Bombay High Court
Arun P. Goradia vs Manish Jaisuk H Al Al Shah & Ors. ... on 10 November, 2008
Equivalent citations: AIR 2009 (NOC) 1678 (BOM.), 2009 (2) AIR BOM R 772 2009 A I H C 2708, 2009 A I H C 2708, 2009 A I H C 2708 2009 (2) AIR BOM R 772, 2009 (2) AIR BOM R 772
Author: Roshan Dalvi
Bench: Roshan Dalvi
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NOTICE OF MOTION NO.296 6 OF 200 7
IN
SUIT NO.12 9 7 OF 200 7
Arun P. Goradia ...Plaintiff
Vs.
Manish Jaisuk h al al Shah & Ors. ...Defenda nt s
Mr. Nitin Deshpa n de i/b. Indrayani Koparkar for the Plaintiff
Mr. P.K.Samda ni with Mr. Snehal Shah with
Mr. G.B. Kedia for Defenda nt s 1 and 2
CORAM: SMT. ROSHAN DALVI, J.
DATED : 10 TH NOVEMBER, 200 8
ORAL ORDER:
1. The Plaintiff has essentially sued for specific performance of an Agreement / M OU executed by and between the Plaintiff and Defenda nt s on 8 th May, 2004, Exhibit- Q to the plaint. The Defendant s have claimed that the said agreement has been terminated by their notice dated 10 th August, 2005. The Plaintiff has sought a declaration that the notice of termination is without authority of law.
2. The Plaintiff has prayed for an injunction restraining the Defenda nt s from creating any 3 rd party rights in the suit property in the above Notice of Motion.
::: Downloaded on - 09/06/2013 14:02:48 ::: 23. The Plaintiff claims to have been granted right, title and interest as a Developer of the suit plot of land. He claims to have purcha sed TDR in respect of the development purs u a n t to the Agreement / M OU entered into by him. He also claims to have been made a co- owner of the suit plot of land which has been transferred to him upon payment of consideration purs u a n t to the Agreement / MOU dated 8 th May, 2004. He further claims to have acted upon the said agreement to develop the suit plot of land by negotiating and entering into registered agreement with several of the tenant s on the suit plot of land. The Plaintiff further claims to have obtained ownership rights in respect of certain flats in the building to be constr ucted on the suit plot of land, also purs u a n t to the said Agreement / MOU dated 8 th May, 2004.
4. The Plaintiff, therefore, claims that based upon the said agreement, the Plaintiff was allowed to develop the suit plot of land before the Defendant s sought to terminate it.
5. It is the Defenda nt s case that the MOU does not settle the rights of the parties for development of the suit plot of land and that the agreement for development was yet to be entered into between them. It is contended that the Plaintiff was merely a constr uction Contractor. He was to demolish ::: Downloaded on - 09/06/2013 14:02:48 ::: 3 the existing struct u re on the suit plot of land and constr uct a new building, which agreement is not specifically enforceable.
6. The precise agreement between the parties and the intention of the parties behind the agreement would, therefore, have to be ascertained.
7. The MOU dated 8 th May, 2004 shows the parties to the suit by name. It records the underst a n di ng arrived at by all the parties mentioned therein. The Plaintiff is stated to be the Developer / B uilder / C o n s t r u c tor / C o n t r a c tor. He was to do certain acts for putting up new constr uction. Defenda nt No.1 and 2 are lessees of the suit plot of land belonging to Defenda nt No.3 Society. Defenda nt s 4 to 8 are the tenant s in the existing struct u re.
8. Clause 1 of the MOU shows that "the Plaintiff will develop" the property by demolishing the existing building and constr ucting a new building on the suit plot of land. The total available FSI plus the TDR has already been got approved by him from the MMC. Clause 1 further shows that TDR has already been purcha sed by the Plaintiff upon payment in the name of Defendant s 1 and 2, who were then the only lessees of the suit plot of land.
::: Downloaded on - 09/06/2013 14:02:49 ::: 49. Clause 2 shows that two of the tena nt s, Defenda nt s 5 and 7, who were also signatories to the agreement would reside in temporary alternate accommoda tion already provided to them, which will be financed by the Plaintiff till the new building is constr ucted.
