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RESERVED ON : 15th October, 2025.

PRONOUNCED ON : 7th November 2025.

Judgment :

Brief facts under an oral agreement.

1) By the present suit, the Plaintiff seeks to recover a sum of ₹12.5 crores towards the efforts undertaken in bringing together all the owners and facilitating the sale of the Nepean Sea Road property, and an additional sum of ₹2.5 crores for securing the benefit of the setback area which had been acquired by the Municipal Corporation at an earlier point in time. It is the Plaintiff's case that the original file of correspondence with the Municipal Corporation in relation thereto was handed over to the Defendants. The aforesaid consideration was agreed to be payable upon completion of the sale of the Nepean Sea Road property. To secure payment of the additional consideration, a charge was created over four flats in the Defendants' sumedh 903-osia-312-2025-J.doc project at Lokhandwala, Andheri, together with a statutory charge on the Nepean Sea Road property. The payment of the additional consideration was deferred until the sanction of the building plans for the said property.

Mr. Samdani's submissions.

2) The Defendants have admitted the existence of an oral Agreement. However, it is for payment of an additional sum of Rs.10 crores under a second component, towards obtaining the benefit of additional Floor Space Index (FSI) in respect of the setback area, which the Plaintiff had agreed to secure at his own cost. By way of comfort and with a view to secure the additional consideration, three letters of allotment of flats at Lokhandwala in the Defendant's project were deposited with the Defendant's Solicitors, Kanga & Company.

5) It is further submitted that the Deed of Conveyance expressly excluded the setback area admeasuring 404 square yards, which had been acquired by the Municipal Corporation in 1969. The conveyance was executed only for the balance area, as is evident from the stamp duty levied on the portion actually conveyed.

6) The Defendant's contention that the Nepean Sea Road Property was conveyed to them together with the benefit of the setback area is misconceived. If, as alleged, such benefit had already vested in the Defendants, there would have been no occasion or necessity to pursue or claim any FSI/TDR benefit in respect of the setback area.

32) The right to TDR was expressly excluded from the scope of the conveyance deeds executed between the parties.

33) The order dated 10th October 2023 passed by this Hon'ble Court is as under.

"13. In the present context, such 'law' would be section 126 of the Maharashtra Regional Town Planning Act, 1966, which provides for agreement-based compensation and compulsory acquisition, about which even the respondent- Corporation does not raise any dispute. So, the compensation, as per this law, would have to be paid to a rightful claimant, which is not paid here so far. In the present case, the rightful claimant would be petitioner no. 1. Reason being that the erstwhile owners, seen from aforestated conveyance deeds, had transferred their right, title and interest in the saleable properties which included, the setback land. Of course, the setback land was not available for transfer of any title in it to the present owner but, the right to receive compensation in respect of the land already acquired, which had accrued to the erstwhile owner, was indeed available for its transfer to the present owner, it sumedh 903-osia-312-2025-J.doc having remained alive till then, and this was what was done by the said conveyance deeds. By these deeds, right, title and interest in the setback land, together with the remaining portion of land were transferred by the erstwhile owners to the present owner. That only meant, in the context of the setback land, that a live right to receive compensation in lieu of acquisition of setback land was transferred by the erstwhile owners to the present owner. This is further confirmed by the averments made in this regard by the petitioner no. 1 in its additional affidavit-in-reply dated 30th June 2023 supported by giving of authority by the erstwhile owners to petitioner no. 1 to obtain FSI in lieu of the setback land acquired by the Corporation, not denied by the Corporation. Besides, there is also evidence on record, about which we have already discussed in the earlier paragraphs, showing that right to claim compensation in lieu of the acquired setback land has been consistently asserted by the erstwhile owners and then by the petitioner no. 1, the present owner. It would then follow that what is said in the aforestated conveyance deeds regarding sale of the saleable properties on "as is and where is basis", meant exclusion of physical land relating to setback area and inclusion of right of the erstwhile owners to claim compensation for the acquired setback land which was transferred to the petitioner no. 1. That means the petitioners are within their right in law to claim compensation for the acquired setback land, in accordance with law, from the Corporation. We therefore, find no merit in the argument of learned counsel for the Corporation in this regard."