IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.795 OF 2008 ALONGWITH CIVIL APPLICATION NO.958 OF 2008 Shri Jayant Maniklal Lunawat & Ors. ... Appellants Vs. Laxmibai Maruti Tupe & Ors. ... Respondents Mr. Vijay Thorat, Senior Counsel i/by Mr. N.R. Bubna Advocate for the Appellants. Mr. A.R. Anturkar, Advocate i/by Mr. P.J. Pawar Advocate for respondent No.2. Mr. R.D. Soni i/by Mr. V.R. Kasle, Advocate for respondent no.3. Mr. R.G. Ketkar, Advocate for respondent no.4. Coram : SMT. R.P. SONDURBALDOTA,J Date : 25th August, 2008 P.C. 1. Rule. Returnable forthwith. Mr. Mr. A.R. Anturkar, Advocate waives service for respondent No.2. Mr. R.D. Soni, Advocate waives service for respondents no.3 and Mr. R.G. Ketkar, Advocate waives service for respondent no.4. By consent the rule is taken up on board for final hearing. Heard both the Counsels. 2. The appellants are the original plaintiffs in Special Civil Suit No.254 of 2007 filed for avoiding registered development agreement dated 21st June, 2004 in favour of respondent no. 2. The grounds on which the avoidance is sought is threefold. Firstly that the (2) consideration for the agreement is unlawful, being against the statutory provisions of law, secondly that the same is incapable of performance and thirdly that respondents no. 1 and 2 have committed breaches of the agreement. Unfortunately the plaint in the suit is very cryptic. It does not disclose the transactions between the parties in entirety. The details of transactions have been left to be gathered by the Court from the defences filed by the respondents and the documents produced by both the sides. It may be mentioned here that as regards execution of the various documents between the parties and the contents thereof, there are no disputes. 3. The land at survey no.209, Hissa No.4-B together admeasures 8,900 sq. mtrs. A part of it i.e. land admeasuring 4500 sq. mtrs. falls in the residential zone, whereas a part admeasuring 3800 sq. mtrs. falls in reserved area. By the registered sale-deed dated 1st August,2002, the appellants purchased the land admeasuring 3800 sq. mtrs. which was reserved for play ground and road as per the final development plan of Pune Municipal Corporation. By another agreement executed on the same date, the owners agreed to sell and entrust development rights in respect of the balance (3) portion of land admeasuring 4500 sq. mtrs. falling in residential zone to appellant No.1. A power of attorney came to be executed in favour of appellant no. 1 which was duly registered. Though Bhosale family consisting of 18 members was the owner of said land, it was entirely occupied by Tupe family consisting of 10 members. Respondent no. 1 is one of the member of Tupe family. She had assigned development rights of her undivided share in possessory rights to respondent No.2 by executing the agreement for the purpose. Respondent no. 3 is the builder who is presently developing the property. 4. There had already been several disputes over the said land between Bhosale family and Tupe family. The appellants had also filed Special Civil Suit No.950 of 2003 against the members of Bhosale family and Tupe family. Then there was dispute between the appellants on one side, respondent no. 2 on the other and Bhosale and Tupe families on the third side. All these disputes came to be resolved by the parties executing compromise deed dated 21st June,2004. On the same day, the development agreement which is sought to be avoided by the present suit came to be executed. It is to be noted that the appellants are seeking to avoid only the (4) development agreement and not the compromise deed which according to the appellants themselves is an integral part of the development agreement. 5. The compromise deed is signed by all the appellants, all the members of Bhosale and Tupe families and respondent no. 2. It is to be clarified here that though respondent no.2 bears the same surname i.e. “Tupe”, he is not part of Tupe family that enjoyed possessory rights over the said land. The compromise deed records that all the disputes between the parties are resolved amicably in the terms mentioned in the deed. As per the deed, the appellants agreed to give respondent no.2 D.R. Certificate for the land admeasuring 1000 sq. mtrs., out of the land reserved for garden and D.P. road. They also agreed to give development rights in respect of land admeasuring 1000 sq. mtrs., out of the residential zone. The rest of the land admeasuring 2800 sq. mtrs. reserved for garden and D.P. road and 3500 sq.mtrs. falling in residential remained with the appellants. The expenses for acquiring D.R. Certificate for the entire land reserved for garden and D.P. road were to be borne by the appellants. As regards the owners, Bhosale family, the appellants agreed to pay a sum of