((-1-)) mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1592 OF 2008 IN SUIT NO.1147 OF 2008 Shivkumar Chatrumal Achharya Plaintiff versus M/s.Sadguru & Krishna Developers and others Defendants WITH NOTICE OF MOTION NO.1609 OF 2008 IN SUIT NO.1365 OF 2008 Lata Shivkumar Achharya Plaintiff versus M/s.Sadguru & Krishna Developers and others Defendants WITH NOTICE OF MOTION NO.1954 OF 2008 IN SUIT NO.1147 OF 2008 Shivkumar Chatrumal Achharya Plaintiff versus M/s.Sadguru & Krishna Developers and others Defendants WITH NOTICE OF MOTION NO.1958 OF 2008 IN SUIT NO.1365 OF 2008 Lata Shivkumar Achharya Plaintiff versus M/s.Sadguru & Krishna Developers and others Defendants Mr.Anil Singh a/w Kiran Nikam i/by S.Ashwinikumar & Co. for plaintiffs. Mr.Debal Milon Banerjee, Sr.Counsel a/w Bipin ((-2-)) Shukla i/by S.R.S.legal for defendant no.1. Mr.Atul Damle for defendant no.3. CORAM : A.S.OKA, J. DATE : 24th November 2008 PC : 1. Heard learned Senior Counsel appearing for the plaintiffs in support of the Notices of Motion. I have heard the learned Senior Counsel appearing for the first defendant. The learned counsel appearing for the third defendant has adopted the submissions advanced by the learned counsel for the first defendant. 2. The submissions have been made on Notice of Motion no.1592 of 2008 in Suit No.1147 of 2008. The learned counsel appearing for the parties agreed that the facts of the case in the companion notice of motion are more or less similar and the said notice of motion will be governed by the orders passed in Notice of Motion No.1592 of 2008. Therefore, I am referring to the facts of the case in Notice of Motion No.1592 of 2008 in Suit No.1197 of 2008. 3. The suit is filed for a declaration that ((-3-)) the agreement dated 18th November 1993 (hereinafter referred to as "the suit agreement") entered into between the plaintiff and the second defendant is valid, subsisting and binding upon the defendants. The second prayer is for specific performance of the suit agreement. The third prayer made in the alternative is for the claim of damages. 4. The case of the plaintiff is that in November 1993 there were negotiations between him and the second defendant. The second defendant agreed to sell Shop No.2 admeasuring 550 sq.feet of built-up area in the proposed building in favour of the plaintiff. Reliance is placed on an undated letter of allotment issued by the second defendant. As stated earlier, the suit agreement was executed on 18th November 1993 by which the second defendant agreed to sell, assign and transfer on ownership basis the said shop no.2 (hereinafter referred to as "the suit shop") in favour of the plaintiff for a consideration of Rs.9.00 lakh. According to the plaintiff, he paid a sum of Rs.2.00 lakh to the second defendant at the time of execution of the agreement and thereafter several cheques were ((-4-)) issued by the plaintiff to the second defendant and by the said cheques, a total amount of Rs.6.00 lakh was paid by the plaintiff to the second defendant. As per the terms of the suit agreement, the second defendant had agreed to hand over the possession of the suit shop to the plaintiff on or before 30th June 1994. 5. The case of the plaintiff is that from the agreement dated 14th September 2007 executed by the third defendant in favour of first defendant, the plaintiff learnt that the rights of development of the property were surrendered by the second defendant under a Deed of Cancellation dated 12th December 1994 executed by the said second defendant in favour of the predecessor of the third defendant. According to the plaintiff, the said Deed of Cancellation records that the liability of the performance of the suit agreement was taken over by the predecessor of the third defendant. It is stated that the agreement dated 14th September 2007 reveals that the third defendant’s brother released and relinquished his one half share in the property in favour of the third defendant on the basis of a registered indenture dated 21st June 1999. According to the plaintiff, it ((-5-)) appears that the third defendant had taken over the liability of the rights created by the second defendants in favour of the tenants and purchasers of the flats and shops. 6. According to the plaintiff, the agreement dated 14th September 2007 reveals that the third defendant by an agreement for development dated 24th June 1999 agreed to develop the property in question through one Mr.Raju Raval carrying on business in the name and style of M/s.Namo Developers. It is stated that the said M/s.Namo Developers had taken over the liability of the third defendant of specifically performing the terms and conditions of the suit agreement. 