Bombay High Court
Mangalam Group A Partnership Firm vs Shri Nandkumar Bhalchandra ... on 5 November, 2012
Bench: B. P. Dharmadhikari
1/19 838.11-ao
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO. 838 OF 2011
1. Mangalam Group a partnership firm
Having its office at - Meridian Landmark
Sector No.6, Plot No.94, Moshi
Tal. Haveli, Dist. Pune
Through its partner
a) Shri Chandubai Jaynatibhai Patel,
Age 35 years, Occ.Business
R/at. C-05, Dwarka Vishwa,
Plot No.88A, Sector No.7,
Indrayani Nagar, Bhosari, Pune 39.
b) Shri Ramesh Chandubai Patel,
Age 31 years, Occ. Business,
R/at. Ambika Apartment,
Plot No.39, Flat No.14,
Shriram Society, Warje Jakat Naka,
Pune 58.
c) Shri Sudhir Ratansibhai Velani,
Age 32 years, Occ. Business,
R/at. 303 Shrivardhan Building,
Near Telephone Exchange,
Warje Jakat Naka, Pune 58.
2. Shekhar Infratech Parnership firm
Having its office at Flat No.116,
Devika Tower, Nehru Place, New Delhi
Through its partner
a) Shri Rajneshkumar Maheshchand Agarwal,
Age 48 years, Occ. Business,
R/at. House No. 18,
Sector No.37, Faridabad, Haryana.
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b) Shri Keshavkumar Maheshchand Agarwal,
Age 42 years, Occ. Business,
R/at. House No. 452,
Sector No.37, Faridabad, Haryana.
c) Shri Harichand Shyamlal Agarwal,
Age 53 years, Occ. Business,
R/at. B-502, Richmond Nyati Candeur,
Undri, Pune 411 028.
d) Smt.Archana Sumit Agarwal,
Age 27 years, Occ. Business,
R/at. A-10, Amar Paradise,
7th Aundh Road, Khadki,
Pune 411 020.
3. Shri Keshav Girijprasad Goyal,
Age 36 years, Occ. Business,
R/at. Plot No.83,
Sector No.1, Indrayanigar,
Bhosari, Pune 39.
4. Shri Parvindar Gurudayalsing Randhava,
Age 38 years, Occ. Business,
R/at. Plot No.83, Sector No.1,
Indrayanigar, Bhosari, Pune 39. ... Appellants.
V/s.
1. Shri Nandkumar Bhalchandra Bhondve,
Age 41 years, Occ.Business & Agri,
R/at. M.I.D.C. Pipe Line Road,
Ravet, Taluka Haveli, Dist. Pune.
2. Shri Gokul Babugir Gosavi,
Age 63 years, Occ. Agri.
3. Shri Shivsambha Gokul Gosavi,
Age 30 years, Occ. Agri.
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4. Shri Ganesh Gokul Gosavi,
Age 28 years, Occ. Agri.
5. Sou.Laxmi Gokul Gosavi,
Age 58 years, Occ. Household.
6. Shri Madhukar Babugir Gosavi,
Age 56 years, Occ. Agri.
7. Shri Sandeep Madhukar Gosavi,
Age 25 years, Occ. Agri.
8. Shri Amol Madhukar Gosavi,
Age 23 years, Occ. Agri.,
No.1 to 7 R/at Chikali,
Hargude Wasti, Tal.Haveli,
Dist. Pune.
9. Smt.Chabutai Ramkrishna Gosavi,
Age 64 years, Occ. Household.
10. Sou.Heerabai Baban Gosavi,
Age 49 years, Occ. Household,
No.8 & 9,R/at Gosavi Wasti,
Chikali, Tal. Haveli, Dist. Pune.
11. Sou.Radhabai Mahadeo Bharati,
Age 61 years, Occ. Household,
R/at Kusgaon, Tal. Maval,
Dist. Pune.
12. Shri Janardan Raghu Bharati,
Age 48 years, Occ. Service,
R/at Indori, Tal. Maval, Dist. Pune.
13. Pimpri Chinchwad New Township
Development Authority through its
Chief Executive Officer Pimpri Chinchwad
New Township Development Authority,
Nigadi, Pune- 411 044.
