Wadhwa Estates And Developers India Pvt Ltd vs Moon Craft Apartments Chsl

2026:BHC-OS:13408
carbpl13424-2026-J.doc

AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
COMM ARBITRATION PETITION (L) NO.13424 OF 2026
Wadhwa Estates and Developers
(India) Private Limited
… Petitioner
ATUL
GANESH
KULKARNI
Vs.
Digitally signed by
ATUL GANESH
KULKARNI
Date: 2026.06.18
14:50:37 +0530
1. Moon Craft Apartments Coop.
Housing Society Limited
2. Sajida Ul Haq
3. Muthar Shaikh
4. Maryana Ratus
5. Sofia Shaikh
6. Imtiaz Ahmed
7. Seema Ashok
8. Afzal Ahmed
9. Sabeena Ahmed
10. Imtiaz Ahmed
11. Sabeena Ahmed

Respondents
…
Mr. Mayur Khandeparkar with Mr. Tushar Guujar and
Mr. Deep Madnani i/by SL Partners for the petitioner.
Mr. Shanay Shah with Mr. J.R. Vakil i/by J.R. Vakil &
Associates for respondent No.1.
Mr. Aurelius D’Silva with Ms. Reema Maurya i/by
D’Silva & Co., for respondent No.2.
Dr. Abhinav Chandrachud with Mr. Altaf Khan, Mr.
Akash Mangalgi and Mr. Janay Jain for respondent
No.3.
1
::: Uploaded on - 18/06/2026 ::: Downloaded on - 18/06/2026 15:07:35 :::

carbpl13424-2026-J.doc

Mr. Aniesh Jadhav i/by Mr. Shubham Choudhari for
respondent No.4.
Mr. Nikhil Adkine with Mr. Avinash Bailmare for
respondent No.5.
Mr. Amrut Joshi i/by Mr. Nikhil Adkine for respondent
Nos.6 to 11.
CORAM : AMIT BORKAR, J.
RESERVED ON : JUNE 11, 2026.
PRONOUNCED ON : JUNE 18, 2026
JUDGMENT:
1. By filing the present arbitration petition, the petitioner is
seeking a direction against respondent Nos. 2 to 11, who are
stated to be dissenting members, to vacate their respective flats
situated in respondent No.1 society, namely Moon Craft
Apartments Cooperative Housing Society Limited, located at Plot
No.1485/1487, Shirley Rajan Road, Off Carter Road, Bandra
(West), Mumbai 400 050.
2. The facts which led to the filing of the present arbitration
petition, as stated in the petition, are that respondent No.1 society
was formed around the year 1972 and the building was
constructed in the year 1975. The building consists of 38
residential flats and 7 garages and is occupied by 36 members. In
December 2021, respondent No.1 society, with the required
majority of its members, decided to start the process of
redevelopment of the building, which was then about 49 years old.
In the Special General Body Meeting held on 5 December 2021, a
unanimous resolution was passed for redevelopment of the
2
::: Uploaded on - 18/06/2026 ::: Downloaded on - 18/06/2026 15:07:35 :::

carbpl13424-2026-J.doc

building. Thereafter, in the Special General Body Meeting held on
4 September 2022, Palash PMC LLP was appointed as the Project
Management Consultant.
3. In the Special General Body Meeting held on 21 May 2023,
the petitioner was appointed as the developer for carrying out the
redevelopment of the building. Thereafter, by letter dated 8 June
2023, the Deputy Registrar of Cooperative Societies (H/W Ward)
issued a No Objection Certificate confirming that the petitioner
had been appointed in accordance with the prescribed procedure.
Thereafter, in the Special General Body Meetings held on 18
August 2024 and 26 January 2025, the majority members of
respondent No.1 approved the final draft of the Development
Agreement and authorised certain members to execute and
register the same on behalf of the society. Accordingly, on 31
March 2025, the petitioner, respondent No.1 society and 22
members executed and registered the Development Agreement.
4. Under the Development Agreement, the petitioner was
required to perform the following obligations:
“17.1 Subject to Force Majeure, the Developer shall get the
concessions for the entire project approved, obtain CRZ
permission from the competent authority and get plans
sanctioned and procure MDP IOD up to MDP FSI, within 9
(nine) months plus 2 (two) months grace period from the
date of execution hereof. The Developer shall provide a copy
of the MDP IOD along with CRZ permission to the Society
and shall give notice to the Society within seven days from
3
::: Uploaded on - 18/06/2026 ::: Downloaded on - 18/06/2026 15:07:35 :::

carbpl13424-2026-J.doc

fulfilling the MDP IOD conditions, stating that the Developer
is willing to proceed to obtain Full IOD (including Civil
Aviation permission from the Central Government) subject to
all Members providing Consenting Members Declaration in
the format attached hereto at Annexure ‘D/2’. In the event
the Developer fails and/or neglects to fulfil the MDP IOD
within the aforesaid period of 9 (nine) months plus 2 (two)
months grace period from the date of execution hereof,
consequences shall follow as per the terms agreed herein.
17.2 Within 15 (fifteen) days of receipt of the notice from
the Developer as stated in Clause 17.1 above, the Members
shall provide the Consenting Members Declaration in the
format attached hereto at Annexure ‘D/2’. In the event all
Members have provided their Consenting Members
Declaration within the timeline stated above, the Developer
shall proceed to procure and load TDR, obtain Civil Aviation
permission from the Central Government and obtain Full
IOD for the said project. In the event some Members of the
Society fail to provide such Consenting Members
Declaration, then the Developer shall, with the cooperation
of the Society, take such legal steps as may be required
against the dissenting members, including approaching the
appropriate Court to vacate the dissenting members’ existing
flats for the purpose of redevelopment. Upon obtaining
orders from the Court against the dissenting members, if any,
the Developer shall obtain Full IOD (including Civil Aviation
permission from the Central Government) after loading full
4
::: Uploaded on - 18/06/2026 ::: Downloaded on - 18/06/2026 15:07:35 :::

carbpl13424-2026-J.doc

TDR/FSI, fungible FSI and making all required payments for
obtaining Full IOD for the new building, within 12 (twelve)
months plus 3 (three) months grace period from the date of
execution hereof, subject to all Members providing
Consenting Members Declaration or Court orders being
passed in respect of dissenting members, as the case may be.
17.3 The Developer shall furnish a copy of the Full IOD
along with copies of the approved plans to the Society for
verification. The Society’s appointed Project Management
Consultant (PMC) shall verify the plans and submit a
detailed report to the Society within 15 (fifteen) days from
the date of receipt of such plans from the Developer. In case
there is any shortfall in the IOD, the Developer shall rectify
the same within one week from the date on which the PMC
report is provided to the Developer. In the event the
Developer fails and/or neglects to obtain Full IOD with the
entire development potential from the MCGM within the
aforesaid period of 12 (twelve) months plus 3 (three)
months grace period from the date of execution hereof,
subject to all Members providing Consenting Members
Declaration or Court orders being passed in respect of
dissenting members, consequences shall follow as per the
terms agreed herein.
17.4 Upon obtaining Full IOD with full development
potential being loaded, the Developer shall give the Society
45 (forty five) days’ written notice (hereinafter referred to as
‘Notice to Vacate’) calling upon the Society to hand over
5
::: Uploaded on - 18/06/2026 ::: Downloaded on - 18/06/2026 15:07:35 :::

carbpl13424-2026-J.doc

vacant possession of the property to the Developer for
redevelopment. The entire property shall be vacated and
handed over to the Developer in accordance with the dates
stated in the Court orders obtained against the dissenting
members so that all Members hand over the plots, existing
building, existing flats and existing garages on the same day.
17.5 The Society shall, within 45 (forty five) days from
receipt of the Notice to Vacate, vacate and hand over the
respective existing flats and existing garages to the
Developer for the purpose of redevelopment.
17.6 It is agreed and clarified that the Society shall hand
over vacant possession of the property to the Developer for
redevelopment only after the Developer procures Full IOD
for the entire area proposed to be constructed and after the
Developer obtains orders from the Court for taking
possession of the existing flats of any dissenting members
who have not consented to redevelopment or who have
failed to execute the Development Agreement.
17.7 Although the expenses of litigation against dissenting
members shall initially be borne by the Developer, the
Developer shall be entitled to recover all such amounts,
including fees paid to advocates and counsel, from such
dissenting member or members. The Developer shall also be
entitled to adjust such amounts against any sums payable by
the Developer to such dissenting members, including
hardship allowance and rental compensation payable to such
6
::: Uploaded on - 18/06/2026 ::: Downloaded on - 18/06/2026 15:07:35 :::