7. Reliance has been placed on notice dated 4th December 2001 issued by the advocate for the plaintiff to the second defendant calling upon him to perform the suit agreement. By reply dated 9th January 2002, the second defendant accepted the suit agreement but contended that the said defendant had surrendered the property to the third defendant who, in turn, had accepted the said property along with the liability of the claim of the ((-6-)) plaintiff. 8. It is stated that the agreement dated 14th September 2007 also revealed that the third defendant had entered into a development agreement dated 6th January 2004 in favour of M/s.Gauri Constructions, a partnership firm and liability to perform the suit agreement was accepted by the said M/s.Gauri Constructions. 9. After the plaintiff became aware that the first defendant had taken over the development rights, by advocate’s letter dated 21st March 2007 addressed to M/s.Sadguru Builders and Developers, the plaintiff called upon the said builders to accept the balance consideration of Rs.1.00 lakh and hand over vacant possession of shop no.2. The case made out in the plaint is that on 28th June 2007 the plaintiff’s advocate addressed another letter to Sadguru Builders and Developers by which it was pointed out that the construction has reached up to the upper floors and therefore, it will be possible for the said builders to hand over possession of the suit shop to the plaintiff. By the said letter the plaintiff offered to pay the balance consideration of Rs.1.00 lakh against the ((-7-)) delivery of the possession of the suit shop. The contention raised in the plaint is that the first defendant is under an obligation to comply with the suit agreement as the first defendant has taken over all the rights and liabilities of the second defendant. 10. In the Notice of Motion the plaintiff has prayed for interim relief directing the defendants to deposit with this Court various original documents referred to therein. The second prayer is for appointment of Court Receiver, High Court, Bombay as Receiver of the property. The third prayer in the alternative is for appointing Court Receiver of the premises mentioned therein. The other two prayers are for temporary injunction. 11. By an ad-interim order dated 9th June 2008 this Court directed that till the hearing and final disposal of the Notice of Motion, the defendants shall not sell, transfer, alienate or part with possession or create any third party interests in respect of shop no.2 admeasuring about 650 sq.ft. as per the revised plan. This Court granted liberty to the plaintiff to take out a separate Notice of ((-8-)) Motion for appointment of Receiver after construction was completed. 12. The Notice of Motion is contested by the defendants. It must be stated here that a separate Notice of Motion No.1954 of 2008 has been taken out by the first defendant praying for rejection of the plaint under Clasue-d of Rule 11 of Order VII of the Code of Civil Procedure. 13. The third defendant filed a reply opposing the Notice of Motion. The contention of the third defendant is that the suit is hopelessly time barred. It is submitted that after the advocate’s letter dated 4th December 2001 was issued to the second defendant, the advocate for second defendant had issued a reply dated 9th January 2002 contending that the claim of the plaintiff was time barred. It was pointed out in the said reply that the property was being developed by M/s.Namo Developers. The contention raised by the third defendant is that the plaintiff by his own conduct is deemed to have waived, abandoned and given up his alleged rights under the suit agreement on account of complete inaction for a long period ((-9-)) of time. It is contended that the second defendant and the plaintiff are hand in glove and a collusive suit has been filed. It is contended that only a sum of Rs.1.00 lakh has been received under the suit agreement. The first defendant filed a detailed reply contending that as the suit is barred by limitation, the plaint deserves to be rejected. It was pointed out that the suit claim of the plaintiff has not been taken over by the first defendant. It is pointed out that under the plan approved by the Municipal Corporation and commencement certificate issued in February 2007, each shop in the building has been integrated/ connected with inseparable smaller area of basement thereunder and therefore, as per the sanctioned plan, no independent shop without basement or no independent basement has been sanctioned by the Municipal Corporation. It is, therefore, submitted that there is no premises in the building under construction which could be identified as the suit shop. It was contended that the second defendant had planned to construct more than one wing and the plaintiff had agreed to purchase the suit shop in "A" wing. It was pointed out that now the first defendant is constructing only one ((-10-)) building and there are no separate "A" and "B" wings. It was further submitted that the area of the suit shop mentioned in the plaint is 480 sq.ft. of carpet area and the shop no.2 now being constructed by the first defendant admeasures 660 sq.ft. of carper area and there is a basement admeasuring 330 sq.ft. carpet area which is attached to the said shop no.2. 