemplated under the said agreements dated 26/4/2006 and 5/4/2010 respectively. (b) That this defendant Nos.1, 2 and 3 by himself/herself/his/her servants and agents and all those claiming through under them be restrained from, by a permanent order and injunction of this Court in any manner or from interfering with/ obstructing and/or creating any impediment in the performance of obligation under the development agreement dated 26/4/2006 read with supplemental agreement dated 5/4/2010, annexed hereto as Exh.D-1 and D-2 respectively. (c) That the defendant Nos.1 to 3 be ordered and decreed to pay to the plaintiff jointly and/or severally sum of Rs.2,50,000/- as and by way of damages/ compensation as per the particulars of claim being Exh.H hereto along with interest thereon at 21% from the date of filing of this suit will payment and/or realisation (d) That pending the hearing and final disposal of the suit this Court be pleased to appoint Court Receiver, High Court, Bombay or any other fit and proper person as Receiver of the suit premises being Flat Nos.12, 18 and 3 on the ground floor and first floor in Corner View Coop. Housing Society situated at Plot Nos.378 and 379, Corner of 33rd and 15th roads, Bandra (West), Mumbai 400 050 with all power under order XL Rule 1 of the Code of Civil Procedure, 1908 including power to take possession of the suit premises if necessary with the help of the police and deliver the possession thereof to the plaintiffs for the purpose of demolishing and redevelopment in terms of the said agreements dated 26/4/2006 and 5/4/2010 respectively, with further directions as this Court may deem fit and proper in the facts and circumstances of the case. (e) That pending the hearing and final disposal of the suit, the defendant Nos.1, 2 and 3 by themselves, their servants and agents be restrained by an order and injunction of this Court from in any manner interfering with/ obstructing or impeding the performance of obligations under the development agreement dated 26/4/2006 read with supplemental agreement dated 5/4/2010 including by addressing or making any correspondence/ letters to the Municipal Corporation of Gr. Mumbai or any local authority / authorities or in any manner taking action that may hinder the redevelopment of the said property." 3. It is in furtherance of the aforementioned declaration and permanent injunction that this notice of motion has been filed seeking interim reliefs and particularly in mandatory form enabling plaintiffs to demolish the existing building after securing eviction there from of all these defendants. 4. It is in furtherance of the aforementioned declaration and permanent injunction that this notice of motion has been filed seeking interim reliefs and particularly in mandatory form enabling plaintiffs to demolish the existing building after securing eviction there from of all these defendants. 4. It is prayed that if there is continued obstruction as alleged, then, this Court should appoint Court Receiver, High Court, Bombay or some other fit and proper person as Receiver of these flats and such area which is in possession, occupation and use of defendants with all powers under Order XL Rule 1 of the CPC including to take physical possession of these premises with the help of police and deliver them to the plaintiffs so as to facilitate demolition and re-development in terms of these agreements. 5. Mr.Dhakephalkar, learned Senior Counsel appearing for plaintiffs submits that the fourth defendant is a cooperative housing society registered under Maharashtra Cooperative Societies Act, 1960. Mr.Dhakephalkar submits that this society has 35 members who are owners of their respective flats/ shops. These flats and shops are in the existing building standing on plot nos.378 and 379 more particularly mentioned in plaint and notice of motion. 6. It is submitted by him that existing buildings are over 40 years old and have deteriorated as set out in the plaint and in the report of the Structural Engineer. Mr.Dhakephalkar submits that with a view to facilitate demolition of this old building and re-development of the property, the society convened a meeting and discussed at length the proposals received from interested parties of redevelopment of the property. Ultimately, a resolution was passed, a copy of which is at page 100 of the plaint paperbook. Thereafter, the agreement with the plaintiffs has been executed. 