Bombay High Court
Kalpataru Townships Private LimitedversusApna Ghar Unit No 1 Cooperative Housing Society Limited
- Decided
- Disposal
- DISPOSED OFF
Holding
The Court held that the developer failed to comply with the undertaking to obtain the entire IOD by 30 September 2025, but the non‑compliance was not wilful contempt, so no contempt punishment was imposed.
Summary
The cooperative housing society (Petitioner) filed a contempt petition alleging that the developer and its directors (Contemnors) willfully violated the Court's Order dated 18 March 2025, which required the developer to obtain the full Intimation of Disapproval (IOD) covering the entire project FSI by 30 September 2025. The developer had obtained only a partial IOD for 14 floors and later sought an extension through Interim Application No. 6366/2025, arguing force‑majeure and ongoing efforts to secure additional FSI. The Court examined the wording of the undertaking, the development agreement, and the developer’s subsequent actions, concluding that the undertaking was not fulfilled by the stipulated date but that the developer’s conduct did not amount to wilful contempt. Consequently, the contempt petitions were partly allowed, the undertaking was held unfulfilled, but no punitive contempt sanction was imposed, and the matter was left for the parties to pursue remedies under the redevelopment agreement.
Issues considered
- The precise scope of the developer’s undertaking recorded on 18 March 2025 – whether it required the entire project IOD/FSI or only the members’ carpet‑area entitlement.
- Whether the developer’s failure to obtain the full IOD by 30 September 2025 constitutes wilful civil contempt.
- The effect of the developer’s interim application for time‑extension and subsequent approvals on the alleged contempt.
- The relevance of force‑majeure and contractual provisions to the contempt analysis.
Legislation cited
- Arbitration and Conciliation Act, 1996
- Contempt of Courts Act, 1971
- Development Control and Regulation (DCPR) 2034 — s. 33(20)(B), 33(7)(B)
- Maharashtra Regional and Town Planning (MRTP) Act
Subjects
- redevelopment
- Intimation of Disapproval
- civil contempt
- undertaking
- force majeure
- Floor Space Index
- DCPR 2034
- cooperative housing society
- possession
- arbitration
Judgment
cpcdl15172-2026 & connected (1).doc
AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
CONTEMPT PETITION (L) NO.15172 OF 2026
IN
ATUL COMM ARBITRATION PETITION NO.311 OF 2025
GANESH
KULKARNI
Digitally signed
by ATUL
Apna Ghar Unit No.1 Cooperative
GANESH
KULKARNI
Date: 2026.09.17
Housing Society Limited … Petitioner
11:35:16 +0530
Vs.
1. Kalpataru Township Pvt. Ltd.
2. Atulkumar Girivar Shanker
Tiwari, Director
3. Bavneesh Gulati, Director
4. Devesh Dhananjay Bhatt, Director
5. Narendra Lodha
6. Rajesh Nambiyar … Respondents
WITH
INTERIM APPLICATION NO.6366 OF 2025
IN
COMM ARBITRATION PETITION NO.311 OF 2025
Kalpataru Townships Limited … Applicant
In the matter between
Kalpataru Townships Limited … Petitioners
Vs.
Apna Ghar Uniot No.1 Cooperative
Housing Society Limited & Others … Respondents
WITH
CONTEMPT PETITION (L) NO.19521 OF 2026
IN
COMM ARBITRATION PETITION NO.311 OF 2025
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Rajesh C. Nambiar … Petitioner
Vs.
Kalpataru Townships Private Limited … Respondent
WITH
CONTEMPT PETITION (L) NO.22992 OF 2026
IN
COMM ARBITRATION PETITION NO.311 OF 2025
Hemant Jain … Petitioner
Vs.
1. Kalpataru Township Pvt. Ltd.
2. Atulkumar Girivar Shanker
Tiwari, Director
3. Bavnesh Gulati, Director
4. Devesh Dhananjay Bhatt, Director
5. Narendra Lodha, Authorised Signatory
6. Kalpataru Limited
7. Apna Ghar Unit No.1 CHSL,
represented through it’s
Managing Committee … Respondents
Mr. Aspi Chinoy, Senior Advocate with Mr. Saket Mone,
Mr. Suneet Tyagi, Mr. Raghav Taneja, Mr. Krishna Raja,
and Mr. Archit Rao i/by Vidhi Partners for the
Applicant in IA/6366/2026 and for Respondent No.1 in
CPCDL/15172/2026, CPCDL/19521/2026 and
CPCDL/22992/2026 (Kalpataru Townships Pvt. Ltd.)
Mr. Shrey Fatterpekar with Mr. Omkar Khanvilkar for
the Petitioner in CPCDL/22992/2026 & Respondent
No.7 in IA/6366/2025 (Hemant Jain).
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Mr. Rajesh C. Nambiar for the Petitioner in
CPCDL/19521/2026, in-person and Respondent No.6
in CPCDL15172/2026 & Respondent No.2 in
IA/6366/2025.
Mrs. S.S. Chipkar, Master (Adm.), Court Receiver Office
with Mrs. M.M. Manjrekar, Section Officer, present.
Mr. Rajmani Varma with Ms. Rachana Jain i/by
Navdeep Vora & Associates for the Petitioner in
CPCDL/15172/2026 & for Respondent No.7 in
CPCDL/22992/2026 (Society).
CORAM : AMIT BORKAR, J.
RESERVED ON : SEPTEMBER 9, 2026.
PRONOUNCED ON : SEPTEMBER 17, 2026
JUDGMENT:
1. The Petitioner housing society has filed the present
Contempt Petition (CPCDL/15172/2026) for bringing to the notice
of this Court that the Respondent Nos. 1 to 5, who are the
Contemnors, have continuously and deliberately disobeyed the
Order dated 18 March 2025 passed by this Court in the captioned
Commercial Arbitration Petition. The said Order dated 18 March
2025 was passed on the basis of a unconditional undertaking given
by the Respondent Nos. 1 to 5 that they would obtain the full IOD
for the entire project by 30 September 2025. According to the
Petitioner, the said undertaking has not been complied with till
date and the Contemnors continue to remain in wilful
disobedience of the said Order.
2. M/s. Kalpataru Township Pvt. Ltd. is hereinafter referred to
as the “Developer”, and Apna Ghar Unit No.1 Cooperative Housing
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Society Limited is hereinafter referred to as the “Society”. The
Petitioner states that under the Redevelopment Agreement dated
23 January 2024, Respondent No.1 was required to obtain the full
Intimation of Disapproval (IOD) covering the entire Member's
Carpet Area Entitlement before asking the members to vacate their
respective premises. According to the Petitioner, this was a
mandatory and basic requirement, and only after its fulfillment
were the members required to hand over vacant possession of their
respective flats to Respondent No.1. The Petitioner submits that
under the said Agreement, obtaining the full IOD covering 100%
of the Members' Carpet Area Entitlement was a condition which
had to be fulfilled before any member could be asked to hand over
vacant and peaceful possession of his or her respective flat. The
Petitioner relies upon Recital D of Annexure “9” to the
Redevelopment Agreement, which contains the approved draft
"Agreement for Permanent Alternate Accommodation" ("PAAA").
The said PAAA was to be executed by each member before handing
over his or her respective flat to Respondent No.1. According to
the Petitioner, the draft PAAA provides that its execution and
registration would take place only after receipt of the IOD covering
the new flat concerned. The Redevelopment Agreement was
registered on 23 January 2024. Therefore, according to the
Petitioner, under Clause 5.7 read with Clause 6.2 of the
Agreement, the Respondents were required to obtain the IOD
within 9 months from the date of registration, with a grace period
of one month. This period was subject to the Petitioner handing
over the consent letters of all consenting members. In respect of
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the non-consenting members, the Respondents were required to
obtain appropriate orders from the Court.
3. The Petitioner submits that under the Redevelopment
Agreement, and from the table below Clause 2.1.22 referred to
above, Respondent No.1 was required to obtain the full IOD and
FSI covering all the new flats allotted to the members according to
their Members' Carpet Area Entitlement before taking vacant
possession from any member, whether consenting or not. In
compliance with its obligation under the Agreement, the Petitioner,
by letter dated 17 April 2024, handed over the consent letters of
226 out of 256 members. These members represented 90% of the
total 290 flats. Therefore, according to the Petitioner, Respondent
No.1 was required to take necessary steps before the competent
Court in respect of the remaining non-consenting members. By its
letter dated 31 December 2024, Respondent No.1 informed the
Petitioner that it had obtained the IOD and enclosed a copy of the
same. On examining the said IOD, the Petitioner came to know
that Respondent No.1 had obtained only a part IOD. It covered the
flats of 136 members, with flats allotted up to the 14th floor.
However, for the remaining members, whose flats were allotted on
the 15th floor and above, the IOD had not been obtained.
4. According to the Petitioner, Respondent No.1 was not
entitled to take vacant possession without first obtaining IOD and
FSI covering all the 290 new flats of the members. Despite this,
Respondent No.1 issued a letter dated 8 January 2025 demanding
vacant possession from the members. Since Respondent No.1 had
not obtained IOD for the flats allotted on the 15th floor and above,
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the members objected to the legality of the notice seeking vacant
possession. They contended that the notice was contrary to the
basic terms of the Redevelopment Agreement and that Respondent
No.1 was acting in breach of the Development Agreement. The
Petitioner states that instead of fulfilling its obligation of obtaining
the full IOD covering 100% FSI, Respondent No.1, in order to
overcome the resistance of the members and obtain possession
from them, filed Commercial Arbitration Petition (L) No. 5028 of
2025 ("said Petition") before this Court. In the said Petition,
Respondent No.1 sought various reliefs, including eviction of the
dissenting members. The Petitioner states that a separate
compilation of the said Commercial Arbitration Petition is being
filed along with the present Petition.
5. The Petitioner states that the said Petition was opposed by
the members mainly on the ground that Respondent No.1 had not
fulfilled its obligation of obtaining the full IOD. Therefore,
according to the members, Respondent No.1 was not entitled to
ask them to vacate their premises and could not seek possession of
their flats. The Petitioner raised the same objection. According to
the Petitioner, this Court accepted the factual position that
Respondent No.1 was not entitled to seek vacant possession unless
100% IOD covering all the members was obtained. However, in
order to avoid delay in the redevelopment work, this Court asked
Respondent No.1 whether it could obtain the full IOD by 30
September 2025. Respondent No.1 then gave a firm, clear and
unconditional undertaking to this Court that it would obtain the
full IOD covering the entire FSI by 30 September 2025. The
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Petitioner states that this Court passed the Order dated 18 March
2025 relying upon the said undertaking. As a result of the said
Order, Respondent No.1 was able to obtain vacant possession of
the flats from all the members, including the non-consenting
members.
6. The Petitioner states that, relying upon the said Order and
believing that the undertaking given by the Contemnors would be
complied with, the members vacated their flats and handed over
vacant possession on 16 April 2025. They did so to avoid being
forcibly dispossessed with the help of the police. The fact of
handing over possession was communicated to the Respondents by
letter dated 16 April 2025. The Petitioner states that when the
Order dated 18 March 2025 was passed, it was hopeful that
Respondent No.1 would comply with the undertaking given to this
Court. According to the Petitioner, there was at that time no reason
to believe that Respondent No.1 would not obtain the complete
IOD by 30 September 2025. The Petitioner states that the
undertaking was a specific undertaking with a fixed date.
According to the Petitioner, the said undertaking formed the basis
on which this Court granted reliefs in favour of Respondent No.1
and directed the members to vacate their flats, failing which they
could face contempt proceedings for disobedience of the Order
dated 18 March 2025.