14. Reliance is placed on Clause 5 of the suit agreement and it is submitted that in view of the said clause and the relevant provisions of Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (hereinafter referred to as "the said Act of 1963"), the plaintiff is entitled to only refund of the amount allegedly paid by him under the suit agreement. It is submitted that the suit is hit by gross delay. It is pointed out that the case of the plaintiff of having paid aggregate amount of Rs.8.00 lakh is bogus and concocted. It is submitted that the real transaction between the plaintiff and the second defendant was a money lending transaction. It is submitted that the first defendant is not liable to perform the suit agreement. ((-11-)) 15. The learned counsel appearing for the plaintiff has taken me through the averments made in the plaint and various documents annexed to the plaint. He invited my attention to the recitals in the development agreement dated 14th September 2007 executed by the owners in favour of the first defendant. It is submitted that the recitals of the said agreement show that the first defendant was fully aware of the suit agreement executed in favour of the plaintiff and that the first defendant has taken the property for development subject to the rights created in favour of the plaintiff vide the suit agreement. He submitted that the letters dated 21st March 2007 and 28th June 2007 may have been addressed to M/s.Sadguru Builders and Developers but the address of M/s.Sadguru Builders and Developers is the same as that of the first defendant (M/s.Sadguru & Krishna Developers). He submitted that as the suit agreement is governed by the said Act of 1963, it is the statutory obligation of the third defendant who has stepped into the shoes of the second defendant, to hand over the possession of the suit shop. He submitted that the first ((-12-)) defendant cannot take undue advantage on the ground that the sanctioned plan provides for a shop of larger area as the third defendant has taken the property for development with full knowledge of the rights created in favour of the plaintiff. He, therefore, submitted that the claim of the plaintiff based on the suit agreement which is not terminated till today, cannot be denied and this is a fit case for appointment of Court Receiver and/or for grant of temporary injunction. He relied upon the decisions of this Court in case of Vrindavan (Borivali) Co-operative Housing Society Limited Vs. KM/s.Karmarkar Brothers and others (1983[2]-Bom.C.R.-267) and S.Irani Vs. Dinshaw and Dinshaw and others (1999 [supp] -Bom.C.R.- 320). He also relied upon the decision of the Apex Court in the case of Jayantilal Investments Vs. Madhuvihar Co-operative Housing Society Ltd. (2007[9]-SCC-220). 16. The learned Senior Counsel appearing for the first defendant submitted that there was a gross delay of fourteen years in filing the suit. He submitted that in any event, when the second defendant intimated refusal to the plaintiff by letter dated 9th January 2002, the ((-13-)) suit ought to have been filed within a period of three years from the said date as on receipt of the communication dated 9th January 2002 the plaintiff had knowledge that the second defendant had refused to perform its part of the suit agreement. It is submitted that in any event, the suit suffers from delay and laches and there is a gross unexplained delay in filing the present suit on the part of the plaintiff. He submitted that though on 9th January 2002 the plaintiff was informed that M/s.Namo Developers were developing the suit property, no steps were taken by the plaintiff against the said builders. 