Final Order 2

Order Details: Notice of Motion
Pdf Text: NM 4146 of 2019 in
SU 1897 of 2019 1 Date : 23.02.2026
MHCC010113562019
IN THE BOMBAY CITY CIVIL COURT, AT BOMBAY
NOTICE OF MOTION NO. 4146 OF 2019
(CNR NO.MHCC01-011356-2019)
IN
SUIT NO. 1897 OF 2019
Om Shivam Co. Op. Hsg. Soc. Ltd. ] …. Plaintiff
Versus
The Sub Registrar of Assurance,
Mumbai City-3 And Ors.
] …. Defendants
CORAM : HIS HONOUR JUDGE
PRAKASH A. SABLE
C.R.NO. : 08
DATE : 23.02.2026
Appearances :
1) Ld. Adv. Aarti Yadav h/f Adv. J. N. Jain for plaintiff.
2) Ld. Adv. Amit Kapse for for defendant No.1/State.
3) Ld. Adv. Anita Patil for defendant No.2.
ORAL ORDER
(DICTATED IN OPEN COURT)
1. The Plaintiff Cooperative Housing Society has approached this
Court by way of a Notice of Motion seeking a temporary injunction. The
relief prayed for is to restrain Defendant No.2, along with her agents or
any person acting on her behalf, from acting upon the agreement dated
14th August 2000, which was registered on 28th August 2008.
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2. According to the plaintiff society, Defendant No.2 is a member of
the society, while Defendant No.3 is the developer. It is alleged that
Defendant No.3, in collusion with Defendant No.2, entered into the said
agreement in respect of premises described as “Room No.3.” The
plaintiff contends that, as per the approved plans, no such premises
exist. Only Rooms Nos.1 and 2 are sanctioned on the ground floor, both
being residential premises belonging to Defendant No.2. However,
Defendant No.2 is said to have converted these into commercial use and
carried out illegal extensions. On this basis, the society challenges the
legality of the agreement and seeks temporary injunction relief.
3. The plaintiff further submits that, pursuant to a notice dated 20th
December 2018 from one Harjit Singh Gandhi, it came to light that an
Administrator had been appointed under an order dated 16th April 2016
passed under Section 79(1) of the Maharashtra Cooperative Societies
Act. The Administrator was empowered to issue No Objection
Certificates for amalgamation and change of user of Rooms Nos.1 and
2, and also to issue share certificates for Room No.3. The plaintiff
asserts that this order is under challenge before the appropriate forum,
and that issuance of such NOCs and share certificates would prejudice
the rights of the society. Hence, the plaintiff claims to have a prima facie
case, with the balance of convenience in its favor, and argues that no
prejudice would be caused by granting the injunction.
4. Defendant No.2 has filed an affidavit in reply, denying the
allegations. She contends that the orders referred to are already under
challenge before the competent forum, and therefore this Court lacks
jurisdiction to entertain the present suit or the Notice of Motion. It is
further argued that the plaintiff society has no prima facie case for
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injunction. Defendant No.2 points out that the agreement in question
dates back to 2000 and was registered in 2008, and that the plaintiff
society was formed only in 2023. The suit itself was filed on 24th
September 2018, and the motion was sought in October 2019, which,
according to Defendant No.2, demonstrates absence of urgency. On
these grounds, Defendant No. 2 prays for rejection of the application.
5. I have heard the learned counsel for the plaintiff and Defendant
No.2. I have also gone through the material placed on record. Order
XXXIX Rules 1 and 2 of the Code of Civil Procedure deal with the power
of the Court to grant relief by way of temporary injunction. While
exercising such discretion, the Court must be satisfied that :
i. The plaintiff has established a prima facie case.
ii. The balance of convenience lies in favor of the plaintiff.
iii. Refusal of temporary injunction would cause irreparable injury to
the plaintiff.
6. Keeping in view these legal principles regarding temporary
injunctions, it is necessary to see the case of the plaintiff and to see
whether plaintiff society is entitled for the relief of temporary injunction
or not. Turning first to the plaintiff’s case, the society alleged that
defendant No.3, in collusion with defendant No.2, entered into an
agreement concerning “Room No.3.” According to the plaintiff, this
room does not exist in the sanctioned building plans, which permit only
Rooms Nos.1 and 2 on the ground floor as residential premises.
Defendant No.2, however, had unlawfully converted the premises into
commercial use and carried out unauthorized extensions. On this basis,
the plaintiff society disputed the legality of the agreement and sought
temporary injunction relief. The plaintiff further pointed to a notice
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dated 20th December 2018, received from Harjit Singh Gandhi, which
revealed that an Administrator had been appointed under an order
dated 16th April 2016 under Section 79(1) of the Maharashtra
Cooperative Societies Act. This Administrator was empowered to issue
NOCs for amalgamation or change of use of Room Nos.1 and 2, and
share certificates for Room No.3. It is argued that the order was under
challenge before the proper forum, and that if NOCs and share
certificates were issued, the society’s rights would be prejudiced. Hence,
it is claimed a prima facie case, balance of convenience, and absence of
prejudice to the defendants if injunction is granted.
7. It is submitted on behalf of Defendant No.2 that the orders were
already under challenge before a competent forum, and therefore this
Court lacked jurisdiction. It is emphasized that the agreement dated
back to 2000 and was registered in 2008, while the plaintiff society
itself was formed only in 2003. The suit was filed in 2018 and the
motion in 2019, showing no urgency. Thus, the plaintiff society had no
prima facie case for injunction.
8. It is apparent from section 79(1) of the Maharashtra Co-operative
Societies Act, 1960 that the Registrar has powers which are
administrative, such as directing societies to maintain proper accounts
and records. While orders under this section can be challenged before
appropriate forums, including the Hon’ble High Court’s writ jurisdiction,
civil courts are generally barred under Section 91 from granting
injunctions against Registrar’s orders if the dispute relates to society
management or internal affairs. Relief is typically sought through writ
petitions rather than civil suits.
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9. On perusal of the record, it appears that Room No.3 was not
shown in the sanctioned plans. It appears that defendant No.2 paid
registration fee in respect of room No.3 and the process of granting
permission for the consolidation and change in use of the said flat.
Further, it is pertinent to note that the plaintiff has challenged the
agreement dated 14.08.2000 which was registered on 14.08.2008 by
filing present suit in 2018 which indicates that there is no urgent in the
matter. The plaintiff has not made out what irreparable loss would
cause by such order dtd.16.04.2016 passed under Sec.19(1) of MCS
Act.
10. In light of this, it is concluded that no prima facie case has been
made out, nor did the balance of convenience in favour of the plaintiff.
Consequently, the question of granting relief did not arise. The motion,
therefore, deserved to be rejected and hence, I pass the following
order :-
ORDER
1. Notice of Motion No.4146 of 2019 is rejected.
2. Accordingly, notice of motion is disposed of.
Date : 23.02.2026
Place : Mumbai.
(PRAKASH A. SABLE),
Judge,
City Civil & Sessions Court,
Greater Mumbai.
Dictated and typed on : 23.02.2026
Signed on : 24.02.2026
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"CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER"
DATE : 24.02.2026 MR. S.A. KARRE
STENOGRAPHER GRADE-I
UPLOAD DATE NAME OF STENOGRAPHER
Name of the Judge (with Court No.) : SHRI PRAKASH A. SABLE, C.R.NO.08.
Date of pronouncement of judgment/order : 23.02.2026
Judgment/order signed by the P.O. on : 24.02.2026
Judgment/order uploaded on : 24.02.2026
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