7. Inviting my attention to the clauses 10 and 11, 14.1, 14.7 and 16.1 of the agreement Mr.Dhakephalkar submits that these agreements are clear. Each one of the members is going to be provided with permanent alternate accommodation, details of the existing premises, details of the area that would be made available in terms of the carpet/ built up have been spelt out. Further, as far as the temporary accommodation is concerned that also has been identified. Each one of the members is going to be provided with permanent alternate accommodation, details of the existing premises, details of the area that would be made available in terms of the carpet/ built up have been spelt out. Further, as far as the temporary accommodation is concerned that also has been identified. In these circumstances and assurances coming from the plaintiffs of reconstruction within 18 months from the date of obtaining of the approvals and permissions, then, there was no reason why the plaintiffs should have been obstructed by the defendant Nos.1 to 3. Mr.Dhakephalkar points out that the society has observed complete transparency inasmuch as when it first passed a resolution in 2005, that came to be challenged by defendant No.1 by filing a dispute in 2nd Cooperative Court Case No.646/05. Therein, an interim order was made by the Cooperative Court directing the society and its Managing Committee members to commence the process of re-development afresh by following complete procedure so also in tune with the MCS Act and Rules and by-laws. 8. Accordingly, the society reconvened meetings and invited sealed tenders from several bidders. Effectively, 9 tenders were received out of which 5 were brought in by the defendant No.2 including of one M/s.R.S.Builders. The defendant No.2 became aware that M/s.R.S.Builders have backed out of the deal with the Co-operative Society and the same is likely to be struck with the plaintiffs that he started obstructing and objecting the re-development itself. Mr.Dhakephalkar submits that IOD has been issued by the B.M.C. and before executing development agreement the plaintiff paid stamp duty and registration charges. Twenty nine members out of 35 signed the agreement with plaintiffs. The plaintiff has paid 10% of corpus money i.e. Rs.40,17,211/-and Rs.6,00,166 being 10% of the corpus funds to shop premises. Further, the plaintiff has deposited Rs. 2,85,890/- towards 22 months rent for alternate accommodation payable during the period of construction. 9. Mr.Dhakephalkar submits that despite this defendant No.2 has filed dispute in 2nd Cooperative Court being case No.CC/II/449/07 and has sought temporary injunction, restraining implementation of this development agreement. 10. Mr.Dhakephalkar submits that the structural audit report and other documents in relation thereto would show that the structural condition of the building is very poor. Therefore, the delay will cause prejudice to the society and its members. 10. Mr.Dhakephalkar submits that the structural audit report and other documents in relation thereto would show that the structural condition of the building is very poor. Therefore, the delay will cause prejudice to the society and its members. Mr.Dhakephalkar submits that in April 2010 a supplemental agreement was executed with three more members totalling to 33 out of 35. Mr.Dhakephalkar submits that before supplemental agreement as well the plaintiffs deposited stamp duty and registration charges of Rs.8 lakhs approximately. Now the position is that 33 out of 35 members are with the plaintiff and cooperating with the development. After institution of the suit, even defendant No.1 has executed necessary agreement and it is only defendant No.2 who has obstructed the project. As far as defendant No.3 is concerned, Mr.Dhakephalkar submits that the defendant No.3A is a member holding flat No.3. However, defendant No.3 is occupying this flat. His status is that of a permissive occupant and at the most licensee claiming through original member. The plaintiff has no privity with such occupant and licensee. 11. The original member -defendant No.3A has agreed and accepted the development agreement so also the plaintiffs right thereunder. He is ready and willing to sign the documents but it is defendant No.3A who has to be evicted therefrom. Mr.Dhakephalkar on instructions makes a statement that the plaintiff would construct a flat for the Member and provide permanent alternate accommodation to defendant No.3A but as far as it is use and occupation is concerned, the defendant No.3 will be put in possession thereof. However, all this would be without prejudice to the pending litigation between the defendant Nos.3 and 3A. Thus, it is only two persons who have held up the implementation of the entire project and in such circumstances, strong prima facie case is made out for grant of the temporary injunction in mandatory form and in any event, it is just and convenient to appoint Court Receiver, High Court so as to enable plaintiffs to complete the project. 