7. The Petitioner states that since the Contemnors failed to
comply with the Order dated 18 March 2025, the Petitioner,
through its Advocates, issued a notice dated 27 February 2026
calling upon them to comply with the Order and with the
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undertaking given to this Court. According to the Petitioner, the
Contemnors failed to do so. The Contemnors replied through their
Advocate's letter dated 7 April 2026 to the Petitioner's Advocate's
letter dated 27 February 2026. In the said reply, they raised what
the Petitioner describes as false and reckless contentions and
denied having committed contempt of the said Order. The
Petitioner states that instead of complying with the said Order, the
Contemnors filed Interim Application No. 6366 of 2025 seeking an
additional period of 12 months for obtaining the full IOD.
According to the Petitioner, the Contemnors continue to remain in
contempt even till date. It is therefore submitted that filing the
said Interim Application amounted to contempt of the Order dated
18 March 2025.
8. According to the Petitioner, the conduct of the Contemnors
shows that there was no genuine intention to comply with the
Order even after 30 September 2025. The Petitioner therefore
alleges that the Contemnors gave a false undertaking to this Court
only for obtaining possession from the members, although they
were not entitled to seek such possession under the Agreement.
The Petitioner states that the period of 6 months given for
compliance with the undertaking expired on 30 September 2025.
Even after expiry of that period and despite sufficient time having
passed thereafter, the Contemnors have failed to obtain the
complete IOD as undertaken by them. Without prejudice to this
submission, the Petitioner states that even after the Order dated 18
March 2025, the Contemnors were required to obtain the full IOD
under Clause 5.7 of the Redevelopment Agreement. According to
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the Petitioner, that obligation remains unfulfilled. The Petitioner
states that by relying upon the said Order, the Contemnors
obtained vacant possession from the Petitioner even though,
according to the Petitioner, they were not entitled to do so under
the contract. The Petitioner alleges that this was done on the basis
of the undertaking given to this Court to demolish all the
structures. It is submitted that the Contemnors demolished the
existing structure without first obtaining the full IOD. Under
Clause 2.1.35 of the Agreement, the Petitioner was required to
complete the construction within 36 months from the Society hand
over date, namely 16 April 2025., under Clause 6.8(c) of the
Agreement, the Contemnors had undertaken to start construction
immediately by obtaining the commencement certificate within 4
months from 16 April 2025. According to the Petitioner, the
Contemnors have failed to obtain both the full IOD and the
commencement certificate.
9. The Petitioner states that in December 2025, Respondent
No.1 sent an undated Newsletter which, according to the
Petitioner, was an attempt to avoid the effect of the Order dated 18
March 2025. In the said Newsletter, Respondent No.1 admitted
that it had obtained only part approval for the amended plans on 5
December 2025. According to the amended approved plans, floor-
wise plans had been sanctioned only up to the 23rd floor in Tower
1 and up to the 14th floor in Tower 2. The Petitioner states that,
against the total permissible project FSI, Respondent No.1
admitted that it had obtained FSI of 46,490.71 square metres,
which was only about 56% of the permissible project FSI.
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According to the Petitioner, in order to cover this shortfall and
avoid the effect of its unconditional undertaking to this Court,
Respondent No.1 demanded a Body Resolution from the members
authorising it to avail FSI under Section 33(7)(B) of the DCPR
2034. This was stated to be 10 square metres per flat, aggregating
to 2,900 square metres for 290 flats. The said Newsletter was
followed by another letter from Respondent No.1 enclosing
purported Minutes of the Meeting held on 29 January 2026. The
Petitioner clarified its position by letter dated 26 February 2026.
The Petitioner states that the IOD and approvals which Respondent
No.1 claims to have obtained suffer from a serious and basic
deficiency. According to the Petitioner, there is no clear reference
to, or mention of, the component under Section 33(20)(B) of the
DCPR 2034. The Petitioner states that this component is necessary
for obtaining the complete IOD for the whole project. It is stated
that the Affordable Housing (AR) and Rehabilitation &
Resettlement (R&R) components, which form part of the
incentives and concessions available under the said regulation,
have not been obtained and are not reflected in the IOD obtained
so far. The Petitioner points out that even after the expiry of the
time given in the undertaking, namely 30 September 2025,
Respondent No.1 had not applied for the benefit under Section
33(20)(B) of the DCPR 2034. According to the Petitioner, the
absence of any reference to Section 33(20)(B) in the IOD
documents shows that the Contemnors had no real intention of
complying with their unconditional undertaking to obtain the
entire IOD by 30 September 2025. The Petitioner states that, from
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the subsequent IOD obtained by Respondent No.1 as of April 2026,
it is clear that out of the total FSI of 82,769.90 square metres,
Respondent No.1 had obtained FSI of only 46,490.71 square
metres. According to the Petitioner, there was therefore a shortfall
of 36,279.19 square metres. Without prejudice to its rights and
contentions concerning Section 33(7)(B), the Petitioner submits
that even if the 2,900 square metres available as incentive to the
members under Section 33(7)(B) of the DCPR 2034 is excluded,
there would still be a shortfall of 33,379.19 square metres of FSI.
10. The Petitioner states that the Contemnors obtained
possession of the members' premises on the strength of the
undertaking given to this Court and failed to comply with that
undertaking. According to the Petitioner, such conduct amounts to
clear and willful disobedience of the Order dated 18 March 2025
and therefore amounts to contempt of this Court. It is alleged that
the Contemnors obtained possession by misleading the Court and
by using the Order for that purpose, without fulfilling the very
obligation which they had undertaken before the Court to perform.
The Petitioner states that the conduct of the Contemnors shows
that the undertaking was given only for obtaining favourable
orders from this Court and not with a genuine intention of
complying with it within the time fixed. The Petitioner states that
although Respondent No.1 has been paying compensation towards
transit accommodation, that fact does not remove the alleged
disobedience of the Order dated 18 March 2025. According to the
Petitioner, the purpose of awarding the redevelopment contract to
Respondent No.1 was to ensure that construction would
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commence and be completed within the agreed period. It was not
merely to keep the members in rented accommodation.
11. The Petitioner states that because of the alleged willful and
deliberate conduct of the Contemnors in not complying with the
Order dated 18 March 2025, the members have serious doubts
about the bona fides of Respondent No.1 and its office bearers,
namely Respondent Nos. 2 to 5. According to the Petitioner, such
conduct shows disregard for the binding direction of this Court.
The members therefore apprehend that if the Contemnors have
failed to comply with the Court's Order, there is a serious doubt
whether they will comply with their obligations under the
Redevelopment Agreement. The Petitioner submits that this
conduct affects the credibility of Respondent No.1 and raises
serious doubts about its commitment to protect the rights and
interests of the members. The Petitioner states that because of the
conduct of the Contemnors, the members of the Petitioner Society,
whose flats have been demolished, are left in uncertainty, anxiety,
fear and confusion. The project does not have the complete
approvals required for its development, and the members do not
know when they will receive their new flats. According to the
Petitioner, the project was required to be completed within 36
months from the Society hand over date, namely 16 April 2025.
However, even the construction has not commenced.
12. The Petitioner submits that by failing to comply with the
solemn undertaking given to this Court, the Contemnors have
committed a breach of that undertaking. According to the
Petitioner, their conduct has affected the dignity of the Court and
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the seriousness attached to an undertaking given before the Court.
The Petitioner therefore submits that the sanctity of the
undertaking and of the judicial proceedings has been seriously
affected by such conduct.
Respondent No. 1-Developers Submissions:
13. The Developer submits that Interim Application No.6366 of
2025, by which extension of the time fixed under the Order dated
18 March 2025 was sought, ought to be heard before deciding the
Contempt Petition. According to the Developer, if the said Interim
Application is allowed and the time is extended, the basis of the
Contempt Petition would not remain. The Developer submits that
it had applied for Environmental Clearance ("EC") on 17 January
2024, but there was considerable delay in processing the
application by the concerned authorities. The CRZ clearance was
received from MCZMA only on 26 August 2025 and the EC was
ultimately granted by MOEF on 20 May 2026. According to the
Developer, without the EC it could not obtain the Commencement
Certificate ("CC") or commence construction. The CC was
thereafter obtained on 2 June 2026. Thus, the Developer relies
upon the delay in statutory approvals as a circumstance beyond its
control. The Developer submits that, even before the Order dated
18 March 2025, it had been examining different proposals for
obtaining additional FSI under the PTC/AH/R&R component of
DCPR 33(20)(B). According to Developer, several proposals were
considered between March 2024 and August 2025, including Parth
Developer, Yashwant Nagar, Rizvi Plot and Shivram Plot, involving
different quantities of FSI. However, none could be finalised
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because of the technical, financial and practical difficulties
connected with the respective proposals. The Developer relies
upon these efforts to submit that it was continuously trying to
arrange the additional FSI required for the redevelopment and had
not simply remained inactive.
14. The Developer relies upon the permissions and approvals
obtained even before the Order dated 18 March 2025. These
include the Civil Aviation NOC dated 25 September 2023, NA
Order dated 12 April 2024, transfer of PRC in the name of the
Society dated 4 December 2024, CFO NOC dated 13 December
2024, Concession Approval dated 20 December 2024, IOD dated
30 December 2024 and NOC from the Power Company dated 12
February 2025. According to the Developer, these approvals show
that the redevelopment process was already being pursued before
the undertaking was given to the Court. It is submitted that the
subsequent delay cannot be viewed as if no steps were taken by
the Developer for progressing the project.
15. The Developer submits that, as some members were not
vacating their premises, it filed Commercial Arbitration Petition
No.311 of 2025 under Section 9 of the Arbitration and Conciliation
Act, 1996 ("Arbitration Act"). Among other reliefs, directions were
sought against the non-consenting members to execute the
Members' Consent Letters and hand over possession. By the Order
dated 18 March 2025, the Arbitration Petition was disposed of
with directions to both sides. The few members who had not
vacated were directed to do so and the Developer gave an
undertaking to obtain the IOD, according to the Developer, to the
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extent of the members' entitlement, by 30 September 2025. The
Developer therefore submits that the undertaking has to be
understood in the background in which it was given and with
reference to the obligations under the Redevelopment Agreement.
16. The Developer submits that between March and September
2025 it continued to obtain various permissions required for the
project. These included permission for tree branches trimming
dated 26 March 2025, SWM NOC dated 30 April 2025,
carriageway entrance permission dated 6 May 2025, temporary
structure approval dated 30 June 2025, Federation NOC for tree
transplantation dated 16 July 2025, dewatering permission dated
14 August 2025, debris removal permission dated 17 August 2025,
Estate NOC dated 26 August 2025, CRZ NOC dated 26 August
2025, MPCB Consent to Establish dated 29 August 2025, Metro
NOC dated 11 September 2025 and Hydraulic Engineer NOC
dated 15 September 2025. The Developer again examined various
proposals for additional FSI under DCPR 33(20)(B) between
March and September 2025, including Shivalik Plot, Nutan Reality
Plot, Nutan Realty LLP, ASK Plot, Omkar Plot, Ambivali and New
Nagardas Road. It is submitted that these proposals could not be
finalised for the reasons stated in the affidavits.
