1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.683 OF 2008 W I T H CIVIL APPLICATION NO.794 OF 2008 IN APPEAL FROM ORDER NO.683 OF 2008 Shree Raj Developers .......Appellants/ (Orig.plaintiffs) Versus Shree Appa Bapu Patil & Ors. .......Respondents/ (Orig.Defendants) ======= Mr.C.J.Sawant, Mr.Amit Pradhan, Mr.Abhishek Sawant i/by. Wadia Ghandy & Co.,Adv.for appellants. Mr.N.V.Walawalkar i/by.Mr.Sachadev,adv. for respondents no.1to 12. Mr.R.D.Dave, Adv.for respondent no.13. Mr.G.S.Hegde, Adv.for respondent no.14. Coram: Smt.R.P. SondurBaldota ,J. Dated : 26 th September, 2008. P.C. : 1. This Appeal takes exception to the order dated 15th April, 2008 rejecting an application for interim 2 reliefs filed in a suit for specific performance. The appellants are the original plaintiffs and respondents no.1 to 14, the original defendants. The parties will be hereinafter referred to by their original nomenclature. 2. The facts giving rise to the present appeal are as follows :- . The plaintiffs filed the suit herein for specific performance of registered Development Agreement dated 11th June, 2003 between themselves on the one hand and defendant no.1, deceased Ganpat Bapu Patil and defendants no.8 to 12. Defendants no.2 to 7 are the heirs and legal representatives of Ganpat. It is the plaintiffs case that by the Development Agreement, the vendors have agreed to transfer the suit land i.e. land admeasuring 1500 sq.mtr. at Plot No.9, Survey no.19, Phase-II, New Bombay to them. The vendors are allottees in respect of the land from CIDCO under a Scheme known as “12.5%” Scheme for Gavthan development. The total consideration agreed under the agreement was of Rs.21,75,000/- out of which the appellants claim to have paid a sum of Rs.19,57,500/- to the vendors. The balance amount of Rs.2,17,500/- was agreed to be paid at the time of transfer of the 3 property. The plaintiffs contend that under the Development Agreement they are entitled to develop the property and sell residential and commercial premises in the building to be constructed. They contend that defendants no.8 to 12 have transferred their share in the suit plot of land. However, respondents no.1 to 7 have avoided to complete the transaction. Defendant no.13 to the suit is the person with whom defendants no.1 to 12 have entered into an agreement which is prior in point of time. Defendant no.14 is The City and Industrial Development Corporation of Maharashtra, Limited (hereinafter referred to as “CIDCO”). The plaintiffs filed an application for interim injunction to restrain the defendants, inter-alia, from creating third party rights over the suit property which application was rejected by the impugned order. 3. Defendants no.1 to 12 contend that the agreement with the plaintiffs is purely a Development Agreement incapable of specific performance. Defendant no.13 has already filed a suit being Special Civil Suit No. 717 of 2007 against defendants no.1 to 12 and 14 for specific performance of the agreement in his favour. Interim 4 protection has been granted to him in that suit. 4. The rejection of the interim application has been on five grounds. Firstly that there is already an agreement executed in favour of defendant no.13. Secondly, that the relief in the suit of specific performance is sought only against defendants no.1 to 7 and not against defendants no.8 to 12 who have been disputing the claim of the plaintiffs. Thirdly that defendant no.14-CIDCO by its letter dated 16th January,2008 informed the plaintiffs that there is already an application made by the owners for transfer of the suit property in favour of defendant no.13. CIDCO in its affidavit-in-reply states that there can be no substance in the claim of the plaintiffs that defendants no.8 to 12 have already transferred the suit property in favour of the plaintiffs since the tripartite agreement i.e. the agreement between the plaintiffs on one hand, the owners on the other hand and defendant no.14 on the third hand is yet to be executed. Fourthly, that the agreement between CIDCO and defendants no.1 to 12, which is an agreement to lease creates limited right in their favour. As per Clause-8 of the agreement to lease, defendants no.1 to 12 have to form a Co-operative Society 5 or a Limited Company of the occupants of the building to be constructed on the land by way of development and not in favour of defendants no.1 to 12. Fifthly, the agreement between the plaintiffs and defendants no.1 to 12 does not contain a Clause for execution of agreement of lease in favour of the Society or company of the purchasers of the premises in the building. Further, the agreement between the plaintiffs and defendant no.1, deceased Ganpat and defendants no.8 to 12 dated 11th June,2003 contains a Clause, that time is the essence of the contract. The plaintiffs have not been able to maintain the time. 5. Mr.Sawant, learned counsel for the plaintiffs lays stress upon the fact that the agreement in favour of defendant no.13 is an unregistered document, whereas, the agreement in favour of the plaintiffs is a registered document. Therefore, according to him the registered document ought to prevail over the unregistered document. He further submits that though the agreement of the plaintiffs is termed as a development agreement, the same is capable of specific performance. He relies upon a decision of our High Court in the case of Chheda Housing Development Corporation, a partnership firm registered 6 under the provisions of Indian Partnership Act, 1932 V/s. Bibijan Shaikh Farid & Ors reported in 2007(3) Mh.L.J.page 402. The decision cited by Mr.Sawant holds that an agreement for entrusting the work of development to a party with added rights to sell the constructed portion to flat purchasers, who would be forming a Co- operative Housing Society to which, the owner of the land, is obliged to convey the constructed portion as also the land beneath construction on account of statutory requirements is capable of enforcement. This is because such an agreement creates a right in favour of the developer. An agreement that only entrusts construction work to a party for consideration, it does not create any right in favour of the developer in the land to be developed. The facts of the present case are slightly different. Defendants no.1 to 10 cannot be said to be owners in the strict sense of the term. The title in respect of the property which is alloted to them continues to vest in CIDCO. These, defendants have been granted only a license to enter upon the land for the purpose of its development. On completion of the development, CIDCO would by way of a tripartite agreement 7 grant lease in respect of the land not in favour of defendants no.1 to 12 but in favor of the body of purchaser of the premises. This has been specifically provided for in the agreement to lease executed with defendants no.1 to 12. Therefore, the agreement between the plaintiffs and these defendants does not fall in the same category as the usual agreements of development with rights created in favor of the developer, making it capable of specific performance. Therefore, on a primal- facie view the agreement in favour of the plaintiffs cannot be said to be capable of specific performance. Mr.Walavalkar, learned counsel for defendants no.1 to 5 points out that the final relief sought by the plaintiffs in the suit is also not capable of being granted. By prayer clause (a) of the plaint, the plaintiffs seek mandatory order to defendants no.1 to 7 for transfer of the suit property in their favour in the records of CIDCO and specifically perform the suit agreement. Defendants no.1 to 7 being only allotees of the land for the purpose of development, they cannot transfer the suit land in favour of the plaintiffs. As already mentioned above, on completion of the work of development, it is for 8 CIDCO to execute a tripartite agreement or grant of lease of the suit property in favour of either the society or the company of flat purchasers. 6. Thus, it is prima-facie seen that the agreement with the plaintiffs is essentially a Development Agreement and hence not capable of specific performance. Besides, the land alloted by CIDCO continues to be in its possession. Though, defendants no.8 to 12 are party to the agreement of allotment with CIDCO, no relief has been sought by the plaintiffs against them. The view taken by the trial court based on the five grounds mentioned above is a probable view taking into consideration the facts of the case. The view cannot be said to be perverse. There is no need to interfere with the same. Hence, the order. 7. The Appeal from order is dismissed in limine. With the dismissal of the Appeal from order, the Civil Application does not survive. The same is accordingly disposed off. [JUDGE] 9