Bombay High Court
Macrotech Developers Limited vs Anuya Sunil Murkar And Ors on 3 July, 2025
Author: N. J. Jamadar
Bench: N. J. Jamadar
2025:BHC-AS:26580
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Arun Sankpal
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 13282 OF 2024
Macrotech Developers Private Limited ..Petitioner
Versus
Anuya Sunil Murkar & Ors ...Respondents
Mr. Amogh Singh, with Rahul Arora & Akash Gupta, i/b Jeet Gandhi,
for the Petitioner.
Mr. Shailendra S. Kanetkar, for the Respondent.
CORAM: N. J. JAMADAR, J.
RESERVED ON : 30th JUNE 2025
PRONOUNCED ON: 3 JULY 2025
JUDGMENT :
1. Rule. Rule made returnable forthwith. With the consent of the
learned Counsel for the parties, heard finally.
2. The Petitioner is aggrieved by a judgment and order dated 7 th
November 2023, passed by the Appellate Bench of the Court of Small
Causes in Miscellaneous Appeal Nos. 81 of 2023 and 86/2023, whereby
while partly allowing the Appeal, preferred by the Petitioner
(Miscellaneous Appeal No. 81 of 2023), the Appellate Bench directed
Defendant No.8/proposed Defendant No.9 to deposit an amount of
Rs.50,000/- per month with effect from 3 rd October 2022, towards the
Temporary Alternate Accommodation charges for Respondent No.1-
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original Plaintiff and to furnish solvent surety of Rs.50,000/-, for the
due compliance of the directions contained in the said order.
3. Respondent No.1 instituted the Suit for a declaration that the
Respondent No.1 and Sindhu Shivalkar (D1) were jointly entitled to
tenancy rights and have equal right, title and interest in the suit
premises. Late Raman Rajwadkar, her father was the tenant of the suit
premises of which Defendant Nos. 2 to 7 were the original landlords.
The Defendant No.8 has subsequently acquired interest in the suit
premises and has illegally issued the rent receipts in the joint names of
late Raman Rajwadkar and the Defendant No.1. The Plaintiff was in
joint possession of the suit premises. However, the Defendant No.1 has
unlawfully put another lock to the suit premises. Thus, the Plaintiff
sought declaratory and injunctive reliefs.
4. An Application for temporary injunction was filed in the said Suit.
By an order dated 4th August 2023, the learned Judge, Court of Small
Causes, was persuaded to allow the Application and restrain the
Defendant No.8 and/or proposed Defendant No.9, the Petitioner herein,
from demolishing the suit premises, from acting upon the Permanent
Alternate Accommodation Agreement dated 3rd October 2022 executed
in favour of original Defendant No.1, and also direct the Defendant
No.1 to deposit in Court the monetary consideration, which has been
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received by Defendant No.1 from the Defendant No.8 and/or proposed
Defendant No.9.
5. Being aggrieved, the Petitioner as well as Defendant No.1
preferred Miscellaneous Appeals before the Appellate Bench.
6. By the impugned order, the Appellate Bench was persuaded to
partly allow the Appeal preferred by the Petitioner, to the extent of
setting aside the order completely restraining the Defendant
No.8/proposed Defendant No.9 from demolishing the suit premises and
carrying out the development. The Appellate Bench, however, directed
Defendant No. 8/proposed Defendant No.9 to deposit an amount
Rs.50,000/- per month, with effect from 3rd October 2022, till the
deposit of the keys of the new premises in lieu of the suit premises,
towards Temporary Alternate Accommodation charges for the Plaintiff.