17. By its letter dated 12 September 2025, the Developer
informed the Society that the CRZ NOC had been obtained only on
26 August 2025 and that the MOEF Environmental Clearance was
still awaited. According to Developer, this constituted a Force
Majeure Event under Clause 2.1.155 of the Redevelopment
Agreement and was beyond its control. The Developer stated that
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the Body Resolution earlier forwarded by the Society for availing
TDR benefits under DCPR 33(7B) was not in the prescribed MCGM
format and that a fresh resolution was awaited. It informed the
Society that efforts were being made to identify and acquire a
suitable plot or premises for obtaining FSI under DCPR 33(20)(B).
The Developer therefore requested the Society to cooperate in
seeking extension of the time for obtaining the IOD. The Society,
by letter dated 21 September 2025, stated that it had taken note of
the request and would extend cooperation regarding extension of
timelines in the interests of the project and its members. The
Developer thereafter filed Interim Application No.6366 of 2025 on
25 September 2025, before expiry of the stipulated date, seeking
extension of time.
18. The Developer submits that its conduct after the Order
shows bona fides. It states that it purchased 8,356.32 sq. metres of
TDR, 7,564.51 sq. metres of Fungible FSI and 7,300.38 sq. metres
of Additional FSI, thereby increasing the available FSI to
47,687.40 sq. metres as reflected in the Revised IOD dated 13
August 2026. For this purpose, according to Developer, an amount
of Rs.207,71,21,440/- was spent. The Developer submits that it
complied with its monetary obligations under the Redevelopment
Agreement, including security deposit, rent, revised rent,
brokerage, corpus, shifting charges and bank guarantee, totalling
Rs.1,19,49,57,104/-. It relies upon the approvals obtained from
October 2025 onwards, including Tree NOC, amended plan
approval dated 5 December 2025, revised Civil Aviation NOC, tree
transplantation permission, revalidated IOD, Environmental
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Clearance dated 20 May 2026, PCO NOC and Commencement
Certificate dated 2 June 2026. The Revised IOD securing the
members' entitlement was thereafter obtained on 13 August 2026.
The Developer states that 286 out of 290 PAAA have been
executed.
19. As regards the additional FSI under Regulation 33(20)(B) of
the DCPR 2034, the Developer submits that the regulation permits
additional FSI upon construction and handing over of AH/R&R
tenements to MCGM free of cost. According to Developer, there are
two methods for doing so, namely, acquisition of an open plot and
construction of the required tenements thereon, or obtaining
ready-made AH/R&R tenements which are ready for obtaining OC
and handing them over to MCGM. The Developer states that it
chose the first method because OC-ready tenements were difficult
to find. Several proposals were examined during 2026, but none
could be finalised because of various difficulties. Ultimately, the
Developer entered into an MoU dated 17 June 2026 with M/s
Indoco Remedies Limited for purchase of land and thereafter
executed a registered Deed of Conveyance dated 27 August 2026.
The Developer states that the consideration was Rs.64 crores and
the entire amount was paid. According to Developer, after sanction
of the building plans for that plot, additional FSI of approximately
24,449.79 square metres can be loaded on the Subject Property.
For the remaining approximately 6,979.24 square metres relating
to the AH/R&R component, the Developer states that projects for
purchasing ready-made tenements have been identified and that
the necessary OC is expected within the extended period sought.
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20. The Developer submits that, because of the difficulty in
procuring and loading additional FSI, it modified the sequence of
the building plans and obtained the Revised IOD dated 13 August
2026. According to Developer, the Revised IOD covers the entire
Members' Carpet Area Entitlement comprising 290 flats for 256
members and therefore, according to the Developer, the
undertaking recorded in the Order dated 18 March 2025 has been
complied with within the extended period sought in Interim
Application No.6366 of 2025. The Developer disputes the Society's
contention that the undertaking required an IOD covering the
entire project including the sale component. It relies upon Clause
2.1.19, Clause 5.7(iv), Clause 6.2 and Clause 25.1 of the
Redevelopment Agreement and submits that its obligation was to
obtain IOD and requisite FSI to the extent of the Members' Carpet
Area Entitlement. The Developer submits that the expression
"entire IOD" in the Order dated 18 March 2025 has to be
understood in this context. According to Developer, the grievance
considered by the Court was regarding the members' entitlement
and the undertaking was given to secure that entitlement within
the time stated.
21. The Developer submits that the Society had taken the
position in its Contempt Notice dated 27 February 2026 and in the
Contempt Petition that the Developer could not ask the members
to vacate unless the IOD covering the Members' Carpet Area
Entitlement was obtained. According to the Developer, the
undertaking was given in that background and not for obtaining
approval of the entire sale component of the project. It is therefore
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submitted that the Revised IOD dated 13 August 2026 covering the
entire members' entitlement substantially answers the obligation
relied upon by the Society. The Developer submits that there is no
basis for holding the delay to be wilful disobedience. According to
Developer, wilful disobedience requires a conscious and deliberate
intention to disregard the Court's Order, which is absent in the
present case. The delay, according to the Developer, was caused by
circumstances beyond its control, the delay in obtaining EC and
the difficulty in identifying suitable land or premises for additional
FSI under DCPR 33(20)(B). It is therefore submitted that the
extension sought in Interim Application No.6366 of 2025 ought to
be granted and that no contempt action should be taken against
the Developer.
Submissions of Petitioner in CPCDL/19521/2026:
22. The Petitioner submits that the Developer obtained
substantial benefit from the Order dated 18 March 2025 and,
relying upon the Section 9 proceedings and the vacation notice
dated 8 January 2025, obtained possession from all 256 members.
According to the Petitioner, the notice was defective as the
requirements for obtaining full IOD, EC, MOEF approval, CC and
other approvals had not been completed. It is alleged that the
Court was not placed with the complete facts and that the existing
buildings were thereafter demolished in breach of Section 44 of
the MRTP Act. The Petitioner raises the issue of the Society's NOC
being used for creation of a mortgage without obtaining the Bank
Guarantee required under the contract. It is submitted that a loan
of Rs.530 crores was sanctioned and about Rs.300 crores was
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availed in July 2025. Despite the undertaking given to this Court
to obtain the entire IOD by 30 September 2025, the Developer
failed to do so and instead filed Interim Application No.6366 of
2025 on 25 September 2025 seeking extension. According to the
Petitioner, there cannot be an endless extension, after the members
had vacated their homes on the understanding that new homes
would be provided within the period of 36 months. It is submitted
that the project remained practically stopped after demolition and
was shown as restarted only in June 2026, while the partial IOD
was reorganised on 13 August 2026 to show compliance with the
members' entitlement.
23. The Petitioner submits that the relief granted in the Section 9
proceedings did not reduce or take away the rights available under
Section 9 of the Arbitration Act and that the Contemnors cannot
seek equitable consideration without explaining their failure to
comply with the undertaking. The reliance on Force Majeure,
according to the Petitioner, is not sufficient and is disputed. It is
submitted that the Development Agreement and the Order dated
18 March 2025 continue to govern the project. The Petitioner
therefore questions whether the Developer made genuine efforts
between 18 March 2025 and 30 September 2025 to obtain the full
IOD and whether sufficient cause has been shown for the failure.
According to the Petitioner, the material circumstances show that
the Developer obtained possession first and thereafter sought to
justify the delay, instead of complying with the fixed undertaking
given to the Court.
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24. The Petitioner raises questions regarding the validity of the
vacation notice dated 8 January 2025 and the Section 9
proceedings, as he claims that he was not a party to the Arbitration
Agreement. He refers to the description of Mr. Mitesh Shah as a
representative of the Developer and as a consenting member in the
original Arbitration Petition and questions whether the necessary
authority of Mr. Shah was placed on record. The Petitioner states
that consent concerning Flat A-203, A Wing, Hrushikesh had been
given in 2012 to the parent company and questions why this fact
was not disclosed. He questions the description of himself as a
non-consenting member when, according to him, such earlier
consent existed. Various questions are raised regarding the
introduction of the Developer or alleged SPV in 2023, the
authority under which the Development Agreement was executed,
the demolition of the buildings, the role of the Society's Managing
Committee and MCGM, and the mortgage of the Society's property.
The Petitioner questions the sanction and utilisation of the loan of
Rs.530 crores and the subsequent statement regarding investment
of about Rs.300 crores in the project.
25. The Petitioner submits that after the members vacated their
homes, the Developer sought RERA registration showing a
completion period extending up to 2032, though at that stage only
partial IOD had been obtained. It is alleged that the Power of
Attorney given by the Society was used to show the Society and its
members as co-promoters, although the Body had not accepted the
proposal. The Petitioner raises concerns regarding non-disclosure
of the mortgage deed and other basic project particulars such as
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the number of floors, number of flats, ceiling height and car park
dimensions. According to him, the project which originally
contemplated additional flats has progressively increased in size
and may involve more than 600 flats and floors by using additional
FSI. He apprehends that after demolition, the members may be
pressured to give benefits under DCPR 33(7B), though according
to him this was not part of the original arrangement. The
Petitioner therefore submits that Clause 6.3, which required the
necessary IOD before possession, cannot be defeated by relying
upon the provisions of Clause 6.9 or by claiming an unlimited
period for obtaining the remaining FSI.
26. The Petitioner raises issues concerning the financial and tax
treatment of the project. He questions why, after possession and
demolition, the transaction has been treated as falling under
Section 194-IC of the Income Tax Act and why TDS is being
deducted when, according to him, the Society and its members
were not parties to any joint redevelopment arrangement. He
submits that hardship allowance is a capital receipt and questions
why the Society and its members should be exposed to future
liabilities by being treated as promoters or parties to such
arrangement. He questions the use of TDR and the benefits
available under DCPR 33(20B), including the alleged utilisation of
TDR from MCGM, and submits that the matter requires
examination. The Petitioner refers to the circumstances in which
he was allegedly obstructed while vacating his flat, the late supply
of the PAAA and the objections raised by members to the draft
PAAA. He submits that members signed the PAAA under the
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pressure of the time fixed for vacating and that the documents
themselves require correction or clarification. According to the
Petitioner, the failure to attach the full IOD to the PAAA and the
other alleged deficiencies have caused serious prejudice to the
members who have already lost possession of their homes.
27. The Petitioner submits that time is an important part of the
arrangement and that a redevelopment which may extend for
many years cannot, according to him, be treated as performance
within the agreed period of 36 months. He questions the capacity
of the alleged SPV and submits that the parent company should be
required to stand behind the project and complete it within the
period, including obtaining the Occupation Certificate and
providing the new homes by 15 April 2028. The Petitioner
proposes Court-monitored timelines, periodic inspection and
project updates, a Corporate Guarantee and an undertaking to the
Court, and seeks liquidated damages of Rs.15,000 per day per
member for delay beyond the completion date. He seeks
appropriate compensation for the loss of possession, hardship and
harassment allegedly suffered by him and other members.
According to the Petitioner, the Court may examine the corporate
structure and, where permissible in law, direct the parties to
restore the position or take steps to protect the rights of the
members. He therefore submits that appropriate orders may be
passed having regard to the interests of the 256 members, while
leaving the Respondents to pursue such rights and remedies as
may be available to them in law.