10. Clause 3 mentions about the arra ngeme nt with another tenan t, Defenda nt No.4 for which a registered agreement was to be entered into within 7 days.
11. Another tenant, Defendan t No.8 agreed to sell his two flats to the Plaintiff at the specific consideration in that regard mentioned in the said clause for which a formal tripartite agreement was to be executed within 7 days. The Plaintiff was to be the owner of those two flats upon paying the agreed consideration to Defenda nt No.8. The Defenda nt No.8 was to vacate those two flats upon receiving the consideration.
12. An agreement for perma ne nt altern ate accommodation was to be executed yet with another tenant Defenda nt No.6.
13. Under clause 6 of the MOU the agreement between the Plaintiffs and Defenda nt s 1 and 2 was to be executed and ::: Downloaded on - 09/06/2013 14:02:49 ::: 5 registered within 7 days. The specific terms agreed between the parties in the MOU are set out therein. Those terms are shown as terms (a) to (h) in Clause 6 of the MOU. That is in essence the agreement between the Plaintiff and Defenda nt s 1 and 2, which the Plaintiff seeks to specifically enforce.
14. Clauses 6(a) to (h) are as follows:-
i) Under Clause (a) Defenda n t s 1 and 2, who were the Lessees of the plot belonging to Defendant No.3 Society were to obtain permission from Defenda nt No.3 Society for demolition of the old struct u re and constr uction of the new struct u re as per sanctioned plans. The Plaintiff was to pay for the TDR to be obtained on the said plot.
ii) Under Clause (b) Plaintiff was to demolish the old struct u re and constr uct a new building at his cost and as per sanctioned plan of the MMC. The Plaintiff was to hand over possession of two flats of the specifications mentioned therein to Defenda nt s 1 and 2 and one flat each to the tenant s, Defenda nt s 4 to 8 as per agreement s with them.
iii) Under Clause ( c ) the Plaintiff was to obtain ownership rights in respect of the rest of the flats in ::: Downloaded on - 09/06/2013 14:02:49 ::: 6 the new constr uction . This was specifically because, the Plaintiff was to develop the suit plot of land by constr uction of the new struct u re utilizing the TDR obtained and produced by him. Under the said clause the Plaintiff was not to have rights in the suit plot, save and except those limited and related to the ownership of the flats. Hence the Plaintiff could only be a part owner to the extent of the other flats owned by him, which would be flats other than those of Defenda n t s 1,2 and 4 to 8 in the new constr uction.
iv) Under Clause (d) Defenda nt s 1 and 2 were to pay the Plaintiff Rs.6.5 lakhs towards part constr uction cost.
v) Under Clause (e) access to all the open terraces except the 8 th floor terrace was to belong exclusively to the Plaintiff and the access to all the floors above the 4 th floor was also to be available exclusively to the Plaintiff. Defendan t s 1 and 2 were to have access to the terrace above the 7 th floor only for occasional use. Hence it can be seen that the new constr uction was to be of a 7 floors. Defenda nt s 1 and 2 as the Lessees of the suit plot of land were to ::: Downloaded on - 09/06/2013 14:02:49 ::: 7 have possession of two flats. Defenda nt s 4 to 8 were to have possession of 5 other flats. All of these Defenda nt s would be accommodated between the 1 st and the 4 th floors. The remaining flats were to belong to the Plaintiff as owner. Furt her the open terraces and the access thereto was also to belong to the Plaintiff.
vi) Under clause (f) the parking spaces were to be equally divided between the Plaintiff on the one hand and Defendan t s 1 and 2 on the other.
vii) Under Clause (g) all the occupa nt s were to incur and pay mainte na nce costs and taxes proportionate to the area occupied by them.
viii) Under Clause (h) of the existing tenant s would be entitled to one parking space on payment of Rs.100 / - in that regard.
