Erle Benedict Pereira v. Erlyn Apartment cooperative housing society limited
Interim Injunction Granted: Society Restrained from Redevelopment Without Honoring Plaintiff's FSI Entitlement Under Deed of Conveyance Covenant.
Court: Bombay High Court
Citation: 2025:BHC-OS:24152
Decision Date: 10-12-2025
List of Laws
Transfer of Property Act, 1882; Maharashtra Ownership of Flats Act, 1963; Development Control and Promotion Regulations (DCPR) 2034; The Limitation Act, 1963
- Facts: Erle Benedict Pereira, the Plaintiff, filed a suit seeking a declaration for extra FSI (Floor Space Index) concerning his entitlement under a registered Deed of Conveyance dated 27.09.1994. The Deed was executed between his predecessor-in-title, Mr. Alexander Benedict Joseph Pereira (ABJ Pereira), and the Defendant, Erlyn Apartment Co-operative Housing Society Ltd. ABJ Pereira, the original owner, had established a partnership firm, 'Erlyn Enterprises', to redevelop the land. The firm constructed a multi-storied building and sold tenements to third parties, who later formed the Defendant Society. The Deed of Conveyance contained covenants reserving 900 sq. ft. of additional FSI for the Vendor (ABJ Pereira) and four stilt parking spaces. The Society initiated redevelopment plans, prompting the Plaintiff to seek interim relief, alleging that the Society disregarded his right to the additional FSI.
- Procedural Posture: The Plaintiff filed an Interim Application in the High Court seeking a temporary injunction to restrain the Society from appointing a developer or entering into any agreement for redevelopment without providing for the Plaintiff's entitlement under the Deed of Conveyance. The Interim Application was heard for interim reliefs.
- Issue: Is the Plaintiff entitled to an interim injunction restraining the Defendant Society from proceeding with redevelopment without providing for the Plaintiff's claimed entitlement to 900 sq. ft. of additional FSI and four stilt parking spaces, based on the covenants in the registered Deed of Conveyance?
- Holding: Yes, the Plaintiff is entitled to interim relief. The Interim Application is allowed, restraining the Society from appointing a developer or entering into any redevelopment agreement without providing for the Plaintiff's entitlement under the Deed of Conveyance.
- Reasoning: The Court found that the covenant in the Deed of Conveyance, reserving 900 sq. ft. of additional FSI for the Vendor, remained unchallenged since 1994. The Society's argument that the covenant was induced by fraud was rejected due to lack of specific pleadings and proof. The Court also noted the Society's initial acceptance of the covenant in a General Body Resolution, which was later unilaterally modified by the Managing Committee. The Court held that the covenant runs with the land and is not time-bound. The Court emphasized that the Society's conduct in accepting the Vendor's right and then attempting to resile from it smacked of deceit. The Court also considered clause 43 of the MOFA agreement, which made the members of the society aware of the vendor's rights. The court concluded that the Plaintiff is entitled to the additional FSI as per the covenant in the Deed of Conveyance and that the Society's actions were illegal and contrary to the terms of the Deed.
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