Rs.1,55,000/- by way (5) of full and final settlement. As regards Tupe family, the appellants were to pay a sum of Rs.46,75,000/- as consideration for development rights and a sum of Rs.2,50,000/- towards the consideration of sale of land. However, since the appellants had agreed to give a portion of the land out of that reserved for garden and D.P. road and a portion from residential zone to respondent no. 2, it was agreed that the appellants would pay a sum of Rs.5,30,000/- to them in full and final settlement of their claim over the said land. By the compromise deed, the parties further agreed to withdraw all the civil, criminal and revenue disputes pending before the different authorities within a period of four days from execution of compromise deed. 6. Mr.Thorat, the learned senior counsel for the appellants submits that the development agreement is unlawful as the only consideration i.e. withdrawal of various proceedings including the criminal proceedings between the parties, which are not compoundable being opposed to public policy. According to him, if the consideration for an agreement is withdrawal and non prosecution of criminal complaint, then the provision of Section 23 of the Contract Act would be attracted. Consequently, the agreement must be treated as invalid (6) for the reason that it's consideration is opposed to public policy. The averments as regards the consideration for the agreement and the consequence of the consideration are found at Paragraph 9 of the plaint. The same read as follows : “Such litigations were agreed to be withdrawn and caused to be withdrawn and disposed off by Defendant no. 1 and 2, within a period of four days from the date of execution of the said deed of consent and this constituted the consideration for entering into the development agreement and POA in favour of Defendant No. 2 as stated hereafter and the said term was the essence of the said deed of consent. Thus for the said consideration and subject to and for the fulfillment of the said terms and conditions, the plaintiffs executed a development agreement dated 21/06/2004 in favour of Defendant No.2 at the instance of Defendant No.1, which is registered.” 7. It will now be necessary to see the contents of the development agreement in order to find out whether the only consideration thereunder is the agreement to withdraw or non prosecution of criminal proceedings which consideration will be unlawful as opposed to public policy. A copy of development agreement produced before the Court shows that the compromise deed executed between the parties is an integral part of the same. This fact is not disputed by the appellants either. Reading the two documents together, it is more than (7) obvious that there is consideration either in the form of money or in the form of development rights or in the form of D.R. Certificate exchanged between the parties. On the part of the appellants what they got was removal of all the clouds hovering over the commercial exploitations of the said land by them. The facts of the case show that though the appellants acquired ownership and development rights over the said land, it was impossible for them to develop and commercially exploit the same due to the claims of Tupe family, and respondent no. 2. Unless the property was rid of these claims, it was not available for the appellants for its commercial exploitation. The appellants while narrating the facts in the plaint have stopped at execution of the impugned agreement. They are totally silent as regards the subsequent development in the matter. This has been brought on record by respondents no. 2 and 3 in their written statements and reply. It is seen that on 7th May,2006 the appellants and respondent no. 2 issued a combined notice published in a daily “Lokmat” for development of land admeasuring 3500 sq. mtrs. Of the appellants and 1000 sq. mtrs. of respondent no. 2. Respondent no. 3 was interested in purchase of the entire 4500 sq. mtrs. of the land in the residential zone. It responded to the offer. For the benefit of respondent no. 3, the appellants had obtained opinion of (8) their Advocates, Shri N.N. Khire on title verification and made available to respondent no. 3. That opinion dated 1st February,2006 clearly mentioned the rights of respondent no. 2 on the land admeasuring 1000 sq. mtrs. Thereafter development agreement was executed by the appellants in favour of respondent no. 3 in respect of land admeasuring 3500 sq. mtrs. for approximate consideration of Rs.97.00 Lacs A similar development agreement was executed by respondent no. 2 in favour of respondent no. 3. Thus both i.e. The appellants and respondent no. 2 who are the parties to compromise deed as well as the impugned development agreement have taken benefits under the compromise deed. These facts have not been disclosed by the appellants in the plaint. 