1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION REVIEW PETITION NO.29 OF 2008 IN NOTICE OF MOTION NO.3223 OF 2006 IN SUIT NO.2586 OF 2006 Ranjit Singh Brij Vallab Singh Sokhi ...Petitioner Vs. Shanil Builders and Ors. ...Respondent Mr.S. Purohit i/b. Rahul karnik for Petitioner Mr. Kharawala i/b. R.K.Associates for Respondents CORAM: SMT.ROSHAN DALVI, J. DATED: 12 TH SEPTEMBER, 2008 P.C. 1. Review Petition accepted and made returnable forthwith. Heard both Counsel on merits. 2. The Petitioner is the flat purchaser. His agreement for the flat purchase is only against Respondents 1,2 and 3. The other Respondents are the owners of the property represented by Respondent No.4 (the owner). The owner entered into the development agreement with Respondents 1,2 and 3 in October, 2002 (the developers). That agreement 2 has been relied upon by Respondent No.4 as Exhibit- 1 to his affidavit in reply. Under that agreement the owners were to get 55% of the flats in the building to be constructed upon development of their plot of land. The Developers were to be entitled to 45% of the flats that he would develop and construct. 3. The Developer could avail of his 45% subject to the conditions inter alia mentioned in Clauses 19, 20 and 23 of that agreement. Under those clauses the developer was not entitled to hand over possession of the flats of his 45% share to any flat purchasers unless he gives the owners possession of flats of their 55% share. Until that was done the owners were to have first lien on the flats of the developers' 45% share. Even the agreements which the developers were to enter into with the prospective flat purchasers was to be approved by the owners and even upon such approval the developer alone was to be responsible to the flat purchasers for the agreements in respect of the flats of their 45% share. 4. This development agreement, therefore, unmistakably shows that the owners were to be protected for their 55% share which was to be constructed free of costs by the developers and also to have rights in respect of the 45% share with regard to the ultimate sale to the various flat 3 purchasers of the developer of that 45% share. 5. The precise demarcation of 45% and 55% shares was not done under the agreement though it was stated so. 6. This led to disputes between the parties culminating in City Civil Court Suit No.5002 of 2002. In that suit the owners and the developer entered into consent terms on 8th August, 2002. They abided by the initial agreement with regard to the 45% and 55% ratio. However, specific 55% share of the owners which was their preferential share was specified in Wings- A,B,C and D, which had been constructed by the developers without sanctioning plans and as unauthorised construction. The parties agreed upon several other aspects in that Consent Terms with which we are not concerned in this Suit. 7. What is of relevance in this suit is the extent of the rights and entitlements of the developers towards the construction of their 45% share. Under clause 6 of the Consent terms the developer was to maintain status- quo in respect of construction. Under clause 7 of the Consent Terms the developer was stated not to be entitled to handover possession to any prospective flat purchasers or to part with possession even of the flats which fell in their 45% 4 share. 8. The developer did just that. The developer entered into agreements with various parties such as the Petitioner in this Petition. The Developers entered into an Agreement with the Petitioner in January, 2003. It is the Petitioner's case that the developer was not forbidden to enter into agreements. However, the developer was forbidden to hand over possession. Hence, strictly speaking even if the developer could enter into agreements, with flat purchasers, he could not have handed over possession of those flats in respect of which he entered into those agreements with those flat purchasers. The Petitioner has claimed specific performance of the agreement. Under clause 9 of the agreement the developer was to hand over the possession of the suit flat to the Petitioner in March, 2003. This, the developer could not do as per the consent terms he had already entered into with the owners. Hence, the specific performance the Petitioner claims is in respect of the act which cannot be specifically performed by the developer. Consequently the entire suit for specific performance fails. 9. It may be mentioned that clause 19, 20 and 23 of the initial development agreement of October, 2000 between the Developers and the owners would bind the Petitioner. Those 5 clauses have not been rescinded in the consent terms which formed the novatio only with regard to the demarcations of the preferential share of 55% of the owners. The Petitioner was put to notice of that agreement under the recital (e) to the agreement itself. The Petitioner is, therefore, bound by these clauses. The Petitioner further could not be given possession of the flat which formed the part of the development of the 45% share even under the consent terms dated 8 th August, 2002. 10. Therefore, the Petitioner has not made out any case for protection of the possession by either an injunction against Respondent No.4 or appointment of Court Receiver in respect of the Petitioner's flat for the protection of the Petitioner. 11. The Petitioner is only entitled to the relief of injunction against Respondent Nos.1,2 and 3 as the developers since under clause 23 of the Development Agreement of 20 th December, 2000 the developers alone would be responsible to the flat purchasers for the flat sold from his 45% share. 12. Hence, the Review Petition is dismissed. (SMT. ROSHAN DALVI, J.)