12. Mr.Bharat Joshi appears for contesting defendant No.2 and submits that the affidavit in reply of defendant No.2 must be perused carefully before any conclusion can be reached with regard to the alleged unreasonable and untenable stand of the defendant No.2. That he has not been unreasonable would be clear if the correspondence referred to in this affidavit is perused. 13. Mr.Bharat Joshi appears for contesting defendant No.2 and submits that the affidavit in reply of defendant No.2 must be perused carefully before any conclusion can be reached with regard to the alleged unreasonable and untenable stand of the defendant No.2. That he has not been unreasonable would be clear if the correspondence referred to in this affidavit is perused. 13. Mr.Joshi has invited my attention to the development agreement and as per the same, it is clear that the society has not stated that the resolution binds the members like defendant No.2. It is the plaintiff developer who has agreed with the society to negotiate with and deal directly with those members who have not executed the agreement. It is the plaintiff who has to obtain the concurrence of such non co-operation or confirming members at the costs and expenses of the developer. Thus, in the absence of such concurrence and a specific agreement in terms of clause 4 of the development agreement, there is no question of vacating the flat for demolition of the building and its reconstruction. For the reasons directly attributable to the plaintiff, a separate agreement has not been executed with defendant No.2. Mr.Joshi has invited my attention to page 184 of the plaint and it is submitted that the subsequent agreement dated 5th April 2010 recites that plaintiffs are in the process of entering into a separate writing to obtain his consent for re-development of this property. It is stated that the developer shall furnish photo copy of the consent, that may be obtained from Mr.Shyam Chatwal, to the society prior to the members of the society being given notice for vacating and handing over their respective premises to the Developers. 14. Mr.Joshi submits that there is no compliance with these covenants. Further, relying upon page 302 of the paper book, he submits that it is the plaintiff who has backed out because they sent three different drafts and there was no firm commitment. It is stated in the affidavit in reply of defendant No.2 that the plaintiff agreed to give an area in new building of 1241 sq.feet carpet along with payment of Rs.5 Crores out of which 4.25 Crores was deposited towards performance guarantee and will be refunded by defendant No.2 after OC is issued and plaintiff gives sixty days advance notice for getting vacant possession. Relying upon para 14 of this affidavit Mr.Joshi submits that only photocopy of payorders of Rs.3.50 Crores were forwarded but that is contrary to the understanding reached between the parties. In these circumstances, once there is no conclusive agreement as contemplated in the documents executed in favour of the plaintiffs and when plaintiffs are backing out, then, it will have to be held that they have no prima facie case as they are not ready and willing to execute a separate agreement with the defendant No.2. Further, the dispute in the Co-operative Court is still pending. There are serious allegations made that certain changes in the Development Agreement in favour of the plaintiff about the area of the permanent alternate accommodation. They have been made at the instance of the office bearers of the Co-operative housing society in question. 15. For these reasons, he submits that the motion be dismissed. 16. As far as defendant No.3 is concerned, Mr.Panickeer submits that he is not opposing redevelopment. The defendant No.3A has purchased suit premises with monies of defendant No.3, in 1979. Defendant No.3A's mother filed an eviction suit against him but the same was dismissed by the Court of Small Causes on 13th September 1988. He submits that the tenancy was sought to be terminated on 6th March 1979, no rent is collected but defendant No.3 is in possession since 1979. He submits that the present suit and the claim therein is barred by law of limitation and in that behalf he relies upon Article 67 of the Limitation Act, 1963. 