1 nm-4087 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Notice of Motion No.4087 of 2008 IN Suit No.3236 of 2008 Samir N. Bhojwani .. .. Plaintiff v/s. M/s.Sunshine Projects Pvt.Ltd. & anr. .. Defendants Mr.P.K.Samdhani, Sr.Advocate with Mr.Chetan Kapadia with Mr.Parimal Shroff, Mr.D.V. Deokar, Mr.Medhavin Bhatt & Ms.Amruta Ghone i/by M/s.P.K. Shroff & Co. for Plff. Mr.S.U.Kamdar, Sr.Advocate with Mr.Snehal Shah & Ms.Akansha Thakkar i/by M/s.Purnanand & Co. for Deft.No.1. Mr.Shailesh Shah i/by M/s.Khona & Kayser for Deft.No.2. ----- CORAM : SMT.ROSHAN DALVI, J. Date of reserving the order : 26th July, 2010 Date of pronouncing the order : 10th August, 2010 ORDER : 1.The suit is for specific performance of the agreement between the Plaintiff and Defendant No.2 dated 10.11.2003 and for the alternate relief of the return of the amount of consideration paid by the Plaintiff thereunder with interest thereon aggregating to Rs.4.19 Crores and for damages of Rs.46 Crores. 2 nm-4087 2.The Notice of Motion is for the appointment of Court Receiver and the usual injunctions. 3.The Plaintiff and Defendant No.2 initially entered into a Memorandum of Understanding (MOU) on 21.10.2002 followed by the agreement for development on 10.11.2003, Defendant No.2 being the owner of the suit property and the Plaintiff obtaining the right to develop it. 4.Under the said agreement marked Exhibit-B to the Plaint, the Plaintiff was to pay consideration of Rs. 2.25 Crores and develop the property under the Slum Rehabilitation Scheme (SRS) of the Slum Rehabilitation Authority (SRA). The suit property is an open land entirely encroached upon and having as many as 141 structures, out of which 136 structures were eligible to be considered for rehabilitation. The development was to be under DC Regulation 33(10) of the Development Control Regulations (DC Regulations). 5.The twin performance by the Plaintiff is for payment of consideration and the grant of alternate accommodation to the occupants of the structures. It is in respect of these two aspects only that the performance of the Plaintiff s part of the contract would have to be judged. 3 nm-4087 6.Under Clause-4 of the agreement, the price of Rs.2.25 Crores was payable in four installments as mentioned in Clauses (a) to (d) thereof. 7.Under Clause 5(2) of the agreement, a carpet area of 260 sq. feet was to be provided to each of the 136 eligible occupants of the structures on the open land of Defendant No.2 by the Plaintiff. 8.Under Clause-7 of the said agreement, the Plaintiff was merely given a licence to enter upon the suit property for the purpose of development by construction of two or more buildings as rehabilitation buildings in Phase- I and thereafter for the development of the free sale component in Phase-II. The Plaintiff, as a licensee, cannot be stated to have been put in possession of the part of the property, upon which the Plaintiff was thus licensed or permitted to enter. (See : Hamid Khan vs. Ashabi & ors., 2009 (3)Mh. L.J. 2). 9.The Plaintiff has admittedly paid Rs.86 Lakhs, out of the total consideration of Rs.2.25 Crores. The Plaintiff contends that there was a novatio between the parties on 17.1.2005, after which the Plaintiff was required to pay and paid Rs.5 Lakhs per month to Defendant No.2. Such payments have been made thrice 4 nm-4087 and the total sum of Rs.86 Lakhs stated to have been paid by the Plaintiff includes this amount. 10.The main dispute between the parties is with regard to the grant of the alternate accommodation to the occupants of the structures so that the free sale FSI, which was available to the Plaintiff, could be allowed to be utilised by the Plaintiff for development of the suit plot of land. 11.The suit property was to be developed in two phases  Phase-I and Phase-II. In Phase-I development upon utilisation of FSI, there was to be a construction of two or more buildings as per building plans to be approved by the SRA, which would be for rehabilitation of the existing tenants and occupants and hutment dwellers on the suit property. These buildings were called the rehabilitation buildings . The other buildings would be called the free sale buildings for sale and transfer as deemed fit by the Plaintiff. It, therefore, follows that the rehabilitation buildings in Phase-I were required to be constructed before the free sale buildings could be constructed. This would be naturally so because the entire property was encroached upon. There was no space for construction of the free sale building until the occupants were rehabilitated. 5 nm-4087 12.The Architect of Defendant No.2 was the Architect appointed by the Plaintiff also for development of the suit plot of land. Defendant No.2 being the owner of the land, granted Power of Attorney to the Plaintiff to develop. The common Architect submitted the plans. The plans relating to the rehabilitation buildings to be submitted are important to consider. The first of such plans was approved on 5.7.2004. It specifies the precise measurement of the tenements. 