- 1 - 8.nms.213.11 s.157.11 skt IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 213 OF 2011 IN SUIT NO.157 OF 2011 Vishal Dhandhia & Ors. ..Plaintiffs -Versus- Satellite Holdings & Ors. ..Defendants .......... Mr.J.J.Bhatt, Senior Counsel a/w. Ms.Anjali Chandurkar, Mr.Manish Parekh i/b Purnanand & Co. for the Plaintiffs. Mr.Mahesh Patil i/b Mr.Mahesh Ayare for Defendant No.3. Mr.Dinyar Madon, Senior Counsel a/w. Ms.Neeta Rajda i/b DSR Associates for Defendant No.9. .......... CORAM : S.J. VAZIFDAR, J. DATE : 29TH SEPTEMBER 2011. P.C. 1 This is a suit for specific performance of a memorandum of understanding dated 22nd May 1993 by which the plaintiffs agreed to purchase from defendant no.1, a flat admeasuring 990 sq.ft. for a consideration of Rs.38 lakhs. The plaintiffs paid a sum of Rs.29.94 lakhs by 21st July 1993. The building was completed only in the year 2009. Admittedly, there were negotiations between the plaintiffs and defendant no.1. There is, therefore, no question of delay. - 2 - 8.nms.213.11 s.157.11 2 Defendant no.1 has been put in possession of a flat bearing the same number as the suit flat, on the same floor namely the tenth floor of the building. The agreement between defendant no.1 and defendant no.9 is dated 31st December 2007. Defendant No.9 claims to be in possession from 27th July 2009. Prima facie, defendant no.9 was aware of the plaintiffs’ claim. This is evident from a letter dated 13th February 2011 Exhibit ‘G’ to the plaint. A meeting was held between the various flat purchasers at which the plaintiffs and defendant no.9 were present. The suit flat is indicated as against the plaintiffs’ name. Various other flats were purchased by defendant no.9, which are indicated against the name of defendant no.9. The plaintiffs’ name is indicated against the suit flat. Defendant no.9 disputes the enclosure therefor. 3 Mr.Madon submitted that the disputes between the plaintiffs and defendant no.1 have been settled. Under the settlement, defendant no.1 has agreed to give an alternative premises to the plaintiffs. There is nothing, however, to indicate that the agreement is concluded and binding on defendant no.1. 4 The mere fact that the flat in which defendant no.9 had been put in possession, admeasures 1296 sq.ft. may not, by itself, defeat the claim for specific performance. It will be a question of adjustment in price. - 3 - 8.nms.213.11 s.157.11 5 In the circumstances, pending the hearing and final disposal of the suit, the defendant shall not dispose of, alienate, encumber, part with possession of or create any third party rights in respect of the suit flat. The plaintiffs, however, shall be at liberty to give the flat out on leave and licence basis. This is subject to the licensee filing an affidavit in the Court agreeing to abide by the result of the suit or any orders that may be passed herein. The leave and licence agreement shall not be more than three years at a time. However, even if the suit is decreed in favour of the plaintiffs, the licensee would be entitled to continue to occupy the flat during the term of the licence. -