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14. Shri Shantaram Ganpat Kadam,
Age 36 years, Occ. Business,
R/at Akurdi Gaothan, Akurdi,
Pune 411 035.
15. Shri Nandkumar Vitthal Kalbhor,
Age 53 years, Occ. Business,
R/at Kalbhor Nagar, Chinchwad,
Pune 411 019.
16. Shri Suresh Vitthal Jadhav,
Age 53 years, Occ. Business,
R/at More Wasti, Chikhali,
Tal. Haveli, Dist. Pune.
17. Shri Ashok Raghunth Mane,
Age 48 years, Occ. Business,
R/at More Wasti, Chikhali,
Tal. Haveli, Dist. Pune.
18. Shri Vinayak Pandharinath Bhongale,
Age 50 years, Occ. Business,
R/at Radhanagar Housing Society,
Didhi road, Bhosari, Pune 39.
19. Shri Chandrakant Tukaram Bharekar,
Age 53 years, Occ. Business,
R/at Chandrakiran, Anantkrupa Society,
Poud Road, Kothrod, Pune 38. ... Respondent.
V.P.Sawant with Ms.Rajlaxmi Mohandas i/b.
ALMT Legal for the appellant.
S.V.Sadavarte for respondent No.1.
Vijay Patil, G.P. for respondent No.13.
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CORAM : B.P. DHARMADHIKARI, J.
DATED : 5th November 2012.
Judgment :
It appears that on earlier occasions, effort were made to
decide controversy finally. Accordingly, matter is heard finally forthwith
with the consent of parties by admitting it.
2. Challenge in this appeal against order preferred under O.
XLIII Rule 1(r) CPC is to the order dated 17.2.2011 allowing plaintiff's
application under O.XXXIX Rule 1&2 thereby restraining the defendants
1to 3, 6,7 & 19 to 22 or their agents etc. from carrying out any
construction or from creating third party interest over suit property.
Defendant 12 Pimpri Chinchwad New Town Development Authority is also
restrained from granting any permission to construct or to transfer.
3. Appellants before this Court are the defendants 19,20,21 & 22
in Special Civil Suit 74 of 2011 filed by respondent 1 before Civil Judge,
Senior Division, Pune for specific performance. Pimpri Chinchwad New
Town Development Authority, referred to as development authority
hereafter, is respondent 13 and the other respondents are the remaining
defendants in that Suit.
4. To facilitate the consideration of controversy, I find it
appropriate to briefly mention the grounds formulated by Shri Sawant, the
learned counsel on behalf of the appellants. His contentions are :--
(a) On the strength of alleged understanding or the
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agreements with landowners, the plaintiff can not attempt to reach &
fasten his claim against that property which was not in existence then.
(b) Plaintiff failed to procure the release or allotment of
12.5% land to be returned by development authority as per its scheme.
This returnable land is mentioned as "partawa land" by the parties.
(c) Agreement or arrangement with plaintiff was terminated
by the landowners and plaintiff did not assail that termination. Suit
brought by him is grossly delayed.
(d) Original landowner Jankibai executed the will & entire
suit property did not fall to share of plaintiff's vendors.
5.