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Submissions of Petitioner in CPCDL/22992/2026:
28. The Petitioner submits that the present proceedings arise
from the undertaking recorded by this Court on 18 March 2025,
whereby the Developer had undertaken to obtain the IOD after
taking into account the entire FSI of the project by 30 September
2025. According to the Petitioner, possession of the members'
premises was handed over relying upon this Order and the
undertaking. It is not in dispute, according to him, that the
undertaking was not complied with by the stipulated date. The
Petitioner therefore submits that the issue is not merely of some
administrative delay, but of failure to comply with an undertaking
given to the Court. He submits that the revised plans were
submitted only on 30 July 2026 and the Revised IOD was obtained
much after the undertaking had expired. According to him, partial
approvals, revised plans or future approvals cannot be treated as
compliance with the specific undertaking. The expenditure
incurred by the Developer on TDR, transit rent, corpus, bank
guarantee, finance and other project matters, according to the
Petitioner, does not answer the question whether the undertaking
was complied with within time. It is submitted that although
Interim Application No.6366 of 2025 was filed shortly before 30
September 2025, no order extending the time was passed before
that date and therefore the Developer cannot treat the undertaking
as having been automatically extended.
29. The Petitioner submits that any correspondence or assurance
by the Society regarding extension could not alter an undertaking
recorded by the Court. He disputes the authority of the Managing
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Committee to grant such extension without approval of the Body.
According to him, the Developer therefore cannot rely upon such
correspondence as a defence to the contempt proceedings. It is
submitted that the members continue to suffer because they had
surrendered their premises relying upon the Court's Order,
whereas the Developer obtained possession and continued its
project and commercial activities. The Petitioner refers to the
RERA disclosure showing a completion date extending up to 2032
and submits that this is far beyond the period contemplated under
the Development Agreement, which provided for completion
within three years with the applicable extension from the Society
handover date. The subsequent steps taken by the Developer,
according to the Petitioner, may be relevant to the present position
but cannot remove the breach which had already occurred on 30
September 2025.
30. The Petitioner submits that the breach is continuing in its
effect because the redevelopment is one composite project.
According to him, the saleable flats and the rehabilitation flats are
situated in the same buildings and on different floors and cannot
be treated as two independent projects. Therefore, even if the
Revised IOD dated 13 August 2026 is taken to cover the Members'
Carpet Area Entitlement, it does not, according to the Petitioner,
mean that the complete IOD for the entire project has been
obtained. Until the entire building is constructed and the necessary
approvals and Occupation Certificate are obtained, the members
cannot practically occupy their rehabilitation flats. The Petitioner
therefore submits that the complete IOD is connected with the
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eventual completion and handing over of the rehabilitation
premises and not merely with an intermediate approval for the
members' entitlement.
31. The Petitioner, Mr. Hemant Jain, submits that the prejudice
to him is personal and continues even today. He surrendered his
existing premises relying upon the undertaking recorded by this
Court, while his allotted rehabilitation premises are Flat No. 2904,
Tower No.2, Wing "C". According to him, merely stating that the
interests or entitlements of 256 members are secured does not
establish that all approvals required for construction, completion
and occupation of his particular flat have been obtained. He points
out that no flat-wise sanctioned schedule or other clear document
has been produced showing how Flat No. 2904 is dealt with in the
revised plans. It is submitted that no clear and binding date for
completion of the redevelopment and handing over of the
rehabilitation flat has been given. According to the Petitioner, the
Revised IOD dated 13 August 2026 was obtained almost eleven
months after the stipulated date and, even according to the
Developer's case, some balance FSI is still required to be secured
and loaded. Thus, in his submission, the subsequent IOD cannot
retrospectively cure the failure to comply with the undertaking by
30 September 2025.
32. The Petitioner submits that his grievance is not only about
the date on which the IOD was obtained but about the practical
consequence of the delay. He had given up his existing home on
the basis that the Developer would perform the obligation
undertaken before the Court. According to him, the Developer
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cannot take advantage of the possession so obtained and at the
same time rely upon partial approvals, revised proposals and
expected future permissions to postpone completion indefinitely.
He therefore seeks a specific and time-bound schedule for
completion, with stages of work and a final date for handing over
possession, preferably under the monitoring of the Court. The
Petitioner submits that the Respondents should not be permitted to
treat the members' rehabilitation entitlement as secured merely
because an IOD has subsequently been obtained for the stated
entitlement, when the complete composite project is still
dependent upon FSI and approvals.
33. The Petitioner finally submits that the continuing prejudice
and non-compliance deserve consideration in the contempt
proceedings. According to him, the Deed of Conveyance dated 27
August 2026 and other steps relied upon by the Developer cannot
replace the specific undertaking recorded by this Court on 18
March 2025. The Petitioner therefore submits that the Respondents
cannot indefinitely postpone compliance by relying upon later
proposals, partial approvals or future assurances. He maintains
that unless the IOD covering the entire composite project is
obtained, the undertaking remains unfulfilled in substance and the
consequences of the failure continue to affect him and the other
members. He therefore seeks that this Court take note of the non-
compliance and the prejudice caused to him and pass appropriate
orders in the contempt proceedings, including such orders as may
be considered proper in the facts and circumstances of the case.
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Submissions of the Society:
34. The Society submits that the order dated 18 March 2025
required the Developer to obtain the IOD for the entire Project FSI
of 82,769.90 sq. mtrs. and not only for the members’ carpet area.
According to the Society, the order records the clear undertaking of
the Developer to obtain the “entire IOD/entire FSI involved” by 30
September 2025. Paragraph 8 of the order records that “the IOD
factoring in the entire FSI involved would be obtained by 30
September 2025”. There is nothing in the order to show that this
undertaking was limited to the members’ entitlement. The Society
submits that the 256 members were allowed to hand over vacant
possession only because of this clear undertaking. The Developer’s
present stand that the undertaking was only for the members’ area,
according to the Society, is a later stand and is not supported by its
own pleadings filed at that time.
35. The Society submits that the Interim Application filed by the
Developer on 25 September 2025 sought extension of time “to
obtain the IOD for the entire Project”. According to the Society, this
shows that at that time the Developer understood the undertaking
to relate to the entire Project and not merely to the members’ flats.
The Society points out that the present argument that IOD for the
members’ carpet area alone amounts to compliance was taken only
later, in the Rejoinder dated 19 August 2026, and was thereafter
pressed in arguments. The Society therefore submits that this later
interpretation is contrary to the order, the undertaking and the
Developer’s own earlier pleadings. The Society disputes the
Developer’s claim regarding use of incentive FSI under Regulation
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33(7B). According to the Society, Clause 4.1 of the Development
Agreement does not give the Developer an automatic right to use
such additional incentive FSI, and the facility of combining
Regulation 33(20B) with Regulation 33(7B) became permissible
only after the Government Notification dated 15 October 2024.
Therefore, merely shifting saleable FSI to the rehabilitation
component cannot mean that the additional FSI has actually been
obtained.
36. The Society submits that the Amended Approval Letter dated
13 August 2026 only shows IOD coverage for 256 members and
290 flats because the FSI from the saleable component was shifted
to the rehabilitation component. As stated by the Society, “There is
no additional FSI secured”. According to the Society, the
Developer’s own FSI Chart shows that only 57.61% of the total FSI
is covered, leaving 42.39% of the Project FSI of 82,769.90 sq. mtrs.
still to be obtained. The Society points out that earlier the IOD
covered only 178 out of 290 flats and, even after the later shifting
of FSI, the position is only that the members’ component has been
covered. There is still no clear date by which the remaining FSI
will be obtained. The Society submits that its Contempt Petition,
read as a whole, never gave up the requirement of 100% Project
IOD. The same position was repeated in its affidavits dated 27 July
2026, 4 August 2026 and 12 August 2026. Therefore, there was no
concession, waiver or estoppel. According to the Society, the
Developer has not stated clearly when possession of the new flats
will actually be given.
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37. The Society submits that the RERA Registration Certificate
dated 19 June 2026 gives 30 June 2032 as the outer date for
completion and covers only 22 floors in one tower and 13 floors in
the other. According to the Society, this shows the uncertainty in
completion. The Society relies on Clause 6.3 of the Development
Agreement and submits that this was the specific provision which
gave the Developer the right to seek vacant possession, and it
required the Developer first to obtain the necessary IOD and other
requirements. According to the Society, this specific condition
formed the basis of the order dated 18 March 2025 and cannot
now be replaced by Clause 6.9, which refers to obtaining things “as
and when required”. The Developer, having obtained possession
from 256 members on the basis of the order, cannot now rely on
Clause 6.9 to claim an unlimited period for obtaining the balance
FSI. If this is permitted, the specific condition in Clause 6.3 and the
undertaking recorded in the order would become meaningless, and
the members would be left waiting for an uncertain period instead
of the agreed 36-month completion period.
38. The Society submits that under Clause 23.1 the Project was
to be completed within 36 months from the handover date, namely
16 April 2025. However, by letter dated 23 June 2026, the
Developer sought to take 3 June 2026, the date of the
Commencement Certificate, as the starting point of the 42-month
period. According to the Society, this cannot be done unilaterally.
The mere shifting of saleable FSI to cover the members’ carpet
area does not give certainty about construction of the towers, their
required height and structural requirements or the obtaining of
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Occupation Certificates. The Society therefore submits that the
members may be left waiting for an indefinite period. It points out
that 256 members continue to remain away from their homes,
transit rent and hardship compensation continue to increase, and
there may be long-term tax consequences and continuing financial
and mental pressure because of living in rented premises.
According to the Society, granting an unconditional or indefinite
extension would leave the members dependent upon the
Developer’s future commercial decisions and would effectively give
benefit to the Developer despite non-compliance with the
undertaking.
39. Lastly, the Society submits that the Developer has not shown
sufficient grounds for the extension sought in prayer clause 31(a),
which is vague and open-ended. According to the Society, the
Developer has not shown that it is ready and willing to obtain the
balance IOD and FSI. The Society therefore submits that the plea
that covering the members’ carpet area amounts to compliance
with the order dated 18 March 2025 is contrary to the Developer’s
own earlier pleadings and undertaking and is not supported by the
record. The Society maintains that 100% of the Project FSI was
required to be secured, that 42.39% still remains to be obtained,
and that the Developer has not given any clear plan for doing so. It
therefore submits that the extension sought should not be granted
and the Developer should not be permitted to keep the members
waiting for an indefinite period.
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REASONS AND FINDINGS:
Scope of the Undertaking:
40. I have considered the pleadings filed by the parties, the
order dated 18 March 2025, the orders passed in the present
proceedings and the submissions made by the learned Advocates
appearing for the Society, the Developer and the other concerned
parties. The issue before the Court is what the Developer had
undertaken before this Court on 18 March 2025, whether that
undertaking was complied with within the time fixed by the Court
and, if it was not complied with, whether such failure was wilful so
as to amount to civil contempt.
41. The position which existed before the Court on 18 March
2025 is not disputed. At that time, an IOD had been obtained, but
the same was only for 14 floors. The order records in paragraph 4
as under:
“4. As regards Flat No. 203, Mr. Rajesh Nambiar, the owner
of the flat has appeared as party in person on each date and
with his assistance, I have been through the record His
fundamental grievance is that the Intimation of Disapproval
(“IOD”) obtained covers only 14 floors, whereas the
redevelopment envisages two towers of 31 floors. According
to him, the IOD is obtained only for 14 floors and therefore,
it is incomplete and the condition to vacate has not been
triggered. He would submit that he has no opposition to
vacating, but unless there is compliance with the terms of the
Development Agreement, which is the securing of the IOD,
he cannot be asked to vacate his flat. Consequently, the
situation that has emerged is that there is indeed an IOD, but
for 14 floors.”
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42. Thus, the problem before the Court was not absence of an
IOD. An IOD was available, but it covered only 14 floors. It was
not sufficient for the redevelopment which contemplated two
towers of 31 floors. This background is important. The
undertaking given has to be understood in the context of the
incomplete IOD which was then existing.
