1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. CHAMBER SUMMONS NO.548 OF 2007 IN SUIT NO. 2865 OF 2006 Ajmera Mniar Developer Pvt.Ltd. .... Plaintiffs vs Dharamshi S. Patgel & ors. And M/s.Paramount Developers and ors. ... Defendants Mr.Punniwala with Mr.Y.R. Shah for the plaintiffs. Mr.P.M.Shah for defendants 1 to 4. Mr.Amid Chouhan with Mr.N.N.Vaishnawa for respondents 1 and 2. Mr.Pradeep Sancheti with Mr.Rajadhyaksha i/b. J.J. Shah for respondents 8 and 9. CORAM: ANOOP V. MOHTA, J. DATE : 29th August, 2009 P.C.: The plaintiff has taken out this chamber summons in a Suit filed on 5.10.2006 for specific performance for various reliefs, based upon Exhibit “B” i.e. Memorandum of Understanding (MOU) dated 24.09.1998 between Mr.Dharamshi S. Patel, Proprietor of M/s.Pramukh Enterprises and Mrs.Jayashree D. Patel, proprietress of M/s.Akshar Enterprises and the plaintiffs (defendants 1 to 4). 2 The schedule of the property refers to various survey nos. which is reproduced as under : THE FIRST SCHEDULE HEREINABOVE REFERRED TO 2 ALL THAT piece or parcel of loand or grounds together with structures swtanding thereon situate, lying and being at Malad (West), bearing Survey No. 468, Hissa No.4 (part), C.T.S.No.352, admeasuring 2752.7 square meters or thereabouts of village Malad, Taluka Borivli, Bombay Sub urban District within the Registration District and Sub District of Bombay City and Bombay Suburban. THE SECOND SCHEDULE HEREINABOVE REFERRED TO ALL THAT piece or parcel of land or grounds together with structures standing thereon situate, lying and being at Malad (West), bearing Survey No. 468, Hissa No.4 (part), C.T.S. No.375, 357/1 to 3 admeasuring 577.5 square meters or thereabouts of village Malad, Taluka Borivli, Bombay Suburban District within the Registration District and Sub District of Bombay City and Bombay Suburban. THE THIRD SCHEDULE HEREINABOVE REFERRED TO ALL THAT piece or parcel of land or grounds situate, lying and being at Malad (West), bearing Survey No.469, Hissa No.1, C.T.S. No.360, admeasuring 400 square meters or thereabouts of Village Malad, Taluka Borivli, Bombay Suburban District within the Registration District and Sub Distric t of Bombay City and Bombay Suburban. 3 The plaintiff has taken out this chamber summons basically in view of the subsequent developments because of proposed amalgamation of plot in question bearing C.T.S. No.352, 357, 357/1 to 3, 360 at village Malad(West) t Bandarwada at Malad (West). 4 Prior to this, the defendants 1 to 4 entered into another Development Agreement dated 20-11-2006 referring to the property i.e. Survey No.469, Hissa No.1, C.T.S.No.360 and marked “A”, “C” and “D”. There are other transactions also entered into by defendants 1 to 4. 5 None appeared for other respondents though served, except respondents 5 and 6, 12 and 13. 6 The learned counsel appearing for respondents/proposed defendants 5 and 6 makes statement and already recorded in the Order dated 16.04.2007 that the 3 agreement in their favour has already been terminated on 15.09.2006. By Affidavit of one Devshi Devraj Gada, they have confirmed that stand. In view of this, the learned counsel for the plaintiffs, on instructions, not pressing reliefs against respondents 5 and 6. 7 The contesting proposed defendants 12 and 13 who are respondents 8 and 9 have filed their reply affidavit in detail along with various documents including the proposed lay out amalgamation; order dated 7th June, 2008 with map. There is no dispute with regard to this fact. 8 Admittedly, after the agreement, the Corporation acquired this land for the construction of road. That divided this C.T.S.No.360 into two parts basically, 1, 2, 3, 4 and 5, which is adjacent to C.T.S.Nos.352 and 357, i.e. About 561 sq.mts. which involved in the Suit based upon the agreement. The other part is C.T.S. No.360 at Sr. Nos.6 to 12. That area of plot “B” is about 998.25 square meters. The remaining part is 561 sq.mts., which is adjacent to the plaintiff’s plot. The total area of about 1559.50 remained after this division because of this acquisition of land for the road. There is no dispute that some part from C.T.S.No.352 also got acquired and/or reduced from the original area of the plaintiff. 