Must dissenting members sign redevelopment consent forms? The Bombay High Court's Section 9 interim order in Wadhwa Estates v. Moon Craft Apartments CHS, decoded

The resolutions are passed. The Development Agreement is registered. The MDP IOD has come from BMC. 32 of 38 members have signed the consenting declaration, six have not, and the project cannot move. The six say they never signed the agreement. Can the society compel them? A single judge of the Bombay High Court faced exactly this in June 2026, on a Section 9 application for interim measures before any arbitral tribunal existed, and the answer is a careful yes and no.

The case in brief

Moon Craft Apartments Coop. Housing Society Limited, Shirley Rajan Road, off Carter Road, Bandra (West), Mumbai, has 38 flats and 36 members. The Development Agreement was executed and registered on 31 March 2025 between the developer, the Society and 22 members.

The developer obtained the MDP IOD from BMC on 5 March 2026. Clause 17.2 gave members 15 days from notice to provide the Consenting Members Declaration, and said that if some failed, the developer would, with the Society's cooperation, take legal steps against them, including approaching a court to vacate their flats. By 24 March 2026, 32 of 38 members had submitted declarations; respondents 2 to 11 had not, and none had vacated.

Wadhwa Estates and Developers (India) Private Limited filed Commercial Arbitration Petition (L) No. 13424 of 2026 under Section 9 of the Arbitration and Conciliation Act 1996, seeking interim measures before an arbitral tribunal was constituted. This is not a final judgment on the merits. Amit Borkar, J. pronounced it on 18 June 2026.

What the court decided

Granted. Respondents 2 to 11 must submit the Consenting Member Declarations in the Annexure D/2 format within four weeks. That is the Court's own timeline; the agreement said fifteen days. Pending the tribunal and the arbitration, they are also restrained from creating third-party rights, transferring, alienating, parting with possession or encumbering their flats so as to prejudice the redevelopment.

Refused. The prayer to direct them to vacate and hand over possession was rejected at this stage as premature. The prayer for appointment of a Court Receiver was rejected. No order as to costs.

The Court found that the stage for declarations had arrived. Prima facie, "the dissenting members cannot keep the redevelopment process in a condition of uncertainty by withholding declarations" once the MDP IOD is obtained and the Society has called on all members under Clause 17.2. Lawful collective decisions bind every member, and non-signatory status did not defeat the petition as to present obligations under an approved scheme. The Court drew on Daman Singh v. State of Punjab, (1985) 2 SCC 670 (Constitution Bench), and Anita Enterprises v. Belfer Coop. Housing Society Ltd., (2008) 1 SCC 285. A dissenting member may face Section 9 measures, but not merely because of membership; the link is rights that come through the society, such as occupation and redevelopment benefits.

Possession failed because the obligation to vacate was not yet enforceable. Full IOD, loading of full development potential and a notice to vacate under Clause 17.4 lay ahead, so the foundation for a possession order was absent. Girish Mulchand Mehta & Another v. Mahesh S. Mehta & Another, 2010 (2) Mah.L.J. 637 was distinguished: there, almost all members had already vacated to transit accommodation.

Why it matters for your society

The case is a warning read in both directions. On these facts, a society that had run the process properly, with the resolutions, the registered agreement, the permissions in sequence and the notice to members, was able to obtain a prima facie interim order compelling dissenting members to do the paperwork step that had actually fallen due, and freezing their flats against transfer, even though they had never signed. Another court, on other facts, may see it differently. But it cannot leapfrog the sequence. The vacation obligation was not yet enforceable, and the Receiver was refused. What made the order possible is that the society's own record was in order.

What your committee should do

1. 1Keep the process record complete. Model Bye-law 155 makes the Committee responsible for redeveloping, if necessary, as per Government directives and prevailing laws; Bye-law 158 keeps it responsible until completion.
2. 2Follow the tender route in Bye-law 157(h): tenders invited in consultation with the Society's Architect, per the redevelopment Government Resolution dated 03-01-2009.
3. 3Check your resolution against Rule 106C-13(3)(i)(j) of the 2026 Amendment Rules: 14 clear days' notice (mandatory, cannot be waived); quorum of two-third of total members; the Registrar's representative present; the entire meeting video recorded; contractor selection by 51% of total members. A resolution passed without the Registrar's representative or video recording is procedurally defective and can be challenged.
4. 4Give every member written notice calling for the declaration in the agreed format.
5. 5Ask only for the step that has fallen due. Do not demand vacation before Full IOD and the notice to vacate.
6. 6Take legal advice on your own agreement before approaching a court.

Limits of this ruling

This is a single-judge interim order under Section 9, prima facie in nature, on the facts of one Bandra society. It is not a rule for all redevelopments.

The Court did not hold that non-signatory dissenting members are parties to the arbitration agreement, and decided no arbitrability or Section 11 question. It did not hold that dissenting members can be evicted; it refused both possession reliefs. It cited no section of the Maharashtra Co-operative Societies Act and did no MOFA or MahaRERA analysis. It decided nothing about FSI, development potential, any supplementary redevelopment proposal or the validity of future permissions; DCPR 2034 Regulations 33(7)(B) and 33(20)(B) came up in argument, but the FSI dispute was not decided. The Court kept the question open: vacation may arise after the necessary stages contemplated under the agreement are completed.

Rule 106C-13(3)(i)(j) puts procedural conditions on the redevelopment resolution itself. These were not in issue in this petition, and the Court did not say the Society complied with them. A society relying on this case for comfort should check its own resolution against them.