carbpl13424-2026-J.doc

dissenting or non cooperating members.
17.8 The Society and its Members shall be responsible for
ensuring that any licensees occupying the premises vacate
the same within 30 (thirty) days from issuance of the Notice
to Vacate by the Developer.
17.9 In the event any Member fails to provide the aforesaid
confirmation letter and/or dissents, fails or refuses to vacate
and hand over possession of the Member’s existing flat or
garage, the Developer shall initiate appropriate legal
proceedings at its own cost and expense for securing vacant
possession of the property and proceeding with
redevelopment. The Developer shall be entitled to recover
such costs and expenses from the concerned Member.
Further, the Developer agrees to reimburse all costs and
expenses, including advocate’s fees incurred by the Society,
within 15 days from the date such costs are incurred by the
Society in relation to the aforesaid legal proceedings and
shall provide necessary support and cooperation for securing
vacation of the dissenting member or occupant from the
existing flats and garages so that redevelopment of the
property can proceed.
17.10 The Developer shall, seven days prior to the Specified
Date, provide the Society’s Advocates, Solomon & Co., with
copies of the ledger showing that the amounts payable to the
Society and its Members are ready and available with the
Developer, together with copies of the following demand
7
::: Uploaded on - 18/06/2026 ::: Downloaded on - 18/06/2026 15:07:35 :::

carbpl13424-2026-J.doc

drafts/pay orders:
17.10.1 Demand Draft/Pay Order in favour of each Member
towards hardship compensation as per Clause 9.1.4.2 hereof.
It is agreed that these amounts shall be handed over to the
Members on the Appointed Date.
17.10.2 Demand Draft/Pay Order in favour of each Member
towards displacement compensation as per Clause 10 hereof,
which shall be handed over to the Members on the
Appointed Date.
17.11 It is confirmed that the actual date on which the
Developer is handed over the entire property in a fully
vacated condition for redevelopment, whether before or after
the Specified Date, shall be treated as the ‘Appointed Date’.
On the Appointed Date, the Society shall issue a handover
letter to the Developer and the Developer shall acknowledge
receipt of possession of the property by countersigning the
same in accordance with the terms of this Agreement.”
5. According to the petitioner, and in compliance with its
obligations under the Development Agreement, it obtained the
MDP IOD from the BMC on 5 March 2026. A copy of the same was
forwarded to respondent No.1 society by letter dated 7 March
2026, and the members were called upon to submit their
respective declarations. It is further stated that respondent No.1
society, by email dated 6 March 2026, informed all its members
about receipt of the MDP IOD and requested them to execute and
submit their declarations to the society.
8
::: Uploaded on - 18/06/2026 ::: Downloaded on - 18/06/2026 15:07:35 :::

carbpl13424-2026-J.doc

6. Thereafter, the members of respondent No.1 society started
executing their respective declarations. By 24 March 2026, 32 out
of 38 members had submitted their declarations. However,
respondent Nos. 2 to 11 did not submit their declarations. The
petitioner and respondent No.1 society thereafter called upon
respondent Nos. 2 to 11 to vacate their respective flats in the
building. According to the petitioner, despite such requests,
respondent Nos. 2 to 11 have till date neither submitted their
declarations nor vacated their flats.
7. The petitioner has, therefore, sought the following reliefs
from the Court:
(a) The petitioner has prayed that, pending constitution of
the Arbitral Tribunal and during the pendency of the
arbitration proceedings, respondent Nos. 2 to 11 be directed
to execute and submit the Consenting Member Declarations
as required under the Development Agreement dated 31
March 2025, in the format prescribed at Annexure D/2 to the
said Agreement.
(b) The petitioner has further prayed that after obtaining
Full Intimation of Disapproval (IOD) from the Planning
Authority in accordance with the terms of the Development
Agreement and after issuing notices to respondent Nos. 2 to
11, those respondents be directed to vacate and hand over
vacant and peaceful possession of Flat Nos. 2, 4, 5, 8, 10, 12
and 15 situated in Moon Craft Apartments Cooperative
Housing Society Ltd., described in Exhibit “A” to the petition,
9
::: Uploaded on - 18/06/2026 ::: Downloaded on - 18/06/2026 15:07:35 :::

carbpl13424-2026-J.doc

within 45 days from receipt of such notice.
(c) In the alternative, if the relief sought in prayer clause (b)
is not granted, the petitioner has requested that the Court
Receiver, High Court, Bombay, or any other fit and proper
person, be appointed as Receiver in respect of Flat Nos. 2, 4,
5, 8, 10, 12 and 15 situated in Moon Craft Apartments
Cooperative Housing Society Ltd. The petitioner has sought
that such Receiver be vested with all powers available under
Order XL Rule 1 of the Code of Civil Procedure, 1908,
including the power to take physical possession of the said
flats. The petitioner has further requested that the Receiver
be authorised, if necessary with police assistance, to break
open locks or doors, prepare an inventory of articles found in
the flats and thereafter hand over vacant possession of the
said flats occupied by respondent Nos. 2 to 11 to the
petitioner.
(d) The petitioner has also prayed for an order of injunction
restraining respondent Nos. 2 to 11 from in any manner
dealing with, transferring, encumbering, alienating or
creating any third party rights in respect of Flat Nos. 2, 4, 5,
8, 10, 12 and 15 occupied by them in Moon Craft
Apartments Cooperative Housing Society Ltd., described in
Exhibit “A” to the petition, until further orders.
8. Mr. Khandeparkar, learned Advocate appearing for the
petitioner, invited my attention to the judgment of the Division
Bench of this Court in Pranav Constructions Limited vs.
10
::: Uploaded on - 18/06/2026 ::: Downloaded on - 18/06/2026 15:07:35 :::

carbpl13424-2026-J.doc

Priyadarshini Cooperative Housing Society Limited in Arbitration
Appeal (L) No.20093 of 2025 decided on 14 July 2025 . He
submitted that the issue whether a developer can file proceedings
under Section 9 of the Arbitration and Conciliation Act, 1996
against dissenting members of a cooperative housing society for
securing vacant possession of their premises is now well settled
and no longer open for debate. According to him, the Division
Bench, while relying upon the earlier judgment in Girish Mulchand
Mehta & Another vs. Mahesh S. Mehta & Another 2010 (2)
Mah.L.J. 637 , has clearly held that a developer is entitled to invoke
Section 9 against the society as well as dissenting members for
enforcing the terms of the redevelopment agreement. He
submitted that such enforcement can extend even against those
members who have not signed the development agreement or who
did not participate in the General Body Meeting, if the
redevelopment proposal has been validly approved by the society.
According to him, the law now recognises that such members
cannot obstruct the redevelopment process merely because they
have chosen not to sign the agreement or remain absent from the
meeting where redevelopment was approved.
9. Referring to Clause 17 of the Development Agreement,
learned counsel submitted that the clause provides a complete and
stage wise mechanism for carrying out redevelopment of the
society. He submitted that under Clause 17.1, after obtaining the
necessary CRZ permission and MDP FSI approval, the developer
becomes entitled to call upon the members to execute and submit
the Consenting Members Declaration in the prescribed format
11
::: Uploaded on - 18/06/2026 ::: Downloaded on - 18/06/2026 15:07:35 :::

carbpl13424-2026-J.doc

annexed as Annexure D2 to the agreement. He submitted that
Clause 17.2 further provides that if any member fails or refuses to
submit such declaration, the developer is authorised to initiate
appropriate legal proceedings against such dissenting member and
may approach the competent Court for securing orders necessary
for redevelopment, including orders concerning vacation of the
existing premises occupied by such members.
10. According to him, Clause 17.4 operates at a later stage. He
submitted that after obtaining the Full IOD and after the full
development potential is loaded, the developer is required to issue
a written notice of 45 days calling upon the society to hand over
vacant possession of the property. At that stage, the entire building
would have to be vacated, including the premises occupied by
dissenting members. He submitted that Clause 17.4 cannot be read
in isolation and has to be understood along with Clause 10 of the
Development Agreement. Under Clause 10, the developer becomes
liable to pay compensation and transit benefits to the members for
shifting to alternative accommodation. Such liability arises when
the members are actually required to vacate their flats.
11. He therefore submitted that Clauses 17.1 and 17.2 operate at
an earlier stage and require all members to submit declarations
expressing their willingness to vacate when the appropriate stage
arrives. If any member refuses to provide such declaration, Clause
17.2 specifically empowers the developer to take legal action
against such member. He fairly submitted that the actual
obligation to hand over vacant possession would arise only after
Full IOD is obtained, the full development potential is loaded and
12
::: Uploaded on - 18/06/2026 ::: Downloaded on - 18/06/2026 15:07:35 :::

carbpl13424-2026-J.doc

a notice of 45 days is issued in terms of Clause 17.4.
12. However, according to him, the fact that the stage
contemplated under Clause 17.4 has not yet arrived does not mean
that the developer is without a remedy. He submitted that the
conduct of the dissenting members gives rise to a genuine
apprehension that they may obstruct the redevelopment process in
future. He pointed out that these members have neither signed the
Development Agreement nor participated in the General Body
Meetings which approved the redevelopment. In such
circumstances, the petitioner is justified in seeking protective
orders under Section 9 of the Arbitration and Conciliation Act,
1996.
13. Learned counsel submitted that a real and reasonable
apprehension of breach of contractual obligations is itself sufficient
for seeking interim protection under Section 9. According to him,
the petitioner is not required to institute separate proceedings
every time a different stage under Clause 17 is reached. He
submitted that the purpose of Section 9 is to grant effective
protection and avoid multiplicity of proceedings. At the same time,
the rights of the dissenting members remain adequately
safeguarded because they cannot be compelled to physically vacate
their premises until the contingency contemplated under Clause
17.4 actually arises.
14. He therefore submitted that the relief sought by the
petitioner is of a qualified and conditional nature. The petitioner is
not seeking immediate eviction of the dissenting members. On the
13
::: Uploaded on - 18/06/2026 ::: Downloaded on - 18/06/2026 15:07:35 :::

