1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. SUIT NO.2686 OF 1997 Yesha Property and Estate Consultants Pvt.Ltd. ...Plaintiff. Vs. Shaukat Ali Faiyaz Khan. ...Defendant. .... Ms.Saumya Srikrishna i/b. Sonal Doshi & Co. for the Plaintiff. None for the Defendant. ..... CORAM : DR.D.Y.CHANDRACHUD, J. September 9, 2009. P.C. According to the Plaintiff, the Defendant was prior to January 1997 in use, occupation and possession of land admeasuring 19,600 sq. yards bearing Survey No.149, Hissa No.11 at Dahisar. By an agreement dated 15th February 1997, the Defendant agreed to transfer/lease and relinquish his possession, right, title and interest in favour of the Plaintiff for a consideration of Rs. 50 lakhs, subject to the terms and conditions stipulated therein. Under the agreement, the Plaintiff was authorised to utilise the FSI and to develop the suit property. Of the amount of Rs.50 lakhs, Rs.5 lakhs was paid before 2 the execution of the agreement. A sum of Rs.20 lakhs was to be paid upon obtaining of a commencement certificate for the building proposed to be constructed on the property; while the balance of Rs. 25 lakhs was to be paid on execution of a Deed of Conveyance. The Defendant was within a period of six months required to settle a suit before this Court and all pending claims and to clear all the outstandings of taxes and dues payable in respect of the property, failing which the Plaintiff was permitted to do so against the adjustment of the balance consideration. Upon the execution of the agreement, the Plaintiff was empowered to develop the land and to sell the premises constructed thereon. 2. The case of the Plaintiff is that on 15th February 1997, the Defendant executed a Power of Attorney in favour of two of the nominees of the Plaintiff. The Plaintiff has paid a sum of Rs.5 lakhs to the Defendant towards consideration payable under the agreement. The Plaintiff has also averred that in May 1996 and June 1997, the Municipal Corporation had demolished certain unauthorised 3 structures on the property. According to the Plaintiff, a suit was instituted before the Small Causes Court by a person claiming to be a tenant in which it was alleged that the structure of the tenant had been demolished by the Plaintiff. The Defendant is alleged to have filed an affidavit admitting the claim of the Plaintiff in the earlier suit before the Small Causes Court. The case of the Plaintiff is that the suit was a result of an act of collusion between the Plaintiff thereto and the Defendant herein. The suit was instituted before the Small Causes Court on 16th June 1997; the Defendant filed a reply on 9th July 1997, admitting the claim of the Plaintiff to that suit and by his Advocate's letter dated 17th July 1997, the Defendant purported to terminate the agreement of the Plaintiff and forfeit the amount of Rs. 5 lakhs. The Plaintiff by its Advocate's letter dated 28th July 1997, challenged the purported termination of the agreement. 3. The contention of the Plaintiff is that the agreement dated 15th February 1997, by which the First Defendant agreed to relinquish his interest in favour of the Plaintiff is valid and binding and that the 4 balance of the purchase price under the agreement has not become payable. The Defendant purported to terminated the agreement firstly on the ground that the Plaintiff has demolished the structures occupied by certain occupants and that secondly, the Plaintiff was developing the property without permission. The case set up by the Plaintiff is that both the aforesaid reasons are false since the Plaintiff had neither demolished any structure on the property and that in the alternative even if that was so, that would not amount to breach of any of the terms of the agreement with the Defendant. Under the agreement, the Plaintiff is responsible to deal with the occupants of the property. Secondly, it has been stated that the Plaintiff has not commenced any work of development and was in the process of obtaining necessary sanction for the development of the property. The Plaintiff has stated that he is ready and willing to perform the agreement and paid a sum of Rs. 5 lakhs towards the consideration fixed under the agreement. 4. At the interlocutory stage, the Defendant who was served 5 with the writ of summons appeared and contested the proceedings. However, thereafter, no Written Statement has been filed and the suit has been listed for ex-parte decree. The Plaintiff has filed an affidavit in lieu of the Examination-in-Chief of a Director who has verified the correctness of what is stated therein. The affidavit contains a recital of the material averments contained in the Plaint. A compilation of the original documents has been tendered and taken on record. In the absence of a Written Statement, the averments contained in the Plaint have not been controverted. The Defendant has not appeared in these proceedings and the evidence adduced on behalf of the Plaintiff has not been challenged. 5. In these circumstances, in the absence of any contest, the case of the Plaintiff has been duly established on the evidence on record. The Plaintiff has established the existence of the agreement dated 15th February 1997. The Plaintiff has averred that he was at all material times, ready and willing to perform his part of the agreement and that there was no breach on the part of the Plaintiff. The suit 6 shall accordingly stand decreed in terms of prayers clause (a), (b) and (f), subject to the Plaintiff depositing the balance consideration within a period of three months from the date of the order, with the Prothonotary & Senior Master. If the Defendant fails to comply with the decree within three months of the date of deposit, the Prothonotary & Senior Master shall appoint an officer to execute the document in terms of the decree for and on behalf of the Defendant. ....