Friday, 25 July 2014

When development agreement is specifically enforceable?

 From the aforesaid terms of the said Agreement and power given by the Vendors to the Developers, I am prima facie of the view that though the said Agreement is termed as a Development Agreement, it is an agreement whereunder interest is created in favour of the Developers in respect of the suit property which includes the structures thereon. As can be seen from the above, all the rights to develop the property have been given by the Vendors to the Developers. The Vendors have already received the monetary consideration as set out in the said Agreement from the Developers. Except for the premises agreed to be given to the Vendors by the Developers in lieu of the premises used and occupied by them in the said building, the Vendors have given all the rights to the Developers to deal with the tenants in the manner they desire and after providing them with alternate accommodation in the newly constructed building or elsewhere or giving them monetary consideration in lieu of their tenements, the Developer is given full and complete right to sell the flats/units/shops etc. on ownership basis without any interference from the Vendors. The right to decide the elevation of the building, the colour scheme, etc. is also given to the Developers by the Vendors. The Vendors have also agreed that they shall execute the Conveyance Deed/Deed of Transfer in respect of the said property (i.e. the plot of land with buildings thereon) to and in favour of the proposed Society/Condominium of holders of various units/premises. The Vendors have in the said Agreement itself provided that they will be simultaneously executing a POA, inter alia, giving the right to the Developer to construct a new building, accommodate the Vendors and the tenants as agreed and most important to sign and execute the transfer deed/conveyance/assignment to and in favour of the Society/Condominium as well as effect its registration. In the circumstances I am prima facie satisfied that the said Development Agreement is capable of being specifically enforced. I am fortified in my view by the decision of the Hon'ble Division Bench of this Court in (Chheda Housing Development Corporation Vs. Bibijan Shaikh Farid and others) MANU/MH/0070/2007 : 2007 (2) Bom. C.R. 587 (O.S.): 2007(3) Mh.L.J. 402.
                                         
ORDINARY ORIGINAL CIVIL JURISDICTION
IN
NOTICE OF MOTION NO. 2055  OF 2012
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
SUIT NO. 1963 OF 2012
Shantilal J. Shah & Ors.
    
   Versus
Jitendra Sanghavi and others
   
                                 

CORAM :  S. J. KATHAWALLA, J.
DATE:           19   NOVEMBER, 2012
   
Citation: 2013(3)BomCR856,2013(7) ALLMR 112
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How concept of lis pendens is applicable in suit for specific performance?

 The next submission of Mr. Anturkar is that the plaintiffs are not entitled to any interim and/or final relief on the ground that the plaintiffs despite being aware of the fact that a Development Agreement cum Deed of Assignment of Lease is already executed by and between defendant Nos. 1 to 3 and defendant No. 4, have not impugned the said transaction in the present suit. This submission is sought to be countered by Mr. Seervai by citing the decision of the Hon'ble Supreme Court in (Guruswamy Nadar Vs. P. Lakshmi Ammal (D) by L.Rs. and others) MANU/SC/7594/2008 : 2009 (2) Bom. C.R. 403 (S.C.): A.I.R. 2008 S.C. 2560. Mr. Seervai, relying on paragraph 3 of the said decision, seems to suggest that the principle of section 52 of the Transfer of Properly Act applies in the instant case inasmuch as the subsequent transaction with defendant No. 4 was entered into during the pendency of a legal proceeding, namely, arbitration between the plaintiffs and defendant Nos. 1 to 3 and therefore, the property cannot be transferred or otherwise dealt with so as to affect the plaintiffs rights under a decree or order that may be made in the present suit. It is doubtful whether section 52 of the Transfer of Property Act can be invoked in this case as suggested by Mr. Seervai. Firstly, section 52 has been amended by Bombay Act 4 of 1939 so as to require a notice of pendency of any suit or proceeding to be registered under section 18 of the Indian Registration Act, 1908 before the consequences provided for under section 52 can apply in respect of immovable properties situated in Greater Mumbai. Therefore, pendency of a suit or legal proceedings simpliciter does not entail consequences under section 52 in respect of immovable properties in Greater Mumbai, but there must further be a registered Lis pendens, plaintiff has not made out any case of registration of such Lis Pendens. Secondly, the principle of section 52 applies qua a decree or order that may be passed in a suit or proceeding during the pendency of which the subsequent transfer takes place. The plaintiff in this case seeks the benefit of section 52 qua a decree or order that may be passed not in the pending arbitration but in a suit subsequently filed by him after giving up the arbitration proceedings. Prima facie, therefore, the submission of Mr. Seervai on the principle of section 52 does not appear to be correct. I am, however, not convinced with the argument of Mr. Anturkar that the plaintiffs had to impugn the Development Agreement-cum-Deed of Assignment of Lease between defendant Nos. 1 to 3 and defendant No. 4 before he could claim any relief in this suit against defendant No. 4. Under section 19 of the Specific Relief Act, a plaintiff promisee entitled to specific performance of his agreement can claim the same against a transferee of the promisor and for that purpose need not challenge the transfer between the promisor and his transferee. Prima facie therefore the plaintiffs are entitled to the relief of specific performance against the defendant No. 4 transferee if they otherwise make out the case on merits. 