carbpl13424-2026-J.doc

contrary, prayer clause (b) merely seeks a direction that the
dissenting members should vacate their respective premises within
45 days from the issuance of the notice contemplated under Clause
17.4 of the Development Agreement. According to him, since the
relief is linked to a future contractual event, the objection raised by
the dissenting members that no cause of action presently exists for
grant of such relief is without substance and deserves to be
rejected.
15. Dr. Chandrachud, learned Advocate appearing for
respondent No.3, submitted that a dissenting member of a
cooperative housing society, who has neither signed the
redevelopment agreement nor participated in the redevelopment
process, cannot be treated as a veritable party to the arbitration
agreement. Placing reliance on the decision in Space Master
Realtors v. Mulund Sandhyaprakash CHS Ltd.(Arbitration
Application (L) No. 35545 of 2025 decided on 6 March 2026) , he
submitted that arbitration proceedings can ordinarily be
maintained only against parties who are bound by the arbitration
agreement. According to him, respondent No.3 has not executed
the redevelopment agreement and has consistently opposed the
redevelopment process. Therefore, respondent No.3 cannot be
regarded as a party to the arbitration agreement so as to permit
any relief to be sought against him under the Arbitration and
Conciliation Act, 1996.
16. Learned counsel further submitted that proceedings under
Section 9 of the Arbitration Act cannot be converted into a
mechanism for granting final relief without any requirement of
14
::: Uploaded on - 18/06/2026 ::: Downloaded on - 18/06/2026 15:07:35 :::

carbpl13424-2026-J.doc

arbitration. Relying upon the judgment in K. Metha & Co. v. Jay
Shrinath CHSL , (2021) SCC Online Bom 3169 he submitted that
Section 9 is intended only to grant interim protection in aid of
arbitral proceedings and does not contemplate a summary
adjudication of substantive rights. According to him, the relief
sought by the petitioner against respondent No.3 virtually amounts
to granting final relief itself. If such relief is granted, nothing
further would survive for adjudication in arbitration. He therefore
submitted that the petition seeks relief which is beyond the
permissible scope of Section 9 and is consequently not
maintainable.
17. It was further submitted that interim relief can be granted
only when it is intended to protect or support a final relief which
can ultimately be granted in arbitration. Reliance was placed on
the decision in SJK Buildcon LLP v. Kusum Pandurang Keni,
Commercial Arbitration Petition (L) No. 20834 of 2024 decided on
16 April 2025. Learned counsel submitted that there is presently
no dispute between the petitioner developer and respondent No.1
society, both of whom are parties to the arbitration agreement.
According to him, the stage at which members are required to
vacate their premises has not yet arrived, and therefore no dispute
exists between the developer and the society. The only dispute, if
any, is between the developer and respondent No.3. However,
respondent No.3 is not a party to the arbitration agreement.
Consequently, no final arbitral relief can be granted against
respondent No.3. If no final relief is legally possible against
respondent No.3 in arbitration, no interim relief can be granted
15
::: Uploaded on - 18/06/2026 ::: Downloaded on - 18/06/2026 15:07:35 :::

carbpl13424-2026-J.doc

against him under Section 9. On this ground also, the petition
deserves to be rejected.
18. Learned counsel next submitted that Courts do not approve
of collusive proceedings and relied upon the judgments in Gram
Panchayat of Village Naulakha v. Ujagar Singh, (2000) 7 SCC 543;
Nagubai Ammal v. B. Shama Rao, (1956) 1 SCC 698; Rupchand
Gupta v. Raghuvanshi Pvt. Ltd., (1964) SCC Online SC 325.
According to him, in the present case the petitioner developer and
respondent No.1 society are completely ad idem and there is no
disagreement between them whatsoever. He submitted that both of
them are supporting the same cause and are jointly seeking orders
against respondent No.3. According to him, Section 9 proceedings
are being used as a device to secure relief against a third party
who is not a party to the arbitration agreement. He therefore
contended that the present proceedings bear the characteristics of
a collusive action and ought not to be entertained.
19. Learned counsel further submitted that a dispute capable of
attracting Section 9 jurisdiction may arise at a later stage if a
dissenting member refuses to vacate after the contractual stage for
handing over possession has actually arrived. Referring to the
judgment of the Division Bench in Pranav Constructions Ltd. , he
submitted that if members refuse to vacate after becoming liable to
do so, the developer may have a dispute with the society arising
from the society's inability to ensure compliance by its members. In
such circumstances, proceedings under Section 9 may be
maintainable and appropriate directions may be issued against
dissenting members. However, according to him, that stage has not
16
::: Uploaded on - 18/06/2026 ::: Downloaded on - 18/06/2026 15:07:35 :::

carbpl13424-2026-J.doc

yet arisen in the present case. Since no member is presently under
an obligation to vacate, the petition has been filed prematurely
and is liable to be dismissed on that ground alone.
20. Learned counsel submitted that Courts ordinarily do not
grant relief in matters which are premature or based upon
hypothetical future events. Reliance was placed on the decisions in
Union of India v. Narender Singh, (2005) 6 SCC 106; Rushabh
Outdoors v. State of Maharashtra, (2021) SCC Online Bom 6817 .
According to him, the petitioner's own case is that the obligation to
vacate would arise only after the Full IOD is obtained and the
contractual requirements under Clauses 3.3, 3.4 and 17 of the
Development Agreement are fulfilled. Admittedly, that stage has
not yet been reached. No member of the society has vacated the
building. The petitioner has not issued the 45-day notice
contemplated by the Development Agreement. Learned counsel
submitted that the entire cause of action put forward by the
petitioner is based upon a future possibility that after obtaining the
Full IOD and other permissions, and after issuing the notice to
vacate, respondent No.3 may refuse to comply. According to him,
such a possibility is speculative and uncertain. The Court cannot
grant relief merely on the basis of what may or may not happen in
future. He therefore submitted that the petition is premature and
liable to be rejected.
21. Elaborating further, learned counsel submitted that there are
several contingencies because of which the stage requiring
members to vacate may never arise at all. According to him, the
petitioner may become financially insolvent and may be unable to
17
::: Uploaded on - 18/06/2026 ::: Downloaded on - 18/06/2026 15:07:35 :::

carbpl13424-2026-J.doc

proceed with the redevelopment project. It is also possible that the
petitioner may fail to obtain the Full IOD or other statutory
permissions such as civil aviation approval. There may arise
circumstances where allegations of serious misconduct against the
petitioner result in registration of criminal proceedings, making
continuation of the redevelopment project impracticable. Likewise,
an accident in another project undertaken by the petitioner may
raise concerns regarding quality and safety standards. It is also
possible that the society may terminate the redevelopment
agreement before the stage of vacation of premises arrives.
Further, statutory approvals may take an unusually long time,
resulting in substantial delay in the project. Learned counsel
submitted that all these possibilities demonstrate that the
obligation to vacate remains uncertain and contingent upon
several future events. Therefore, the present cause of action is
entirely hypothetical, and the petition is both premature and
infructuous.
22. Learned counsel lastly submitted that even if the petition is
treated as a quia timet action based on apprehended injury, the
petitioner must establish a clear and imminent threat of harm.
Relying upon the decisions in Keisham Meghachandra Singh v.
Speaker, Manipur Legislative Assembly, (2021) 16 SCC 503; Kuldip
Singh v. Subhash Chander Jain, (2000) 4 SCC 50 , he submitted
that a mere apprehension is not sufficient. There must be
convincing material showing that the anticipated injury is
immediate, probable and likely to cause irreparable consequences.
According to him, no such facts have been pleaded or established
18
::: Uploaded on - 18/06/2026 ::: Downloaded on - 18/06/2026 15:07:35 :::

carbpl13424-2026-J.doc

in the present case. The petitioner has merely expressed a concern
that respondent No.3 may not cooperate at a future stage. Such
apprehension, according to learned counsel, falls far short of the
standard required for grant of quia timet relief. He therefore
submitted that the petition does not disclose any case warranting
exercise of powers under Section 9 of the Arbitration Act.
23. Mr. Aniesh Jadhav, learned Advocate appearing for
respondent No.4, submitted that the present petition under Section
9 is founded entirely upon the Development Agreement and
therefore the terms of that agreement must be followed strictly.
According to him, this requirement becomes even more important
when relief is sought against persons who are not signatories to
the agreement. He submitted that unless the conditions prescribed
in the agreement are fulfilled in the manner agreed between the
parties, no cause of action can arise for filing the present petition.
Learned counsel submitted that the present proceedings are based
upon the arbitration clause contained in the Development
Agreement dated 31 March 2025. However, respondent Nos.2 to
11 are admittedly not signatories to the said agreement. He
submitted that the Development Agreement is a commercial
arrangement entered into between the petitioner and respondent
No.1 society and its terms must be followed as they stand.
According to him, when such agreement is sought to be used for
obtaining a serious relief like eviction against non signatories,
strict adherence to its terms becomes necessary. He pointed out
that the petitioner itself has stated that the agreement
contemplates issuance of a Notice to Vacate only after obtaining
19
::: Uploaded on - 18/06/2026 ::: Downloaded on - 18/06/2026 15:07:35 :::

