In a ruling underscoring the continuing force of decades-old property covenants, the Bombay High Court on Wednesday refused interim relief to New Deluxe Co-operative Housing Society Ltd., effectively stalling its plan to redevelop its Altamount Road property into a high-rise building.
1940s Height Cap Binding
Justice Milind Jadhav held that a restrictive covenant dating back to 1943–44 — which caps construction height at 30 feet — prima facie remains binding on the land, barring redevelopment beyond that limit until the suit is finally decided. “Prima facie, the restrictive covenant has travelled through successive conveyances and stands reflected in Plaintiff – Society’s own chain of title,” the judge observed.
Society Challenges Covenant
The New Deluxe society had filed a civil suit seeking a declaration that restrictive covenants contained in indentures from the 1940s were void and unenforceable. It also sought an injunction restraining neighbouring Pemino Co-operative Housing Society Ltd. from obstructing redevelopment of its over 60-year-old building, which houses 23 members, many of them senior citizens.
Plaintiff’s Legal Argument
Senior advocate Virag Tulzapurkar, appearing for New Deluxe, argued that the covenant was either untraceable or legally unenforceable and was being invoked belatedly to derail redevelopment. He submitted that developers withdrew after Pemino issued a public notice asserting rights under the old indentures, forcing the plaintiff to approach the court.
Defendant’s Counter Stand
Pemino society, represented by senior advocates Navroz Seervai and Naushad Engineer, countered that the height restriction formed part of the plaintiff’s title chain and continued to run with the land. It argued that the covenant had been expressly preserved through successive conveyances and was enforceable by successors.
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Court Examines Title
After examining the documents, the court found that the plaintiff’s own title deed incorporated earlier stipulations, including the height restriction. “Prima facie, the restrictive covenant has travelled through successive conveyances and stands reflected in Plaintiff – Society’s own chain of title,” the judge observed.
No Fresh Assignment Needed
Rejecting the contention that the covenant required a fresh assignment in favour of the defendant, the court said restrictions running with land could bind successors if preserved in prior conveyances. It also noted that enforceability did not depend solely on privity of contract.
Court Criticises Stand
The judge was critical of the plaintiff’s shifting stand, observing that it initially denied the covenant’s existence before later disputing enforceability. A litigant, the court said, cannot accept title under a document while simultaneously challenging a binding condition contained in it. “A party cannot approbate and reprobate,” the judge said, stressing that interim relief is discretionary and depends on fairness.
Interim Plea Dismissed
The court held that granting interim relief would effectively allow redevelopment beyond the restriction, causing irreversible consequences before trial. It ruled that the balance of convenience did not favour the plaintiff and dismissed the interim application.
Matter To Go Trial
The judge clarified that all observations are preliminary and the dispute will be decided in full during trial.
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