The Bombay High Court has rejected Oberoi Realty Limited’s attempt to get a commercial suit filed by Exquisite Co-operative Housing Society dismissed for non-compliance with mandatory pre-institution mediation.
Justice Sandeep V. Marne, on August 21, 2026, dismissed Interim Application No. 6995 of 2025 filed by the developer in Commercial Suit No. 109 of 2023. The court held that the society’s suit contemplates urgent interim relief and therefore falls within the exception under Section 12A of the Commercial Courts Act, 2015.
Background of the Dispute
Exquisite Co-operative Housing Society Ltd., representing 801 flat purchasers, along with three individual members, filed the suit in March 2023 against Oberoi Realty and Brihanmumbai Municipal Corporation authorities.
The society claims that its residential project (Towers A-4 and A-5) forms part of the larger Oberoi Garden City layout. It asserts an undivided 25.33% share in Plot B / larger layout land, along with corresponding FSI, TDR and other benefits. Specifically, it claims entitlement to 44,905.25 square metres of undivided share.
The society alleges that Oberoi has been constructing additional buildings by utilising the society’s share of land and FSI, thereby reducing its entitlement. It has also challenged certain clauses in the flat purchase agreements as violative of the Maharashtra Ownership Flats Act (MOFA) and has sought conveyance of its proportionate share. In the alternative, the society has claimed ₹500 crore as compensation and damages.
Along with the plaint, the society filed an interim application seeking to restrain Oberoi from further construction using the claimed FSI, from modifying sanctioned plans without its consent, and from creating third-party rights. It also sought a restraint on MCGM from granting further permissions for such construction.
What Oberoi Argued
Oberoi Realty, represented by senior advocate Aspi Chinoy, sought rejection of the plaint under Order VII Rule 11 of the Code of Civil Procedure. It contended that the society had failed to exhaust the mandatory pre-litigation mediation required under Section 12A of the Commercial Courts Act.
The developer argued that the prayer for urgent interim relief was merely a device to bypass the statutory requirement. It pointed out that the society was aware of construction of additional buildings since December 2021 but filed the suit only in March 2023. More importantly, after filing the suit, the society did not circulate or move its interim application for nearly two-and-a-half years.
Oberoi relied on the Supreme Court’s decision in Yamini Manohar and several Bombay High Court rulings to argue that the court must examine whether the claim of urgency is genuine or a camouflage.
Society’s Stand
Senior advocate Dr. Birendra Saraf, appearing for the society, submitted that the test under Section 12A is whether the suit contemplates urgent interim relief when viewed from the plaintiff’s standpoint. He argued that the plaint itself disclosed ongoing construction that was consuming the society’s claimed FSI and land share, making interim protection necessary to prevent the final relief from becoming infructuous.
The society maintained that post-filing conduct cannot be considered while deciding an application under Order VII Rule 11, which is confined to the averments in the plaint and the documents filed with it. It further submitted that breach of MOFA obligations gives rise to a continuous cause of action, and mere delay in filing the suit does not negate urgency in such cases.
Court’s Findings: Why the Builder Lost
Justice Marne rejected Oberoi’s application with costs. The court held that a holistic reading of the plaint, the nature of the suit, the cause of action and the interim prayers showed that the claim of urgency was genuine and not a mere camouflage.
Key reasons for the rejection:
- The enquiry under Order VII Rule 11 is limited to the plaint and annexed documents. Post-filing conduct, including the delay in circulating the interim application, is irrelevant for deciding whether the suit contemplates urgent interim relief.
- The alleged consumption of the society’s FSI and land share by ongoing construction, coupled with the statutory obligation under MOFA to convey title, constitutes a continuous wrong. As long as construction continues, the need for interim protection continues.
- Mere delay in instituting the suit does not, by itself, mean that no urgency was contemplated at the time of filing, especially in cases involving continuous causes of action under MOFA.
- The court distinguished earlier judgments cited by Oberoi, noting that those turned on their own facts where no real case of urgency was made out on the face of the plaint.
The court clarified that it was not examining whether the interim relief would ultimately be granted. The limited question was whether the prayer for urgent interim relief was deliberately inserted only to bypass Section 12A. On the material before it, the court found that it was not.
What Happens Next
With the interim application for rejection of plaint dismissed, the commercial suit will now proceed on merits. Oberoi has already filed its written statement. The society’s pending application for temporary injunction will be heard in the ordinary course.
The ruling reinforces that in disputes involving ongoing construction and alleged breach of MOFA obligations relating to land and FSI share, commercial courts will examine the substance of the plaint rather than pure delay or subsequent lethargy in pressing interim applications when deciding Section 12A objections.
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