carbpl13424-2026-J.doc

the Full IOD, which also includes permissions from the Civil
Aviation authorities. According to him, if any relief is granted at
this stage, it would create an anomalous situation. Firstly, the
petitioner would secure an executable order directing eviction of
respondent Nos.2 to 11 without first obtaining the Full IOD
contemplated by the agreement. Secondly, the express contractual
terms agreed between the petitioner and the society would
effectively stand altered, and such alteration would then be used
against persons who are not even parties to the agreement. He
therefore submitted that no such relief can be granted at this stage.
24. Learned counsel further submitted that a party seeking relief
under Section 9 before commencement of arbitration must
demonstrate a clear and manifest intention to commence arbitral
proceedings. According to him, such intention is a fundamental
requirement for invoking jurisdiction under Section 9. Reliance
was placed on the judgment in Firm Ashok Traders and Another v.
Gurumukh Das Saluja and Others 2004 (3) SCC 155 . He submitted
that in the present case the petitioner has neither invoked the
arbitration clause nor initiated proceedings under Section 11 for
appointment of an arbitrator. Even in the petition there is no
specific pleading showing an intention to commence arbitration
proceedings. According to him, a party which has no genuine
intention of pursuing arbitration and obtaining final relief through
that process cannot seek interim relief under Section 9. Interim
protection can only be granted in aid of final arbitral relief.
Reliance was also placed on the decision in Minochar Irani v.
Deenyar Jehani 2014 SCC Online Bom 901 . Learned counsel
20
::: Uploaded on - 18/06/2026 ::: Downloaded on - 18/06/2026 15:07:35 :::

carbpl13424-2026-J.doc

therefore submitted that the petition suffers from a fundamental
defect and is liable to be rejected.
25. Learned counsel further argued that interim measures under
Section 9 cannot be granted merely on the basis of apprehensions
regarding uncertain future events. Referring to paragraph 36 of the
petition, he submitted that the petitioner's case is founded only
upon an apprehension that the respondents may resist vacating
their premises after the Full IOD and other permissions are
obtained. According to him, the Court exercises jurisdiction under
Section 9 at the pre arbitration stage only to ensure that the
arbitral process remains effective and that any eventual award
does not become meaningless. Interim relief must therefore have a
direct connection with imminent arbitral proceedings. Reliance
was placed on the judgment in Narangs International Hotels
Private Limited v. Delhi International Airport Limited 2021 SCC
Online Del 4197 . Learned counsel submitted that in the present
case there is no immediate necessity warranting exercise of powers
under Section 9 and therefore the petition deserves to be
dismissed.
26. Mr. Amrut Joshi, learned Advocate appearing for respondent
No.6 to 11, submitted that the petitioner seeks enforcement of
obligations from individual members of the society while
overlooking its own obligations under the Development
Agreement. According to him, where a contract prescribes a
particular sequence in which obligations are to be performed, one
party cannot insist upon performance by the other side without
first performing those obligations which fall upon it at an earlier
21
::: Uploaded on - 18/06/2026 ::: Downloaded on - 18/06/2026 15:07:35 :::

carbpl13424-2026-J.doc

stage. He submitted that the contractual scheme agreed between
the parties must be followed in the sequence contemplated by the
agreement itself. Learned counsel submitted that the contract in
question is the Development Agreement dated 31 March 2025. The
agreement has been executed between three sets of parties. The
first party is the society. The second party consists of those
individual members who have signed the agreement. The third
party is the petitioner developer. Referring to Recital F of the
agreement, he submitted that the petitioner undertook
redevelopment of the society property strictly in accordance with
Regulation 33(7) of the DCPR.
27. According to learned counsel, this forms an essential part of
the bargain agreed between all the parties. He submitted that
Recital G specifies that the total project FSI is approximately 6,450
square metres. The agreement also defines the term "Development
Potential" as the maximum FSI of approximately 6,450 square
metres, which is directly connected with the redevelopment
scheme under Regulation 33(7) of the DCPR. Similarly, the term
"MDP FSI" or Minimum Development Potential FSI has also been
defined in the agreement and is stated to be approximately 3,415
square metres of RERA carpet area.
28. Referring to Clauses 3.3 and 17 of the Development
Agreement, learned counsel submitted that the contractual scheme
is clear. According to him, it is only after obtaining the MDP FSI
IOD that the developer becomes entitled to seek declarations and
consents from members regarding vacation of their premises. He
further submitted that the actual obligation to vacate arises only
22
::: Uploaded on - 18/06/2026 ::: Downloaded on - 18/06/2026 15:07:35 :::

carbpl13424-2026-J.doc

after obtaining the Full IOD with the full development potential
loaded, as contemplated by Clause 17.4. It is only thereafter that
the developer can issue a notice calling upon the society and its
members to vacate the premises.
29. Learned counsel therefore submitted that the MDP FSI IOD
required under the agreement must be one obtained in respect of
3,415 square metres RERA carpet area and must be strictly under
the scheme of Regulation 33(7) of DCPR 2034. According to him,
the IOD dated 5 March 2026 obtained by the petitioner does not
clearly indicate whether it has been granted solely under
Regulation 33(7) or under a combination of Regulations 33(7) and
33(20). He submitted that this aspect creates serious doubt
regarding compliance with the contractual requirements.
30. Learned counsel further submitted that under the registered
Development Agreement the petitioner is required to obtain the
MDP IOD exactly in the manner contemplated by the contract and
not otherwise. In support of this submission, he relied upon the
petitioner's letter dated 12 January 2026. According to him, the
said letter reveals that the petitioner had expressed willingness to
consider a revised redevelopment scheme based on a combination
of Regulation 33(7) and Regulation 33(20), subject to approval of
the society. He submitted that the petitioner had also circulated a
draft supplementary agreement proposing such revised
arrangement.
31. Learned counsel pointed out that a copy of the proposed
supplementary agreement has been placed on record. Referring to
23
::: Uploaded on - 18/06/2026 ::: Downloaded on - 18/06/2026 15:07:35 :::

carbpl13424-2026-J.doc

Recital C thereof, he submitted that the proposed agreement
contemplates redevelopment by utilizing additional FSI under
Regulation 33(20) after exhaustion of the maximum permissible
FSI under Regulation 33(7). However, he emphasised that this
supplementary agreement has never been executed by the parties
and therefore has no binding force.
32. He further submitted that there is also no resolution of the
General Body of the society approving the proposed supplementary
agreement. According to him, although the society has placed on
record certain letters said to have been executed by individual
members expressing consent to redevelopment under a
combination of Regulations 33(7) and 33(20), such individual
consents cannot substitute a formal decision of the society taken
through its General Body. Learned counsel also submitted that
these individual letters do not conform to the format prescribed in
the registered Development Agreement. According to him, the
declarations contemplated by the agreement are required to be in
a specific format. Therefore, even assuming such letters were
executed, they cannot be treated as compliance with the
contractual requirements. He submitted that this circumstance
further indicates that the IOD dated 5 March 2026 may not be the
IOD contemplated by the registered Development Agreement,
particularly if it proceeds on the basis of a combined scheme under
Regulations 33(7) and 33(20) of DCPR 2034.
33. Learned counsel submitted that even if some individual
members have agreed to the revised redevelopment proposal, such
understanding would at best bind only those members and the
24
::: Uploaded on - 18/06/2026 ::: Downloaded on - 18/06/2026 15:07:35 :::

carbpl13424-2026-J.doc

developer. According to him, the society itself is an independent
legal entity and a party to the Development Agreement. Unless the
society formally accepts the revised proposal, no alteration of the
original contractual arrangement can take place. He therefore
submitted that it is necessary for the society to convene a Special
General Body Meeting, deliberate upon the proposal and take an
informed decision regarding acceptance or rejection of the
proposed supplementary agreement. According to him, unless such
approval is obtained, the existing terms of the registered
Development Agreement continue to govern the relationship
between the parties and no unilateral change can be introduced.
34. Learned counsel accordingly submitted that the precondition
relating to obtaining the MDP FSI IOD, which according to him is
linked exclusively to Regulation 33(7), has not yet been satisfied.
If that be so, even the petitioner's request for obtaining
declarations and consents from dissenting members is premature.
He submitted that the petitioner is effectively seeking relief on the
basis of anticipated future breaches and not on the basis of any
existing contractual default.
35. Learned counsel further submitted that the petitioner seeks a
comprehensive order at one stage itself so that it is not required to
repeatedly approach the Court under Section 9 of the Arbitration
and Conciliation Act, 1996. According to him, the petitioner is in
substance seeking what may be described as a single window
clearance of all future reliefs. He submitted that if such reliefs are
granted, the members of the society would be left entirely
dependent upon the actions of the developer.
25
::: Uploaded on - 18/06/2026 ::: Downloaded on - 18/06/2026 15:07:35 :::