17. The learned Senior Counsel appearing for the first defendant submitted that the decisions relied upon by the counsel appearing for the plaintiff proceed on the footing that what was claimed by the plaintiff was a statutory right under the said Act of 1963. He submitted that right of a flat purchaser under the said Act of 1963 to enforce the execution of conveyance may be a statutory right available to the flat purchaser but the right to receive possession of the flat under an agreement for sale executed by the developer is ((-14-)) a contractual right. He invited the attention of the Court to the relevant provisions of the said Act of 1963 and in particular Section 8 thereof. He submitted that in view of Section 8 of the said Act of 1963, the only statutory right available to the plaintiff is to receive refund of the amount allegedly paid by him with simple interest @ 9% p.a.. He submitted that in view of the provisions of Section 8 of the said Act of 1963, if at all any remedy is available to the plaintiff, it is the remedy of recovering the amount allegedly paid by him along with interest and at the most he is entitled to claim a charge over the property for payment of the said amount. 18. Inviting my attention to the recitals in the suit agreement and the case made out regarding payment of total consideration of Rs.7.00 lakh, he submitted that the said case is highly suspicious and it is not possible to accept even at the prima facie stage that the amount has been paid by the plaintiff. He submitted that without prejudice to this contention the first defendant is ready and willing to deposit in this Court the amount allegedly paid by the plaintiff to the second ((-15-)) defendant together with interest at such rate as may be determined by this Court. 19. He submitted that as per the sanctioned plan on the basis of which the construction has been carried out of ground plus three upper floors, there is no provision for the suit premises admeasuring 480 sq.ft. carpet area made therein. He submitted that as per the suit agreement the plaintiff claims entitlement to shop admeasuring 480 sq.ft. carpet area and the basement of the same area. He submitted that the area of the shop no.2 provided in the building constructed is 536 sq.ft. of carpet area and there is an inseparable basement attached to it admeasuring about 266 sq.ft. of carpet area. He submitted that thus the suit agreement is not capable of being specifically enforced. He placed reliance on the decision of the Apex Court in the case of K.S.Vidyanadam and others Vs. Vairavan ({1997}3-SCC-1) and Manjunath Anadappa Urf. Shiappa Hanasi Vs. Tammanasa and others ({2003}10-SCC-390). He also placed reliance on a decision of the Apex Court in the case of Ouseph Varghese Vs. Joseph Aley ({1969}2-SCC-539). He submitted that apart from the fact that the plaintiff has ((-16-)) not shown readiness and willingness, considering the fact that there is a gross delay in filing the suit, the plaintiff is not entitled to an equitable relief of appointment of Receiver and grant of temporary injunction. 20. The learned counsel appearing for the third defendant adopted the submissions made by the learned counsel appearing for the first defendant. By way of rejoinder the learned counsel for the plaintiff submitted that the second defendant has not raised any dispute regarding the payment of consideration made by the plaintiff as claimed in the plaint and there is no dispute about the execution of the suit agreement which also binds the third defendant. 21. I have carefully considered the submissions. The execution of the suit agreement by the second defendant in favour of the plaintiff is not disputed. Even the third defendant who is one of the co-owners of the property under development has not disputed the execution of the said agreement. The third defendant has not disputed the fact that the second defendant was entitled to execute such ((-17-)) agreement. The suit agreement relates to sale of suit shop for a consideration of Rs.9.00 lakh. The agreement refers to the sanctioned plan obtained by the second defendant. All particulars of the suit shop agreed to be sold to the plaintiff have been incorporated in the suit agreement. The agreement records receipt of an amount of Rs.1.00 lakh by the second defendant. A copy of indenture dated 21st June 1999 executed by and between Mr.Himanshu Ashok Mehta and three others on one part and the members of the third defendant HUF on other part has been annexed to the plaint. In the recitals of the said agreement there is a reference to the agreement dated 26th February 1986 executed by Ashok K. Mehta (father of the Karta of the third defendant) as Karta and Manager of the larger HUF in favour of the second defendant under which the second defendant was granted the development rights in respect of the property. The said agreement refers to execution of various agreements for sale executed by the second defendant in favour of the purchasers or in favour of the tenants. It also records that a Deed of Cancellation dated 12th December 1994 was executed by the second defendant under which the possession was ((-18-)) redelivered by the second defendant on "as is where is" basis. The said document also refers to the fact that the property is burdened with several agreements entered into by second defendant for sale of flats and shops on ownership basis. The said agreement records that the liability of the claim of the purchasers under the agreements executed by the second defendant was taken over by the third defendant. There is no dispute about the execution of the said documents dated 21st June 1999. 