17. Mr.Panicker then submits there is an agreement for purchase of the flat with defendant No.3A and the Landlady. That it is a concluded contract and since the vendors backed out therefrom, the defendant No.3 had to file a suit seeking specific performance of that agreement for sale which is dated 29th January 2005. That suit is pending. Mr.Panicker submits that in the alternative this defendant is relying upon section 53A of the Transfer of Property Act, 1882. Mr.Panicker submits that defendant No.3A is a Canadian citizen as is clear from the plaint itself. Mr.Panicker submits that the agreement to provide 511 sq. feet carpet area and additional area of 128 sq.feet separately to original member is a statement in the plaint in the present suit but that is not acceptable because the demand is of 551 sq.feet carpet. Mr.Panicker submits that the agreement to provide 511 sq. feet carpet area and additional area of 128 sq.feet separately to original member is a statement in the plaint in the present suit but that is not acceptable because the demand is of 551 sq.feet carpet. Mr.Panicker then submits that the instant suit is not maintainable because third defendant is a tenant. The provisions of Maharashtra Rent Control Act and Section 41 of the Presidency Small Causes Court Act would bar a suit of present nature because the plaintiff is not a landlord or the owner. It is the society which can initiate proceedings for eviction or defendant No.3A must initiate them. This suit seeks eviction of the present defendant No.3 but the Court has no jurisdiction and even otherwise considering the quantum of court fees paid this suit cannot be held to be maintainable. In any event, no right is created in favour of the plaintiff to seek eviction and Mr.Panicker in that behalf relies upon clause 16(iii) and (iv) of the Development Agreement and in support of his submission on the issue of jurisdiction, he also relied upon sections 91 and 94(3) of the MCS Act. Thus, it is submitted that the motion be dismissed against defendant No.3. 18. In rejoinder and in answer to this submission, Mr.Dhakephalkar submits that the plaintiff has gone by the original area in occupation of the members. Total 511 sq.feet was the original entitlement and area of the defendant No.3A in the records of the society. The defendant No.3 is not a member but claiming through defendant No.3A. At the most, he may have an agreement for sale but there is no sale deed or conveyance and, therefore, defendant No.3 is not owner/ member and has no crystalised right in her favour. Once the membership has not been transferred, then, the said defendant has no right to obstruct the re-development work and interfere therewith. 19. As far as the arguments raised by Mr.Joshi, Mr.Dhakephalkar sought to meet them by arguing that page 302 of the plaint paperbook must be read in its entirety. Everything that is demanded by defendant No.2 was not agreed. It was not a concluded contract and in any event the same could not be concluded because it is defendant No.2 who has backed out therefrom. Everything that is demanded by defendant No.2 was not agreed. It was not a concluded contract and in any event the same could not be concluded because it is defendant No.2 who has backed out therefrom. In such circumstances, the defendant No.2 who is a non-cooperating member should not be permitted to resist and obstruct the re-development which is in interest of all members. 20. Alternatively and with a view to buy peace, Mr.Dhakephalkar states on instructions that the plaintiff is ready and willing to provide a flat admeasuring 626 sq. feet to defendant No.3 and put him/ her in possession and occupation thereof subject to outcome of the legal proceedings pending between defendant No.3 and 3A in this court so also pending further orders in this suit. He, therefore, prays that the motion be made absolute. 21. Withthe assistance of the learned Counsel for parties, I have perused the plaint, annexures thereto and the affidavits on record. The suit is filed by the plaintiff as a developer and empowered by an agreement for development of the property of the defendant No.4 society. It is not in dispute that defendant No.1 and 2 are in occupation and possession of flat Nos.12 and 18 on the ground and first floor respectively in a building which is purely residential. It is stated that defendant No.3A is a member holding flat No.3 but that flat is occupied by defendant No.3. The plaintiff states that they are not aware of the status of defendant No.3. However, at the same time, it is stated that defendant No.3 has no privity with defendant No.4 society. 22. During the course of argument, it has been stated that defendant No.1 has now settled the matter with the plaintiff and has executed a separate agreement supporting the re-development. As far as defendant No.3 is concerned, it is stated that although there is no privity of contract between her and the defendant No.4 society but sofar as plaintiffs are aware defendant No.3A has agreed to / accepted the development agreement in respect of flat No.3 and is bound by the said development agreement and is bound to vacate flat No.3 to enable re-development. In this behalf, the amended plea reads thus:- "Defendant No.3 is illegally preventing the parties to the development agreement (including defendant No.3A) from acting thereunder. In this behalf, the amended plea reads thus:- "Defendant No.3 is illegally preventing the parties to the development agreement (including defendant