carbpl13424-2026-J.doc

36. Elaborating further, learned counsel submitted that if the
petitioner subsequently issues a notice to vacate and relies upon
anticipatory orders obtained in the present proceedings, the
members may be compelled to repeatedly approach the Court to
protect their rights. This may become necessary particularly if the
developer has not fulfilled its obligations regarding obtaining the
Full IOD or loading the full development potential as contemplated
under the agreement. According to him, grant of such broad and
unconditional reliefs would seriously prejudice the members and
upset the contractual safeguards built into the Development
Agreement. He therefore submitted that no blanket or anticipatory
relief ought to be granted in the facts of the present case.
37. Mr. Shanay Shah, learned counsel appearing for respondent
No.1 Society, supported the submissions advanced on behalf of the
petitioner. He submitted that the redevelopment proposal had been
approved by the Society through the prescribed process and that
the Society had already taken necessary steps in furtherance of the
redevelopment project. According to him, despite repeated
communications and requests, the dissenting members have
continued to adopt a non-cooperative approach, which has
unnecessarily delayed progress of the redevelopment. Learned
counsel submitted that the building is old and the Society has been
attempting to move forward with the redevelopment process
through the mechanism approved by the General Body. He
contended that a substantial majority of the members have already
accepted the redevelopment proposal and have acted upon the
decisions taken by the Society. According to him, the refusal of a
26
::: Uploaded on - 18/06/2026 ::: Downloaded on - 18/06/2026 15:07:35 :::

carbpl13424-2026-J.doc

few dissenting members to cooperate at the present stage has
resulted in avoidable obstruction and uncertainty in the
implementation of the redevelopment scheme. He further
submitted that unless appropriate directions are issued by this
Court, the redevelopment process would continue to remain
stalled at an intermediate stage, causing prejudice not only to the
developer but also to the Society and the overwhelming majority
of its members who are desirous of seeing the project proceed
expeditiously. According to him, the conduct of the dissenting
members is preventing the Society from moving towards
completion of the contractual milestones contemplated under the
Development Agreement. Learned counsel therefore submitted
that, having regard to the resolutions passed by the Society, the
approvals already obtained and the obligations cast upon the
members under the Development Agreement, the reliefs sought by
the petitioner deserve to be granted so that the redevelopment
process can proceed without further delay and the Society can
secure timely redevelopment of its property.
Reasons and Analysis:
38. I have gone through the rival submissions. The matter is
about redevelopment of a cooperative housing society. The
petitioner developer contends that the society has already taken
valid decisions for redevelopment, that the development
agreement is signed, and that the dissenting members cannot
block the project only because they are in minority or because they
have not signed the agreement. On the other hand, the dissenting
members arue that the petitioner is trying to get an order of
27
::: Uploaded on - 18/06/2026 ::: Downloaded on - 18/06/2026 15:07:35 :::

carbpl13424-2026-J.doc

eviction before the contract stage has actually come, and that the
petition is being used against persons who are not signatories to
the development agreement.
39. The first aspect which requires consideration is the character
of a cooperative housing society. The dispute before this Court
cannot be examined as if it concerns a group of flat owners
dealing with separate property having no legal relationship with
each other. A cooperative housing society occupies a distinct
position in law. It is not merely a building where several persons
happen to reside. It is a legal entity recognised by statute. It comes
into existence under the provisions of the Maharashtra Cooperative
Societies Act and functions in accordance with the Act, the Rules
and the bye-laws. The rights enjoyed by members and the
obligations cast upon them do not arise solely from ownership or
occupation of flats. They also arise from membership of the
cooperative society also. When a person seeks membership of a
cooperative housing society, he becomes part of a collective
arrangement. Such person acquires valuable rights in relation to
the premises occupied by him. However, at the same time, he also
accepts the liabilities of cooperative structure. Membership in a
cooperative society is not only a source of rights but also a source
of obligations. The concept of cooperation itself requires that
matters affecting the society must be decided collectively. If
member were permitted to insist that only his view must prevail
irrespective of the wishes of the majority, the object of cooperative
society would collapse. It is for this reason that the General Body
of a cooperative society has been recognised as the supreme
28
::: Uploaded on - 18/06/2026 ::: Downloaded on - 18/06/2026 15:07:35 :::

carbpl13424-2026-J.doc

authority in matters concerning the affairs of the society. The
General Body represents the collective will of the membership.
Decisions concerning redevelopment and matters affecting the
property of the society are taken through resolutions of the
General Body. Such decisions are not decisions of office bearers.
They are decisions of the society acting through its highest body.
40. In redevelopment matters this principle assumes importance.
Redevelopment is not an activity affecting one flat or one member.
It concerns the entire building. It concerns the land on which the
building stands. It concerns the collective welfare of all members.
Therefore, redevelopment cannot proceed on the basis of consent
of every individual member in every case. The law recognises the
reality that collective decisions must govern such matters.
Otherwise, even a single member may prevent implementation of a
project desired by the overwhelming majority. Therefore, unlike
owners of separate properties who may deal with their properties
in any manner they choose, a member of a cooperative housing
society is required to function in accordance with the provisions
Act. Once valid decisions are taken by the General Body, those
decisions carry binding force unless they are set aside by a
competent forum.
41. The foundation of this principle is explained by the Supreme
Court in Anita Enterprises v. Belfer Coop. Housing Society Ltd.,
(2008) 1 SCC 285 . The judgment explains how the cooperative
movement started in the country and what is the legal position of a
cooperative housing society and its members. The judgment traces
the background of cooperative societies and discusses the nature of
29
::: Uploaded on - 18/06/2026 ::: Downloaded on - 18/06/2026 15:07:35 :::

carbpl13424-2026-J.doc

rights which members enjoy within such societies. The decision
therefore becomes relevant while understanding the relationship
between the society and its members. The Supreme Court
observed that the cooperative movement in India can be traced
back to the Cooperative Credit Societies Act of 1904. The purpose
behind that legislation was to encourage people to come together,
help each other through collective effort. The idea was that people
acting together could achieve things which may not be possible
individually. The Court further explained that under the
Maharashtra Cooperative Societies Act, a cooperative society is not
merely an association of persons. It is a body registered under the
statute. Such a society functions through its bye-laws, which
regulate the rights and obligations of its members. In the case of a
housing society, the object generally is to provide plots, flats and
common facilities to its members. Therefore, the relationship
between the society and its members is not governed only by
principles of property law but is also controlled by the provisions
of the statute and the bye-laws. The Supreme Court also examined
the concept of membership under the Act. The Court observed that
a member may be a person who joins in the formation of the
society or a person who is admitted as a member in accordance
with the Act and the bye-laws. The rights enjoyed by a member
therefore flow from the Act. The Court further noted that the
object behind registration of a cooperative society is welfare of its
members through collective functioning.
42. While discussing different types of housing societies, the
Supreme Court referred to the classifications recognised under the
30
::: Uploaded on - 18/06/2026 ::: Downloaded on - 18/06/2026 15:07:35 :::

carbpl13424-2026-J.doc

rules. One such category is a tenant co-partnership housing society.
In such a society, both the land and the building vest in the society
itself, while the members are allotted occupation rights in respect
of flats. Thus, the structure of such a society differs from an
ownership arrangement where title and possession are both vested
in the same individual. The Court then explained the special rights
available to members of a tenant co-partnership housing society. It
was observed that although ownership of the land and building
remains with the society, members contribute towards acquisition
and construction costs and, in return, acquire rights of occupation.
The Court therefore held that although the member may not be
the owner of the flat in the legal sense, the member enjoys rights
resembling ownership. However, those rights do not exist
independently of the society. They continue to operate under
Maharashtra Cooperative Societies Act and the bye-laws of the
society. The member's rights are therefore accompanied by
corresponding obligations.
43. However, the matter cannot end because it is held that the
dissenting members are bound by the decisions of the society and
cannot separate themselves from the redevelopment process. That
is only one side of the issue. The Court is also required to look at
the Development Agreement because the rights and duties of all
parties flow from that document. Merely because a society has
taken a decision for redevelopment does not mean that every relief
claimed by the developer must follow. The agreement remains the
main document between the parties. Therefore, while considering
the reliefs sought in the present petition, it becomes necessary to
31
::: Uploaded on - 18/06/2026 ::: Downloaded on - 18/06/2026 15:07:35 :::