Plaintiff / respondent 1 claims that land gat nos. 907 & 547 of
village held by Jankibai came to be acquired by the development authority
and as per the scheme of State Government, she or the affected persons
became entitled to return of 11162.50 Sq.Mtrs. from it as 12.5%
partawa land. Development authority conducted a draw for said purpose
& Jankibai was alloted plot no. 148 in sector 11 as partawa. Defendants
1to 4, after death of Jankibai informed development authority about will
dated 15.3.1996 left by her, their right to plot 11, financial problems and
hence assignment of their right in favour of defendants 13 & 14. Rate
settled was Rs. 600/per sq. foot & they accordingly accepted Rs. 10 Lac
and executed an agreement dated 30.3 1997 in their favour. They agreed
to assign it to defendants 13,14 or their nominee after accepting balance
consideration for transfer of leasehold rights. Defendants 13 & 14 asked
defendants 1 to 4 to assign those rights to plaintiff & on 6.11.2007
defendants 1 to 4 accordingly executed an agreement in favour of
plaintiff. Defendants 1 to 4 agreed to transfer their leasehold rights in plot
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no. 148 or any other plot which the development authority may allot as
partawa land. On 7.11.2007, by another agreement, they again agreed to
transfer the 12.5% partawa land of gat no. 907 & 547 to plaintiff and
accepted Rs. 50 Lac in cash as part of sale consideration. On 16.10.2009,
they entered into another agreement on same lines & confirmed the
transaction. They also agreed to provide all required signatures & consents
even of other family members i.e. defendants 5 to 11. Defendants 1 to 4
also executed and registered a power of attorney in plaintiff's favour. The
plaintiff's thereafter followed the release of partawa land with office of
development authority and claims that certain compliances were
necessary by the defendants 1 to 4 personally. He was also orally informed
that certain court matters were pending between the defendants &
allotment was possible only after disposal thereof. This development was
communicated to defendants 1 to 4 & their Advocate by him. Incorrect or
false notice sent by said advocate on 17.4.2008 was replied to by plaintiff
on 30.4.2008 calling upon the defendants 1 to 4 to compete the
formalities required to obtain the lease deed and expressing his readiness
& willingness to perform his part. He then sent notices dated 16.6.2008 to
defendants 1 to 3 but the same remain UN-replied. Defendants 5 to 11
accepted Rs. 5 Lac from defendants 15 & 16 and agreed to transfer their
share out of 12.5% partawa lands for Rs. 55,00.000/- to them. Agreement
dated 17.12.2002 was entered into between them followed by a
registration of power of attorney. Defendants 5 to 11 agreed to to assign
all their lease hold rights in favour of defendants 17 to 18 or their
nominee at rate of Rs. 1,35,000/- per Are vide an agreement dated
24.11.2005 by accepting Rs. 30,00,000/- registered at sr. no. 6827/2005.
Plaintiff also claims that defendants 17 & 18 in tern agreed on 23.3.2007
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by an agreement to transfer their rights to him for Rs. 321/- per sq.ft. and
accepted rs. 10 Lac by cheque. In plaint para 15, plaintiff claims that all
these agreements are confirmed & acknowledged by the defendants 1 to 4
on 17.4.2008, by defendants 5 to 7 on 8.10.2010, by defendants 17 & 18
on 7.12.2010. In plaint para 16, a conspiracy by defendants 1 to 11 in
collusion with chief executive officer Shri Divase, Dypt.C.E.O. Shri Pawar,
Office bearers Mr. Jalindare & Mr. Shegar as also defendants 19 ton 22 is
alleged by pointing out substitution of plot no. 148 and by changing
location of partawa land. Though allotment was not finalized &
demarcation certificate was not over till 18.8.2010. The lease-deed of
changed partawa land is executed by the development authority in favour
of defendants 1 to 3,6 & 7 and registered vide 7154/2010. Plaintiff claims
that he also has right to allotment & lease of changed partawa lands.
Defendants 1 to 3,6 & 7 executed & registered agreement in favour of
defendant no. 19 about plot of land described in plaint para 1E i.e. part of
the partawa land. They have also executed & registered 3 documents of
power of attorney in his favour. In plaint in para 18, it is alleged that
defendants 1 to 3,6 & 7 executed a development agreement in favour of
defendants 21 & 22 in relation to part of partawa land described in para
1C and also executed 3 power of attorney documents. It is claimed that
similar agreement & 3 POAs are executed/registered by them in favour of
defendant 20 for part of the partawa land described in plaint para 1D. It is
claimed that all these documents are illegal. He then on 26.8.2010 called
upon the defendants to procure necessary permission to transfer suit
property to plaintiff and also plaintiff informed the development authority
accordingly. Defendants 19 to 22 as also defendants 1 to 3,6 & 7 were
called upon to execute & register deeds of cancellation pertaining to
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various documents mentioned above. On 23.8.2010. plaintiff also
published a public notice. In plaint para 23, some malafides are also
alleged by pointing out the role of advocate engaged by development
authority in RCS 47/1994 (later on SCS 1156/1999). Prayers in plaint
relevant at this stage are (a) to declare entitlement of plaintiff to specific
performance of agreements dated 6.11.2007,7.11.2007,24.11.2005 &
24.3.2007,(b) to grant it after the concerned defendants complete the
formalities, (c) to declare other collusive development agreements
entered into by the defendants 1 to 3,6 & 7 in favour of defendants 19 to
22 as void & to cancel them.