15. A reading of the entire Agreement / M OU dated 8 th May, 2004 as a whole, shows that on the plot belonging to Defenda nt No.3 Society and leased to Defendan t s 1 and 2 where an old struct u re existed and was occupied by 5 tenan t s, Defenda nt s 4 to 8, all the parties agreed to ::: Downloaded on - 09/06/2013 14:02:49 ::: 8 demolish the said struct u re and develop the said plot by constr ucting a new struct u re. For such constr uction the available FSI was to be used. In addition TDR was purcha se d by the Plaintiff. The Plaintiff was to demolish as well as re- constr uct. Upon demolition the Plaintiff was to offer temporary accommodation and thereafter perma ne n t alternate accommodation to the existing tena nt s. The Plaintiff was also to give possession of 2 flats to Defenda nt s 1 and 2. For the remainder of the constr uction the Plaintiff was to be the sole owner. ig Upon such constr uction the Plaintiff was to be entitled to exclusive access to all the terraces and the access to the terrace above the entire constr uction.
16. It is an admitted position that the Plaintiff has purcha se d TDR. The purcha se has been made for Rs.34 lakhs. The worth of the TDR has since escalated. It is also an admitted position that the Plaintiff has entered into a registered agreement with some of the tenant s offering them for temporary alternate accommod ation. The Plaintiff has expended monies on that ground. I have been informed that some of the tenant s had vacated upon such agreement s between entered into and upon payment s being made by the Plaintiff in respect of the temporary altern ate accommoda tion, but since further development and ::: Downloaded on - 09/06/2013 14:02:49 ::: 9 constr uction could not take place as Defenda nt s 1 and 2 did not allow the Plaintiff to demolish the whole struct ur e and constr uct the new struct u re as per sanctioned plan as agreed in the MOU, they have returned to their old premises on the suit plot of land.
17. Defenda nt s 1 and 2 are the only contesting Defendant s.
They are brothers. They are the Lessees of the suit plot of
land. The memora n d u m records not only the essential
agreement of development
ig between the Plaintiff and
Defenda nt s 1 an 2, but also the separate agreement s with the tena nt s separately.
18. Clauses 2,3,4 and 5 relate to the agreement s of the Plaintiff with the tenant s.
19. The essential clauses which the Plaintiff seeks to specific enforcement against Defenda nt s 1 and 2 are clauses 1 and
6.
20. Clause 1 shows the Plaintiff to be a Developer and not a Contractor. It shows development as per plans already got sanctioned by the Plaintiff from the MMC. It also shows the purcha se of the TDR for putting up additional constr uction.
::: Downloaded on - 09/06/2013 14:02:49 ::: 1021. Clauses (a), (b), ( c ) and (e) of Clause 6 show the extent of the Plaintiff's rights and entitlement s.
22. Clause 6(a) shows the corresponding reciprocal obligation of Defenda nt s 1 and 2 to obtain the permission of the Society of the suit plot of land for demolition of the old struct u re and constr uction of the new building as per sanctioned plans.
23. Clause 6(b) shows ig the cost of the demolition and constr uction which has to be incurred by the Plaintiff and further an obligation of giving the flats in the newly constr ucted building to Defenda nt s 1, 2 and 4 to 8.
24. Clause 6 ( c ) shows the entitlement of the Plaintiff to the remainder of the new constr uction. The Plaintiff was entitled to ownership rights of the "rest of the flats" . He was also to have ownership rights of the plot, but only limited to the ownership of those flats. Hence, the Plaintiff would not be a complete owner of the new constr uction. The Plaintiff would have only rights corresponding to the extent of the new constr uction owned by him on the suit plot of land. Defenda nt s 1 and 2 who were the lessees of the plot would also contin ue as such lessees. Their rights would be limited.
::: Downloaded on - 09/06/2013 14:02:49 ::: 1125. Under Clause 6 (e) the Plaintiff's rights extended also to all open terraces except the 8 th floor terrace as well as access to all the floors above the 4 th floor. This clause shows the exclusive entitlement of the Plaintiff in the part of constr uction above the 4 th floor.
26. The MOU, therefore, shows the comprehe n sive, consolidated agreement between the parties to the suit including the Plaintiff as the Developer, Defenda nt s 1 and 2 are the lessees, as also Defenda nt s 4 to 8 as the tena nt s.