No.3A) from acting thereunder. Defendant No.3 has no right to prevent the redevelopment in terms of the development agreement dated 26/4/2006. The plaintiffs are ready and willing to give benefit under the development agreement to defendant No.3A in accordance with the development agreement. The plaintiffs are not concerned with the inter se Arrangement between defendant No.3 and defendant No.3A." 23. Since I am on this issue, it must be immediately clarified that Mr.Dhakephalkar on instructions from the plaintiff stated that the plaintiffs are ready and willing to give a flat admeasuring 626 sq. feet in the new building to defendant No.3 subject of course to the rights of the defendant No.3A therein so also without prejudice to their contentions in this suit and a suit which is stated to be pending between the defendant No.3 and 3A. 24. Prima facie, if there is no privity of contract between the defendant No.3 and defendant No.4 society as is alleged in the earlier part of the amended para 2A, now, a statement that is made on instructions by Mr.Dhakephalkar denotes a marked departure from the stand taken in the plaint. 25. Thus, the settled principle that a member of cooperative society has no independent existence than that of the Society and, therefore, he acts and speaks through the society, then, for the plaintiffs to plead that they would be offering a flat to defendant No.3 who, according to plaintiff and the defendant No.4 society, is not a member, would mean that the plaintiff will have to establish privity of contract with defendant No.3. The aforesaid principle is straightaway not applicable. That pleading of such privity of contract is prima facie admittedly lacking. If the pleading is that the society deals with members and the acts of the society with the developer like plaintiffs, would bind the members, then, there is no question of an individual agreement with the members being executed. However, in this case, the Development Agreement itself contemplates execution of an individual agreement with the non co-operating members, like defendant Nos.1 to 3. In the absence of such an agreement with defendant No.3 plaintiffs cannot seek eviction of defendant No.3. However, in this case, the Development Agreement itself contemplates execution of an individual agreement with the non co-operating members, like defendant Nos.1 to 3. In the absence of such an agreement with defendant No.3 plaintiffs cannot seek eviction of defendant No.3. All the more, when there is no separate consent in writing by the defendant No.3 the position of lack of privity is undisputed prima facie. 26. Once, the member of the society is defendant No.3A but the flat is occupied by the defendant No.3 and the plaintiff is ready and willing to enter into a permanent alternate accommodation with either defendant No.3 exclusively or with defendant Nos.3 and 3A jointly, then, unless and until such an agreement is executed, there is no question of this Court issuing any mandatory orders in favour of the plaintiffs directing a party like defendant No.3 to hand over vacant and peaceful possession of the existing flat to enable the plaintiffs to demolish the old building and re-developing the property. In other words, for the plaintiff to claim any relief against the defendant No.3, they must show as to how the defendant No.3 is bound and liable to comply with the terms and conditions of the development agreement dated 26th April 2006. In the absence of defendant No.3 being party to the said agreement nor being there any independent transaction with her, the plaintiffs cannot seek eviction of defendant No.3. 27. The aforesaid aspects become clear, if one peruses the affidavit in reply of defendant No.3. In para 2 and 3 of the affidavit issue of jurisdiction has been raised and in para 4 it is stated that defendant No.3 was a tenant of flat No.3 and that right has now taken a form of ownership of this flat. Defendant No.3A has no right, title and interest in the said flat. In para 6 of the affidavit in reply this is what is stated:- "6. I say that if the plaintiff is extending all the benefits under development and supplemental agreement and also the conditions laid down under Directive No.CHS2007/CR554/14-C dated 3rd January, 2009 and on the plaintiff executing undertaking before this Court to hand over the new flat in the new building to me. I am ready and willing to vacate the suit flat No.3 to the plaintiff developer." 28. I am ready and willing to vacate the suit flat No.3 to the plaintiff developer." 28. However, noting that offer made by defendant No.3 is conditional and the plaintiff being ready and willing to hand over the flat only subject to the rights of member -defendant No.3A therein being in tact and further, this offer being depending upon the outcome of the suit filed by defendant No.3 against defendant No.3A, in this Court, then, all the more no relief can be granted on this notice of motion as against defendant No.3. 