43. Paragraph 5 of the order records the assurance given on
behalf of the Developer in the following terms:
“5. Upon a query being put to get a firm assurance from
the Petitioner as to the date by which the entire IOD would
be obtained, he would submit that he has instructions to
commit to obtaining the entire IOD within a period of six
months from April 1, 2025, which is the scheduled date on
which all parties would vacate their premises and
correspondingly execute and register the PAAA .…”
44. The expression used in paragraph 5 is “the entire IOD”. The
Developer did not state that the assurance was restricted only to
the rehabilitation portion or only to the IOD relating to the
members' flats.
45. Paragraph 7 gives the background in which this assurance
came to be given. It records:
“7. Learned Counsel for the Society submits that Society
has significant substantial consensus about the way forward
with the Development Agreement. My attention is drawn to a
letter dated January 27, 2025, by which it is apparent that
the Society has dealt with a concern expressed by multiple
members and drawn the attention to the fact that the IOD is
only up to 14 floors and that covers an aggregate FSI of
2,79,080 square feet. However, some of the members flats
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would be situated above the 14 floors and they would not be
covered by the current IOD and consequently, the Society
wrote to the Developer stating that they would need to
obtain the IOD stage-wise, and ensure that the full IOD that
is needed (entailing FSI in respect of 82769.90 square
meters) shall be obtained.”
46. It can be seen why the Society was asking for the complete
IOD and why the Court sought a firm assurance from the
Developer. Some members' flats were proposed to be situated
above the 14 floors covered by the existing IOD. Those flats would
not have been covered by the existing approval. The Society
accordingly wanted the full IOD which was required for the
redevelopment. The FSI mentioned in this context was 82,769.90
sq. mtrs.
47. The important part is paragraph 8, where the Court took the
undertaking on record:
“8. I have taken on record the undertaking made on behalf
of the Petitioner upon instructions, explicitly committing that
the IOD factoring in the entire FSI involved would be
obtained by September 30, 2025. Towards this end, it would
be appropriate that all the members vacate and hand over
possession as agreed by the Society and majority of the
members by 31 March 2025.”
48. The language of paragraph 8 is important. The undertaking
is described as “explicitly committing”. It is an undertaking that
the IOD “factoring in the entire FSI involved” would be obtained
by 30 September 2025. If the intention was only to obtain an IOD
for the members' replacement flats, the order could have used the
expression “Members’ Carpet Area Entitlement”, which is a defined
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expression in the Development Agreement and is used in Clauses
5.7(iv), 6.2 and 25.1. The Court did not use that expression while
recording the undertaking. Instead, the Court used the words “the
entire IOD” and “the entire FSI involved”.
49. The Developer submits that these words have to be read
along with the Development Agreement. According to the
Developer, “the entire IOD” means the IOD required for all 290
members' new flats and not an IOD for the entire development
potential including the sale component. This submission cannot be
rejected without examining the Development Agreement, because
the document does contain provisions which support this
interpretation to some extent. Clause 2.1.19 defines “Members
Carpet Area Entitlement” as the revised carpet area offered by the
Developer, being 52.2% additional over the existing carpet area of
1,83,364 sq. ft. Clause 2.1.22 gives the details of the members'
new flats. It records the existing total carpet area as 1,83,364 sq.
ft. and the total members' entitlement as 2,78,078 sq. ft.
Therefore, “Members Carpet Area Entitlement” is a defined
expression and is connected with the obligation of the Developer
to provide the members with their new flats. Clause 5.7(iv)
provides:
“subject to "receipt of appropriate orders from this court in
respect of non-consenting members as per clause 7, the
Developer shall obtain concession approval for full
development potential to the extent of the Members' Carpet
Area Entitlement in the name of the Society and obtain the
Intimation of Disapproval (IOD)/Intimation of Approval
(IOA) as the case may be for utilization thereof by loading
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/purchasing the requisite FSI within a period of 9 (nine)
months from the date of execution and registration of this
Agreement and in addition thereof a grace period of one
month will be granted by the Society".”
50. Clause 6.2 similarly provides:
“The Developer shall obtain IOD/IOA and sanction to the
Buildings Plans by utilization, purchasing and loading the
requisite FSI/TDR to the extent of Members' Carpet Area
Entitlement within 9 months from the date of execution and
registration of the Redevelopment Agreement plus 1 month
(grace), subject to Clause 7.8.”
51. Clause 25.1 provides:
“Developers Default: if the Developer fails to (provided such
delay or failure is not on account of Extra Ordinary Event or
Force Majeure Event) obtain Intimation of Disapproval or
Intimation of Approval (IOD/IOA) and the approved plans
and load requisite FSI/ TDR pertaining to all the Members
New Flats as per Members Carpet Area entitlement within
nine months from the date of this agreement with a grace
period of 1 month or such extended period as mutually
recorded herein, then in such event, the Society shall issue a
Notice in writing to the Developer to comply with the
aforesaid obligations within a period of 30 days from the
date of receipt of the Notice by the Developer.”
52. These clauses provide some basis for the Developer's
interpretation. The Development Agreement does use “Members
Carpet Area Entitlement” while dealing with the IOD, FSI and the
new flats of the members. It would not be correct to say that the
interpretation placed by the Developer has no support in the
document. However, the question before this Court is not only
what the Development Agreement provides. The Court has to
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consider what undertaking was given to the Court. A provision and
an undertaking given to a Court cannot be treated as if they are
the same thing. The undertaking has to be understood from the
words used in the order and from the circumstances in which it
was given. This is important because the Court acted upon the
undertaking and directed the members to vacate their premises.
53. The order shows that the undertaking the assurance on the
basis of which the Court balanced the interests of the parties.
Paragraph 9 records:
“9. Taking such assurance given to Court as an undertaking
given to the Court and balancing the competing interests and
the interests of multiple stake holders in the Society as
diverse as having 256 members, the following order is
passed:-”
54. The effect of this paragraph has to be kept in mind. After
taking the undertaking on record, the Court directed the members
to vacate. The Court Receiver was given power to obtain
possession. Directions were given regarding execution of the PAAA
and, if necessary, taking physical possession with police assistance.
Therefore, the undertaking was followed by directions having
serious consequences for the members.
55. Paragraph B provides:
“B) It is directed that all members including those who
have held out (in respect of the three flats referred to above)
shall vacate by March 31, 2025 with grace period being
given as an exception for members who are unable to vacate
by that date, such that they too shall vacate in a manner that
the premises shall be handed over by the Society to the
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Developer no later than April 15, 2025. It is made clear that
as of April 15, 2025, free and vacant possession shall be
handed over to the Developer. The exception referred to
above is only being made since we are in March 18, 2025
and the parties have been agitating their issues until now,
and they may potentially need a few days more;”
56. Paragraph C provides:
“C) In these circumstances, should any member not
execute the PAAA by March 31, 2025, failing which, by the
outer limit of April 15, 2025, the Court Receiver shall be
entitled to execute the PAAA on behalf of such member,
which shall bind the members who are refusing to execute
the PAAA ..….”
57. Paragraph 11 states:
“11. Keeping these contentions open would not mean that
the premises are not to be vacated either on March 31, 2025
or with the grace period such that possession is handed over
to the Developer as above, no later than April 15, 2025.”
58. Paragraph 12 states:
“12. It is made clear that the Court Receiver shall be entitled
to take physical possession on March 31, 2025 or later such
that on April 15, 2025 free and vacant possession is capable
of being handed over to the Developer. . ... Should there be a
need to use force or break open the lock, the Court Receiver
shall be entitleText Bodyd to do so. Full assistance from the
local police station shall be made available should the need
arise at the expense of the Petitioner …”
59. Reading these paragraphs together, there is a clear
connection between the undertaking and the directions for
handing over possession. The Society says that the members
agreed to vacate because the Developer had assured the Court that
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the entire IOD would be obtained. According to the Society, the
members would not have been directed to surrender possession in
this manner if the undertaking was only to obtain a limited IOD for
the members' flats. There is force in this submission when the
order is read as a whole. The Court first considered the deficiency
in the existing IOD, then asked the Developer for a firm assurance
regarding “the entire IOD”, took that assurance on record as an
undertaking and directed the members to vacate and hand over
possession.
Non-Compliance with the Undertaking:
60. The conduct of the Developer after the order is relevant,
though it cannot alone decide the meaning of the undertaking.
Interim Application No.6366 of 2025 was filed on 25 September
2025, shortly before 30 September 2025. The Society points out
that in that application the Developer sought an extension to
“obtain the IOD for the entire Project”. These words are difficult to
reconcile with the interpretation now advanced that the
undertaking was, from the beginning, limited to the members'
carpet area entitlement. The words used in the application are
closer to the words used in paragraph 8. A statement made later
cannot by decide what an earlier undertaking meant. However,
when the order dated 18 March 2025, the circumstances in which
the undertaking was given and the subsequent conduct of the
Developer are considered together, the interpretation placed by the
Society gets greater support.
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61. The Developer has placed before the Court the various steps
taken by it. It submits that the application for Environmental
Clearance was made on 17 January 2024, CRZ clearance was
obtained on 26 August 2025, Environmental Clearance from MOEF
was obtained on 20 May 2026 and the Commencement Certificate
was obtained on 2 June 2026. According to the Developer, these
permissions took time for reasons beyond its control and the delay
falls within the Force Majeure provisions. These facts show that the
Developer was not inactive. Before 18 March 2025, it had obtained
or pursued Civil Aviation NOC, NA Order, PRC transfer, CFO NOC,
Concession Approval, IOD dated 30 December 2024 and the Power
Company NOC., according to the Developer, permissions were
obtained during 2025 and 2026. These circumstances are
important while considering whether the failure to obtain the IOD
within the stipulated time was deliberate. The Developer relies
upon its efforts to obtain additional FSI under DCPR 33(20)(B). It
refers to proposals made from March 2024 onwards and to the
Memorandum of Understanding dated 17 June 2026 with Indoco
Remedies Ltd., followed by the registered conveyance dated 27
August 2026, for which consideration of Rs.64 crore was paid.
According to the Developer, this arrangement would make
approximately 24,449.79 sq. mtrs. of additional FSI available. The
Developer relies upon the revised IOD dated 13 August 2026. It
submits that the revised IOD covers the entire “Members carpet
area entitlement” for all 290 flats. It submits that 286 PAAs out of
290 flats have been executed.
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62. These are relevant circumstances while considering the
conduct of the Developer. They show that the Developer continued
to work towards the redevelopment and did not stop the project.
They are relevant while deciding whether the failure to comply
with the undertaking was wilful. A party which has taken several
steps towards compliance stands on a different footing from a
party which has consciously refused to obey a Court order. But
there is an important distinction. Steps taken towards the project
cannot be treated as compliance with the undertaking. The fact
that permissions were obtained later does not mean that the
undertaking which was required to be fulfilled by 30 September
2025 was fulfilled by that date.
63. The Force Majeure defence has to be considered. The
Developer relies upon the time taken in obtaining CRZ clearance
on 26 August 2025, Environmental Clearance on 20 May 2026 and
the Commencement Certificate on 2 June 2026. It submits that the
period from 16 April 2025 to 2 June 2026, being 1 year, 1 month
and 17 days, should be added to the completion period. According
to the Developer, this would take the completion date to about
November 2029. There are difficulties in accepting this submission
as answer. The undertaking given to this Court was to obtain the
entire IOD by 30 September 2025. Paragraph 8 does not say that
this date was subject to obtaining future permissions. It does not
say that the Developer would receive an extension on account of
Force Majeure. The undertaking, as recorded, does not contain
such qualification. But this does not mean that every failure to
meet the date amounts to contempt. The Court must still consider
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whether the failure was wilful. There is a difference between a
person deliberately refusing to obey an order and a person who
could not comply within time because of circumstances which may
have been beyond his control. There can be a genuine dispute
regarding the meaning of the obligation. All these circumstances
have to be considered before deciding wilfulness.