The execution of the MOU by Defenda nt s 1 and 2 is not denied. It is signed in confirmation by the Plaintiff as also the 5 tenant s.
27. A reading of the MOU shows that the parties have set out whatever was agreed by and between them. However it is only not a formal, legal document for development of the suit plot of land. Conseque ntly the parties agreed that the Development Agreement would be executed and registered between the Plaintiff and Defendant s 1 and 2 within 7 days of the execution of the MOU. That Development Agreement was to incorporate the terms agreed upon between the parties which were enumer ated as Clauses 6(a) to (h). Nothing further was to be done except to give it a formal legal colour.
::: Downloaded on - 09/06/2013 14:02:49 ::: 1228. It has to be seen whether the parties did actually act upon the MOU also. Defenda nt s 1 and 2 were to obtain the permission of the Society for the development. The Plaintiff was to get part ownership rights. The Defenda nt s 1 and 2 performed their part of the reciprocal promises and obligations under clause 6(a). Accordingly by their letter dated 25 th Ju ne, 2004 Defenda nt No.1 wrote to the Society to make the Plaintiff (as also Defenda nt No.8) co- owner in respect of the suit plot of land. They also got the permission of the Society conditionally approving the plans submitted by them in respect of the new constr uction. Consequen tly the Society by its letter dated 29 th July, 2004 recorded the names of the Plaintiff (as also the Defenda nt No.8) as the co-
owners of the plot and members of the Society. They issued the share certificates after recording their names accordingly.
29. The Plaintiff was to be a co- owner to the extent of 30%. Defenda nt s 1 and 2 were to be co- owners to the extent of 30% each. Defenda nt No.8 was to be a co- owner to the extent of remainder 10%. It may be remembered that under Clause 4 of the MOU the Plaintiff was to be sold the ownership rights of Defenda nt No.8 upon payment of consideration mentioned therein to Defenda n t No.8. Hence, ::: Downloaded on - 09/06/2013 14:02:49 ::: 13 the Plaintiff would then be a member / co- owner to the extent of 40% interest in the suit plot of land (30% of the Plaintiff himself and 10% of Defendan t No.8). Hence, under Clause 6 ( c ) the Plaintiff would have ownership rights in the plot to the said extent.
30. A reading of Clause 6 ( c ) shows that upon development of the suit plot of land by the Plaintiff as per Clause 1 and 6
(a) and 6(b) the Plaintiff was to have corresponding ownership rights. Aside ig from the payment of part constr uction cost of Rs.6.5 lakhs as shown in Clause 6(d) the Plaintiff was not to be paid any constr uction cost. In fact the Plaintiff was to incur constr uction cost and had already incurred the cost for purcha se of the TDR.
31. A reading of the entire agreement, therefore, shows that the Plaintiff was not a mere Contractor. It was agreed between the parties that the Plaintiff would develop the suit plot of land as a Developer. He would have interest in the new constr uction as also the corresponding interest in the plot of land as a co- owner with Defenda nt s 1 and 2 and as a member of Defendant No.3 Society upon the constr uction. The Plaintiff was to be paid for the constr uction. The consideration paid by the Plaintiff was by way of purch a se of TDR and by way of incurring the constr uction cost as also ::: Downloaded on - 09/06/2013 14:02:49 ::: 14 the cost of the alternate accommod ation to be given to the tenan t s / o cc u p a n t s . The consideration to be received by the Plaintiff was by way of ownership rights in the flats on the 5 th to 7 th floors as also correspondi ng 40% interest (30+10) in the plot itself.
32. It is argued on behalf of Defenda nt s 1 and 2 that because the Development Agreement was still to be signed and registered by the parties the MOU is not specifically enforceable. The contention is completely misconceived.
ig If an MOU is entered into by the parties merely agreeing to enter into a Development Agreement for developing the suit plot of land upon terms not agreed by the parties, the MOU, which does not set out a full agreement between the parties, would not be enforceable. If, however, an MOU sets out the entire agreement between the parties for the development of the entire plot of land as per sanctioned plan to the extent of the FSI as also the additionally purch a sed TDR and sets out the extent of the rights and entitlement s of the parties being the owner as well as the Developer in the new constr uction to be put up by the Developer at his own cost, the agreement between the parties is complete. Such MOU is itself specifically enforceable, whether or not, a formal Development Agreement is to be further entered into by them.