29. It also cannot be granted as I am in prima facie agreement with Mr.Panicker that a suit has been filed claiming specific performance of an agreement dated 29th January 2005 by defendant No.3 against defendant No.3A and the landlady. It is stated that this agreement was allegedly executed on 29th January 2005 and the defendant No.3 claims that she has been put in possession in part performance of the same. Further, the statement made by Mr.Dhakephalkar during the course of arguments is completely contradicting the stand of the plaintiffs in para 23 of the plaint. 30. Mr.Panicker is prima facie justified in inviting my attention to clauses of the development agreement and the recitals to the supplemental agreement dated 5th April 2010 and particularly the one at page 184 of the plaint paperbook, wherein plaintiffs have stated that they are in the process of entering to a separate writing with Shyam Chatwal, the owner of flat No.18 and to obtain his consent for re-development of the property and that they would furnish photocopy of the consent that may be obtained from Mr. Shyam Chatwal to the society prior to the members of the society being given notice of vacating and handing over their respective premises to the developer. Thus, this postulates that a specific agreement will have to be executed, which in the case of defendant No.3 is admittedly not executed. Therefore, no relief can be granted as against defendant 31. As far as the submissions of Mr.Dhakephalkar that all 35 members except defendant No.2 have agreed to abide by the development agreement is concerned, implicit in the same, is plaintiffs admission that plaintiffs will have to obtain a consent in writing independent of the development agreement. That becomes clear from a perusal of the development agreement, a copy of which is at page 104 of the paperbook. That becomes clear from a perusal of the development agreement, a copy of which is at page 104 of the paperbook. The development agreement itself recites that there are 35 persons who are members and although the plaint states that the building is only residential, the agreement indicates that there are certain shops. The agreement also recites that of the two buildings on the property one is residential consisting ground and two upper floors with four flats on each floor and second building consists of ground plus two upper floor and part of the third floor. There are twelve shops on ground floor, three flats on 2nd and 3rd floor and one terrace flat. Therefore, the recital is that there are 23 flats and 12 shops. While it may be true that the agreement recites that the buildings are 37 years old and are dilapidated so also there was special general body meeting held on 23rd November 2005 wherein decisions were taken and resolutions were passed to demolish the existing building and construct new building and in pursuance of the resolutions thereat, the development agreement has been executed, yet, it is clear from the perusal of the recital "R" that the plaintiffs have agreed to negotiate and deal directly with those members who have not executed the agreement of development dated 26th April 2006 and obtain their concurrence at the cost and expenses of the plaintiffs. Thus on the own showing of the plaintiffs, independent of this development agreement, they will have to obtain concurrence of non confirming and non cooperating member by negotiating with him directly. Further, this is clear from clause 4 of the agreement also. The reliance placed by Mr.Bharat Joshi on these clauses so also on page 184 of the paper book (sub-clause IV of the Supplemental Agreement dated 5th April 2010) is apposite and correct. All these documents contemplate that on the strength of the development agreement alone, no rights flow from the Development Agreement in favour of the plaintiffs qua the defendant No.2 and his flat. Therefore, in the absence of any independent agreement with defendant No.2 or in the absence of any material to show that the plaintiffs have obtained the concurrence of defendant No.2, they cannot seek his eviction from his existing premises. 32. Therefore, in the absence of any independent agreement with defendant No.2 or in the absence of any material to show that the plaintiffs have obtained the concurrence of defendant No.2, they cannot seek his eviction from his existing premises. 