6.
The defendants 1 to 4 have filed reply generally denying the
pliant allegations. However, in para 6 they accept execution of power of
attorney registered at sr.no.8948/2007 in favour of plaintiff. Execution of
agreements dated 6.11.2007 & 7.11.2007 is also admitted but then they
blame plaintiff for not taking necessary steps. They point out termination
of agreements by public notice dated 12.6.2008. Execution of documents
in favour of defendants 19 to 22 & receipt of consideration is accepted by
them in reply para 20 (d). Development authority has denied knowledge
of any agreements between plaintiff & defendants. It has stated that suit
nos. 1418/2006 and 2414/2010 are pending between parties about 12.5%
land. They also state that as per shares given in will they have executed
the lease deeds & plot 148D as alloted is situated at same location i.e.
where plot no. 148 was shown after draw. Defendants 13 & 14 have
admitted the claim of plaintiff & given no objection to decree it without
any costs upon them. Defendants 19,19(a) to (c),20 & 20(a) admit
earnest money receipt dated 30.3.2007 in favour of plaintiff, agreements
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dated 6.11.2007,7.11.2007. They plead that land gat no. 907 & 547 were
self acquired properties of Jankibai & hence, it devolves only as per her
will dated 15.3.1996. 4 heirs entitled to 1/4th share each accordingly in
gat no. 547 are defendants 2,3,6 & 7 as named by them. They also point
out that defendant 1 is entitled to ½ share in gat no. 907 while defendants
2,3,6 & 7 are entitled to 1/8th share each as per will. Agreements or POAs
secured by them are not in dispute. Defendant 20 submits that he has paid
Rs. Two Crore Five Lacs to defendants1,2,3,6 & 7 and is placed in
possession with an irrevocable power of attorney. Defendants 21 & 22
have agreed to pay Rs. 65Lacs to defendants 1,2,3,6 &7 and defendants
no. 19 has acquired development rights over plot 121 admeasuring 4221.6
Sq. Mtrs. It is also vaguely stated that entire agreed consideration of Rs.
Three Crore Fifty Lacs is paid by it to defendants 1 to 3,6 & 7. These
defendants are also claimed to be in possession with similar irrevocable
POA. They have then pointed out some lacunae in the earnest money
receipt dated 30.3.2007, agreements dated 6.11.2007 &
7.11.2007.Separate reply affidavit filed by defendant 21 before the trial
court is on same lines.
7. Arguments in brief by learned Counsel Shri Sawant are gat
nos. 907 & 547 belonged to Jankibai and as per her will dated 15.3.1996
estate in it comes to 1 to 3, 6 & 7 after her death on 16.10.1996. There is
no challenge to the will & documents being relied upon by the plaintiff
need to be evaluated in this light. Agreement dated 6.11.2007 is with
defendants 1 to 4 and void as without any consideration. MOU dated
7.11.2007 is again with defendants 1to 4 only and according to learned
advocate, it is novation of earlier agreement which is not signed by
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defendant 2. He also points out the agreements dated 24.11.2005 by
defendants 5,8 to 11 & 16 in favour of defendants 17 & 18 and dated
23.3.2007 by by defendants 5,8 to 11 in favour of defendants 17 & 18 &
plaintiffs. Attention is also invited to the earnest note dated 30.3.2007
executed by the defendants 1 to 4 in favour of defendants 13 & 14 relating
to 0.62R land of gat no. 907. He also states that suit has not been valued
correctly. The Suit is not filed within three years of termination by the
defendants on 17.4.2008 and plaintiff chose to approach only after third
party interests got created. Plaintiff had POAs & hence could have
obtained the order of release or allotment of partawa land from the office
of development authority. He is therefore at fault & not entitled to the
decree for grant of the specific performance. It is urged that specific
performance can not be granted as the agreements with plaintiff are
already frustrated and not capable of execution due to nonexistence of
plot 148.
