1 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Notice of Motion No.2142 of 2008 IN Suit No.1788 of 2008 M/s.Fairdeal Builders .. .. Plaintiff v/s. Bipin Nanji Rathod & ors. . Defendants Mr.J.M. Reis with Mr.Suresh Dubey for Plaintiff. Mr.Rajesh Mehta with Mr.V.V. Varma with Mr.D.S. Mishra i/by D.S. Law Bureau for Deft.Nos.2 to 8, 8-A, B & C. Mr.J.A. Siddique for Deft.Nos.2 to 11A, 11B & 11C. Mr.Kuldeep S. Patil for Deft.No.9. Mrs.Uma Palsuledesai, AGP for Deft.No.10, Mr.A.J. Rana, Sr.Advocate with Ms.Purnima G. Bhatia for Deft.No.12. -------- CORAM : SMT.ROSHAN DALVI, J. Date of reserving the order : 15th June, 2010 Date of pronouncing the order : 19th July, 2010 P.C. : 1.The Plaintiff has sued for specific performance of the Agreements for sale dated 14.5.1993, 29.6.1993, 2 24.10.1993 and 14.4.1995 and have applied for usual injunctions and the appointment of Court Receiver in the Notice of Motion in respect of the properties sold under the aforesaid agreements. The suit properties were owned by one D Mello. The family of one Nanji Rathod (Jadhav) claimed to be in possession. D Mello sued for recovery of possession. Consent Terms were filed between the parties. D Mello had to deposit certain amounts within a certain time upon which he would get possession from Jadhav. D Mello failed to deposit and Jadhav continued in possession and claimed to be the owner by adverse possession. 2.Nanji has entered into the aforesaid agreement for sale with the Plaintiff before and after which he had entered into various other agreements with others, including one P.V. Jain prior to the execution of the Plaintiff s agreements and Defendant Nos.11 and 12 subsequent to the execution of the Plaintiff s agreements. 3.Under the initial Agreement for sale dated 14.5.1993, the Plaintiff was to pay a lump sum consideration of Rs.6 Lakhs. The Plaintiff paid part of this amount in cash and part by Pay Order to Jadhav. Under the second Agreement dated 28.6.1993, the Plaintiff was to pay consideration at the rate of Rs.400/- for the total 3 saleable area as per the sanctioned plan, excluding the area that would fall under the scheme sanctioned by the competent authority under the Urban Land Ceiling Act. The Plaintiff was to pay a total consideration of Rs.54 Lakhs, out of which the Plaintiff paid only Rs.2.5 Lakhs by Pay Order. Rs.7 Lakhs were to be paid upon approval of the transaction by the income-tax authorities. Approval was obtained on 28.4.1994, but payment of Rs.7 Lakhs is not shown to have been made. The remainder of the consideration is not shown to be paid, though an averment that Rs.18 Lakhs are paid is made. The plans are not shown to have been sanctioned. 4.In the further Agreement dated 24.10.1993, which was a supplemental agreement, the mode and extent of payment of consideration is shown to be changed. The further Agreement dated 14.4.1995 was the supplemental agreement under which a further consideration of Rs.51 Lakhs was agreed to be paid, but out of which only Rs.5 Lakhs came to be paid by cheque. 5.Interestingly, under the initial Agreement dated 14.5.1993, possession of the land was to be handed over upon the Plaintiff paying the balance consideration of Rs.4.50 Lakhs out of the entire agreed consideration of Rs.6 Lakhs. The Plaintiff had paid only the earnest under the agreement. Possession cannot be seen to have 4 been handed over. Consequently, in the last supplemental Agreement dated 14.4.1995, Rathod agreed to part with possession to the Plaintiff. 6.It is not known whether the Plaintiff was actually put in possession and commenced the development work to make payment of further amounts of consideration mentioned in the aforesaid agreements but not shown to be paid. 7.A Power of Attorney came to be executed by Rathod and his family members in favour of the Plaintiff only on 30.4.1999, which recites that the Plaintiff had obtained access to the suit properties, got the permission for change of user from industrial to residential use, built the compound wall, obtained favourable decision of the Forest Department and pursued various litigations. 