Bombay High Court
Maa Ashapura Housing vs Heena Parul Cooperative Housing ... on 9 February, 2026
2026:BHC-OS:3889
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
COMMERCIAL ARBITRATION PETITION (L) NO.42542 OF 2025
Maa Ashapura Housing ....Petitioner
V/S
Heena Parul Co-operative Housing
Society Limited & Ors. ....Respondents
_________
Mr. Varun Mamniya with Mr. Sharad Bansal and Mr. Sahil Deshpande for
the Petitioner.
Ms. Sharon Patole for Respondent No.1.
Mr. K.H. Holamabe Patil with Mr. K.K. Holambe Patil and Mr. Vishal G.
Shirsat for Respondent Nos.2 and 3.
__________
CORAM : SANDEEP V. MARNE, J.
DATE : 09 FEBRUARY 2026.
P.C.:
1. This is a Petition filed under Section 9 of the Arbitration and Conciliation Act, 1996 (Arbitration Act) seeking interim measures before commencement of the arbitral proceedings.
2. I have heard Mr. Mamniya, the learned counsel appearing for the Petitioner-Developer, Mr. Holambe Patil, the learned counsel appearing for Respondent Nos.2 and 3 and Ms. Patole, the learned counsel appearing for Respondent No.1-Society.
3. Mr. Holambe Patil submits that Respondent Nos.2 and 3 are not parties to the arbitration agreement and therefore no interim measures katkam Page No. 1 of 5 ::: Uploaded on - 11/02/2026 ::: Downloaded on - 11/02/2026 20:35:17 ::: k 2/5 39 carbpl 42542.25 os.doc under Section 9 of the Arbitration Act can made against them. This issue is no more res integra and is covered by judgment of Division Bench of this Court in Pranav Constructions Limited vs. Priyadarshini Co-
operative Housing Society Limited and others1, in which this Court has held that individual members of a Co-operative Society are bound by covenants of Development Agreement executed by the Society with the Developer and that their individual rights are subservient to the obligations of Society under the Development Agreement. This Court has further held that existence of disputes between members and the society about their entitlements flowing out of redevelopment process cannot be a ground for the Court to not make interim measures directing vacation of the premises in exercise of powers under Section 9 of the Arbitration Act.
4. There are few more concerns expressed by Respondent Nos. 2 and
3. The first concern is about the date of vacation of the existing flat. Paragraph 3 of the PAAA executed with other members contemplate purchase of TDR by the Developer after execution of PAAA with all members. As of today, except Respondent No.2/3, all other members have executed PAAA. Once PAAA is executed with all members, the Developer is supposed to purchase the TDR from the market and thereafter give a notice of seven days for vacation of the existing flat. Accordingly, the Developer has undertaken to purchase the TDR immediately after execution of PAAA by Respondent Nos.2 and 3 and a statement is made that the Developer would not insist upon vacation of possession of the flat by Respondent No.2/3 before purchase of the TDR. 1 Arbitration Appeal No.20093 of 2025, decided on 14 July 2025.
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5. The second concern is with regard to the person in whose name PAAA is to be executed. Apparently Respondent No.2-father was the original member of the Society. He has gifted the flat in favour of Respondent No.3-daughter. It appears that the Society is yet to admit Respondent No.3 as a member on account of reflection of carpet area of 560 square feet (MOFA carpet area) in the Gift Deed. Now that the Petitioner-Developer is willing to take into consideration current area of flat as 560 square feet. I do not see any difficulty why this alleged area discrepancy sought to be created by the Society can withhold execution of PAAA in the name of Respondent No.3 who is now the owner of the flat in question. Accordingly, PAAA can be executed with Respondent No.3.
6. The next objection of Mr. Holambe Patil is that the Society has not insisted for submission of Bank Guarantee by the Petitioner-Developer. In my view, the majority resolution adopted by the Society has resolved for execution of Development Agreement on the basis of terms and conditions stipulated therein. Respondent Nos.2 and 3 cannot separate themselves from Society and take a stand different than the one taken by the Society. Therefore, the decision taken by the Society would bind Respondent Nos.2 and 3 also. Therefore, the objection of non- procurement of a bank guarantee sought to be raised by Respondent Nos.2 and 3 cannot be a reason for not making interim measures under Section 9 of the Arbitration Act.
7. Another objection raised by Mr. Holambe Patil is that the Petitioner-Developer is getting a bonanza of additional FSI of 5600 katkam Page No. 3 of 5 ::: Uploaded on - 11/02/2026 ::: Downloaded on - 11/02/2026 20:35:18 ::: k 4/5 39 carbpl 42542.25 os.doc square feet which needs to be distributed amongst all members. This again is something in respect of which the majority decision taken by the Society would prevail. In any case, the Petitioner-Developer has denied availability of any additional area as sought to be alleged by Respondent No.2 and 3. The members of the Society have considered the exact area entitlement in redevelopment process and have agreed to accept only 22% additional area by majority. Respondent Nos.2 /3 would be bound by the said majority decision. Respondent Nos.2/3 assert that the Petitioner-Developer is using FSI in excess of 2.97, which assertion is denied by the Petitioner. However, in the Development Agreement it is already agreed between the parties that in the event of the Petitioner- Developer utilizing FSI in excess of 2.97, the same shall be shared with the Society and the members.
8. At this stage, Mr. Holambe Patil takes instructions from Respondent No.3 who is personally present before the Court and makes a statement that if Agreement for Permanent Alternate Accommodation (PAAA) is executed by taking into consideration current carpet area of Flat No.15 (Heena Building) as 560 square feet and if the concerns raised by them are addressed, Respondent Nos.2 and 3 are willing to participate in the redevelopment process by executing the PAAA and by vacating possession of the said flat.
9. Mr. Mamniya, on instructions, submits that the Petitioner- Developer is willing to execute PAAA with Respondent No.2/3 by adding 22% additional area over the existing carpet area of 560 square feet. He clarifies that total area of PAAA would 683 square feet (RERA carpet katkam Page No. 4 of 5 ::: Uploaded on - 11/02/2026 ::: Downloaded on - 11/02/2026 20:35:18 ::: k 5/5 39 carbpl 42542.25 os.doc area). He also submits that the PAAA would contain same terms and stipulations as are executed with the other members. Mr. Holambe Patil is agreeable to this suggestion as well.
10. In view of the above discussion, I proceed to pass the following order:
i) Petitioner and Respondent No.3 shall execute and register PAAA in respect Flat No.H-15 (Heena Building) on or before 18 February 2026.
ii) Respondent Nos.2 and 3 shall vacate possession of flat No.H-15 (Heena Building) within seven days of issuance of notice by the Petitioner-Developer after purchase of the TDR as agreed in clause 3 of the PAAA.
iii) If Respondent Nos.2 and 3 fail to vacate possession of their flat within seven days of issuance of notice after purchase of TDR by the Petitioner-Developer, possession shall be secured by the Petitioner-Developer from Respondent No.2/3 with necessary police assistance.
11. With the above directions, the Commercial Arbitration Petition is disposed of.
Digitally signed by (SANDEEP V. MARNE, J.) SUDARSHAN SUDARSHAN RAJALINGAM RAJALINGAM KATKAM KATKAM Date:
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