8. Shri Sadarvate, the learned Counsel for respondent 1
(original plaintiff) submits that plaintiff has agreements with all the legal
heirs of Smt. Jankibai & is entitled to their respective shares. His
entitlement to entire returnable land or partawa land is on record & he
need not challenge the will deed. Though the dispute about said will is
going on between the legal heirs, the plaintiff is not affected by it. Shifting
of the location of partawa plot demarcated as plot 148 is collusive and
unsustainable. In alternative, he contends that said shifting carries with it
the rights of plaintiff's attached to partawa lands. Hence, there can be &
there is no frustration of contract here.
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9. The scope of jurisdiction available to this Court at this stage is
well known. The temporary injunction is a discretionary relief granted to
preserve the subject matter till end of civil suit & to satisfy the decree
therein. Prima facie case, balance of convenience & possibility of the
irreparable loss are the tests applied by trial court & this Court can
interfere only if there is any perversity or jurisdictional error. If the trial
court has after proper appreciation of records and contentions reached a
plausible finding, this Court can not overrule it merely because some other
view is also possible. In the case of Wander Ltd. v. Antox India P. Ltd.,
1990 (Supp) SCC 727, the Hon. Apex Court has considered the question
of grant of interlocutory injunction under Order 39 Rule 1 Code of Civil
Procedure in a case under Section 29(2) of the Act and Section 55 of the
Copy Right Act, 1957 and held as follows :-
"Usually, the prayer for grant of an interlocutory injunction
is at a stage when the existence of the legal right asserted
by the plaintiff and its alleged violation are both contested
and uncertain and remain uncertain till they are
established at the trial on evidence. The court, at this stage,
acts on certain well settled principles of administration of
this form of interlocutory remedy which is both temporary
and discretionary. The object of the interlocutory
injunction, it is stated - ".............is to protect the plaintiff
against injury by violation of his rights for which he could
not adequately be compensated in damages recoverable in
the action if the uncertainty were resolved in his favour at
the trial. The need for such protection must be weighed
against the corresponding need of the defendant to be
protected against injury resulting from his having bee
prevented from exercising his own legal rights for which he
could not be adequately compensated. The court must
weigh one need against another and determine where the
'balance of convenience' lies."
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The interlocutory remedy is intended to preserve
in status quo, the rights of parties which may appear of a
prima facie case. The Court also, in restraining a defendant
from exercising what he considers his legal right but what
the plaintiff would like to be prevented, puts into the scales,
as a relevant consideration whether the defendant has yet
to commence his enterprise or whether he has already been
doing so in which latter case considerations somewhat
different from those that apply to a case where the
defendant is yet to commence his enterprise, are attracted.
xxx xxx xxx xxx The appeals before the Division Bench were
against the exercise of discretion by the Single Judge. In
such appeals, the appellate court will not interfere with the
exercise of discretion except where the discretion has been
shown to have been exercised arbitrarily, or capriciously or
perversely or where the court had ignored the settled
principles of law regulating grant or refusal of interlocutory
injunctions. An appeal against exercise of discretion is said
to be an appeal on principle. Appellate court will not
reassess the material and seek to reach a conclusion
different from the one reached by the court below if the one
reached by that court was reasonably possible on the
material. The appellate court would normally not be
justified in interfering with the exercise of discretion under
appeal solely on the ground that if it had considered the
matter at the trial stage it would have come to a contrary
conclusion. If the discretion has been exercised by the trial
court reasonably and in a judicial manner the fact that the
appellate court would have taken a different view may not
justify interference with the trial court's exercise of
discretion. After referring to these principles
Gajendragadkar, J. in Printers (Mysore) Private Ltd. v.
Pothan Joseph (1960) 3 SCR 713 :
"..............These principles are well established, but as has
been observed by Viscount Simon in Charles Osenton and
Co. v. Jhanton, 1942 AC 130, '... the law as to the reversal
by a court of appeal of an order made by a judge below in
the exercise of his discretion is well established, and any
difficulty that arises is due only to the application on well
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settled principles in an individual case."
