NMS2875-09 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2875 OF 2009 IN SUIT NO.1564 OF 2009 Philomena Luiza D’Mello & Ors. .. Plaintiffs Versus Felix M. Sequira .. Defendant Mr.D.H.Mehta with Mr.S.K.Shetty i/b. Shetty & Associates for plaintiffs Mr.R.S.Tripathi for defendant CORAM : S.C.DHARMADHIKARI, J. DATE : 15th November 2010. P.C.: 1] Heard Mr.Mehta for plaintiffs and Mr.Tripathi for defendants. 2] The suit is filed for declaration that the agreement dated 8th March 2000 is valid, subsisting and binding upon the defendant and he should be directed to specifically perform the same. 3] It is stated that the plaintiffs are the owners of an immovable property which is described in the agreement for development, a copy NMS2875-09 2 of which is annexed as Annexure B to the plaint. The defendant is a builder and developer by profession. He was to develop the property of the plaintiff but had no funds and, therefore, on account of accommodation provided by the plaintiffs, he agreed to provide four flats to the plaintiffs in the developed property/ newly constructed building admeasuring 700 sft., each free of cost along with garage. Reliance is placed upon clauses 3 and 4 of the Agreement dated 8th March 2000. It is contended by Mr.Mehta appearing for plaintiffs that after the agreement was executed, the plaintiffs were provided with three flats and one garage but the defendant has backed out of the agreement at Exh.B to the plaint by contending that the parties had executed another agreement on the same date i.e. 8th March 2000 and clauses 3 and 4 of the original agreement had been altered or changed. 4] Mr.Mehta submits that there is no substance in this stand of the defendant because the defendant requested that the original be handed over to him so as to enable him to obtain some permissions and/or approvals from the Corporation. When the original agreement was NMS2875-09 3 handed over, the defendant has made interpolation and entries and is now urging that the earlier agreement was given a go-by. The plaintiffs were to be handed over three flats admeasuring 350 sft. (super built up). Mr.Mehta submits that if this was the stand of the parties, surely, the plaintiffs would have initialled or signed the subsequent agreement. But that has not been so done and, therefore, what has been annexed to the written statement is the same agreement , however, with some interpolation and changes unilaterally made by the defendant. In such circumstances, as far as fourth flat is concerned, the plaintiffs should be protected. Mr.Mehta has invited my attention to Annexure D to the plaint and submits that this is the property being developed by the defendant wherein he could be directed to reserve and provide one flat so as to cover the entitlement of the plaintiffs. 5] Mr.Tripathi on the other hand submits that the agreement is dated 8th March 2000. The letter addressed by plaintiff’s Advocate is dated 20th February 2009. The suit is filed thereafter. There is NMS2875-09 4 nothing in the plaint by which one can conclude that for nine long years plaintiffs were denied their claim or that the defendant wrongfully deprived them of their claim. If the case is as urged during the course of arguments, then, definitely the plaintiffs would have moved this Court earlier. In such circumstances, when complete agreement has been arrived at and the same is satisfied, the plaintiffs are not entitled to any interim reliefs. As far as property at Exh.D is concerned, Mr.Tripathi submits that it is a distinct property and all parties claiming any rights therein are not before this Court, there cannot be any order to restrain either development of that property or alternatively providing any flats therein. For all these reasons the motion be dismissed. 6] Having heard both sides and perusing with their assistance the plaint and all annexures thereto, I am of the opinion that the notice of motion deserves to be dismissed. Firstly, the relief that is claimed is that the plaintiff are entitled to specific performance of an agreement of saledated 8th March 2000. Plaintiffs claim rights in the property NMS2875-09 5 which is described particularly in Exh.A. Plaintiffs have entrusted the development rights in relation to this property by constructing new building thereon. These rights are conferred on the defendants under the agreement dated 8th March 2000, Exh.B to the plaint. Clauses 2, 3 and 4 provide that plaintiffs as vendors have permitted the defendant as developer to amalgamate their property with the adjacent property and also the property beyond, subject to permission from the society. Thereafter, the vendors allowed the developer to develop the property and in return will get four flats and in addition two garages. 7] After execution of this agreement till 20th February 2009, noting transpired which could be said to be a denial of the claim under the Agreement. On the other hand, in the Advocate’s notice it is stated that the plaintiffs have been put in possession of three flats, but as far as the fourth flat is concerned, that has not been provided. The plaintiffs have stated that they have also not been provided with two garages in terms of clause 4 of the Agreement. NMS2875-09 6 8] In the written statement, it has been stated by the defendant that the claim is barred by limitation. Further, the plaintiffs have been provided flats and garages as more particularly set out in para 1 of the W.S. It is pleaded that the original agreement was modified and varied mutually with clear understanding by the parties by entering into another agreement for development dated 8th March 2000. Clause 3 of the original agreement stands modified by clause 3 of this agreement. Defendant has annexed copy of this agreement. Whether compliance is made with regard to the obligations under the Agreement at Exh.B to the plaint or whether the same stands modified mutually by agreement as pleaded in the written statement is a matter which can be gone into in details at the time of trial. Today, it is prima facie undisputed that the plaintiff’s property has been fully developed and all flats have been constructed and duly sold. There is cooperative housing society which has been registered and which has all rights in the property including the building. What the plaintiffs are now seeking is an interim relief to secure the alleged fourth flat but in a distinct property. Once the agreement between the parties is NMS2875-09 7 understood as handing over development rights in a property which was owned by the plaintiffs, then, the plaintiffs cannot at this interim stage, be provided any other flat and that too in a distinct property. That property may be developed by the defendant but it is not owned by the plaintiffs. In the absence of any details in relation to that development and the parties under the distinct agreement not being before the Court, it will not be possible to grant any reliefs and particularly to take away the rights of any other entity or person who may be claiming a flat in the said property and particularly, described in Exh.D to the plaint. 9] For all these reasons, I am of the view that plaintiffs have failed to make out a prima facie case. Motion is, therefore, dismissed. Needless to state that all the observations are tentative and prima facie and will not influence the court while finally disposing of the suit. (S.C.DHARMADHIKARI, J)