32. Although, reliance is placed by both Mr.Panicker and Mr.Joshi on the judgment and orders which have been rendered by me in the case of Acknur Constructions Vs. Sweety Rajendra Agarwal & Ors. Reported in 2010 (1) Bom.C.R. 15 and M/s. Jaydeep Constructions Vs. Pant Nagar Rail View in Notice of Motion No.348 of 2009 in Suit No.126 of 2009, I am of the view that without going into the larger controversy and particularly on the aspect of maintainability of this suit, assuming that it is maintainable at the instance of plaintiffs, no interim relief can be granted in favour of the plaintiffs. Prima facie, on merits, the plaintiffs have failed to make out a case of an independent agreement with or the concurrence or consent of defendant No.2 to the re-development of the Society's property. That there is a serious dispute between the plaintiffs and defendant No.2 is at once clear, if one peruses the affidavits filed by defendant No.2. 33. In the affidavit filed by the society viz., defendant No.4 affirmed on 9th July 2010 the deponent Hon. Secretary states that defendant No.2 is seeking better terms than those agreed to be given to the members of the society under the development agreement dated 26th April 2006 and 5th July 2010. He has accused defendant No.2 of extortion and holding the project to ransom. It is stated that decision of the general body of the defendant No.4 society is binding on all members and no member can demand different or better terms than those agreed under the subject agreement. Similarly, the plaintiffs have accused defendant No.2 of making unreasonable demands. The plaintiffs placed reliance upon the notice/ letter dated 13th November 2010 Exh.E-1 page 299 of the plaint paperbook. Defendant No.3A also accuses defendant No.2 on the same lines, in his affidavit in reply. 34. All this would not be significant if one peruses the affidavit in reply of defendant No.2. He has stated that he has already filed a dispute bearing No.CC/II/449/07 in the Cooperative Court challenging the resolutions of the defendant No.4 society and the development agreement dated 26th April 2006. 34. All this would not be significant if one peruses the affidavit in reply of defendant No.2. He has stated that he has already filed a dispute bearing No.CC/II/449/07 in the Cooperative Court challenging the resolutions of the defendant No.4 society and the development agreement dated 26th April 2006. He has in the affidavit pointed out that as long as the dispute is pending, there is no question of he complying with the resolutions which he has challenged before the competent forum. Further, he has pointed out as to how the plaintiffs forwarded different draft agreements with different terms to him for approval, and in that behalf in para 14 he states thus:- "14. I say that the plaintiff has suppressed the fact that through their agent Mr.Rajinder Singh Arora, the plaintiff has sent four different draft agreements with different terms, to me for approval, the first one was sent on 12.11.2009, the second one was sent on 5.1.2010, the third one was sent on 10.3.2010, the fourth one was sent on 17.4.2010, the plaintiff sent a photo copy of Pay Order No.056655 dated 17/4/2010 for Rs.3,50,00,000/-(Three crore fifty lakhs only) drawn in my favour by HDFC Bank, Santacruz (West) Branch and a Cheque No.773339 dated 25/4/2010 for Rs.75,00,000/- drawn in my favour from HDFC, Powai Branch, showing plaintiff's bonafides and readiness to pay the said agreed amount to me as deposit performance guarantee. I say that the said cheque and pay order and the amount filled therein are reflected in the letter of the plaintiff's advocate dated 31/5/2010, Exhibit F2 to the plaint. I say that I am ready and willing to accept the said terms of payment of Rs.4,25,00,000/-as agreed deposit performance guarantee and on completing redevelopment of building within agreed time and compliance of other terms as per draft agreement Exhibit 4, I agree to refund the amount on handing me vacant possession of new flat of 1421 sq.ft area after occupation certificate." "I say plaintiff agreed to pay additional Rs. 75,00,000/-as corpus fund cum rent for alternate accommodation, for the period of 30 months, during the course of development against my vacating the suit premises. I say that through the chairman of the defendant No.4, Suman Sharma, a meeting was fixed on 19/5/2010 between Mr.Bijlani, Partner of Ekta Supreme Corporation and his son and me at Juhu Marriot Hotel. 75,00,000/-as corpus fund cum rent for alternate accommodation, for the period of 30 months, during the course of development against my vacating the suit premises. I say that through the chairman of the defendant No.4, Suman Sharma, a meeting was fixed on 19/5/2010 between Mr.Bijlani, Partner of Ekta Supreme Corporation and his son and me at Juhu Marriot Hotel. I attended the meeting and I was informed by Mr.Bijlani and his son and that the terms of last draft agreement dated 17/4/2010, will be executed with me when all other members will agree to sign supplementary agreement with them. I say that all the other terms are promised, negotiated and agreed between me and plaintiffs. I have to vacate the suit premises i.e Flat No.18 within three months from the receipt of above referred money." 