10. During arguments it was pointed out to this Court that civil
dispute about the will dated 15.3 1996 between heirs is still pending. It is
not very relevant at this stage as plaintiff claims agreements not only with
defendants 1 to 4 through defendants 13 & 14 but also with defendants 5
to 11 through defendants 17 & 18. Receipt of some amount as part of
consideration towards said agreements is not seriously in dispute. Effort of
defendants 1 to 4 is to urge absence of any positive steps by plaintiff
towards the goal of seeking release or actual lease deed of the plot no. 148
i.e. 12.5% partawa land then determined as falling to the share of heirs of
deceased Jankibai. Plaintiff alleges that some formalities were to be
completed by these defendants only and as POA holder, he was not
allowed to do so by the development authority. Of course, according to
plaintiff this was oral intimation to him by the office of development
authority. Said authority as also defendant 1 to 4 have denied this. But
then plaintiff has paid more than Rs. 50 Lacs to the defendants out of
agreed total amount of about Rs. 5.50 Crore. The defendants 1 to 4 or
then 5 to 11 have not pointed out any correspondence or other similar
step by them calling upon plaintiff' to complete his part or then
threatening him or warning him of cancellation of the agreements or POAs
and of forfeiture of the money received. Thus, this at the most becomes a
disputed question which can not be answered against plaintiff at this stage
& his prayer for specific performance can not be dismissed. The
development authority also has not come up with the case that prior to
termination of contract by the defendants 1 to 4 with plaintiff i.e. prior to
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17.4.2008, it was in position to execute the lease deed in favour of the
defendants.
11. Entitlement of deceased Jankibai's estate to 12.5% partawa
land & its identification as plot 148 by metes & bounds in a draw
conducted by the development authority is not in dispute. Its total area as
11162.50 Sq.Mtrs. is also undisputed. Thus in 2006 or 2007 a specific
right & an identified plot formed subject matter of the agreements dated
6.11.2007,7.11.2007 or other similar documents including the POAs.
Consideration was worked out on its basis & parties paid & accepted it.
Defendants 1 to 4 or 1 to 11 plead failure of plaintiff to perform his part of
agreement which is a disputed question. Plaintiff seeks specific
performance of agreements with him in relation to plot 148. The
defendants including the defendants 19 to 22 aim to point out their better
entitlement to said 11162.50 Sq.Mtrs. of partawa land. In plaint, plaintiff
also states that his right to have specific performance must be recognized
also as against the new plot or piece of land demarcated as partawa land
by substitution of plot 148. Plot 148D newly carved out represents only
part of partawa area & is alloted subsequently. It is situated at same
location i.e. where plot no. 148 was earlier demarcated as per the reply of
the development authority. In this situation, question is whether the
landowners are bound to keep their promise by executing the required
documents about 11162.50 Sq.Mtrs. of partawa land in favour of plaintiff
& its location or identity may not be very relevant when purchaser is ready
& willing to accept such substitution also. Definitely right of plaintiff at its
inception was not like a floating charge. But then in such situation and at
this prima facie stage, the recognized right to land having specified area
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(constituting partawa land) with location to be ascertained in future
within specified boundaries can be perceived as a valid commodity which
can be subjected to sale or assignment. Here it can not be ignored that
the plaintiff has alleged abuse of its power by the development authority.
Circumstances in which location of reservation of 12.5% partawa land
decided after a public draw was required to be changed are not pointed
out by the defendant no. 12 development authority. It is obvious that the
landowners must have consented to its shifting. However, they have also
not pointed out the need for such shift in its placement or location. Non
disclosure of such a reason is sufficient at this stage to draw an adverse
inference against the defendants. If it was some planning constraint or
other similar supervening event, the same would have appeared in records
of the development authority & also disclosed to the court. In any case,
facts here prima facie are much better than stipulated in S.43 of the
Transfer of Property Act. This consideration is also sufficient to negate the
effort to use doctrine of frustration here.
12. Vague reference to exercise of valuation in plaint para 33 is
inadequate to interfere with the order of trial court. Suit has been valued
at agreed sale consideration of Rs. 5,66,98,407.75/- and also at Rs.