9 The plaintiff’s entitlement read with compensation, based upon the agreement is a matter of trial, but undisputed position on record that the MOU as noted above, described in detail the schedule of the properties. Therefore, the plaintiff is entitled to the agreed and described area based upon the agreement only. The third schedule of properties C.T.S.No.360, admeasuring 400 sq.mts. is the total area of the plaintiffs. The effect of acquisition of the property and 4 resulted loss and/or exact entitlement of the plaintiff is also a matter of trial. 10 Admittedly, as per the plan, the portion of C.T.S.No.362, which is adjacent to C.T.S.No.352 is of about 561 sq.mts. Therefore, based on this MOU the plaintiff’s entitlement of 400 sq.mts. From C.T. S. No.360 remained intact. The plaintiff’s case against defendants 1 to 4 of his entitlement to the total area as per the MOU, unless decided finally, in no way affects the agreement entered into by the defendants 1 to 4 with the contesting respondents. Merely because C.T.S.No. 360 is mentioned in both these agreements that itself, in my view, cannot be the reason to accept the case of plaintiffs against these respondents. As noted, the parties are bound by the MOU referring to the plot numbers and the area. In Bhaiyalal v. Ram Din, AIR 1989 ALLAHABAD 130, the Allahabad High Court has observed as under : “11. The plaintiff was claiming specific performance of a particular agreement, namely, Ext.11. The suit could therefore, be decreed for specific performance of only that agreement and no other. ” 11 The MOU, as stands today, which provides and described the property with plot numbers and area, the parties are bound and entitled to claim the same only, unless they agree otherwise. The plain reading of this document (MOU) read with the schedule attached to it, I am inclined to accept the submission at this prima facie stage on behalf of the conditions of respondents that the plaintiff is not entitled to claim anything beyond 400 sq.mts. So far as the C.T.S. No.360 is concerned. 12 Because of change of circumstances and basically the amalgamation, the 5 plaintiff wants these respondents to be added as a party for proper adjudication of the Suit claims against defendants 1 to 4. Normally, the Court grants amendment whenever it is necessary for proper adjudication of the dispute between the parties. However, as referred above, I am of the view that so far as the contesting respondents and the agreement so entered into with the defendants, cannot be said to be in conflict with the agreement already entered into by the plaintiff with defendants 1 to 4 for C.T.S. No.352, 357 and 360 (part). The acquisition of the land for road, that resulted into the reduction of area of plaintiff’s plot/area is also no way concerned with the agreement of defendants 1 to 4 with the contesting respondents. Those two documents are separate and cannot be interlinked and/or intermixed only because of C.T.S.No.360 is mentioned in both these documents. 13 Even otherwise, considering demarcation of the plot, the land/plot which are adjacent to each other i.e. 352, 357 and 360, need to be developed as per the law. The claim unless adjudicated finally and in view of above, as both the agreements are distinct and distinguishable, I see there is no involvement of these contesting respondents. Their presence, in the suit, therefore, is not necessary. Therefore, they are neither proper nor necessary parties to the proceedings. 14 The submission with regard to the transfer and/or execution of these agreements inspite of the injunction dated 19.10.2006 passed by this Court in view of above, is unacceptable. 6 15 In view of above, the chamber summons taken out by the plaintiff is partly allowed against all, except against proposed defendant no.6 and proposed defendants 12 and 13. Therefore, the averments referring to them also need to be deleted accordingly. 16 However, liberty is granted to the plaintiff, so instructed, to challenge those agreements/documents by separate proceeding. 17 The chamber summons is, accordingly, allowed partly to the above extent. No order as to costs. 18 It is made clear that this Court on 16.04.2007, at the initial stage, has granted order of status-quo against all proposed defendants 5 to 13, including proposed defendants 5 and 6 and 12 and 13. In view of above, the said order of status-quo to continue only against the other respondents/defendants except proposed defendants 5, 6, 12 and 13 for four weeks to take out appropriate proceedings. It stands vacated against defendants 5, 6, 12 and 13. (ANOOP V. MOHTA, J.)