7. Mr. Amogh Singh, the learned Counsel for the Petitioner, would
urge that the Appellate Bench has fixed the quantum of transit
rent/charges towards the Temporary Alternate Accommodation in an
arbitrary manner. The Appellate Bench, in terms, recorded that there
was no material on the basis of which it could determine the interim
transit rent. Yet, by misconstruing the contention of the Petitioner that it
had incurred expenses to the tune of Rs.30 Crores towards the transit
rent and other charges for about 265 tenants, fixed transit rent at the
Rs.50,000/- per month. The Petitioner had already paid a sum of
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Rs.4,52,000/- to the Defendant No.1 towards the transit rent and other
charges, like the amount paid to other tenants. The transit rent has been
paid to all other tenants at the rate of Rs.18,000/- per month. The
Petitioner has already paid the transit rent for two years and other
charges to Defendant No.1, who was certified by MHADA as tenant, and
also in possession of the suit premises. Hence, the direction for payment
of transit rent at the exorbitant rate of Rs.50,000/- per month is clearly
penal imposition on the Petitioner and discriminatory also as all other
tenants have been paid transit rent at the rate of Rs.18,000/- per
month. Therefore, the impugned order deserves to be quashed and set
aside to the extent it directs payment of transit rent to the Plaintiff at
the rate of Rs.50,000/- per month.
8. Mr. Singh placed reliance on the copies of the letters and receipts
evidencing payments to Defendant No.1 and other tenants, to bolster up
the submission that all other tenants have been paid transit rent at the
rate of Rs.18,000/- per month.
9. In opposition to this Mr. Kanetkar, the learned Counsel for the
Respondent Nos. 1 to 5, would submit that the Petitioner made no effort
to place any material before the Appellate Bench. Thus, the Petitioner
cannot be permitted to assail the legality and correctness of the
impugned order on the basis of the material which is placed before this
Court, for the first time, and of which the Appellate Bench had no
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benefit. Therefore, the Petitioner be directed to approach the Trial Court
and satisfy the Trial Court regarding the factum of payment to the
Defendant No.1 and payment of transit rent at the rate of Rs.18,000/-
per month to the other tenants. The alleged PAAA is silent about the
payment of transit rent. Moreover, the said agreement was executed by
Defendant No.1 in breach of an interim order not to enter into any
agreement.
10. Mr. Kanetkar would urge, in any event, the Appellate Bench has
taken care to provide that the direction is of interim nature and it was
open for the parties to adduce evidence during the trial so that the Trial
Court can determine the appropriate amount towards Temporary
Alternate Accommodation charges. Thus no interference is warranted in
the impugned order, urged Mr. Kanetkar.
11. The challenge in this Petition is confined to the directions by the
Appellate Bench to pay transit rent / temporary alternate
accommodation charges to the Plaintiff, especially the quantum thereof.
The Appellate Bench, as is evident from the impugned order, found
itself not equipped with the material to determine the reasonable rate at
which the transit rent ought to be ordered to be paid by Defendant No.8
/ proposed Defendant No.9. The Appellate Bench, thus, considered it
appropriate to base its determination on the contentions in the affidavit
in reply of proposed Defendant No.9 that, it had spent around Rs.30
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Crores towards the payment of two years advance rent, shifting etc. for
265 tenants. Thus, the entitlement per tenant was computed at
Rs.47,700/- p.m. On such prima facie appraisal, the Appellate Bench
was persuaded to determine the charges towards temporary alternate
accommodation at the rate of Rs.50,000/- per month.
12. Whether the aforesaid approach of the Appellate Bench is
justifiable ? For an answer, it is necessary to note the prima facie
findings which the Appellate Bench recorded as regards the dispute
between the Plaintiff and Defendant No.1. It was found, the Plaintiff has
made out a prima facie case that she was one of the heirs of original
tenant; Plaintiff was in joint possession of the suit premises; defendant
No.1 had entered into agreement with Defendant No.8/proposed
Defendant No.9 in breach of an injunction order and the question as to
whether Defendant No.1 was certified by MHADA as a tenant and
occupant of the suit premises, was debatable. Thus, the Plaintiff was
entitled to receive the benefits emanating from the redevelopment in
her capacity as one of the joint tenants with Defendant No.1.
13. The Appellate Bench, however, found that the order restraining
the demolition and redevelopment of the property in which the suit
premises was situated, could not be sustained as it had the propensity to
cause prejudice to third parties. In its endeavour to protect the rights
of the Plaintiff, the Appellate Bench fashioned the aforesaid remedy.
