Bombay High Court
Matushree Real Estate Pvt Ltd vs Yvette Jonna Dsouza on 27 November, 2025
Author: Bharati Dangre
Bench: Bharati Dangre
1/4 921 CARBPL-32995-25.odt
Salgaonkar
MANDIRA Digitally signed by MANDIRA
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
MILIND SALGAONKAR
MILIND Date: 2025.11.28 10:58:31
SALGAONKAR +0530
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
COMMERCIAL ARBITRATION PETITION (L) NO.32995 OF 2025
Matushree Real Estate Pvt. Ltd. .. Petitioner
Versus
Yvette Jonna Dsouza & Ors. .. Respondents
...
Mr.Abhishek Sawant with Ms.Prachi Parmar for the Petitioner.
Dr.Jyoti Panickar for the Respondent Nos.1, 2 and 4.
Mr.Gaurav Mehata with Ms.Risha Alva and Mr.Ranjit Shetty
i/b Argus Partners for the Respondent No.3.
CORAM: BHARATI DANGRE, J.
DATE : 27th NOVEMBER, 2025 ...
P.C:-
1. On the Development Agreement being entered between the Co-operative Housing Society and the Developer, which involves twenty-six members, I am informed by the counsel appearing for the Developer that the IOD in respect of the project is received and twenty-two owners/occupiers have executed PAAA.
The reason which has constrained the Petitioner to approach this Court is the non cooperative approach on behalf of Respondent Nos.1 to 4 in respect of four flats i.e. flat Nos. 304, 301, 504 and 003.
Today, there is appearance on behalf of all the Respondents.
::: Uploaded on - 28/11/2025 ::: Downloaded on - 28/11/2025 23:04:08 :::2/4 921 CARBPL-32995-25.odt As far as Respondent Nos.1, 2 and 4 are concerned, at the request of the counsel, time of one week is granted to file reply affidavit to the Petition.
2. Insofar as Respondent No.3, who is in possession of Flat No.504 on 5th floor is concerned, learned counsel representing him would invite my attention to the relevant clauses of the Development Agreement and his emphasis is specifically upon clause 9(f) in relation to "TDR Loading and Possession" and he would insist upon the compliance of the terms stipulated therein, to the following effect:-
"(i) The Developer shall complete the loading the full TDR/FSI onto the project before seeking possession of the property for demolition."
3. In contrast, the learned counsel for the Developer and the learned counsel for the Society would invite my attention to the entire clause 9 in the Development Agreement, which pertain to 'Vacation of the building'.
On reading of clauses (a) to (f) conjointly, the pattern that emerges is, upon the Developer obtaining the necessary Vacation Approvals, it shall issue a written "Notice to Vacate"
to the Society, giving 45 days' time for the existing members / occupants to vacate and handover the building to the Developer for demolition. The intimation shall be immediately communicated to the existing members/occupants to vacate their premises within 45 days on receipt of "Notice to Vacate".
Very peculiarly, clause (c) record that the existing members/ occupants shall, within 7 days from the receipt of the Notice to Vacate from the Society, provide written confirmation stating their readiness and willingness to vacate ::: Uploaded on - 28/11/2025 ::: Downloaded on - 28/11/2025 23:04:08 ::: 3/4 921 CARBPL-32995-25.odt their respective flats/premises at the end of the period of 45 days from the date of the issuance of notice.
Clause (d) of the Development Agreement further contemplates that after the members/occupants have given their written consent to vacate, the Developer shall execute PAAA with the members, ensure compliance of disbursement of monthly displacement compensation/ hardship allowance, relocation cost/shifting charges and issue cheques for brokerage. In addition, the Developer is also cast with the obligation of completing the loading of FSI/TDR onto the project; before seeking vacant possession.
4. A conjoint reading of the aforesaid clauses would reveal that the Development Agreement contemplate that after a written consent to vacate is obtained from all the members/occupants, till the time the actual vacation of premises takes place, he shall complete the loading of FSI/TDR.
Admittedly, this is not yet done, but at the same it is also observed that Respondent Nos.1 to 4 have not given their written consent to vacate as contemplated in clause (d) and, since, I am of the view that the clauses have to be read conjointly, and if there is a allegation is that the preceding stipulation is not complied, then there cannot be any obligation to discharge the next stipulation, which may be in form of an obligation cast upon the Developer.
In any case, I am of the view that at this stage no prejudice is caused if the process of loading of FSI/TDR is not completed. Hence, Respondent No.3 is directed to submit the 'written consent' to vacate the premises within one week from today.
::: Uploaded on - 28/11/2025 ::: Downloaded on - 28/11/2025 23:04:08 :::4/4 921 CARBPL-32995-25.odt Needless to state that barring the condition of loading FSI/TDR, the Developer shall ensure compliance of clauses (i) to (v) of sub-clause (d) of clause 9.
5. List on 5th December, 2025. To be listed on Supplementary Board.
(BHARATI DANGRE, J.) ::: Uploaded on - 28/11/2025 ::: Downloaded on - 28/11/2025 23:04:08 :::