carbpl13424-2026-J.doc

see when those rights become enforceable under the terms of the
agreement.
44. In matters arising out of contracts, it is not permissible to
pick one clause and read it isolation from the remaining document.
Equally, one clause cannot be interpreted in such a manner that
another clause becomes redundant. Normally, a development
agreement proceeds stage by stage. One obligation gives rise to
another obligation. One event is intended to happen first and
thereafter the next event is expected to occur. Such sequence is
created by the parties after deliberations. Therefore, where the
agreement itself lays down a procedure for redevelopment, neither
the Court nor the parties can skip one stage and directly move to a
later stage. Unless there is some compelling reason in law, the
sequence agreed between the parties must be followed.
45. I have considered the language used in Clause 17 of the
Development Agreement. When the clause is read as a whole, it
appears that the parties have arranged the redevelopment process
in different stages and have not intended that every obligation
should become enforceable at the same time. The clause moves
step by step. At the beginning, the developer is required to obtain
permissions and approvals. After that comes the stage of obtaining
the MDP IOD. It is only after reaching that stage that the members
are expected to give the Consenting Members Declarations.
Thereafter, the agreement speaks about loading of development
potential and ultimately securing the Full IOD. Only after
completion of those stages does the agreement contemplate
issuance of a notice requiring members to vacate their premises.
32
::: Uploaded on - 18/06/2026 ::: Downloaded on - 18/06/2026 15:07:35 :::

carbpl13424-2026-J.doc

Thus, the agreement itself appears to make a distinction between
the stage where declarations are to be furnished and the later
stage where possession is to be handed over.
46. In my opinion, the parties have decided that members would
first indicate their willingness to participate in redevelopment by
giving declarations. At the same time, they have also decided that
vacation of premises would take place only after fulfilment of
further contingencies. Therefore, the obligation to furnish
declarations and the obligation to vacate cannot be treated as the
same thing. The agreement itself keeps these two events separate.
To my mind, this distinction answers a controversy before the
Court because it shows that while willingness to participate may be
required at an earlier stage, possession is contemplated at a later
stage.
47. At this stage, it becomes necessary to deal with the
submissions advanced on behalf of respondent No.4 regarding the
nature of the redevelopment scheme and the development
potential forming part of the project. Learned counsel for
respondent No.6 to 11 submitted that the entire redevelopment
proposal, as reflected in the project documents, principally
proceeds under Regulation 33(7)(B) of DCPR 2034. According to
him, the commercial basis of the Development Agreement itself is
built around a Total Project FSI of approximately 6450 square
metres. He submitted that the expression “Development Potential”
used in the agreement is also linked with the same figure. Learned
counsel pointed out that even according to the Society, the
redevelopment proposal approved by the members contemplated
33
::: Uploaded on - 18/06/2026 ::: Downloaded on - 18/06/2026 15:07:35 :::

carbpl13424-2026-J.doc

utilisation of a maximum permissible FSI of approximately 6450
square metres and not something beyond that figure. Learned
counsel further submitted that although there is some reference to
Regulation 33(20)(B), the Society's own stand appears to be that
only a limited component of approximately 400 square metres
under that provision can be utilised and that too within the overall
cap of 6450 square metres. According to him, this indicates that
the project was accepted by the members on the basis of a specific
model and a specific quantum of development potential. He
submitted that if at a later point of time the developer seeks to
expand that development potential or seeks to proceed on some
revised redevelopment basis, such exercise may require fresh
approval from the General Body of the Society. According to
learned counsel, such modification cannot become part of the
existing Development Agreement merely because the developer
desires to proceed in that manner. Learned counsel also invited
attention to the draft supplementary arrangement circulated by the
petitioner. According to him, that document appears to proceed on
the basis that after exhausting the maximum FSI available under
Regulation 33(7)(B), the developer may seek to utilise additional
development potential under Regulation 33(20)(B). Learned
counsel submitted that this very aspect appears to be the principal
concern expressed by the dissenting members. According to him, if
additional development rights are introduced without formal
approval of the Society, the redevelopment project which
ultimately comes into existence may materially differ from the
project which was originally approved by the members.
34
::: Uploaded on - 18/06/2026 ::: Downloaded on - 18/06/2026 15:07:35 :::

carbpl13424-2026-J.doc

48. These submissions cannot be brushed aside altogether. The
material placed before the Court indicate existence of some
disagreement regarding the extent of development potential and
the manner in which Regulations 33(7)(B) and 33(20)(B) are
expected to operate. Reference has also been made to the
recommendation issued by MCZMA under the CRZ regime. That
recommendation appears to require the planning authority to
ensure that the total FSI sanctioned and consumed remains within
the limits permitted under the Development Control Regulations
and Development Control Promotion Regulations. Therefore,
respondent No.4 is justified in contending that whatever
redevelopment takes place must remain within the scheme and
within the permissions granted by the competent authorities.
49. At the same time the controversy regarding the quantum of
FSI, the permissibility of scheme between Regulations 33(7)(B)
and 33(20)(B), may assume significance at a later stage. Those
questions may require adjudication if and when they mature into
an actual dispute. But that is not the question of which presently
falls for determination. The issue presently before the Court is
much narrower. The Court is not called upon at this stage to
decide whether the developer is finally entitled to consume a
particular quantity of FSI. Nor is the Court required to determine
whether a revised redevelopment is based upon Regulations 33(7)
(B) and 33(20)(B) is permissible. Likewise, the Court is not
presently adjudicating upon the validity of any draft
supplementary arrangement. All those issues may survive for
consideration before an appropriate forum at the appropriate time.
35
::: Uploaded on - 18/06/2026 ::: Downloaded on - 18/06/2026 15:07:35 :::

carbpl13424-2026-J.doc

At present, the Court is only required to determine whether the
contractual stage contemplated by Clause 17.2 has arrived.
50. For answering that question, the Court must look at the
Development Agreement as it stands, and the permissions already
obtained under that agreement. The material on record indicates
that the petitioner has obtained the MDP IOD and thereafter called
upon the members to furnish declarations in the prescribed format.
Therefore, irrespective of the debate regarding ultimate FSI
consumption or future development potential, the contractual
event contemplated under Clause 17.2 appears, prima facie, to
have been crossed. It is also necessary to note that the submissions
advanced on behalf of respondent No.4 proceed on the footing
that the controversy regarding utilisation of Regulation 33(20)(B),
the exact extent of FSI consumption and the validity of any
supplementary arrangement still remains unresolved. If that be so,
those matters necessarily belong to a future stage. However, their
unresolved nature does not alter the fact that the Development
Agreement presently remains operative and binding upon the
parties. So long as the agreement continues to govern the
relationship between the parties, each stage contemplated under
Clause 17 must be examined on its own terms.
51. Turning to the petitioner's case, the circumstance remains
that the MDP IOD has been obtained and communicated to the
Society. The Society appears to have informed all members and
called upon them to furnish the declarations. It is also not disputed
that majority of the members have acted upon that communication
and have submitted their declarations.
36
::: Uploaded on - 18/06/2026 ::: Downloaded on - 18/06/2026 15:07:35 :::

carbpl13424-2026-J.doc

52. The petitioner has contended that respondent Nos.2 to 11
alone have not furnished their declarations. According to the
petitioner, their refusal has the effect of keeping the
redevelopment process frozen and prevents movement towards the
next stage. There appears to be considerable substance in that
submission. If the interpretation suggested by the dissenting
members is accepted, a small group of members may postpone
progress of the redevelopment by refusing to perform an obligation
which the agreement contemplates.
53. Clause 17.2 itself recognises the possibility that some
members may not cooperate. The clause authorises the developer
to initiate legal proceedings against dissenting members. Such a
provision would serve little purpose if it were held that no remedy
is available until the stage of actual vacation arrives. The very
presence of such a clause suggests that the parties themselves
contemplated the possibility of judicial intervention even at the
declaration stage.
54. For these reasons, I am unable to accept the submission that
furnishing of declarations must wait until every controversy
regarding development potential stands resolved. Those issues
may become important at a later stage. At that stage, all available
objections arising from the contract may be raised by the parties.
55. In these circumstances, I find that prayer clause (a) stands
on a footing different from the relief relating to actual vacation of
premises. The stage for furnishing declarations appears to have
already arrived. Accordingly, at least prima facie, I am of the view
37
::: Uploaded on - 18/06/2026 ::: Downloaded on - 18/06/2026 15:07:35 :::

carbpl13424-2026-J.doc

that the dissenting members cannot keep the redevelopment
process in a condition of uncertainty by withholding declarations
after the MDP IOD has been obtained and after the Society has
called upon all members to comply with Clause 17.2.
56. However, prayer clause (b) stands on different ground and
therefore needs separate consideration. Unlike prayer clause (a),
where the obligation reached the stage of performance under the
agreement, prayer clause (b) relates to something which is still to
happen. By this prayer, what is sought is a direction that after Full
IOD is obtained and after the notice to vacate is issued, respondent
Nos.2 to 11 should hand over vacant possession of their premises
within forty-five days. Thus, the basisof this prayer is not a present
event but an event which may arise later after contractual
conditions are fulfilled. In other words, the relief is connected with
a future stage of redevelopment. For this reason, it becomes
necessary to consider the agreement. Clause 17 of the
Development Agreement dividee the process into several stages.
One stage concerns obtaining permissions. Another stage concerns
obtaining the MDP IOD. Thereafter comes the stage where
declarations are required from members. Further ahead is the
stage of obtaining Full IOD together with loading of the entire
development potential. It is only after these requirements are
crossed that the agreement speaks of issuance of a notice calling
upon members to vacate their premises. Therefore, the obligation
to vacate is attached to certain conditions and becomes operative
only after conditions are satisfied.
38
::: Uploaded on - 18/06/2026 ::: Downloaded on - 18/06/2026 15:07:35 :::