::: Downloaded on - 09/06/2013 14:02:49 ::: 1533. The MOU of the kind, as in this case is an agreement for development itself. It is nothing short of that except that it is entered into informally by the parties putting on record the complete agreement arrived at between themselves as also with the tenant s. It only lacks legal jargon. Such an agreement is exhau s tive and takes into account not only the reciprocal promises and obligations of the owner and the Developer, but also the rights of the tenant s / o c c u p a n t s in the old struct u re confirmed by them as also the Developer in that regard. Such an agreement is not any- the- less legally enforceable. It is an agreement upon which an action in law is maintain able. The specific action in law filed by the Plaintiff is its specific enforcement. It is too late in the day to merely rely upon one of the clauses of an MOU showing that the Development Agreement was to be executed between the parties to outright reject an action for specific performa nce. The agreement has to be read as a whole. The intent of the parties has to be ascertained from the agreement. If the agreement shows the full extent of the intent of the parties for complete development of the property, the agreement is nothing but a Development Agreement, howsoever drafted or titled. In fact it is argued on behalf of the Plaintiff that the Plaintiff seeks the execution of the Development Agreement incorporating therein the agreement between the parties as ::: Downloaded on - 09/06/2013 14:02:49 ::: 16 set out in Clause 6(a) to 6(h).
34. It is contended on behalf of the Defendan t s 1 and 2 that they have terminated the MOU by their letter dated 10 th August, 2005. The letter of termination shows that the Plaintiff was to "redevelop within 12 mont hs or so". It states that the Plaintiff could not settle with the tenant s and had started various activities prejudicial to Defenda nt s 1 and 2.
It also alleges that the Plaintiff unlawfully got his name incorporated into the Society and since the MOU is neither registered nor stamped, nor acted upon, nor completed, the development could not take place. The termination notice further mentions about an earlier notice issued under Maharas h t r a Rent Control Act by Defenda nt s 1 and 2 upon the Plaintiff in respect of the bonafide use and requireme nt of these Defenda nt s with regard to one flat. The Agreement / MOU does not set out any time limit of 12 month s or otherwise for putting up constr uction or redevelopment. The Plaintiff is ready and willing to develop the property. In fact Defenda nt s 1 and 2 are not ready and willing to develop the property. The Plaintiff settled with the tenan t s and the tena nt s re- occupied the old premises in view of the stalemate. The Plaintiff could not be held liable for the same. No prejudicial activities of the Plaintiff are shown. The aforesaid letters show that the Defenda nt s have ::: Downloaded on - 09/06/2013 14:02:49 ::: 17 themselves got the name of the Plaintiff as also Defenda nt No.8 entered into records of the Society as members and accordingly as co- owners of the suit plot of land. The allegation that the Plaintiff has no right, title and interest is seen to be erroneous. The consideration that passed under the agreement need not be only monetary consideration.
The consideration given to Defenda nt s 1 and 2 is in terms of the flats to be constr ucted and given to them. The parties are seen to have acted upon the said MOU. The Defenda nt s are seen to have allowed the Plaintiff to further act upon it.
The notice of termination is of little effect.
35. The Agreement / MOU dated 8 th May, 2004 would be specifically enforceable as seen from its content s. Mr. Samda ni relied upon several judgment s with regard to the execution of an Agreement / M OU between the parties which do not lay down explicitly the rights and entitlement s of the parties and which require further Development Agreement to be entered into, to show that this agreement is not specifically enforceable.