1,76,79,957.75/- & Rs. 6,20,000,00/- for cancellation of other
documents. It is valued at Rs. 1000/- each separately for relief of
declaration & injunction. Maximum court fee of Rs. 3 Lac has been paid.
Thus valuation is not illusory. The earnest note dated 30.3.2007 is
between defendants 13,14 & defendants 1 to 4 for 0.62 R. partawa land
out of gat 907 & it mentions total consideration at Rs. 600/-per sq.ft. and
advance of Rs. 10.000,00/-. Document dated 6.11.2007 is by plaintiff &
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defendant 14 in favour of defendants 1 to 4 about purchasing partawa
plot 148 admeasuring 11162.50 sq.mtrs. and mentions will and ¾ th
share of defendants 1,3 &4 in 907 & ½ share of defendants 3 &4 in gat
no. 547. Admitted handwritten condition therein also extends & accepts
entitlement of plaintiff's to alternate or substitute partawa land.
Agreement dated 7.11.2007 is by defendants 1 to 4 in favour of plaintiff &
defendant no. 14. Defendants 1 to 4 accept receipt of Rs. 50 Lacs in this
document. Clause 8 therein obliges them to refund the entire amount
received if the agreement is cancelled. Prima facie both these documents
are complimentary to each other. Absence of signature of defendant 2
Shivsambha on it is not decisive presently. Agreement dated 7.11.2007
can not be viewed at this stage as novation of agreement dated 6.11.2007.
Similarly agreement dated 6.11.2007 can not be avoided as it does not
mention any consideration. Facts also reveal that substituted partawa plot
admeasuring 11162.50 sq.mtrs. is sanctioned at some what different
location on 20.8.2010 & concerned defendants get it on 21.8.2010.
Though the landowners plead cancellation, they have not returned the
amounts received by them as per agreement dated 7.11.2007. I am
therefore not in position to hold that suit as framed & filed can be labeled
as belated & relief of specific performance can be denied to plaintiff at this
stage of litigation.
13. Trial Court has noted the change of location of partawa land
through various documents and has also considered the will of Jankibai.
Entitlement of plaintiff to 12.5% partawa land & tenability of such suit by
him is also gone into. Right of the vendors of plaintiff are noted in the
light of letter of development authority dated 11.3.1997. A finding that
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development authority could not have changed the plot no. 148
alloted/demarcated through open draw is also reached at prima facie
stage. Admission of receipt of Rs. 50 Lacs and execution of various
agreements in notice of termination dated 17.4.2008 is also appreciated
by it. Communication dated 13.8.2009 sent by the development authority
is also seen to conclude that plaintiff was not at fault as matter could not
proceed further. Defendant 1 had informed the development authority not
to proceed to execute lease as court disputes were pending. This finding is
not even touched by the appellants. It also negated the contention that
defendants 19 to 22 were not aware of the agreements between plaintiff &
defendants 1 to 18. Stand of the defendants before it about absence of
consideration in agreement, absence of title to partawa plots as released
or about lack of ability of execution in the same are evaluated and
answered against defendants by it. It has rightly observed that the will is
still in dispute and did not prefer to use it to the disadvantage of Jankibai's
legal heirs. It also took cognizance of pending litigation & other facts to
hold the suit not delayed & there are no latches. I do not find any
jurisdictional error or perversity in its entire approach. After correct
appreciation of facts to arrive at a just finding on rights of plaintiff at
prima facie stage, it has also properly balanced equities and protected the
subject matter of suit.
14. Landowners have received sufficient amounts from the
contesting parties & they are not in appeal before this Court. Their
conduct is most significant when the claim of the plaintiff or defendants
19 to 22 is to be weighed. Plaintiff's & said defendants may have taken
probably the calculated risks in their respective ventures. Hence, I do not
19/19 838.11-ao
find any case made out warranting interference in this matter.
15. The appeal against order is therefore dismissed. Rule
discharged. However, there shall be no orders as to costs.
(B.P. DHARMADHIKARI, J.)
Sanjay Nanoskar, P.S.
