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14. Mr. Anturkar, the learned Advocate appearing for Defendant Nos. 1 to 3 has submitted that the said Agreement being an agreement which gives only the development rights in respect of the suit property to the Plaintiffs and nothing more cannot be specifically enforced. Without prejudice to this contention, he has submitted that the Plaintiffs having taken out proceedings under Section 9 of the Act against Defendant Nos. 1 to 3 seeking reliefs therein and having withdrawn the said proceedings, are not entitled to seek any reliefs against Defendant Nos. 1 to 3 in the present suit. Mr. Anturkar has submitted that even otherwise the Plaintiffs are not entitled to any reliefs against Defendant Nos. 1 to 3 since Defendant Nos. 1 to 3 have already sold and transferred all their rights in the suit property in favour of Defendant No. 4 and therefore the reliefs as prayed against Defendant Nos. 1 to 3 have become infructuous. Mr. Anturkar has submitted that the suit as framed is bad in law since the Plaintiffs despite having knowledge of the fact that pursuant to the 18 of 40 KPP 19 nm-2055 of 2012 order passed by this Court dated 1 st December 2011, Defendant Nos. 1 to 3 have deposited the amount of Rs. 1.38 crores in this Court and have thereafter entered into an agreement with Defendant No.4 selling/transferring all their rights in respect of the suit property in favour of Defendant No.4, have not impugned the said transaction in the present suit. In the absence of impugning the said transaction in the present suit, no reliefs can be granted in favour of the Plaintiffs at the interim stage and/or at the final stage. Without prejudice to the aforesaid contention, Mr. Anturkar has also submitted that after execution of the said Agreement and the said POA by Defendant Nos. 1 to 3, the Plaintiffs have not taken any steps whatsoever, in pursuance of the same. The responsibility of dealing with the tenants was solely that of the Plaintiffs under the said Agreement. At no stage have the Plaintiffs complained or made any grievance against Defendant Nos. 1 to 3 that they have not co-operated with the Plaintiffs or have instigated the tenants, and for the first time in their letter dated 25th October 2011 false and incorrect allegations are made against Defendant Nos. 1 to 3. Mr. Anturkar has also drawn my attention to the letters written by the Plaintiffs to the Income-tax Authorities from time to time explaining the delay in commencing/carrying out the reconstruction work, where again no allegations are made against Defendant Nos. 1 to 3 as alleged for the first time on 25th October 2011. Mr. Anturkar has therefore submitted that the Plaintiffs themselves have failed to perform their obligations under the said Agreement which compelled Defendant Nos. 1 to 3 to terminate the said Agreement. The Plaintiffs now cannot be heard to say that they were always ready and willing to perform their part of the contract and that the termination is bad. Mr. Anturkar has 19 of 40 KPP 20 nm-2055 of 2012 submitted that the agreement entered into by Defendant Nos. 1 to 3 with Defendant No.4 is a bona fide agreement and all allegations made by the Plaintiffs against Defendant Nos. 1 to 3 qua the same are denied and disputed by Defendant Nos. 1 to

3.

15. Mr. Chagla, Learned Senior Advocate appearing for Defendant No.4, has supported the submissions advanced on behalf of Defendant Nos. 1 to 3 by Mr. Anturkar. He has laid stress on the fact that this Court by its order dated 1 st December 2011, on an application made by the Plaintiffs under Section 9 of the Act, allowed Defendant Nos. 1 to 3 to enter into a development agreement after depositing an amount of Rs. 1.38 crores in Court. Pursuant thereto, the amount of Rs. 1.38 crores has been deposited in Court and an Agreement dated 22 nd December 2011 transferring the development rights and assignment of leasehold rights is executed by Defendant Nos. 1 to 3 in favour of Defendant No.4. Mr. Chagla submitted that in view thereof, the Plaintiffs cannot question the bonafides of the agreement dated 22nd December 2011 and further cannot be heard to say that the agreement dated 22nd December 2011 entered into by and between the Defendant Nos. 1 to 3 and Defendant No.4, is only a tool attempted to prejudice the rights of the Plaintiffs. As regards the submission of Mr. Seervai on the share capital of Defendant No.4 Company, Mr. Chagla has submitted that Defendant No.4 is controlled and managed by Goshar Ventures Pvt. Ltd. which owns 81 per cent of the total paid up and subscribed capital of Defendant No.4. The Promoters of the said Goshar Ventures Pvt. Ltd. are experienced in real estate development and have 20 of 40 KPP 21 nm-2055 of 2012 completed various projects in the vicinity of Matunga, Mumbai. The Directors of Defendant No.4 are also running a successful business in the name of K.T. Exports, an Associate concern of Defendant No.4, having annual turnover of Rs. 30 crores approx. and are capable of inducting further capital in the Defendant No.4 Company.

16. I have considered the submissions advanced on behalf of the Plaintiffs and the Defendants. Before dealing with the main issues/defences raised by the Defendants as aforestated, I would first deal with the submission of Mr. Anturkar that the Plaintiffs are not entitled to seek any reliefs against Defendant Nos. 1 to 3 in the present suit since the Plaintiffs had earlier taken out proceedings under Section 9 of the Act and have withdrawn the said petition and further that the Plaintiffs despite being aware of the fact that Defendant Nos. 1 to 3 have sold the suit property to Defendant No.4 have not impugned the said transaction in the present suit because of which no reliefs can be granted in favour of the Plaintiffs at the interim stage and/or at the final stage.

1 to 4 seeking aforestated reliefs. I am therefore not inclined to accept the submission advanced by Mr. Anturkar that since the Arbitration Petition was withdrawn by the Plaintiffs, the present suit cannot be filed by the Plaintiffs and interim/final reliefs cannot be granted in favour of the Plaintiffs. Hence the said submission is rejected.





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     KPP                                             23                                           nm-2055 of 2012