36. The case of H.S.Khan & Sons Vs. Homi J. Mukadam, 19 9 1( 2) Bom. C.R.6 1 is the case in which the parties did not intend to be bound until a formal contract was signed by them. It was held that there was no concluded contract ::: Downloaded on - 09/06/2013 14:02:49 ::: 18 between the parties. It was further observed that this aspect depends upon the intention of the parties and the special circumst a n ce s in each particular case. In that case the Developer / Co n t r a ctor had agreed to not receive or collect any amoun t or enter into any agreement for sale of any flat, shop or premises with the tenant s or occupa nt s. They were not to enter into any agreement for sale or even to accept any money by way of earnest until the completion of sale. In this case the Plaintiff was not only allowed to demolish the old struct u re and constr uct a new building as per sanctioned plan, the Defendant s 1 and 2 themselves got permission of the Society to constr uct as per the sanctioned plans and also got the Plaintiff to be a co- owner along with them and a member of the Society. The Defendant s allowed the Plaintiff to negotiate with the tena nt s. The Plaintiff was allowed to execute registered agreement s with some of them; also the Plaintiff offered temporary alternate accommodation to some of them. The Plaintiff also purcha sed TDR for additional constr uction. Hence the Defenda nt s 1 and 2 took steps under such Agreement / M OU and allowed the Plaintiff to take steps as per the terms of the MOU.
37. Similarly the case of Kalpadi Krishnarai Kamath Vs. Harishcha ndra Anant Pandit in NMS. No.18 3 5 of 200 5 in Suit No.1 4 4 8 of 200 5 of this Court shows that the parties ::: Downloaded on - 09/06/2013 14:02:49 ::: 19 had not reached any final agreement either in relation to the consideration that was to be paid to the owners by the Developers or in relation to the mode and the manner of the development of the property. They had agreed to enter into a regular Agreement for development incorporating all the terms and conditions with regard to these aspects. It was held that such an MOU was not a final agreement and was a tentative agreement arrived at between the parties and that only after the other terms was settled a final agreement would be entered into. In this case all the terms between the parties were settled on 8 th May, 2004. They were incorporated into MOU albeit without legal jargon. There was a final agreement between the parties who were not only the owners and developers, but also the occupa nt s / t e n a n t s .
A mere agreement to enter into a formal Development Agreement is, therefore, of little or no significance, since such a Development Agreement was specifically agreed to be entered into as per Clause 6(a) to 6(h) enumerated in the MOU itself.
38. Mr. Samda ni relied upon the case of Chheda Housing Develop m e n t Corpn., Vs. Bibijan Shaikh Farid, 200 7( 3) Mh.L.J . 40 2 which sets out which agreement s could be specifically enforcible and which not, as enumer ated in paragrap h 12(A) therein. It may be noted that the ::: Downloaded on - 09/06/2013 14:02:49 ::: 20 prerequisite for any decision about the specific enforceability of the agreement is stated to be "the facts of each case" in paragrap h 12(A) itself. Paragrap h 12(A) sets out 3 types of agreement s:
a) The agreement only entr us ti ng constr uction work Not enforceable
b) An agreement entru s ting work of development with the right to sell the constr ucted portion to flat purch a ser s with a conveyance as per stat utory requirement s.
c) A normal agreement for sale Specifically enforceable
d) A rider to the said paragrap shows that the mere agreement for development which creates no interest in the land would not be specifically enforced.
39. The suit agreement is not a mere agreement for development. It creates an interest in the land in favour of the Plaintiff to the extent of 40% (30+10) as co- owner / member of the Society already in existence. The Plaintiff's ownership rights further implies a right to sell, mortgage, lease, assign etc.
40. In fact the Plaintiff paid consideration of Rs.4.92 lakhs for obtaining the transfer to the said extent as reflected in ::: Downloaded on - 09/06/2013 14:02:49 ::: 21 letter dated 1 st July, 2004 Exhibit- R to the plaint, signed by all the co- owners being the Plaintiff and Defenda nt s 1,2 and 4 to 8. Hence as per the conclusion arrived at in paragrap 12A of the case of Chheda Hsg. Development Corpn.(supr a) as per the " Facts of this case and the agreement under consideration " it can be seen that the suit Agreement is specifically enforceable.
