Bombay High Court
Ranjeetsinh Murrajsinh Gohil vs Mihikaa Enterprise And 7 Ors on 6 December, 2022
Author: B. P. Colabawalla
Bench: B. P. Colabawalla
ial.34926.22..doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
INTERIM APPLICATION(L)NO.34926 OF 2022
IN
COMMERCIAL SUIT(L) NO.34915 OF 2022
Digitally signed by
ANJALI ANJALI TUSHAR
TUSHAR ASWALE
Date: 2022.12.16
ASWALE 18:48:01 +0530
Ranjeetsinh M. Gohil ..Plaintiff/Applicant
Vs.
M/s Mihikaa Enterprise & Ors ..Defendants
Mr.Aspi Chinoy, Senior Advocate a/w Cyrus Ardeshir i/b Nitin H.
Shukla, for the Applicant/Plaintiff.
Mr.Sanjeev Singh a/w Manish S., for Defendant Nos.1 to 3.
Dr. Birendra Saraf, Senior Advocate a/w Jay Sanklecha, Pooja Khatri,
Tejas Popat, Anuja Bhansali i/b Rashmikant & Partners, for
Defendant Nos. 4 and 5.
Mr. Venkatesh Dhond, Senior Advocate a/w Naushad Engineer,
Ahtesham Khatri i/b Mayuresh Borkar, for Defendant Nos.6 to 8.
CORAM:- B. P. COLABAWALLA,J.
DATE :- DECEMBER 6, 2022.
P. C.:
The above Suit is inter-alia filed seeking specific performance of the :-
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(1) Agreement dated 22nd October, 2015 (Exhibit "B" hereto) read with the Supplementary Agreement dated 28th June 2017 (Exhibit "D" hereto) along with Power of Attorney dated 22nd October, 2015 executed between Defendant Nos. 2 and 3 and Defendant Nos. 3 and 5 for redevelopment of the suit property;
(2) Memorandum of Understanding dated 12 th September, 2019 (Exhibit "E" hereto) executed by Plaintiff and Defendant Nos. 2 and 3 for redevelopment of the Suit property;
(3) Deed of Reconstitution of Partnership dated 12 th September 2019 (Exhibit "F" hereto) executed by Plaintiff and Defendant Nos. 2 and 3 for redevelopment of the suit property;
(4) Term Sheet dated 30th September 2020 (Exhibit "H" hereto) executed by Plaintiff, Defendant Nos. 2 and 3 and Defendant Nos. 4 and 5 for redevelopment of the suit property.
2 A further declaration is sought that the Deed of Termination and Cancellation dated 30 th November, 2021, (Exhibit-T to the Plaint) as well as the Development Agreement dated 22 nd June, 2022 (Exhibit-U to the Plaint) be declared as null and void, in-operative and illegal. In the above Suit, the above Interim Application is filed seeking urgent ad-interim reliefs. The urgent ad-interim reliefs sought are in terms of prayer clauses (b) & (c), which read thus:-
(b) That pending the hearing and final disposal of the suit, the Defendants, their directors, shareholders, employees, successors and assigns, servants, agents and representatives be restrained by a temporary order of injunction from parting with possession and/or creating any third party right in respect of the plot of land bearing CTS Nos. 620, 620/1, 620/2, 620/3 plot No. 46, The Jai Hind Co-operating Housing Society Limited, 11 th North South Road, Juhu Scheme, Vile Parle (West), Mumbai- 400 049, admeasuring 668.88 approximately [800 square yards] and owners of an old building known as "KanakKunj" (Exhibit "A"
hereto);
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(c) pending the hearing and final disposal of the above Suit, the Defendants, their agents, servants, employees, Successors, assigns etc., their Architects, Consulting Architects, Engineers as the case may be or any person claiming, by, through or under them be restrained by a temporary order and Injunction of this Hon'ble Court from developing the Suit property in any manner whatsoever and/or submitting the Plans/Amended Plans and/or the Revised Plans as the case may be to M.C.G.M. and/or Rera Authorities in respect of the suit property viz. the plot of land bearing CTS No. 620, 620/1, 620/2, 620/3 Plot No. 46, The Jai Hind Cooperative Housing Society Limited, 11th North South Road, Juhu Scheme, Vile Parle (West), Mumbai - 400049 admeasuring 668.88 square meters [800 square yards] and owners of an old building known as "KanakKunj" (Exhibit "A" hereto).