35. Defendant No.2 has also pointed out that even the additional affidavit of the plaintiff does not make out any case for any relief against him much less of the mandatory nature as prayed. He has pointed out that the office bearers of the society have been offered more area in the proposed new building, than they are entitled to and they have been given each an unaccounted sum of Rs.3.50 crores as extra cash consideration. He has accused plaintiff of backing out of the deal with him and that stand is taken by him in para 48 and he has called upon the plaintiff to deposit Rs.4.24 crores in his account as deposit performance guarantee and pay him Rs.75 lakhs as Corpus fund, rent on account of three months as per the draft agreement for allotment of new flat of 1425 sft in the new building. He has denied that any payments have been made to the society. 36. Now, it may be true that the plaintiffs have filed rejoinder to this affidavit and have accused defendant No.2 of being unreasonable and backing out of the deal, yet, the fact remains that his consent has not been obtained till date and that on the strength of the development agreement alone he cannot be evicted. Now, in the absence of any privity between the plaintiff and defendant No.2 and considering the allegations that have been made by them against each other, I am of the view that the plaintiffs cannot claim any interim reliefs against him as well. Now, in the absence of any privity between the plaintiff and defendant No.2 and considering the allegations that have been made by them against each other, I am of the view that the plaintiffs cannot claim any interim reliefs against him as well. The plaintiffs will have to prove that there was a concluded contract between them and the defendant No.2 or in any event, they have obtained his consent. In such circumstances, I am in agreement with Mr.Joshi and in the view that I have taken, I do not see how the argument of Mr.Dhakephalkar that it is only one person who is holding entire Co-operative Housing Society to ransom can be taken cognisance of. While it is true that the plaintiffs may have settled the dispute with defendant No.1, yet, the affidavit of defendant No.3A would go to show that defendant No.3A also does not recognise the rights of defendant No.3 who is occupying the flat, according to defendant No.3, temporarily. The categorical stand taken in para 4 of the affidavit of defendant No.3 dated 12th July 2010 will show that there is a serious dispute as between the defendant No.3 and defendant No.3A and the consent given by defendant No.3A to vacate and hand over the flat cannot be of any assistance to the plaintiff because the defendant No.3 is in physical possession thereof and claiming independent right, title and interest therein. As far as defendant No.2 is concerned, there were negotiations and even draft agreements were exchanged but on the own showing of the plaintiffs nothing has been finalised. Therefore, the orders of this Court that have been relied upon by Mr.Dhakephalkar cannot be of any assistance to the plaintiffs in this case. There the disputes of the present nature were not raised nor was there any stipulation of obtaining concurrence and consent of non cooperative members independent of the development agreement with the society. Therefore, in the facts peculiar to this case it cannot be held that prima facie the plaintiffs are entitled to any interim reliefs much less in terms of prayers of the notice of motion. Even the balance of convenience cannot be said to be in favour of the society and the members who are consenting because, they were aware of the fact that independent concurrence will have to be obtained of the non cooperative members. Even the balance of convenience cannot be said to be in favour of the society and the members who are consenting because, they were aware of the fact that independent concurrence will have to be obtained of the non cooperative members. That defendant No.2 and 3A cannot be held to be bound by this agreement because they have not independently concurred and consented to the re-development at site is prima facie not in dispute. The consent of defendant No.3a is also of no significance in the light of the disputes between defendant No.3A and 3 so also pendency of legal proceedings inter se. Therefore, even balance of convenience cannot be said to be in favour of plaintiff and defendant No.4 society. 37. There is no irreparable loss in the teeth of such stipulations either. As a result of above discussion, the notice of motion fails and it is accordingly dismissed. No costs.