8. The contention taken in the plaint that there is no consideration under the development agreement apart from the consideration of withdrawal of criminal proceedings is vague. The plaint does not give any particulars whatsoever of the criminal proceedings, not even the number of proceedings. What has been submitted across the bar is that when the development agreement dated 18th August 2003 was executed, Tupe and Bhosale families jointly executed agreement for sale in respect of land admeasuring 3800 sq. mtrs. and development (9) agreements in respect of land admeasuring 4500 sq. mtrs. in favour of the appellant. At the time of its execution respondent no.1 was not present. She was impersonated by some other woman. Therefore respondent no. 1 had made a complaint to the Police on 18th August,2003. On that complaint, Police registered F.I.R. bearing C.R. No.234 of 2003 for commission of offence under Sections 467, 468, 471, 474, 420 read with 34 of the Indian Penal Code and took the cognizance of the same. The offences being non compoundable, Mr. Thorat, submits that the consideration for the development agreement is opposed to public policy. As already seen above,the consideration for development agreement is not withdrawal of the prosecution alone. As has been rightly submitted on behalf of respondent no. 3, withdrawal of the several proceedings interse the parties was only a consequence of compromise arrived at between the parties. The consideration therefor was received under the compromise deed. The fact that the compromise has been acted upon is further fortified by document of affidavit of respondent no. 1 produced by the appellants before the Court. In the affidavit, the respondent no. 1 states in unequivocal terms that the complaint made to the Police was on account to some misunderstanding and since then the appellants have (10) agreed and paid over her share in the entire deed to her. 9. It is thus seen that the impugned agreement has been acted upon by the parties. Based upon the impugned agreement, respondent no.2 has entered into the development agreement with respondent no.3, which fact is well known to the appellants. Under the compromise deed, respondent no. 2 is entitled to D.R. Certificate for the land admeasuring 1000 sq.mtrs. from the land forming part of reserved land and land admeasuring 1000 sq. mtrs. falling in the residential zone. There is ;no challenge to the compromise deed. 10. The appellants had taken out an interim application before the trial Court to restrain the respondents including respondent no. 4 i.e. Pune Municipal Corporation from obstructing the appellants' possession of the suit property, from altering the nature of the suit freehold property by causing construction thereon and from claiming D.R. Certificates and of T.D.R. from respondent no. 4 in respect of the reserved property and from transferring, alienating and/or creating any third party rights in or upon any portion of the suit property. As already seen (11) above, prima facie, there is no substance in the claim of the appellants that the only consideration for execution of the development agreement was withdrawal of the criminal proceedings involving non compoundable offences. It is further seen that the compromise deed under which various rights have been assigned to the parties has been implemented. Thirdly, the fact and circumstances of the case show that impugned agreement has already been acted upon by the parties. Under the compromise deed, respondent no. 2 is entitled to development rights in respect of 1000 sq. mtrs. of the residential zone and D.R. Certificate for the land admeasuring 1000 sq. mtrs. under reserved category. Therefore, respondent no. 2 cannot be deprived of those rights by way of interim orders as sought. It is also seen that the appellants have suppressed material facts from the Court, consequently there are not entitled to any equitable relief of injunction. 11. Mr. Thorat lastly submitted that the impugned order does not give any reasons for support of the order. This is not entirely correct. No doubt, the learned Judge could have elaborated the reasons a little more, but it cannot be said that there are no reasons whatsoever given. (12) 12. In all the above circumstances, Appeal from order is dismissed. 13. Mr. Bubna, learned counsel for appellant applies for continuation of the order restraining respondent no. 4 Corporation from handing over the D.R. Certificates to enable the appellants to challenge this order. For the same reasons as stated above in the order the application is rejected. 14. In view of disposal of the Appeal from Order, Civil Application No. 958 of 2008, does not survive, hence it is accordingly dismissed. (SMT. R.P. SONDURBALDOTA,J)