carbpl13424-2026-J.doc

57. This distinction, assumes significance. There is a difference
between an obligation which has already matured and an
obligation which is expected to mature upon happening of future
events. A Court exercising powers under Section 9 is empowered
to protect contractual rights and preserve the subject matter of
disputes. At the same time, the Court cannot ignore the sequence
incorporated by the parties. If the parties have agreed that one
obligation will arise after completion of a step, the Court cannot
treat the later obligation as having become immediately
enforceable. Such an exercise may result in altering the contract.
58. The petitioner has submitted that prayer clause (b) is
conditional. According to the petitioner, there is no request for
immediate eviction. It is argued that the direction sought would
operate after Full IOD is obtained and after the notice
contemplated by Clause 17.4 is issued. There is some substance in
this submission because the language employed in the prayer
indicate that actual vacation is linked with compliance of other
requirements. Nevertheless, one cannot ignore that the petitioner
is asking the Court to recognise in advance a future obligation
which has not yet matured under the contract. On the other hand,
the respondents have contended that the contractual stage
requiring vacation of premises has not yet arrived. Their
submission is that until the stage contemplated under Clause 17.4
is reached, there is no cause of action for seeking directions
relating to handing over possession. I find substance in
Respondents’ contention that the obligation to vacate remains, at
least for the present, a future obligation.
39
::: Uploaded on - 18/06/2026 ::: Downloaded on - 18/06/2026 15:07:35 :::

carbpl13424-2026-J.doc

59. The material placed before the Court indicates that the
petitioner has obtained MDP IOD. That circumstance may justify
progress to the stage contemplated under Clause 17.2. However,
the material does not establish that Full IOD, together with loading
of the entire development potential has been secured. Indeed, part
of the arguments advanced before this Court concerns the extent
of development potential. Questions have been raised regarding
utilisation of Regulation 33(7)(B), utilisation of Regulation 33(20)
(B) and satisfaction of other conditions. These matters may be
resolved one way or the other. But at present they indicate that the
stage contemplated under Clause 17.4 cannot be said to have been
reached.
60. It is also necessary to remember that Clause 17.4 does not
appear to be a procedural requirement. The agreement appears to
attach importance to obtaining Full IOD and loading the full
development potential before members are asked to vacate. Such
conditions seem to have been incorporated to provide assurance
that the redevelopment project has reached a sufficient stage of
preparedness before occupants surrender possession. The parties
appear to have considered it appropriate that members should not
be asked to vacate merely because redevelopment is proposed in
principle. Instead, they have linked vacation with fulfilment of
specific conditions.
61. If this Court were to grant prayer clause (b), there is a
possibility that the distinction between the declaration stage and
the possession stage may become blurred. The contractual terms
which the parties chose to incorporate may lose their significance.
40
::: Uploaded on - 18/06/2026 ::: Downloaded on - 18/06/2026 15:07:35 :::

carbpl13424-2026-J.doc

Courts enforce contracts in the form in which they have been
agreed. Therefore, the sequence chosen by the parties deserves to
be respected.
62. There is also another aspect which cannot be ignored. The
stage requiring actual vacation may still be affected by future
developments. It is possible that the developer may obtain Full
IOD in the manner contemplated by the agreement. It is possible
that questions may arise regarding compliance with conditions. At
this stage, the Court cannot proceed on the assumption that future
event will occur in a particular manner. Rights must be determined
on the basis of existing facts.
63. The respondents have argued that the relief sought is based
upon future breach. I am not prepared to hold that apprehension
of future obstruction is irrelevant while exercising jurisdiction
under Section 9. Nevertheless, there remains distinction between
protecting an existing contractual right and performance of an
obligation whose time for performance has not yet arrived. In my
view, prayer clause (b) falls in the latter category. The agreement
contemplates vacation of premises. However, the point of time at
which that obligation becomes enforceable has not yet arrived.
64. The judgments relied upon by the petitioner, including Girish
Mulchand Mehta and Pranav Constructions , recognise the power
of the Court to grant appropriate relief against dissenting members
in redevelopment matters. Those decisions make it clear that
minority members cannot obstruct a redevelopment project
approved by the society. However, those authorities do not suggest
41
::: Uploaded on - 18/06/2026 ::: Downloaded on - 18/06/2026 15:07:35 :::

carbpl13424-2026-J.doc

that contractual stages can be ignored. The existence of power and
the occasion for exercise of that power are two different matters.
Even where the Court possesses wide powers under Section 9,
those powers must be exercised having regard to the contractual
position existing at the relevant point of time.
65. Seen from this perspective, I am unable to conclude, at least
at this stage, that respondent Nos.2 to 11 can be directed to vacate
their premises within forty-five days of a notice which may be
issued in future. Accordingly, although the Development
Agreement contemplates that members shall vacate their premises
at a later stage, that obligation has not yet become enforceable.
The obtaining of Full IOD, loading of the full development
potential and issuance of a notice to vacate are events which lie
ahead. Until those events occur, any direction of vacation of
premises would be premature.
66. For all these reasons, while I find substance in the
petitioner's request relating to execution of Consenting Members
Declarations, I am unable to accept the relief sought in prayer
clause (b) at the present stage. The request for directing
respondent Nos.2 to 11 to vacate their premises must await
fulfilment of the contractual conditions. To that extent, the prayer
cannot presently be granted.
67. The alternative relief asked by the petitioner in prayer clause
(c), namely appointment of a Court Receiver with authority to take
actual possession of the premises stands on more serious footing.
Such a direction touches possession of residential premises and
42
::: Uploaded on - 18/06/2026 ::: Downloaded on - 18/06/2026 15:07:35 :::

carbpl13424-2026-J.doc

affects the existing occupation of members. Therefore, before
granting a relief of this nature, the Court must be satisfied not only
that the applicant has legal right in his favour, but also that the
factual situation has reached a stage where exercise of such power
has become necessary.
68. No doubt, Courts have appointed Court Receivers in
redevelopment disputes. Reliance has rightly been placed on the
decision in Girish Mulchand Mehta . However, the factual
background of that case was different. In that matter, the
redevelopment process had advanced. Almost all members had
vacated their premises. They had shifted to transit accommodation
and had acted upon the redevelopment agreement. The project
was ready to move ahead. The only obstacle was created by a
small minority of members. The Court found that because of that
resistance, not only the developer but also the large majority of
members were suffering hardship. The project had come to a
standstill because of the conduct of a few members. It was in those
special circumstances that the Court found it just and convenient
to appoint a Court Receiver and handing over of possession.
69. The situation before this Court is that the contractual stage
requiring delivery of possession has not yet arrived. Clause 17.4
contemplates that before members are called upon to vacate,
certain events must occur. The material available does not show
that Full IOD has been obtained. Equally, the stage for issuance of
Notice to Vacate, which is the trigger point for surrender of
possession, has not yet been reached. Therefore, the foundation on
which a possession related order would rest is absent.
43
::: Uploaded on - 18/06/2026 ::: Downloaded on - 18/06/2026 15:07:35 :::

carbpl13424-2026-J.doc

70. The Court must also keep in mind that the Development
Agreement appears to proceed on the basis that members will
continue in occupation until the developer reaches a particular
stage. The requirement of obtaining Full IOD, loading the entire
development potential and issuing a formal notice have been
incorporated for a purpose.
71. Another circumstance which weighs with me is that the
petitioner's case proceeds on the footing that vacation is
contemplated at a later stage. The petitioner says that Clause 17.4
will operate after Full IOD is obtained, and after other contractual
requirements are satisfied. If that is the position, there is difficulty
in seeking appointment of a Receiver. For all these reasons, I am
unable to hold that appointment of a Court Receiver with powers
to take forcible possession is justified on the present material. The
relief sought according to the contract intended to arise at a later
point of time. Consequently, prayer clause (c) is not fit to be
granted at this stage.
72. The respondents have argued that the entire petition is
premature and is founded only on an apprehension that they may
obstruct redevelopment at some future point of time. However, I
am unable to accept the wider submission of the respondents that
because some parts of the petition may be premature, the entire
petition must fail. It cannot be ignored that the petitioner has
already obtained the MDP IOD. It also cannot be ignored that after
obtaining the same, the Society called upon its members to furnish
declarations in accordance with the agreement. Therefore, the
petition is not founded entirely upon future possibilities. Certain
44
::: Uploaded on - 18/06/2026 ::: Downloaded on - 18/06/2026 15:07:35 :::

