1 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3703 of 2007 IN SUIT NO.2486 OF 2007 Sayed Mustafa Hussaini .. Plaintiff versus Ms.Vaishali Kashinath Salvi & Ors. .. Defendants ... Mr.Manoj Prajapati i/b Mohit Gadkari & Co. for the plaintiff. Mr.Vijay Pandey and Ms.Ashta Tamhankar i/b A.H. Khan for defendant nos.1 to 10. Mr.A.V. Jain for defendant nos.11 and 12. Mr.R.R.Sharma for defendant no.14. CORAM : D.G. KARNIK, J DATED :7th July 2009 P.C:- 1. Heard learned counsel appearing for the parties. 2. This motion is taken out by the plaintiffs for appointment of the court receiver as a receiver of the suit property and for an injunction 2 restraining the defendant nos.1 to 14 from selling, transferring, alienating or creating any third party rights in the suit property. The case of the plaintiff stated in short, is that defendant no.1 to 10 are the owners of the suit property. Some time in the month of March 2002 the defendants 1 to 10 entered into an agreement, titled as "Agreement for development" under which they agreed to sell the suit property to the defendant no.11 company or its nominee or nominees. The plaintiff and the defendant no.12 are the only directors of the defendant no.11 and the plaintiff is entitled to all the rights under that agreement. Though the agreement is in subsistence, defendant nos.1 to 10 have fraudently entered into another agreement with defendant no.14. The plaintiff apprehends that the defendants would sell, transfer and alienate the suit property to the defendant no.14 or any third person so as to defeat the claim of the plaintiffs. The plaintiffs have therefore filed the suit for specific performance of the “agreement for development”. 3. At the hearing of the motion, the prayer for appointment of the Court receiver as a receiver is not pressed and in my view rightly so because no ground for appointment of a receiver has been made out. 3 4. Learned counsel for the plaintiff submitted that though the agreement of March 2002 is styled as "agreement for development", the agreement is really an agreement of sale. If read as a whole, it can be clearly demonstrated that it is not an “agreement of development” as such but an “agreement for sale”. This submission is made on account of the fact that this court has consistently taken a view that no specific performance can be granted of an agreement of development. 5. It is true that the nomenclature of an agreement would only be indicative of the nature of an agreement and would not be an conclusive to determine its nature. The agreement must be read as a whole to find out whether it is an agreement for development or agreement for sale. Learned counsel for the plaintiff, inviting my attention to the relevant clauses submitted that they show that the agreement is in fact and substance of an agreement of sale. Per contra, learned counsel for the defendants submitted that the clauses unmistakably show that it is an agreement of development. On page 7 of the agreement, it is stated that the defendant nos.1 to 10 have accepted the offer of the developer (plaintiff) to permit the developer to develop the suit property and on completion of the development thereof they agreed to sell, assign, convey, assure and transfer the said 4 property onto the developer or its nominees. clause no.2 of the agreement states that the developer has agreed to acquire the development rights in the suit property. The price was to be ascertained and determined on the basis of actual area available for development. Clause no.2 however states that the final sale deed would be executed in the name of the developer or its nominees including a co-operative housing society, a corporate body or association of apartment owners. Clause No.14 of the agreement is material and reads thus: “THAT the Vendors do and each of them doth hereby declare, record and confirm that the Developers have accepted the development rights and ultimately for the transfer of the said property as described in the First Schedule hereunder written unto and in favour of the Co- operative Society/Association/Corporate Body as the case may be and on the following conditions:- ...........” Clause no.32 says that if any party commits the default, the aggrieved party shall be entitled for specific performance of the agreement. 5 6. Counsel for the plaintiff relying upon clause no.32 of the agreement submitted that the aggrieved party is entitled to a relief of specific performance. This clearly indicates that the party was entitled to the relief of specific performance. In my view, the argument has no merit. Whether the agreement contains a clause granting right to claim specific performance or not, the party aggrieved by a breach is entitled to the relief of specific performance subject to the provisions of the Specific Relief Act including section 14 thereof. Absence of a clause mentioning existence of a right to claim specific performance does not disentitle it to claim specific performance. Similarly, it cannot be said that merely because there is a clause about specific performance, a party would not be entitled to a specific performance de hors the limitations contained in the Specific Relief Act and in particular section 14 thereof. In my view, the plaintiff would be entitled to the relief of specific performance if the suit agreement is an agreement of sale and would not be entitled if the agreement is a development agreement. If the agreement is read as a whole, it is clear that by the suit agreement the defendant nos.1 to 10 had permitted the plaintiff to carry out the development. After the suit property was developed it was to be sold to the nominee of the plaintiff i.e. co-operative society to be formed by the flat holders. 6 Clause no.14 of the agreement is very clear in this regard. I am of the prima facie view that the suit agreement is an agreement of development as it is styled and not an agreement for sale as is contended by the plaintiff. In M/s.Shah Jhaveri Brothers Vs. M/s.Classic Developers Pvt.Ltd. (Notice of Motion No.3280 of 2006 decided on 13th April 2006; Coram D.K.Deshmukh, J) this Court, following its earlier decisions, has held that no specific performance of a development agreement can be granted. The only exception to this rule is where the case falls under sub-section (3) of section 14 of the Specific Relief Act. Learned counsel for the plaintiff was unable to point out the facts to bring the case within the exception carved out to the rule that agreement for development cannot be specifically enforced. 7. For these reasons, I am of the view that plaintiff has not made out a strong prima facie case for grant of specific performance and consequently, is not entitled to the relief of injunction. 8. For these reasons, the motion is dismissed but with no order as to costs. (D.G. KARNIK, J)