8.It is argued on behalf of the Plaintiff that a Writ Petition came to be filed inter alia against BMRBA in 1995 by Rathod consequent upon the acquisition of a part of the suit lands and hence development could not proceed. There has been no stay granted in the Writ Petition. The Writ Petition came to be disposed of on 10.11.2000, which order shows the possession of the land by Rathod, who was directed not to start 5 development activities until the development rights were transferred to him. 9.A reading of the agreements and the aforesaid order shows that the Plaintiff was not in possession and had not commenced the development of the suit lands. 10.There has been certain acquisition proceedings in respect of the suit land pursuant to which the Award has been passed by the Special Land Acquisition Officer. A lease was to be given by Mumbai Metropolitan Regional Development Authority (MMRDA) to Jadhav, which came to be challenged. 11.Jadhav entered into a settlement agreement with the successors-in-title of the aforesaid Jain and Defendant No.11-Society as assignees, reconfirming the agreements entered into by them with Jain on 21.3.1988, 17.11.1993 and 25.3.1994 as valid and subsisting. Rathod withdrew all allegations against Jain. 12.Jadhav gave an irrevocable licence to Jain and Defendant No.11-Society to enter upon and remain on the suit land. Consequently, they handed over possession of the suit land to them. 13.Defendant No.11 in turn entered into an agreement with 6 Defendant No.12 on 18.3.2005 to develop the suit lands. 14.The successors-in-title of Jain, Defendant Nos.2 to 8 herein, confirmed the said agreements and the handing over of possession. 15.Defendant No.12 has sought to develop the property pursuant to the said agreements. However, that development has been after the filing of the suit by the execution of a lease on 15.7.2008 and getting the plans sanctioned in 2009. Defendant No.12 claims to have expended Rs.10 Crores and paid Jadhav Rs.1.20 Crores which is not denied by Defendant Nos.2 to 8 herein. 16.A notice of termination was issued upon the Plaintiff on 22.3.1005 cancelling the agreement entered into and the Power of Attorney executed in favour of the Plaintiff, though the notice of termination recites the earlier agreements of 1988 executed with Jain which were also sought to be cancelled and later reconfirmed. 17.The Plaintiff challenges the notice of termination as invalid. The fact remains that there have been earlier agreements entered into by Jadhav inter alia with Jain. There was no valid termination of those agreements before Jadhav entered into the suit agreements with the 7 Plaintiff. Possession of lands, though claimed to have been handed over to the Plaintiff, is not shown to be so handed over in the agreements. The Plaintiff has not shown the development work carried on. Mr.Reis on behalf of the Plaintiff justified that on the ground that the Writ Petition came to be filed by Rathod in 1996, which came to be disposed of only in 2000 and a suit came to be filed by the original owner Mr.D Mello in 2001. These litigations have not restrained the Plaintiff from developing the land agreed to be purchased and paying the price which was the balance consideration that remained to be paid. 18.The Plaintiff cannot claim equity as the essential part of the contract was not performed by the Plaintiff; only the earnest amount was paid by the Plaintiff under the first agreement entered into with the Plaintiff when the agreements entered into with Jain were subsisting and possession is not shown to be handed over to the Plaintiff. Further amounts, which were to be paid under the further agreements, are not shown to be paid. A large part of the consideration was payable upon certain acts of development which were to be done by the Plaintiff which never came to be done. 19.The agreement for settlement ultimately entered into by Jadhav with Defendant No.11, who thereafter 8 transferred its rights to Defendant No.12, was entered into 3 years prior to the filing of the suit. It has not even been challenged in the suit. The Plaintiff has sued for specific performance almost on the last date before the suit would be barred by limitation. The Plaintiff is not entitled to an equitable relief in a suit for specific performance which is itself an equitable discretionary relief. 20.Consequently, the Notice of Motion is dismissed. No order as to costs. (SMT.ROSHAN DALVI, J.)