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14. To the extent of enforcement of the rights qua Defendant No.1
and the protection thereof by appropriate interim orders, the approach
of the Appellate Bench cannot be faulted at. However, the aspect of the
nature of the liability of Defendant No.8 /proposed Defendant No.9
cannot be lost sight of. The proposed developer cannot be saddled with
the liability far beyond the contractual obligations with the co-tenants
who are similarly circumstanced. Nor can disputes inter se Plaintiff
and Defendant No.1, who have, in a sense, unity of possession and
community of interest in one demised premises, make the developer
liable to satisfy the claim of the joint tenants, independently. The
liability of the developer to pay transit rent and other charges qua each
unit, in accordance with the terms of the contract, would be one and
indivisible.
15. Ordinarily, the transit rent is to be paid to a person who is
dishoused from the premises in the wake of redevelopment. Thus, the
contention on behalf of the Petitioner that it entered into PAAA with
Defendant No.1 as Defendant No.1 was allegedly certified as the tenant
by MHADA and also in possession of the subject premises cannot be
brushed aside completely as an act in derogation of the contractual
obligations of the proposed Defendant No.9.
16. In the case at hand, proposed Defendant No.9 claimed that he
had already paid a sum of Rs.4,52,000/- to the Defendant No.1 like
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other co-tenants. It is true, to substantiate the said claim, the Petitioner
tendered the documents, before this Court.
17. Mr. Kanetkar was justified in advancing criticism against the
reliance on the said documents, for the first time, before this Court.
However, the Court cannot loose sight of the fact that it does not appear
that the Appellate Bench had put the parties to notice that while
modifying the order of the Trial Court, it proposed to fix the transit rent.
Therefore, the failure on the part of the Petitioner to place those
documents on record before the Appellate Bench cannot be arrayed
against the Petitioner.
18. In the circumstances of the case, having regard to the fact that
the Appellate Bench had determined the transit rent on the basis of the
contentions in the affidavit in reply by resorting to an estimate of the
expenditure per tenant, and, conversely, the Petitioner has placed on
record documents, which prima facie lend credence to the Petitioner’s
version that the transit rent has been paid @ Rs.18,000/- per month
and the amount has already been disbursed to Defendant No.1, in my
considered view, the issue warrants determination based on
investigation into facts. The parties deserve an opportunity to produce
the documents to substantiate their contentions.
19. Moreover, if the Court comes to the conclusion that the Petitioner
had already paid the transit rent to Defendant No.1, then the aspect of
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appropriate orders qua Defendant No.1 in the nature of directions to
bring back the said amount or portion thereof, may also warrant
determination.
20. For the foregoing reasons, I deem it in the fitness of things to
remit the application for temporary injunction back to the Trial Court,
for the limited purpose of determining the rate at which the transit
rent / temporary alternate accommodation charges are to be paid by the
Petitioner/proposed Defendant No.9, and, whether the Petitioner has, in
fact, paid the said amount to Defendant No.1, and, if yes, to pass
consequential orders so as to balance the equities between the Plaintiff
and Defendant No.1. The Petition, therefore, deserves to be partly
allowed.
21. Hence, the following order :
ORDER
(i) The Writ Petition stands partly allowed.
(ii) The directions contained in clause 1(b) of the impugned order
dated 7 November 2023, stands quashed and set aside.
(iii) Injunction notice (Exh.56) stands remitted back to the Trial Court
for afresh determination :
(a) of the rate at which the temporary alternate
accommodation charges be paid by Defendant No.8 / proposed
Defendant No.9.
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(b) whether the Petitioner has already paid the temporary
alternate accommodation and other charges to Defendant No.1, and, if
that is the case, to pass appropriate orders so as to balance the equities
between Plaintiff and Defendant No.1.
(iv) Learned Judge, Court of Small Causes, shall allow the parties to
file further Affidavits and/or documents in support of their respective
contentions and shall decide the aforesaid issue after providing an
effective opportunity of hearing to the parties, as expeditiously as
possible, and, preferably, within a period of four months from the date
of communication of this order.
(v) By way of abundant caution, it is clarified that the aforesaid
observations are confined to determine the legality, propriety and
correctness of the impugned directions and this Court may not be
understood to have expressed any opinion on the merits of the matter.
(vi) Rule made absolute to the aforesaid extent.
(vii) No costs.
[N. J. JAMADAR, J.]
Signed by: S.S.Phadke 10/10
Designation: PS To Honourable Judge
Date: 03/07/2025 18:05:17