13.Defendant No.2 contends that this plan was submitted for 225 sq. feet of tenements to be given to the occupants of the structures instead of 260 sq. feet each, as agreed in Clause 5(2) of the agreement. 14.Defendant No.2 had entered into separate agreements with the occupants of the structures. The occupants of the structures sought to terminate that agreement because instead of the agreed area of the tenements, which was 260 sq. feet to be given to them, the Plaintiff approved the plans for construction of tenements of 225 sq. feet. 15.Thereafter the Plaintiff through his own Architect s letter dated 10.12.2004 submitted the plans of larger dimensions. Under the said letter, the Plaintiff s Architect requested the Chief Executive Officer (CEO) 6 nm-4087 of SRA to approve the rehabilitation buildings having a carpet area 225 + 35 sq. feet = 260 sq. feet of total area. 35 sq. feet was to be from the sale component. The later plan submitted to the SRA and approved shows the additional dimensions for each of the tenements. The second plan has not been approved. It, however, is shown to bear the stamp of the SRA dated 10.12.2004. The two different and distinct dimensions of the tenements showing rehabilitation multi purpose room, including one room, one kitchen, one toilet and one enclosed balcony are as follows:- Area in sq. metres in the plan dated 5.7.2004 2.40 x 0.84 = 2.016 2.55 x 2.21 = 5.6355 1.80 x 4.05 = 7.29 2.07 x 1.2 = 2.484 ___________ 17.4255 Sq. Metres = ______________ 187.49838 Sq. Feet ============= 7 nm-4087 Area in Sq. Metres in the plan dated 10.12.2004 2.35 x 4.60 = 10.81 1.2 x .95 = 1.14 1.2 x 1.4 = 1.68 1.45 x 2.05 = 2.9725 1.9 x 2.45 = 4.655 1.9 x 1.25 = 2.375 __________ 23.6325 Sq. Metres = __________ 254.2857 Sq. Feet ============ 16.It is plain to see that the initial plan submitted after the execution of the agreement and got approved in 2004 was for an area less than 260 sq. feet of each tenement and in fact even much less than 225 sq. feet in area. The Plaintiff, therefore, made a major breach of the agreement between the parties. 17.The SRA s note dated 29.12.2004 shows that now the Plaintiff s Architect submitted the amended plans with carpet area of 260 sq. feet for rehabilitation buildings. 18.The slum dwellers complained to the SRA. The SRA 8 nm-4087 issued a notice to the Plaintiff s Architect to stop work on 11.5.2005. Since the initial agreement between the slum dwellers and occupants of the structures on the one hand and Defendant No.2 on the other was cancelled, the SRA required submission of fresh agreement between them. The Plaintiff has relied upon a letter of Defendant No.2 to the SRA dated 18.6.2005 setting out that it was due to certain mischievous persons that the slum dwellers did not shift in the transit camp. 19.In the letter dated 8.8.2005 of the Attorneys of Defendant No.2 to the Plaintiff, Exhibit K-1 to the Plaint, the breaches committed by the Plaintiff including the aforesaid major breach were pointed out. There has been extensive correspondence between the parties putting on record their respective contentions and making allegations against one another. 20.However, the fact remains that this breach was sought to be remedied by the Plaintiff in December 2004. The plans for 260 sq. feet were not submitted by the Plaintiff until May 2005. In the meantime, the slum dwellers sought to resile from their agreement with Defendant No.2 and hence, Defendant No.2 could not allow the Plaintiff to continue the development. 9 nm-4087 21.The Plaintiff constructed two transit camp buildings to house 40 tenements, which the Plaintiff has shown as the part of the contract performed by him. It may be mentioned that that is not a part of the Agreement dated 10.11.2003. That would have to be constructed to make space for construction of the rehabilitation tenements in Phase-I. The tenements have not been constructed as agreed upon because the Plaintiff did not provide the area of tenements as agreed upon. 22.The tenants have complained to the SRA under their letter dated 17.12.2005, showing the breach of the Plaintiff. 23.The agreement between the Plaintiff and Defendant No.2 has been terminated. The termination is not without reason or substance. That being so, the discretionary relief of specific performance of the agreement cannot be granted to the Plaintiff who is in breach of the agreement. 24.Consequently, the interim relief of injunction also cannot be granted. Hence, the Notice of Motion is dismissed. No order as to costs. The interim order is continued for 2 weeks. (SMT.ROSHAN DALVI, J.) 10 nm-4087