Principles Governing Wilful Disobedience:
64. In this connection, the principles stated in Balwantbhai
Somabhai Bhandari v. Hiralal Somabhai, (2023) 17 SCC 545, are
relevant. The Supreme Court has held that the purpose of
contempt jurisdiction is not to protect the personal dignity of the
Judge but to prevent interference with the administration of
justice. Paragraph 39 states:
“39. object of contempt discipline is not to vindicate dignity
of court/judge but prevent undue interference with
administration of justice.”
65. Paragraph 41 states:
“41: party aware of judgment/order and consequences, acts
in violation, disobedience is wilful; sufficient to prove
conduct wilful and contemnor knew facts making it breach of
undertaking.”
66. Paragraph 42 states the basic requirements for civil
contempt:
“42: civil contempt requires (i) judgment/decree/direction/
order/writ/process; (ii) disobedience; (iii) wilful
disobedience”
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67. The Supreme Court has held that contempt jurisdiction has
to be exercised carefully. Paragraph 43 states:
“43: court must act cautiously, allow for errors of judgment;
punish only clear contumacious conduct not otherwise
explainable; punishment where lapse
deliberate/disregard/defiance; contempt quasi-criminal,
same standard as criminal cases, alleged contemnor gets
safeguards and benefit of doubt”
68. Paragraph 47 makes the requirement of wilfulness clear:
“47: “wilful disobedience” indispensable; whether conduct
deliberate/wilful assessed from material and attendant
circumstances.”
69. These principles mean that the Court cannot hold a person
guilty of contempt merely because the result promised by him was
not achieved within the time fixed. The Court has to see three
things: whether there was a clear obligation, whether the
obligation was not obeyed and whether the failure to obey was
wilful. At the same time, where a clear undertaking is given to the
Court and the Court acts upon it, the person giving the
undertaking cannot later change its meaning because a different
meaning is convenient to him.
70. On the first requirement, the undertaking in the present case
is sufficiently clear. Paragraph 8 does not merely say that the
Developer would obtain the IOD for the members' flats. It records
an express commitment that the IOD “factoring in the entire FSI
involved” would be obtained by 30 September 2025. Paragraph 7
identifies the FSI involved as 82,769.90 sq. mtrs. Thus, both the
obligation and the date were stated.
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71. On the second requirement, the material before the Court
shows that the complete IOD contemplated in paragraph 8 was not
obtained by 30 September 2025. The revised IOD relied upon by
the Developer is dated 13 August 2026. Therefore, whatever may
be the final interpretation of the Development Agreement, the
undertaking in the form in which it was recorded was not
completed within the time fixed by the Court.
Conduct of the Developer:
72. The question, which remains is whether this non-compliance
was wilful.
73. There are various circumstances placed before the Court
which are required to be considered while examining whether the
non-compliance of the undertaking by the Developer was wilful or
deliberate. In the first place, the Developer had obtained various
permissions even before the Order dated 18 March 2025. The Civil
Aviation NOC was obtained on 25 September 2023, the NA Order
on 12 April 2024, the PRC was transferred in the name of the
Society on 4 December 2024, the CFO NOC was obtained on 13
December 2024, the Concession Approval was obtained on 20
December 2024, the IOD was obtained on 30 December 2024 and
the NOC from the Power Company was obtained on 12 February
2025. Thus, the material does not show that the Developer had
remained without taking any steps before the undertaking was
given. Some process relating to the redevelopment and obtaining
of permissions was going on. This is relevant for seeing the
conduct of the Developer from the beginning and not only from
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the date on which the undertaking was recorded. The Developer
has submitted that from March 2024 it had started examining
different possibilities for obtaining additional FSI under Regulation
33(20)(B) of the DCPR 2034. The proposals of Parth Developer,
Yashwant Nagar, Rizvi Plot and Shivram Plot were considered even
before the Order dated 18 March 2025. It is true that none of these
proposals resulted in acquisition or loading of the proposed FSI.
But that does not mean that the efforts made for considering those
proposals can be ignored. The fact remains that the Developer was
considering the question of additional FSI before the undertaking
was given. Thus, the issue of arranging FSI was not something
which was taken up only after the date fixed by the Court had
come to an end. This circumstance, though not sufficient to prove
compliance, is relevant for considering whether the Developer had
a deliberate intention to disregard the undertaking.
74. After the Order dated 18 March 2025, the Developer
continued to take steps for obtaining various permissions. Between
March and September 2025, it obtained, amongst others, tree
trimming permission, SWM NOC, carriageway entrance
permission, temporary structure approval, permission relating to
tree transplantation, dewatering permission, Estate NOC, CRZ
NOC and MPCB Consent to Establish. The CRZ NOC was obtained
on 26 August 2025. Thereafter, Environmental Clearance was
obtained on 20 May 2026 and the Commencement Certificate was
obtained on 2 June 2026. Therefore, the record shows that the
Developer was continuing with the process of obtaining
permissions even after the undertaking was given. These
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permissions cannot be treated as equivalent to the IOD which was
required to be obtained under the undertaking. The Court is not
saying that because the Developer obtained other permissions, the
undertaking stood complied with. The fact remains that the IOD
contemplated by the undertaking was not obtained within the
stipulated period ending on 30 September 2025. But for deciding
whether such failure was wilful, the steps taken during the same
period are relevant. If a party is continuously taking steps towards
the project, obtaining permissions and trying to complete the
required process, the same conduct may have some bearing on
whether the failure was a deliberate refusal or whether the result
could not be achieved within the time.
75. The Developer has placed material to show that it continued
to search for additional FSI even after March 2025. Various
proposals such as Shivalik Plot, Nutan Reality Plot, Nutan Realty
LLP, ASK Plot, Omkar Plot, Ambivali and New Nagardas Road were
considered. According to the Developer, these proposals could not
be finalised due to technical difficulties. The Society may dispute
these difficulties and may say that the Developer could have acted
earlier or in a better manner. There may be a dispute whether the
difficulties relied upon by the Developer would extend the period.
Those questions are different from the question presently required
to be considered in contempt. What is relevant at this stage is that
the Developer has shown material indicating that different
proposals were being considered and that efforts were being made
to arrange the additional FSI.
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76. The Developer thereafter identified the transaction with M/s
Indoco Remedies Limited. A Memorandum of Understanding was
entered into on 17 June 2026. Thereafter, on 27 August 2026, a
registered Deed of Conveyance was executed and, according to the
Developer, the entire consideration of Rs.64 crores was paid. The
Developer states that by acquiring this land it would be able to
obtain approximately 24,449.79 square metres of additional FSI
under Regulation 33(20)(B), after the necessary building plans are
sanctioned. The transaction with M/s Indoco Remedies Limited is
required to be considered. It was not only a proposal which
remained at the discussion stage. According to the material placed
before the Court, the discussions resulted in a Memorandum of
Understanding and a registered conveyance upon payment of the
stated consideration. It is true that this transaction was completed
much after 30 September 2025. Therefore, the additional FSI said
to arise from this transaction cannot be treated as having become
available on the date fixed under the undertaking. Similarly, the
subsequent acquisition of the land cannot be treated as compliance
with the undertaking within the original period. But the
transaction is still relevant for considering the conduct of the
Developer. It shows that the Developer continued to pursue the
question of additional FSI and took a substantial step for arranging
the same. The Developer has placed on record that it purchased
TDR, Fungible FSI and Additional FSI and incurred substantial
expenditure for acquiring the same. It has stated that it paid rent,
brokerage, corpus, shifting charges and other amounts and
furnished the bank guarantee and security deposit as required
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under the Redevelopment Agreement. These payments cannot
amount to compliance with the undertaking given to the Court.
The Court's undertaking cannot be treated as complied with
merely because the Developer has spent substantial amounts on
the project. The obligation was to achieve the result which was
undertaken before the Court. However, the expenditure of the
Developer are not irrelevant. While considering whether the non-
compliance was wilful, the Court has to see the conduct of the
Developer and not only the ultimate result. The fact that the
Developer continued to incur substantial expenditure and
continued to put its financial resources into the project indicates
that the project was not left aside. This circumstance, along with
the other steps taken by the Developer, requires consideration
while examining whether there was a deliberate decision not to
comply with the Court's undertaking.
77. The Developer has obtained the Revised IOD dated 13
August 2026. According to the Developer, the said Revised IOD
covers the entire Members' Carpet Area Entitlement of 290 flats for
256 members. The Society disputes the meaning and effect of this
Revised IOD. According to the Society, the undertaking recorded
by the Court was not confined to the members' entitlement but
required the IOD factoring in the entire FSI involved in the project,
including the sale component. This is a material dispute between
the parties. For the present purpose it is necessary to notice that
the Developer continued the process after the earlier IOD and
obtained the Revised IOD dated 13 August 2026. The Revised IOD
cannot be treated as having been obtained by 30 September 2025.
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It was obtained much later and, therefore, there is non-compliance
with the time stipulated in the undertaking. The subsequent IOD
cannot retrospectively alter that position. But it is still a
circumstance which can be considered while examining the
conduct of the Developer. The Court has to see whether the
Developer had deliberately refused to take steps or whether it
continued its efforts but could not achieve the required result
within the original period.
78. The execution of 286 PAAs out of 290 flats is another
circumstance which requires consideration. According to the
Developer, 286 PAAs have been executed. This indicates
substantial progress in relation to the rehabilitation of the
members. This fact cannot be treated as a answer to the grievance
of the Society. Execution of PAAs does not mean that all obligations
under the Redevelopment Agreement have been completed. There
may be disputes regarding delay, completion of the project and
other obligations, which may have to be considered in appropriate
proceedings. For the limited purpose of contempt the execution of
286 PAAs is relevant. It does not indicate that the Developer had
abandoned the redevelopment project or had stopped taking steps
for the members. Rather, it indicates that a substantial part of the
rehabilitation process had been proceeded with. This circumstance
has to be considered with the other circumstances while deciding
the question of intention behind the non-compliance.
79. Another circumstance is the filing of Interim Application
No.6366 of 2025. The said Interim Application was filed on 25
September 2025, whereas the undertaking required the IOD to be
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obtained by 30 September 2025. Thus, the application was filed
five days before the expiry of the period fixed by the Court. This
fact is important because it shows that the Developer was aware of
the undertaking and was aware of the date by which the
undertaking was required to be performed. There is therefore no
basis to say that the Developer was unaware of the date or had
forgotten the obligation. At the same time, the Developer did not
remain silent and allow the period to expire. Before the expiry of
the undertaking, it approached the Court and sought extension of
time. The filing of the Interim Application cannot be treated as an
extension of the undertaking. Unless the Court granted such
extension, the original date continued to have its own effect.
