CHHEDA HOUSING DEVELOPMENT CORPORATION Vs. BIBIJAN SHAIKH FARID

JUDGEMENT

(1.) This an Appeal by the Plaintiff. Along with the Appeal respondent Nos. 1 to 9 and Respondent Nos.10 and 11 have also filed cross objections. All of them are being heard and finally disposed of by this judgment.

(2.) The Appeal is preferred by the Appellant who is the original plaintiff. The respondent Nos. 1 to 9 are the original defendant Nos. 1 to 9, Respondent No.10 is the original defendant No.10, respondent No.11 is the original defendant No.11 and respondent Nos. 12 and 13 are the original defendant Nos. 12 and 13. The respondent Nos. 1 to 9 are the legal heirs of one late Shaikh Farid Shaikh Kalander, who had filed a suit in respect of the suit property and other properties against Behramjee Jeejeebhoy Pvt. Ltd.. being Suit No.2105 of 1989, claiming adverse possession against Behramjee Jeejeebhoy Pvt. Ltd. Consent terms came to be filed on 22nd June, 1992 under which a declaration was granted declaring late Shri Shaikh Farid Shaikh Kalandar to be the owner of the property. The consent decree came to be registered on 24th August, 2000. It is the case of the Appellants that on 20th April, 2004 there was a Memorandum of Joint development entered into between 10th respondent and the appellants for joint development of the property which was identified as a specific part of Plot C-2 in terms of the lay out scheme/Sub Division sanctioned under reference No.C/Office-7A/Sub Division/SR/3496 dated 15th October, 2002. A certificate had been issued by the Advocates and Solicitors for respondent No.10 that the title in the said property was in late Shaikh Farid Shaikh Kalandar and respondent No.10. Respondent NO.10 in respect of the cause of action against respondent Nos. 1 to 9 filed a suit being Suit No.2180 of 2004, for various reliefs amongst others for an injunction against respondent Nos. 1 to 9 from causing any obstruction or hindrance or interfering with the right of the respondent No.10 from exercising the power under the Power of Attorney. The plaint was amended by adding respondent No.11 as defendant. The suit came to be decreed on 10th March, 2005. The Appellants contend that another certificate was issued on 23rd March, 2005 by the Advocate for Respondent No.10, certifying that the certificate of title dated 16th March, 2004 issued by the Advocates was still good and the said property was free from all encumbrances and reasonable doubts.

(3.) The defence of Respondent Nos.10 is that there were two immovable properties belonging to respondent Nos. 1 to 10, one at Goregaon and the other the suit property at Kandivali. Respondent No.10 approached the appellants for financial assistance for development the property at Goregaon to the tune of Rs.5.00 crores. Accordingly, two allotment letters dated 24th March, 2004 and 20th April, 2004 were issued to secure part payment of Rs.2.50 crores which had to be made by the appellants. It was the understanding that payment was to be made against these two allotment letters. The Appellants, however,desired that there should be a proper security as they are investing a considerable sum and the appellants sought security of 8.00 lakhs sq.ft. of FSI of suit property and that is how the joint development agreement in respect of Kandivali property was executed, as the Appellants apprehended that on account of several tenants and occupants in Goregaon property, the development proposal may not be feasible and in those circumstances the property would not constitute an adequate security. It is in these circumstances a security was given of 8.00 lakhs which was subsequently was reduced, as the appellants failed to bring in further sum of Rs.2.50 crores. The security was reduced to 2.00 lakh sq.ft. In the alternative it was submitted that the Agreement was adjudicated and stamped as a Development Agreement and the law is settled that Development Agreement cannot be specifically enforced. The respondent No.11 have adopted the stand of the respondent No.10. It was pleaded that there is suppression of material facts and that the suit as filed is not maintainable. The Appellants were aware of the Agreement entered into between the respondent Nos. 10 and 11 on 22nd January, 2004 and it is not open to the Appellants to contend that it was only noticed during the search of the proceedings of the City Civil Court. The Agreement between respondent Nos.10 and Respondent No.11 are prior agreements and must take precedence to the Agreement between the appellants and respondent Nos. 1 to 10. Respondent No.11 made payment to respondent No.10 as per Agreement dated 22nd February, 2004 and development work was in progress. The stand of respondent Nos. 12 to 13 is that the appellants have an alternative access in terms of the development plan of the property and as such the relief as prayed for could not be granted. Respondent Nos.1 to 9 adopted the stand of respondent No.10.