31-s-2651-2008.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO.2651 OF 2008 WITH COUNTER CLAIM NO.39 OF 2011 Ramesh Devichand Jain and Another ...Plaintiffs vs. Shohum Constructions and Others ...Defendants Mr. A.G. Pandit a/w. Mr. Sarbari Chatterjee, for the Plaintiffs in Suit No. 2651 of 2008 and Defendant No. 1 in Counter Claim No. 39 of 2011. Mr. V.P. Shastri i/b. Devendra Singh, for Defendant No. 2 in Suit No. 265 of 2008 Mr. Ralston Fernandes, for Defendant Nos. 1 and 3 in Suit and for Plaintiff in Counter Claim. CORAM : N. J. JAMADAR DATE : FEBRUARY 24, 2020 P.C.: . Heard learned counsel for the parties. 2. In view of the pleadings, the following issues are framed in Suit No. 2651 of 2008:- 1] Is the Suit barred by the law of limitation ? 2] Is the Suit bad for misjoinder of parties on account of impleadment of Plaintiff No. 2 ? Vishal Parekar 1/6 31-s-2651-2008.doc 3] Do the Plaintiffs prove that the Defendant No. 1 agreed to transfer the development rights in respect of the Suit land admeasuring 6171 Sq.Yards (5159.70 Sq.Mtrs.) for a consideration at the rate of Rs. 450/- per sq. fts. FSI by executing an agreement dated 2 nd May, 1994 ? 4] Do the Plaintiff prove that the Defendant No. 1 executed an irrevocable Power of Attorney dated 20 th September, 1994 in favour of Plaintiff No. 1. 5] Do the Plaintiffs prove that Defendant No. 3 confirmed agreement dated 2 nd May, 1994 executed by Defendant No. 1 in favour of Plaintiff No. 1 by a declaration dated 20 th September, 1994 ? 6] Do the Plaintiffs prove that consequent to the execution of the said agreement dated 2 nd May, 1994 the Defendant No. 1 put Plaintiff No. 1 in possession of the Suit property and executed a letter of possession dated 2 nd May, 1994 ? 7] Do the Plaintiffs prove that the supplementary agreement dated 2 nd December, 1994 was executed by Defendant No. 1 in favour of Plaintiff No. 1 ? Vishal Parekar 2/6 31-s-2651-2008.doc 8] Do the Plaintiffs prove that Defendant Nos. 3 and 4 executed an agreement dated 16 th January, 1995 confirming the execution of the agreement dated 2 nd May, 1994 ? 9] Do the Plaintiffs prove that the Plaintiff paid a total consideration of Rs. 45,46,578/- only to Defendant Nos. 1 and 3 as shown in Exhibit-W to the Plaint ? 10] Do the Plaintiffs prove that the Plaintiffs paid a total sum of Rs. 5,56,578/- to Defendant No. 3 as an advance against the cost of the Suit property as recorded in receipt dated 2 nd March, 2002 Exhibit K1, receipt dated 6 th June, 2002 Exhibit K2, receipt dated 6 th June, 2002 Exhibit K3 and Rs. 20,000/- to the Defendant No. 1 as an advance for carrying out plain table survey, leveling etc. as recorded in the receipt dated 10 th June, 2002 Exhibit K4 ? 11] Do the Plaintiffs prove that under an agreement dated 23 rd April, 1994 the Plaintiff No. 1 assigned the development rights acquired by the Plaintiff No. 1 under the Suit agreement to Plaintiff No. 2 ? 12] Does the Defendant No. 1 prove that Defendant No. 1 Vishal Parekar 3/6 31-s-2651-2008.doc legally and validly terminated and/or revoked the Suit agreement dated 2 nd May, 1994, supplementary agreement dated 14 th December, 1994 and the irrevocable Power of Attorney dated 20 th September, 1994 executed by Defendant No. 1 in favour of the Plaintiff No. 1. 13] Does the Defendant No. 3 prove that the Defendant No. 3 has legally and validly revoked the Power of Attorney dated 8 th June, 1994 executed by Defendant No. 3 in favour of Plaintiff No. 1 declaration dated 20 th September, 1994 and agreement dated 16 th January, 1995 executed by Defendant Nos. 3 and 4 in favour of Plaintiff No. 1 ? 14] Is there privity of contract between the Plaintiff No. 1 and the Defendants ? 15] Do the Plaintiffs prove that the Plaintiffs have performed their part of contract and have been ready and willing to perform their part of the obligation ? 16] Do the Defendant Nos. 1 and 3 prove that the Plaintiff’s right, if proved, is limited to the utilization of FSI not exceeding 25,000 sq. ft built up area (including balcony FSI but Vishal Parekar 4/6 31-s-2651-2008.doc excluding staircase FSI) out of the developable component allowed by the Urban Land Ceiling Authority under its Order No. ULC-1085/2024/XIV dated 18 th March, 1985 ? 17] Are the Plaintiffs entitled to specific performance of the Suit agreement ? 18] In the alternative, are the Plaintiffs entitled to damages of Rs. 32,72,18,758/- as per the particulars of the claim Exhibit-BB to the Plaint ? 19] What order, costs and decree ? In Counter Claim No.39 of 2011 :- 1] Is the Counter Claim barred by law of limitation ? 2] Do the Plaintiffs to the Counter Claim prove that they are entitled for a decree ordering the Defendants to handover vacant and peaceful possession of the Suit property to the Plaintiffs ? 3] Do the Plaintiffs to the Counter Claim prove that they are entitled to mesne profit and/or compensation ? 4] What order, costs and decree ? Vishal Parekar 5/6 31-s-2651-2008.doc 3. The Plaintiff shall, within four weeks, file (i) the evidence affidavit of the plaintiffs; (ii) an affidavit of documents; and (iii) a compilation of documents duly indexed and paginated. Copies of each of these will be served on the advocates for the defendants within a period of six weeks from today. 4. The Defendants shall file (i) an affidavit of documents; and (ii) a compilation of documents duly indexed and paginated. Copies of each of these will be served on the advocates for the plaintiffs within a period of three weeks thereafter. 5. Discovery and inspection is to be completed and statements of admission and denial are to be exchanged within a week thereafter. 6. On the plaintiffs complying with these directions, the matter will be taken up for marking of the plaintiffs documents and further directions on 7 th April, 2020, irrespective of the caption under which the matter appears. (N. J. JAMADAR, J.) Vishal Parekar 6/6