Therefore, the Developer cannot rely only upon the filing of the
Interim Application to say that there was no non-compliance on 30
September 2025. But the filing of the application before expiry has
a different relevance. It shows the conduct of the Developer at the
material time. The Developer was conscious that the period fixed
by the Court was about to expire. Instead of ignoring the date, it
brought the difficulty before the Court and sought time. This
conduct is different from a case where a party knowingly decides
not to obey an order and does nothing despite knowing the
consequences. If the Developer had decided not to comply with the
undertaking, there would have been little reason for it to approach
the Court before 30 September 2025 and seek an extension. The
filing of the Interim Application indicates that the Developer was
seeking more time for completing a process which, according to it,
was being pursued. This does not remove the fact that the
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undertaking was not completed within the original period. But it is
a circumstance which has a bearing on whether the failure was
deliberate and wilful. The Court therefore has to distinguish
between the fact of non-compliance and the intention behind such
non-compliance. The fact that the IOD was not obtained by 30
September 2025 is one aspect. Whether the Developer deliberately
chose not to comply with the undertaking is another aspect. The
second question cannot be answered merely from the first fact. For
this purpose, the entire conduct of the Developer and the
circumstances in which the failure occurred are required to be
considered.
80. When all these circumstances are seen together, the conduct
does not appear to be of a Developer who had decided to disregard
the Order dated 18 March 2025. The material indicates that the
Developer continued to obtain permissions, search for additional
FSI, incur expenditure, pursue the redevelopment and seek time
from the Court before expiry of the original period. There may
have been delay and there may be disputes as to whether the
Developer could or should have completed the process earlier.
There may be questions regarding the effect of such delay. But
those questions are not sufficient to establish deliberate
disobedience of the Court order. Thus, the subsequent conduct of
the Developer does not wipe out the non-compliance with the
undertaking. It cannot be treated as if the original date of 30
September 2025 did not exist. However, the same conduct is
relevant for determining the nature of the non-compliance. The
Court has to be satisfied about deliberate and wilful disobedience
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before holding the Developer guilty of civil contempt. On
considering the material as a whole, the circumstances placed by
the Developer create sufficient doubt as to whether the failure to
obtain the IOD within the stipulated period was a deliberate
defiance of the Court's Order. In the facts and circumstances of the
present case the benefit of such doubt has to go in favour of the
Developer on the question of wilfulness.
Interpretation of the Undertaking and Effect of Delay on the
Redevelopment:
81. The present interpretation advanced by the Developer
requires consideration. It now submits that “the entire IOD” means
the IOD required for the members' carpet area entitlement and
does not mean the entire development potential or sale
component. There is some basis for this submission. But it is
difficult to accept that this was the meaning of the undertaking as
recorded by the Court. The actual words used are “the entire IOD”
and “the entire FSI involved”. Paragraph 7 refers to the full IOD
involving FSI of 82,769.90 sq. mtrs.
82. The Developer's own conduct at the relevant time is
significant. The Society relies upon the Developer's application
dated 25 September 2025, in which the Developer sought an
extension to “obtain the IOD for the entire Project”. This statement
was made close to the date on which the undertaking was to be
fulfilled. It provides some indication of how the Developer
understood the obligation at that time. It is wider than the
interpretation now put forward.
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83. The dispute regarding additional FSI under DCPR 33(7B)
and DCPR 33(20)(B) has to be noticed. The Society submits that
the Development Agreement was based upon the development
norms applicable to the project and that the later permission to
club the benefits under DCPR 33(20)(B) and 33(7B) arose
pursuant to the Maharashtra Government notification dated 15
October 2024. It submits that shifting saleable FSI to the
rehabilitation component does not amount to creation of
additional FSI and that the revised IOD dated 13 August 2026 only
reallocates the FSI available. The Developer disputes this position.
It relies upon DCPR 33(20)(B) and submits that additional FSI can
be obtained by constructing and handing over the required
AH/R&R tenements free of cost to MCGM. According to the
Developer, it selected this method because OC-ready tenements
were not readily available. It relies upon the transaction with
Indoco Remedies Ltd. and submits that approximately 24,449.79
sq. mtrs. of additional FSI can thereby be loaded.
84. In the present contempt proceedings, it is not necessary to
decide all questions relating to the Developer's entitlement to
additional saleable or rehabilitation FSI. Those questions may
require detailed examination of planning permissions, provisions,
technical calculations and the Development Agreement. They are
separate questions from the issue of whether the undertaking
given to this Court was complied with. The question for the
present purpose is whether the undertaking was complied with by
30 September 2025. On that question, the subsequent efforts to
obtain additional FSI in 2026 cannot amount to compliance with
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an undertaking which was required to be fulfilled by 30 September
2025.
85. The Society submits that even now, according to its
calculation, the revised IOD leaves 42.39% of the Project FSI still
to be obtained. It submits that only 57.61% of the entire FSI has
been obtained and that 42.39% of 82,769.90 sq. mtrs. remains
outstanding. The Developer disputes this calculation. According to
the Developer, the revised IOD covers the entire members' carpet
area entitlement and covers what was required under the
Development Agreement. This dispute again shows the difference
between the interpretation put forward by the Developer and the
language used in the undertaking recorded in the Court's order.
Even if the revised IOD dated 13 August 2026 is sufficient
according to the Developer's interpretation of the Development
Agreement, that does not by answer the contempt petition. The
Court is not deciding the whole commercial dispute between the
parties in these proceedings. The limited question is whether the
undertaking given before this Court on 18 March 2025 was
complied with in the manner and within the time in which it was
given.
86. The Society's reliance upon Clause 6.3 requires
consideration. According to the Society, vacant possession was
connected with sanction of the proposed plans and receipt of
IOD/IOA. It submits that the Developer cannot rely upon the more
wording of Clause 6.9, referring to matters being done “as and
when required”, to create an indefinite period for obtaining
approvals. The Developer relies upon the overall scheme of the
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Development Agreement and Clause 7.8. According to the
Developer, the period for obtaining IOD/IOA could be extended by
the period required for obtaining orders against non-consenting
members. It relies upon Clause 25.1, which excludes delay caused
by an Extra Ordinary Event or Force Majeure Event. These clauses
may be relevant for deciding the rights of the parties. But they
cannot change the wording of the order dated 18 March 2025.
The Court recorded a separate undertaking with a specific date. If
the Developer had any right to an extension, that right has to be
established under the Development Agreement and applicable law.
If such right is disputed, the same has to be decided by the
appropriate forum. It cannot alter an undertaking given to this
Court.
87. The Society submits that the Developer could not, by its
letter dated 23 June 2026, unilaterally shift the commencement of
the completion period from 16 April 2025 to 3 June 2026. The
Society relies upon Clause 23.1 and submits that the normal
period of 36 months would result in completion by 16 October
2028, with the six-month extension under Clause 25.4. It disputes
the Developer's attempt to carry the completion date to November
2029. From the material before the Court, the Developer has not
obtained an order granting a extension of the completion period
up to November 2029. The Developer's submission is that the
period covered by Force Majeure has to be excluded and that, on
this basis, the completion period would stand extended.
88. A claim for extension under a contract and a question of
contempt are two different matters. The Developer may have a
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defence or may have a right to extension. But that claim does not
discharge an undertaking given to the Court. Such undertaking can
be modified, extended or discharged only in accordance with law
and, where required, by an appropriate order of the competent
Court. The Society relies upon the uncertainty regarding the
completion of the redevelopment. It points out that the RERA
registration certificate dated 19 June 2026 covers only 22 floors in
one tower and 13 floors in the other and records a completion date
of 30 June 2032. The Developer relies upon the permissions
subsequently obtained and the steps taken for obtaining additional
FSI. Whatever may be the completion period permitted under
RERA, that does not decide whether the earlier undertaking given
to this Court was complied with. A or regulatory completion date
cannot replace a date fixed by a Court undertaking.
89. The hardship pointed out by the Society cannot be ignored.
The Society submits that 256 members have vacated their homes
relying upon the assurance given before this Court. According to
the Society, the continued uncertainty causes financial and other
difficulties, including increasing transit rent and hardship
compensation and uncertainty regarding tax and other financial
consequences. These submissions are relevant because they
explain why the undertaking was important when the order dated
18 March 2025 was passed. The Court referred in paragraph 9 to
“the interests of multiple stake holders in the Society as diverse as
having 256 members”.
90. The approach of the Courts in redevelopment matters shows
the importance of timely completion. In Pioneer Constructions v.
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Sahakarnagar Co-operative Housing Society Ltd., 2026 SCC
OnLine Bom 2711, the Court considered the interests of members
in obtaining safer and better homes and the interest of a developer
in earning profits. The Court referred to Huges Real Estate
Developers LLP and Khernagar Adarsh Co-operative Housing
Society Limited and Ison Builders LLP , where the need to avoid
indefinite delay in redevelopment was emphasised. These
decisions do not mean that every delay by a developer amounts to
contempt. Their relevance in the present case is limited. They
show that the hardship caused to members by continuing delay is a
matter which the Court cannot ignore while considering the effect
of an undertaking on which possession was obtained. But hardship
by is not enough to establish wilful disobedience.
Subsequent Undertaking for Completion by November 2029:
91. Before proceeding to the final order, there is one more
subsequent circumstance which requires consideration. After the
matter was heard and was fixed for delivery of judgment,
Respondent No.1 Developer has filed an undertaking before this
Court. Since the same is an undertaking given to the Court, the
Court cannot ignore it. However, it is necessary to see what the
Developer has undertaken and whether the conditions attached to
the undertaking make any difference to the nature and effect of
the undertaking.
92. The relevant portion of the undertaking reads as follows:
"3. I say that, Respondent No.1 undertakes to this Hon'ble
Court to complete the said Project by November 2029,
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subject however to:-
(a) The Petitioner Society, extending its full and complete
cooperation in all matters pertaining to and arising out of
the Redevelopment Agreement dated 23rd January 2024,
including, inter alia, by providing the requisite Body
Resolution in the format prescribed by the MCGM, as may be
required for the purposes of availing the Incentive FSI along
with the corresponding Fungible FSI under Regulation 33(7)
(B) of the DCPR 2034, and to take all necessary steps and
execute all requisite documents in that regard;
b) All provisions of Redevelopment Agreement dated 23rd
January 2024 including Force Majeure Event (as defined
under Clause 2.1.15);"
93. The stage at which this undertaking has been filed is
relevant. The matter had been heard and was fixed for delivery of
judgment., on 9 September 2026, the Court had asked the
Developer whether it was willing to give an undertaking regarding
an outer date for completion of the redevelopment. At that stage,
the Developer did not give any voluntary undertaking fixing a
definite date. It continued to rely upon its earlier position
regarding the Force Majeure period and the extension claimed
under the Development Agreement. The undertaking has therefore
been filed only after the matter was fixed for judgment. This does
not make the undertaking of no effect. Since it is an undertaking
to the Court, it has to be considered. But the Court must consider
it in the form in which it has been given. It is necessary to see
whether November 2029 is given as a firm date for completion or
whether the Developer has kept the said date dependent upon
conditions which may give rise to extension.
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94. The first part of the undertaking states that Respondent No.1
“undertakes to this Hon'ble Court to complete the said Project by
November 2029”. If this statement is considered, it gives a clear
outer date. This is of some importance because earlier the
Developer had not placed any definite outer date before the Court.
The members have vacated their premises and are required to wait
for completion of the redevelopment. Therefore, placing November
2029 as a proposed date does provide some certainty which was
earlier absent. But the undertaking is not confined to this
statement. Immediately thereafter, it says “subject however to” and
then sets out two conditions. Therefore, the conditions are part of
the undertaking. The Court cannot read only the first sentence and
ignore the conditions attached to it.