22. The advocate’s letter dated 4th December 2001 sent by the plaintiff to the second defendant records that a sum of Rs.8.00 lakh was paid on the basis of the suit agreement. A copy of the letter annexed to the plaint discloses that a copy thereof was sent to the third defendant. The letter was replied to by the advocate for the second defendant by pointing out that there were disputes between the second defendant and the owners of the suit property and the second defendant has surrendered the property to the owners who have re-acquired the same along with liability and on "as is where is" basis. It was pointed out ((-19-)) that the original owners have assigned their right, title and interest along with the liability in respect thereof to M/s.Namo Builders under the agreement dated 29th June 1989. There is no reply to the said letter by the third defendant. In letter dated 21st March 2007 and 28th February 2007 addressed by the advocate for the plaintiff to M/s.Sadguru Builders and Developers, the plaintiff has reiterated that he has made payment of total consideration of Rs.8.00 lakhs leaving the balance consideration of Rs.1.00 lakh. Prima facie, it appears to me that though the name of addressee in the aforesaid two letters is M/s.Sadguru Builders & Developers, the same has been dispatched to the address of the first defendant. The issue whether the said letter was received by the first defendant or not is a matter of evidence. It was sought to be argued by the learned Senior Counsel that the case made out by the plaintiff that a payment of sum of Rs.8.00 lakh is made under the suit agreement appears to be bogus and suspicious. Certain discrepancies in the case made out by the plaintiff were sought to be brought to the notice of this Court by the learned Senior Counsel appearing for the first defendant. At ((-20-)) this stage it is sufficient to note that the execution of the suit agreement by the second defendant has never been disputed by any of the parties. There is prima facie material on record to show that the property was surrendered by the second defendant in favour of the owners along with liability created in favour of the purchasers of the flats and shops in the proposed building. There is prima facie evidence to show that the said liability was taken over by the third defendant. In response to the letter dated 4th December 2001 sent by the advocate for the plaintiff to the defendant no.1, a copy of which was forwarded to the Karta of the third defendant HUF, the second and third defendants did not dispute the case that a sum of Rs.8.00 lakhs has been paid by the plaintiff under the suit agreement. As stated earlier, the letter dated 4th December 2001 specifically refers to payment of consideration of Rs.8.00 lakhs. The fact that a sum of Rs.8.00 lakh has been paid has also been reflected in the communications dated 21st March 2007 and 28th June 2007 issued by the advocate for the plaintiff to M/s.Sadguru Builders and Developers. Therefore, there is a prima facie material on record to show that a ((-21-)) sum of Rs.8.00 lakh was paid by the plaintiff under the suit agreement. 23. Now, it will be necessary to refer to the agreement dated 14th December 2007 executed by the third defendant HUF to which M/s.Gauri Constructions are the confirming parties. The first defendant claims rights as developers under the said agreement. It will be necessary to refer to the recital XIII in the said agreement which reads thus : "(XIII) M/s.Sunflower also entered into several Agreements for sale of flats/shops/basement areas in the building then to be constructed on the said property, the particulars whereof are given in Annexure "3" annexed hereto." 24. Annexure-III to the said agreement mentions the name of the plaintiff against the shop no.2. The said agreement refers to an agreement executed by the owners in favour of second defendant and the Deed of Cancellation dated 12th December 1994 executed by the second defendant under which the second defendant handed over the possession of the property to the owners on "as is where is" basis. There is further reference to an