3 Mr. Chinoy, the learned Senior counsel appearing on behalf of the Plaintiff, submitted that the subject matter of the present Suit is a plot of land bearing CTS Nos. 620, 620/1, 620/2, 620/3 plot No. 46, The Jaihind Co-operative Housing Society Ltd., 11 th North South Road, Juhu Scheme, Vile Parle (West), Mumbai- 400049, admeasuring approximately 800 square yards alongwith an old building known as "KanakKunj". He submitted that originally a Development Agreement dated 22nd October, 2015 was executed between Defendant Nos. 1 to 3 as developers and Defendant Nos. 4 and 5 as owners. Under this Agreement, Defendant Nos. 4 and 5 were to be paid a sum of Rs. 14.25 Crores and were to get flats in a newly constructed building on floors 7, 8, 9, 12 and 13 respectively. Mr. Chinoy thereafter pointed out that it was the liability of Defendant Nos. 1 to 3 to negotiate with two tenants in Aswale page 3 of 12 ial.34926.22..doc the said building who were occupying Flat No. 2 and Flat No. 7. He submitted that thereafter a Supplementary Development Agreement was also entered into between Defendant Nos. 1 to 3 and Defendant Nos. 4 and 5 dated 28th June, 2017 (Exhibit-D).
4 After all this, Mr. Chinoy submitted that the tenant occupying Flat No. 2 was settled by Defendant Nos. 1 to 3 and Defendant Nos. 1 to 3 also obtained Clearance of the Coastal Regulation Zone (CRZ) and got plans approved by the MCGM some time before 2019. Mr. Chinoy submitted that until this stage, the Plaintiff was not concerned with the above project.
5 Mr. Chinoy thereafter brought to my attention that on 12 th September, 2019 an MOU was entered into between the Plaintiff and Defendant Nos. 1 to 3 under which Defendant Nos. 1 to 3 were to pay a sum of Rs. 7.5 Crores to Defendant Nos. 4 and 5 along with Transit Rent. Mr. Chinoy submitted that under this MOU, the Plaintiff was appointed as a joint developer and was to undertake joint construction of the new building, at his cost and in return get premises on the 4 th and 5th floor of 2510 sq. ft. each and a premises on the 7 th floor also admeasuring 2510 sq. ft. This MOU also contemplated that the consent of the tenant of Flat No. 2 and Flat No. 7 was to be obtained by Aswale page 4 of 12 ial.34926.22..doc Defendant Nos. 1 to 3. Mr. Chinoy fairly stated that Defendant Nos. 4 and 5, and who are the owners of the Suit property, were not parties to the said MOU.
6 Mr. Chinoy thereafter submitted that a Tripartite Agreement known as Term Sheet was executed between the Plaintiff, Defendant Nos. 1 to 3 and Defendant Nos. 4 to 5 on 30 th September, 2020. Under the said Agreement, the parties agreed that an amount of Rs.6.30 Crores shall be paid by Defendant Nos. 2 and 3 to Defendant Nos. 4 and 5 in the manner more particularly set out therein. Mr. Chinoy submitted that clause (g) of this Term Sheet contemplated how the redevelopment of the new building was to take place and what would be the allotment of the premises in the newly developed building to the Plaintiff, Defendant Nos. 1 to 3 and Defendant No. 4 and 5. This Agreement also contemplated that the plaintiff was to resolve the dispute with the tenant of Flat No. 7.