95. Condition (a) requires the Society to extend its “full and
complete cooperation in all matters pertaining to and arising out
of the Redevelopment Agreement”. It refers to providing the
requisite Body Resolution in the format prescribed by MCGM, as
may be required for availing the Incentive FSI along with the
corresponding Fungible FSI under Regulation 33(7)(B) of the
DCPR 2034. It requires the Society to take all necessary steps and
execute all requisite documents in that regard.
96. It is no doubt correct that the Society has to perform its
obligations under the Redevelopment Agreement. The Developer
cannot complete the redevelopment if the Society does not
perform obligations which are required from it. Therefore, if the
Society is required to pass a resolution or execute a document
under the Development Agreement or applicable law, it cannot
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refuse to do so without proper reason. But the words “full and
complete cooperation in all matters pertaining to and arising out
of the Redevelopment Agreement” are very wide. They are not
restricted to any particular obligation or document. The condition
refers to a Body Resolution for availing the Incentive FSI and
Fungible FSI under Regulation 33(7)(B). Whether such resolution
is required, whether it is required under the Redevelopment
Agreement, whether the Society has performed its obligation in
that regard and whether any consent or resolution can be asked
for are matters which may themselves be disputed. Therefore, the
words “full and complete cooperation” cannot mean that the
Society is required to agree to every demand of the Developer. A
genuine dispute between the parties cannot merely by using these
words be treated as failure to cooperate.
97. The undertaking given to the Court should have reasonable
certainty. If the Developer says that it will complete the Project by
November 2029, but at the same time makes the date subject to all
provisions of the Development Agreement and to the Society
giving full and complete cooperation in all matters, then the
question arises whether November 2029 is really intended to be
the final date or whether the Developer has kept open the
possibility of seeking time.
98. Condition (b) assumes greater importance in this context.
The Developer has made the undertaking subject to “All provisions
of Redevelopment Agreement dated 23rd January 2024 including
Force Majeure Event (as defined under Clause 2.1.15)”. This
reference to Force Majeure has to be considered along with the
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stand taken by the Developer. In the earlier proceedings, the
Developer had relied upon Force Majeure and had submitted that
the period from 16 April 2025 to 2 June 2026, being 1 year, 1
month and 17 days, should be excluded from the completion
period. On that basis, the Developer had sought to take the
completion date to about November 2029. The present
undertaking, therefore, appears to proceed on the same basis. The
Developer says that it will complete the Project by November
2029, but at the same time keeps the undertaking subject to the
Force Majeure provision. Thus, it cannot be said that the Developer
has given an unconditional undertaking that the Project shall be
completed by November 2029.
99. The Society has objected to this position. According to the
Society, the Developer cannot extend the completion period by
relying upon Force Majeure and the members cannot be kept
waiting without a certain outer date. There is substance in the
concern. If November 2029 was stated without any condition, the
position would have been more clear. But the undertaking filed
before the Court contains conditions and one of those conditions
expressly keeps the Force Majeure provision applicable. This Court
has observed that a claim for extension and an undertaking given
to the Court are two different matters. A provision in the
Development Agreement cannot change a time-bound undertaking
given to the Court. Therefore, if the Developer wanted November
2029 to be accepted as the final outer date for completion, it could
have given an undertaking in clear and unconditional terms. The
words “subject however to” are therefore material. They cannot be
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treated as unnecessary words. They mean that the promise to
complete by November 2029 is subject to the conditions which
follow. The Court cannot remove those conditions and then treat
the undertaking as an unconditional promise. At the same time,
the conditions cannot be read as giving the Developer an
unrestricted right to keep extending the date.
100. The undertaking uses the words “complete the said Project
by November 2029”. The expression “said Project” has not been
explained in the undertaking. The Court has noticed disputes
regarding the extent of FSI, rehabilitation component, sale
component, additional FSI and the meaning of the undertaking
dated 18 March 2025. Therefore, the present undertaking cannot
decide those disputed issues. Likewise, this undertaking cannot be
treated as an acceptance by the Developer or by the Court that the
Developer's interpretation regarding “Members Carpet Area
Entitlement” is correct. That issue has been considered. The
present undertaking is a subsequent statement regarding
completion and does not determine the rights and obligations of
the parties.
101. The filing of the undertaking has some significance. The
Developer has now placed before the Court November 2029 as the
date by which it undertakes to complete the Project. This is a
subsequent development which can be taken into account, because
earlier the Developer had not given a definite voluntary outer date.
The Court can therefore take note of November 2029, but the
conditions subject to which that date is stated have to be kept in
view. The fact that the undertaking was filed after the matter was
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fixed for judgment is a circumstance which cannot be ignored. It
does not make the undertaking invalid. But it is a later event and
cannot alter what had happened. In particular, it cannot
retrospectively convert the non-compliance with the undertaking
dated 18 March 2025 into compliance. The date of 30 September
2025 had expired without the earlier undertaking being fulfilled.
At the same time, the later undertaking cannot be used by the
Society to say that the earlier non-compliance was necessarily
wilful. The question of wilfulness has to be decided on the
circumstances which existed when the earlier undertaking was to
be complied with. The present undertaking is a subsequent event.
It may have some relevance to the future conduct of the Developer,
but it does not change the position as it existed on 30 September
2025.
102. The question then is what effect should be given to the
present undertaking. In my view, the statement of the Developer
that it will complete the Project by November 2029 is accepted as
a subsequent undertaking. However, the conditions attached to it
cannot be treated as right to extend the November 2029 date. In
particular, the reference to Force Majeure cannot be understood to
mean that the Developer can, by its own decision, extend the date
beyond November 2029. If the Developer claims that a particular
Force Majeure event has occurred and that the same gives it a right
to additional time, such claim will have to be considered in
accordance with the Development Agreement and applicable law.
It cannot merely by being mentioned in the undertaking become
an accepted or automatic extension of the date.
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103. The same principle applies to the condition relating to the
Society's cooperation. The Society is bound to perform its
obligations. But “full and complete cooperation” cannot mean that
the Society has to accept every demand made by the Developer. If
a particular resolution, consent or document is required from the
Society, the requirement of the same will have to be established
with reference to the Development Agreement, the applicable law
and the facts of the particular case. If there is any future dispute as
to whether the Society has failed to give a resolution or document
which it was required to give, that dispute will have to be decided.
The present undertaking cannot mean that every disagreement of
the Society with the Developer will extend the November 2029
date.
104. It is necessary to remember that an undertaking given to the
Court is not merely statement between parties. Once an
undertaking is given to and accepted by the Court, the person
giving it is expected to honour it. Therefore, if November 2029 is
being placed before the Court as the outer date for completion, the
conditions attached to that date cannot be allowed to make the
date uncertain. The present undertaking therefore does not alter
the findings recorded regarding the undertaking dated 18 March
2025. The earlier undertaking was to be complied with by 30
September 2025 and was not complied with by that date. The later
undertaking, filed after the matter was fixed for judgment, cannot
wipe out or undo that earlier non-compliance. At the same time,
the present undertaking is accepted and can be considered while
passing consequential directions. The Developer has now placed
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November 2029 before the Court as the date for completion. This
statement can be taken note of for the future course of the
redevelopment. However, the conditions attached to the
undertaking cannot be understood as giving right to the Developer
to extend that date unilaterally.
105. The position is therefore that the Developer has now stated
before the Court that it will complete the Project by November
2029. But it has not stated this in an unconditional manner. The
words “subject however to” and the conditions which follow are
part of the undertaking. Therefore, November 2029 can be taken
as the date stated by the Developer, but any extension beyond that
date cannot be treated as automatic merely because of the
conditions mentioned in the undertaking. Accordingly, the
undertaking filed by Respondent No.1 after the matter was fixed
for judgment is taken into consideration as a subsequent
development. It does not amount to compliance with the
undertaking recorded in paragraph 8 of the order dated 18 March
2025 and does not retrospectively cure the non-compliance which
had occurred by 30 September 2025. The statement regarding
completion by November 2029 is taken note of for the future
progress of the redevelopment. However, the conditions relating to
“full and complete cooperation” and “All provisions of
Redevelopment Agreement” including Force Majeure do not confer
upon the Developer an automatic or unilateral right to extend the
November 2029 date. Any claim for extension on account of Force
Majeure or any other provision of the Development Agreement will
have to be established in accordance with the terms of the
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Development Agreement and applicable law and, where required,
before the competent forum. Similarly, the Society shall remain
bound to perform its lawful and obligations. However, a dispute or
disagreement regarding whether any particular consent,
resolution, or document is required cannot, merely because of the
present undertaking, be treated as failure on the part of the
Society to cooperate.
106. The overall finding is that the Society succeeds on the
question of the meaning of the undertaking, but does not succeed
in establishing wilful contempt requiring punishment on the
material before the Court. The Developer has shown that the delay
was accompanied by substantial efforts and circumstances which
make it unsafe to hold that there was deliberate defiance of the
Court order. However, the Developer has not established that the
undertaking recorded by the Court was limited only to the
members' carpet area entitlement.
107. In view of the findings recorded above, and for the reasons
stated in the preceding paragraphs, the Contempt Petitions are
disposed of by passing the following order:
i) The Contempt Petitions are partly allowed to the
aforesaid extent;
ii) It is held that the undertaking recorded in paragraph 8
of the order dated 18 March 2025 was an undertaking to
obtain the IOD “factoring in the entire FSI involved” by 30
September 2025;
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iii) It is held that the said undertaking was not complied
with by the stipulated date of 30 September 2025;
iv) However, this Court is not satisfied that the non-
compliance has been established to be wilful and
contumacious so as to warrant punishment under the
Contempt of Courts Act, 1971;
v) Consequently, no punishment for civil contempt is
imposed upon the Contemnors. The Contempt Petitions
stand disposed of accordingly;
vi) It is clarified that the rejection of the prayer for
punitive action in these proceedings shall not be construed
as holding that the Developer has complied with all its
obligations under the Development Agreement or that it is
entitled to extend the period up to November 2029;
vii) It is clarified that the subsequent Revised IOD dated 13
August 2026 shall not be treated as retrospective compliance
with the undertaking dated 18 March 2025. The effect of the
said IOD and the extent to which it satisfies the obligations
under the Development Agreement shall be governed by the
terms of the Development Agreement;
viii) The contentions of the parties concerning the
entitlement to additional FSI, the applicability and operation
of DCPR 33(20)(B), DCPR 33(7B), the extent of the sale
component, the completion period and the claim for
extension on account of Force Majeure are not finally
adjudicated in the present contempt proceedings;
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ix) It is clarified that the Developer shall not treat the
pendency of Interim Application No. 6366 of 2025 or the
present order as conferring an extension of the undertaking
dated 18 March 2025 or of any period under the
Development Agreement;
x) The Developer shall, in accordance with the
Development Agreement, continue to take all necessary steps
for obtaining the permissions and for completing the
redevelopment and handing over the Members' New Flats in
accordance with its contract;
xi) Nothing contained in this order shall prevent the
Society or the members from pursuing such remedies as may
be available to them in law in respect of any alleged breach
of the Development Agreement or delay in completion of the
redevelopment;
xii) It shall be open to the Petitioners to seek appropriate
reliefs for damages or compensation arising from non-
compliance with the development agreement, including any
delay, if found, in completion of the redevelopment project,
by instituting such appropriate proceedings as are
permissible in law;
xiii) The Interim Application No. 6366 of 2025 stands
disposed of in the above terms.
xiv) The Contempt Petitions are accordingly disposed of.
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xv) In view of the circumstances of the case, there shall be
no order as to costs.
xvi) In view of disposal of the contempt petitions, all
pending interlocutory application(s) stand disposed of.
(AMIT BORKAR, J.)
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