1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. NOTICE OF MOTION NO.235 OF 2008 IN SUIT NO.3547 OF 2007 M/s. K. Bhatia Constructions. ...Plaintiff. Vs. Maheshwar Niwas Co-op. Hsg Soc.Ltd. ...Defendant. .... Mr.Chetan Kapadia with Mr. Shah i/b. Linani Shah & Co. for the Plaintiff. Mr. M.M. Vashi for the Defendant. ..... CORAM :DR.D.Y.CHANDRACHUD, J. February 4, 2008. P.C.: The Motion for interlocutory relief has been taken out in a suit for specific performance filed by the developer against a Co- operative Housing Society in which the following relief has been claimed: “(a) That this Honourable Court be pleased to declare that there is a valid, subsisting and binding Agreement between the Plaintiffs and the Defendants in accordance with terms spelt out in the correspondence exchanged between the parties and annexed as Exhibits “B” to “J” 2 hereto in respect of development of the property Exhibit A hereto whereby the Defendants have permitted the Plaintiffs to carry out the work of development of rear portion of the property by putting up a new building comprising of basement plus stilt and 11 upper floors.” 2. As is evident from the principal relief that has been sought in the suit, the Plaintiff claims and contends that the documents which have been annexed at Exhibits 'B' to 'J' of the Plaint constitute a valid and binding contract of which specific performance can be granted. The Notice of Motion has, by consent, been argued on that basis since it is the contention of the Defendant that on the documents, as they stand, cannot be possibly urged or contended that there is a concluded agreement between the parties. 3. A letter was addressed by the Plaintiff to the Defendant on 5th January 2001 for development on the plot of land belonging to the Society by utilising the available FSI and Transferable Development Rights (TDR). Initially, the developer by his letter dated 5th January 2001 had stated that the approximate FSI/TDR available was 2877 3 sq. yards and he agreed to pay to the Society at the rate of Rs.1,501/- per sq.ft. for the TDR and balance FSI that was to be used. The Plaintiff by a letter dated 8th May 2001 revised the rate to Rs.1,701/- per sq.ft. This was followed by further letter dated 24th May 2001, 21st June 2001 and 1st May 2002. The letters dated 1st May 2002, 4th June 2002 and 16th September 2002 (Exhibits G, H and J respectively) between the parties would show that the proposal at that stage was for the construction by the Plaintiff of a building consisting of a ground floor and seven upper floors. The Plaintiff has relied upon the text ... of a resolution allegedly passed by the Society permitting the developer to construct a building of approximately 15,000 sq.ft. area against the payment of an amount of Rs.1701/- per sq.ft. This resolution, however, contains the following additional conditions under which every member of the Society was to be permitted to carry out additional construction by utilising a proportionate part of the FSI/TDR that is available: “a) Each member shall be entitled to carry out additional construction on the property by utilizing proportionate area of FSI by way of Transferable 4 Development Rights permissible under the Development Control Regulation in force in Greater Mumbai (herein after referred to as “TDR FSI”) as per respective entitlement of the members. b) Each member shall be entitled to obtain at his/her/their own cost (by acquiring from open market) such quantum of FSI by way of TDR as is required to carry out construction of the area which he/she/they is entitled to construct as aforesaid.” 4. The case of the Plaintiff is that a draft agreement for development was thereafter approved and initialed by the office bearers of the Society. The text of the draft which is annexed at Exh.N, however, provides that the building that was to be constructed, would now consist not of a stilt and seven upper floors, but of nine upper floors (clause 1 page 62). The averment in paragraph 14 of the Plaint is that plans have been sanctioned by the Municipal Corporation for a basement, stilt and eleven floors. Thus, it is clear that on the basic question, namely, the dimensions and the area of the building which was proposed to be constructed by the Plaintiff on the land belonging to the Society, parties are not ad idem. The 5 correspondence, as noted above, reveals that the building was to consist of seven floors; the draft agreement speaks of nine floors, while the Plaint contains an averment of granting sanction of eleven floors. The prayer for specific performance is for a building comprising of a basement, stilt and eleven floors. 5. The correspondence between the parties has taken place between 2001 and 2004 (Exhibits 'B' to 'M'). On 8th March 2007, nearly three years thereafter, a letter was addressed by the Plaintiff who is the developer, calling upon the Society to “finalise the agreement” and stating that the Plaintiff was willing to revise “our terms and offer as per the requirement of the Society”. The letter dated 8th March 2007, therefore, reflected an awareness on the part of the Plaintiff that there was no concluded or binding agreement. Admittedly, no consideration has been paid. Though the plaint contains a recital in paragraphs 14 and 16 that plans have been sanctioned by the Municipal Corporation, it emerges before the Court during the course of the hearing that as a matter of fact, the Municipal 6 Corporation has not finally sanctioned the plans. The notice of the Plaintiff dated 28th April 2007, therefore, speaks in paragraph 4 that there has been “approvebility” to the building plan and the original rate of Rs.1701/- has been revised to Rs.2100/- per sq.ft. 6. It is a settled principle of law that unless parties are ad idem, a concluded contract cannot be stated to have come into existence. The documents on the record as they stand, prima facie, support the contention of the Defendant that there is no binding agreement between the parties. In these circumstances, no relief can be granted to the Plaintiff in the Notice of Motion which is accordingly dismissed. .......