7 Mr. Chinoy submitted that the negotiations with the tenant of Flat No. 7 did not work out but at the instance of the Plaintiff, a notice under Section 354 of the Mumbai Municipal Corporation Act, 1888 (for short the "MMC Act") was issued for demolition of the old building. Pursuant to this notice, the old building "KanakKunj" was demolished Aswale page 5 of 12 ial.34926.22..doc some time in January 2021. Thereafter, the project of redevelopment was registered with RERA in the name of the Defendant No. 1 Firm, comprising of the Plaintiff and Defendant Nos. 2 and 3. Mr. Chinoy submitted that the said Firm thereafter prepared plans and also several other MOU's were exchanged between the parties to take the project forward. Initially, there was feed back from Defendant Nos. 4 and 5, but thereafter, there was complete silence. In these circumstances, the Plaintiff took search in August 2022 when the Plaintiff was shocked to learn that Defendant Nos. 1 to 3 and Defendant Nos. 4 and 5 had executed a Deed of Termination dated 30 th November, 2021. They also thereafter learnt that on 22nd June, 2022 Defendant Nos. 4 and 5 entered into a fresh Development Agreement with Defendant Nos. 6 to
8. It is in these circumstances, that the Plaintiff has been constrained to approach this Court seeking protection of its rights more particularly set out in the Tripartite Agreement dated 30 th September, 2020 (Exhibit-H to the Plaint). Mr. Chinoy submitted that Defendant Nos. 4 and 5 are not disputing the Tripartite Agreement dated 30 th September, 2020 and which is styled as a Term Sheet. Mr. Chinoy submitted that the Plaintiff has rights under this Agreement and the unilateral termination of the Development Agreement between Defendant Nos. 1, 2 and 3 on the one hand and Defendant Nos. 4 and 5 on the other, cannot wish away these rights of the Plaintiff. In these circumstances, Mr. Chinoy pressed for Aswale page 6 of 12 ial.34926.22..doc ad-interim reliefs in term of prayer clauses (b) & (c) reproduced above. 8 I have heard Mr. Chinoy, the learned Senior counsel appearing on behalf of the Plaintiff, Dr. Saraf, the learned Senior counsel appearing on behalf of Defendant Nos. 4 and 5, Mr. Dhond, the learned Senior counsel appearing on behalf of Defendant Nos. 6 to 8, and Mr. Singh, the learned counsel appearing on behalf of Defendant Nos. 1 to 3. I am unimpressed with the arguments canvased by Mr. Chinoy. Firstly, the termination of the Development Agreement entered into by Defendant Nos. 4 and 5 with Defendant Nos. 1 to 3 was admittedly to the knowledge of the Plaintiff as far back as on 18 th April, 2021. I say this because Defendant No. 5, on 18 th April, 2021, forwarded to the then advocates for the Plaintiff an E-mail of the Termination Notice addressed to Defendant Nos. 1 to 3 as well as their reply. It is therefore wholly incorrect on the part of Mr. Chinoy to contend that they came to know about the termination only in August, 2022, when they took search and came across the Deed of Termination Dated 30 th November, 2021. On this ground alone I would be justified in rejecting the prayers for ad-interim reliefs.
9 This apart, even otherwise, prima facie I do not find that the Plaintiff is entitled to any ad-interim relief on the merits of the matter.
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As mentioned earlier, the Development Agreement was entered into by Defendant Nos. 1 to 3 with Defendant Nos. 4 and 5 on 22 nd October, 2015. Clause 13 of this Agreement contemplated that the Developers (Defendant Nos. 1 to 3) would be fully entitled to sell the premises available to their entitlement after the IOD is issued by the MCGM and all Agreements and Documents with regard to the premises in the new building, including all the Agreements for the developers' entitlement shall be executed in tripartite, duly executed by the owners, the developers and the incoming party once (i) all amounts payable under this Agreement and the Permanent Alternate Accommodation have been paid to the owners; (ii) both the tenants in the premises (Flat No. 2 and Flat No. 7) have been settled and/or rehoused by executing separate agreements for allotment of their premises; (iii) the construction of the new building is completed; (iv) the Occupation Certificate is obtained;
(v) the owners are first put in possession of the premises in the new building with Occupation Certificate and completed amenities as agreed; and (vi) provided the developers have not committed any breach of the terms and conditions of the said Agreement. There are other Clauses in this Agreement which contemplate several other things that have to be done by the developers in a timely manner. Clause 18 (i) of the Development Agreement categorically stipulated that the developers shall not assign, encumber, transfer and/or in any way deal with the Aswale page 8 of 12 ial.34926.22..doc benefits of the said Agreement or with the development rights or create third party rights [save and except the developers entitlements or part thereof] to any other person, and the developers shall develop the said property on their own and not jointly with any other person. Clause 18
(j) of the Development Agreement further contemplated that the developers, being a partnership firm, shall not make any changes, induct or retire any partner and that both Defendant Nos.2 and 3 shall continue to be its partners untill they fulfill all the obligations set out in the Agreement, including obtaining the Occupation Certificate from the MCGM.