carbpl13424-2026-J.doc

contractual events have already occurred, and certain obligations
have already become operative. In that sense, entire petition
cannot be described as speculative. A distinction must be
maintained between reliefs of future possession and reliefs of
present cooperation. Once this distinction is kept in view, it
becomes clear that while some prayers may not yet be ripe for
consideration, the petition itself cannot be rejected in its entirety.
73. Coming to the contention that respondent Nos.2 to 11 are
not signatories to the Development Agreement, I am unable to
accept that submission as an answer to prayer clauses (a) and (d).
It is true that the dissenting members have not signed the
Development Agreement. However, the matter cannot end there.
The agreement has been executed by the Society and, in matters
concerning redevelopment, the Society acts as the collective body
representing its members. The legal position emerging from Girish
Mulchand Mehta and reaffirmed in Pranav Constructions is that
individual members cannot place themselves outside the decisions
taken by the Society. The law governing cooperative housing
societies proceeds on collective functioning. Decisions taken
through lawful procedures bind all members. If every member
were allowed to disregard redevelopment decisions merely
because he has not signed the Development Agreement,
redevelopment projects would become impossible. The judgments
relied upon by the petitioner also make it clear that a dissenting
member is not left without remedies. He may challenge resolutions
before an appropriate forum. He may question his entitlements in
proceedings available under law. He may pursue remedies
45
::: Uploaded on - 18/06/2026 ::: Downloaded on - 18/06/2026 15:07:35 :::

carbpl13424-2026-J.doc

concerning his individual grievances. However, the existence of
those remedies does not confer upon him a right to halt
implementation of the redevelopment process itself. His legal
remedies may survive. But the redevelopment process cannot
remain suspended because those objections continue to exist.
Therefore, although the non signatory status of respondent Nos.2
to 11 may have relevance in certain contexts, I am unable to hold
that such status defeats the petition insofar as present obligations
flowing from a approved redevelopment scheme are concerned. To
that extent, the contention does not persuade me.
74. I also do not find substance in the allegation of collusion
raised by respondent No.3. According to the respondents, the
Society and the petitioner are proceeding together and are jointly
seeking relief against the dissenting members. From this
circumstance an allegation of collusion has been sought to be
drawn. In my view, the argument proceeds on a mistaken basis.
Once a Society, through its General Body, has approved
redevelopment and appointed a developer, it is only natural that
the Society and the developer would support implementation of
that redevelopment. Their common stand on redevelopment does
not amount to collusion. Rather, it reflects the contractual
arrangement entered into between them. If every situation where a
Society supports its chosen developer is to be labelled collusive,
redevelopment disputes would become incapable of resolution.
The Court's duty is not to examine whether the Society and
developer are speaking in one voice. The Court's duty is to
examine whether the relief sought is lawful. So long as the
46
::: Uploaded on - 18/06/2026 ::: Downloaded on - 18/06/2026 15:07:35 :::

carbpl13424-2026-J.doc

decisions of the Society remain valid, the Society is entitled to
support implementation of those decisions. The law does not
require the Society to oppose its own redevelopment proposal.
75. I also find little merit in the respondents' reliance on future
contingencies such as possible insolvency of the developer, delay in
approvals, modifications in the redevelopment scheme, future
disputes, termination of the agreement or other uncertain events.
Such possibilities cannot be ruled out entirely. They may happen.
Equally, they may never happen. At present, they remain matters
of speculation. A Court exercising jurisdiction under Section 9
cannot proceed on the assumption that every adverse possibility
suggested by a party will necessarily materialise. If such an
approach is adopted, almost every redevelopment project could be
brought to a halt on the basis of hypothetical issues. More
importantly, the present petition is not founded merely on future
contingencies. It is founded on approved redevelopment proposal
and refusal by certain members to furnish declarations. Therefore,
the cause of action relied upon by the petitioner arises, at least in
part.
76. In these circumstances, I am of the opinion that the
respondents' arguments based on insolvency, delay in approvals,
future changes in the project or possible termination of the
agreement do not provide a sufficient answer to the petitioner's
request for limited relief concerning present obligations. Those
possibilities remain uncertain and may never occur. The obligation
to cooperate at the declaration stage exists at the present moment.
That circumstance is sufficient to justify a limited interim direction
47
::: Uploaded on - 18/06/2026 ::: Downloaded on - 18/06/2026 15:07:35 :::

carbpl13424-2026-J.doc

while declining the more drastic possession related reliefs.
77. The submission advanced on behalf of respondent No.3 on
the basis of the decision in Space Master Realtors also deserves
consideration. In my view, that decision is required to be
understood in the context in which it was delivered and cannot be
read as laying down a proposition wider than what the Court was
actually called upon to decide. A careful reading of the judgment
in Space Master Realtors shows that the Court was concerned with
the question whether a developer could invoke an arbitration
clause contained in a redevelopment agreement and seek
appointment of an arbitrator under Section 11 of the Arbitration
and Conciliation Act against a dissenting member who had not
signed that redevelopment agreement. The Court observed that
such an issue raises considerations different from those arising in
proceedings for interim protection. The question before the Court
was essentially whether a non-signatory member could be
compelled to participate in arbitral adjudication. The Court in
Space Master Realtors recognised that there exists a distinction
between proceedings under Section 11 and proceedings under
Section 9 of the Arbitration Act. In matters arising under Section
11, the Court is directly concerned with the constitution of the
arbitral tribunal and with the issue whether the person sought to
be referred to arbitration can be treated as a party to the
arbitration agreement. For that reason, I find substance in the
submission that Section 11 and Section 9 do not occupy the same
field. In fact, the observations made in Space Master Realtors
appear to recognise this distinction.
48
::: Uploaded on - 18/06/2026 ::: Downloaded on - 18/06/2026 15:07:35 :::

carbpl13424-2026-J.doc

78. The legal position emerging from Girish Mulchand Mehta
and later considered in Pranav Constructions indicates that, in
appropriate circumstances, interim measures may extend even to
dissenting members when their conduct has the effect of
obstructing implementation of a redevelopment project approved
by the society. Thus, in my opinion, the judgment in Space Master
Realtors cannot be read in isolation. Accordingly, I am unable to
accept the submission that the decision in Space Master Realtors
furnishes answer to the present petition.
79. Accordingly, upon an overall assessment of the facts, the
contractual provisions and the legal principles governing
redevelopment disputes, I hold that the petitioner is entitled to
limited interim relief. Respondent Nos.2 to 11 shall execute and
submit the Consenting Member Declarations in accordance with
the Development Agreement. They shall also be restrained from
creating third party rights, transfers, encumbrances or alienations
in respect of their respective flats. However, the reliefs seeking
actual eviction, delivery of possession or appointment of a Court
Receiver for taking physical possession are, in my view, premature
at this stage and must await the arrival of the contractual stage
contemplated for vacation of premises under the Development
Agreement.
80. In view of the foregoing discussion and for the reasons
recorded hereinabove, the following order is passed:
(i) The Arbitration Petition is partly allowed.
(ii) Respondent Nos.2 to 11 shall, within a period of four
49
::: Uploaded on - 18/06/2026 ::: Downloaded on - 18/06/2026 15:07:35 :::

carbpl13424-2026-J.doc

weeks from the date of this order, execute and submit the
Consenting Member Declarations in the format prescribed
under Annexure D/2 to the Development Agreement dated
31 March 2025 and shall hand over the same to respondent
No.1 Society and/or the petitioner.
(iii) Pending constitution of the Arbitral Tribunal and
conclusion of arbitral proceedings, respondent Nos.2 to 11
are restrained from creating any third party rights,
transferring, alienating, parting with possession,
encumbering or otherwise dealing with their respective flats,
being Flat Nos. 2, 4, 5, 8, 10, 12 and 15 situated in Moon
Craft Apartments Cooperative Housing Society Limited, in
any manner whatsoever so as to prejudice the
redevelopment contemplated under the Development
Agreement dated 31 March 2025.
(iv) Prayer clause (b) seeking directions against respondent
Nos.2 to 11 to vacate and hand over possession of their
respective flats upon issuance of notice under the
Development Agreement is rejected at this stage as being
premature.
(v) Prayer clause (c) seeking appointment of a Court
Receiver with powers to take physical possession of the flats
of respondent Nos.2 to 11 is rejected.
(vi) It is clarified that this Court has not adjudicated upon
the merits of any dispute relating to entitlement of FSI,
development potential, implementation of any
50
::: Uploaded on - 18/06/2026 ::: Downloaded on - 18/06/2026 15:07:35 :::

carbpl13424-2026-J.doc

supplementary redevelopment proposal, validity of any
future permissions, or any individual claims and objections
of respondent Nos.2 to 11, and all such contentions are
expressly kept open to be agitated before the appropriate
forum, if occasion so arises.
(vii) It is further clarified that the observations made in this
order are prima facie in nature and confined to consideration
of the present application under Section 9 of the Arbitration
and Conciliation Act, 1996.
(viii) The issue whether the respondents can be directed to
vacate their respective premises and hand over possession,
may arise after the necessary stages contemplated under the
agreement are completed. Such issue can be considered by
appropriate forum at appropriate stage on its own merits.
(ix) There shall be no order as to costs. All pending Interim
Applications, if any, stand disposed of.
(AMIT BORKAR, J.)
51
::: Uploaded on - 18/06/2026 ::: Downloaded on - 18/06/2026 15:07:35 :::