41. Mr. Samda ni further relied upon the judgment in the case of M/s. Shah igand Jhaveri Develop ers Vs. M/s. Classic Developers Pvt. Ltd., in Notice of Motion No.38 2 0 of 20 0 6 in Suit No.31 5 1 of 200 6 of this Court in which the applicability of Section 14 of Specific Relief Act, 1963 has been considered. It was observed in that judgment that at the very outset the nat ure of the agreement between the parties has to be considered. That was a constr uction contract. The Defendant was entrus ted only the work of constr ucting the building on the land of the Plaintiff. The Plaintiff was to do all the other things such as vacating tenan t s, preparing plans, submitting the plans for sanction to the MMC, making payment in that behalf, obtaining certificates and the other letters etc. Hence, it was held that such a contract cannot be stated to be a contract for transfer of immovable property. A building constr uction contract is not specifically enforceable as it falls within the ambit of ::: Downloaded on - 09/06/2013 14:02:49 ::: 22 Sub Sections (a) and (d) of Section 14(1). That is because non- performa nce of those contracts are compens a ble in terms of money and the performa nce of the suit contract s would involve the contin uo u s duty which the Court cannot supervise. Section 14(c) which is in the nat ure of an exception to the Section itself, has been specifically considered in that judgment. That relates to building constr uction contracts. Section 14 ( c ) requires:
1. Description of the property to be stated
2. Interest of the Plaintiff in the property to be shown
3. Possession to be obtained by the Defenda nt
42. Only a developer / b u ilder can " obtain possession " . The owner already "has possession". Therefore it implies that when the suit is filed by the owner, the builder / d eveloper is given possession of the plot or building. A contractor is not given possession. He cannot be held to have " obtained possession ". When he himself is the Plaintiff, the owner cannot be held to have " obtained possession " - the owner already "has possession" of the land / plot / p r o perty. Clause 14(3)(iii) specifically implies that the suit is filed by the owner against the Defenda nt who has obtained possession of the whole or part of the land to develop it. Hence, the owner can sue for specific performance of the contract and have the land developed.
::: Downloaded on - 09/06/2013 14:02:49 ::: 2343. Whilst it is observed that the development agreement at the instance of the developer is hit by Section 14(3)(iii) but the suit by the owner is maint aina ble, it is held in paragrap h 5 of the judgment that it is possible for the Court to pass a decree for the performa nce even when the contract is for development of the property. That depends upon the nature of the agreement. Conseque ntly if the agreement is not otherwise excluded under Section 14(1) all such agreement s including contract s for development of properties would be specifically enforceable even at the instance of the Developers.
44. Since it would depend upon the nat ure of the agreement we have to see whether the agreement in this suit can fall outside the purview of Section 14(1). In other words whether the agreement in this suit is not only an agreement at the instance of a developer compen s a ble in money and involving the continuo u s duty, uns u pervisable by the Court.
45. In this case the nature of the agreement between the parties is not only for constr uction. It is for the development of the entire plot. The development is at the cost of the Plaintiff. The development is upon purch a se of TDR. The constr uction put up in addition to the FSI already available, ::: Downloaded on - 09/06/2013 14:02:49 ::: 24 would be for the Plaintiff exclusively. The Plaintiff is to have ownership rights. It need hardly be stated that the ownership rights would include the right of further transfers.
The agreement shows the implicit stam p of the approval of Defenda nt s 1 and 2 in obtaining the permission of the Society for such further development as per the sanctioned plans. It grants interest in the suit plot of land to the Plaintiff. Hence the Development Agreement even at the instance of the Developer, depending upon the nat ure of the agreement as in this case, would be specifically enforceable unless only if it falls within the mischief of Section 14(1).
46. The Plaintiff has made out a clear prima facie case for grant of the relief of injunction against creation of further 3rd party rights. The Notice of Motion is made absolute in terms of prayer clause (b).
47. The Defendant s 1 and 2 shall not create any third party rights in respect of the suit plot of land or in any man ner deal with, transfer or surrender the TDR obtained by the Plaintiff for development of the suit property.
(SMT. ROSHAN DALVI, J.) ::: Downloaded on - 09/06/2013 14:02:49 :::