10 It is not in dispute that several terms of this Development Agreement have in fact been breached. In fact, it is an admitted position that in breach of Clauses 18 (i) and 18 (j), Defendant Nos.1 to 3 sought to create a purported right in favour of a firm called "Sadguru Realtors" of which the Plaintiff is a partner. This apart, admittedly, and without the knowledge of Defendant Nos.4 and 5, Defendant Nos.2 and 3 inducted the Plaintiff as a partner of Defendant No.1 vide a Deed of Reconstitution dated 12th September, 2019. This would clearly be in breach of the terms of the Development Agreement dated 22 nd October, 2015 entered into by Defendant Nos.1 to 3 with Defendant Nos.4 and 5. As far as the Term Sheet dated 30th September, 2020 is concerned, I do Aswale page 9 of 12 ial.34926.22..doc not think that the same carries the case of the Plaintiff any further. It is true that the Term Sheet has been entered into between the Plaintiff, Defendant Nos.1 to 3 and Defendant Nos.4 and 5 respectively. What is interesting to note in the aforesaid Term Sheet is that it records that the tenancy of Flat No.7 is under litigation and the Plaintiff has agreed to resolve the matter to ensure construction and completion of the new building and any and all payments and expenses for Flat No.7 upto BMC demolition shall be borne by the Plaintiff without any financial involvement of the owners. Only once the issue of Flat No.7 is resolved [to enable redevelopment], the owners consent that the Plaintiff and/or his family members or family firm can be inducted as a partner/contractor in the Defendant No.1 Firm without in any manner affecting the Development Agreement and other rights therein and more specifically the owners rights. In fact, the Term Sheet categorically recorded that there shall be no financial transaction between any of the parties thereto till such time the matter of Flat No.7 is not resolved. Even when this Term Sheet was executed, it was not disclosed to Defendant Nos.4 and 5 that the Plaintiff, in breach of the Development Agreement dated 22nd October, 2015, was inducted as a partner of the Defendant No.1 Firm.
11 Mr. Chinoy, faced with this situation, sought to contend
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that the issue of resolving the disputes with the tenant of Flat No.7 has become infructuous because the building has now been demolished and the tenant of Flat No.7 has vacated the premises and the property is available for redevelopment. I find no merit in this contention either. Firstly, merely because the tenant of Flat No.7 has vacated the premises by virtue of the notice issued by the MCGM under Section 354 of the MMC Act, does not in any way affect his tenancy rights. They have not yet been resolved by the Plaintiff as contemplated in the Term Sheet dated 30th September, 2020. This apart, Defendant Nos.4 and 5 have filed an affidavit in this Court wherein they have categorically stated that the litigation commenced by the tenant of Flat No.7 was defended and funded entirely by Defendant Nos.4 and 5, and the Plaintiff, though required to resolve the dispute with the said tenant, failed to do anything in that regard. Furthermore, it is the case of Defendant No.4 and Defendant No.5 that even the demolition of the old building was carried out entirely by Defendant Nos.4 and 5 at their cost and they have also annexed bank statements and receipts to the said affidavit in reply. When one looks at all these facts, I am of the opinion that the Plaintiff has not made out a prima facie case to be entitled to any ad-interim reliefs. In fact, Defendant Nos.6 to 8, acting on the basis of the Development Agreement dated 22nd October, 2015 and its subsequent termination by a Registered Deed of Termination and Cancellation Aswale page 11 of 12 ial.34926.22..doc dated 30th November, 2021, have entered into a Development Agreement with Defendant Nos.4 and 5 on 22 nd June, 2022. Thereafter, they have also infused approximately Rs. 9 Crores in the project. Hence, even looking at the equities in the matter as well as the balance of convenience, I am of the opinion that the Plaintiff is not entitled to any ad-interim reliefs.
12 In these circumstances, ad-interim reliefs are rejected. The Defendants are at liberty to file their detailed affidavit in reply to the above Interim Application within a period of four weeks from today and serve a copy of the same on the advocates for the Plaintiff. If the Plaintiff seeks to file any affidavit in rejoinder, he may do so by filing the same within a period of two weeks thereafter.
13 Place the above Interim Application for "hearing and final disposal" as per its turn.
14 This order will be digitally signed by the Private Secretary/Personal Assistant of this Court. All concerned will act on production by fax or email of a digitally signed copy of this order.
( B. P. COLABAWALLA, J. )
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