ORDINARY ORIGINAL CIVIL JURISDICTION 
IN

NOTICE OF MOTION NO. 2055  OF 2012
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
SUIT NO. 1963 OF 2012
Shantilal J. Shah & Ors. 
     
   Versus
Jitendra Sanghavi and others 

CORAM :  S. J. KATHAWALLA, J. 
DATE:           19   NOVEMBER, 2012
   
Citation: 2013(3)BomCR856,2013(7)ALLMR 112
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Procedure to be followed by collector when there is conflicting claims between family members in land reference case


I have carefully considered the rival submissions. The fact that the Petitioner is the daughter of original owner Govind, is not in dispute. Whether the Petitioner is entitled to get any share in the land and whether she is entitled to get 50% share as claimed by her is the matter which will have to be decided by the Civil Court on the basis of the evidence to be led by the parties and by applying provisions of the Hindu Succession Act, 1956. The question is whether in the facts of this case, the Collector could have decline to make reference though the objection for disbursing compensation only in favour of Respondent Nos. 5 to 9 was raised well in advance even prior to making of award.
It is thus clear that the Supreme Court has clearly held that the proper procedure which is to be adopted by the Collector in case of dispute is that such a dispute is not to be decided by the Land Acquisition Officer under the Act and the procedure is that the Collector has to necessarily deposit the amount of compensation under Section 31 of the Act into the Court and he has to make a reference to the Court under Section 30 of the Act to decide the dispute between the contesting Claimants. In my opinion, the ratio of the Judgment in the case of Arulmighu (supra), is squarely applicable to the facts of this case and completely covers the controversy. It is thus clear that the action of the Collector to refuse to make the reference under Section 30 is clearly unsustainable and contrary to the law laid down by the Supreme Court. The Writ Petition will have to be allowed with a direction that the Respondent Nos. 5 to 9 shall deposit 50% of the amount of compensation with the Collector, who shall deposit the same in the Court which shall remain invested. This direction will apply only in respect of the disputed amount of compensation i.e. 50% of the total amount of compensation and will not apply in respect of the remaining 50% of the amount. Once the reference is made by the Collector, the reference will have to be decided by the Civil Court along with the Civil Suit filed by the Petitioner so as to ensuring that the contradictory Judgments and Orders are not passed. 
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.5679 OF 2011 

Sakhubai @ Shakuntala V
. Chopde
V/s.
National Thermal Power Corporation
& Others

CORAM:  G.S.GODBOLE,J.
DATE    :   22nd MARCH, 2012.
 Citation: 2012(5)ALLMR378, 2013(3)BomCR770, 2012(114)BOMLR1636, 2012(4)MhLj147
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Whether previous judgments are admissible in evidence?

In the case of “Kunhayammedand others v/s. State of Kerala and another” (supra), it has been held that in spite of a petition for special leave to appeal having been filed, the judgment, decree or order against which leave to appeal has been sought for, continues to be final, effective and binding as between the parties. Once leave to appeal has been granted, the finality of the judgment, decree or order appealed against is put in jeopardy though it continues to be binding and effective between the parties unless it is a nullity or unless the Court may pass a specific order staying or suspending the operation or execution of the judgment, decree or order under challenge. The expression “jeopardy” does not mean “not binding” or “not final” or “not effective”. That expression relates to danger of suffering harm or loss. As contended by Mr. Dessai, learned Senior Counsel, Judgment in jeopardy does not disturb its finality. Since no stay or suspension of the operation or execution of the judgment and award in L. A. Case No. 19/1989 or of the judgment in First Appeal No. 116/ 1997 and in LPA No. 15/ 2000 has been granted by the Apex Court, the same continues to be effective and binding as between the parties. The doctrine of merger is based on the principle that there cannot be more than one decree or operative order in respect of the same subject matter and at the same time. In so far as Sanyogita Rane group is concerned, they were parties to that L. A. Case No 19/89. In so far as Morajkar group is concerned, they had tried to intervene in the same proceedings when they were pending in the form of LPA No.15/2000, by filing an application for impleading them as parties. However, Morajkar group withdrew the said Civil Application No. 444/2006 on 09/06/2009. Under section 40 of the Evidence Act, previous judgments are admissible in support of a plea of res judicata in civil cases. If not res judicata, the principles analogous to that are applicable. In any case, the judgment in First Appeal No. 116/1997 was binding on the Reference Court wherein it was held that the land bearing survey no. 106 of Carapur village belongs to Manoramabai Rauji Rane Group. The Reference Court was therefore bound to rely upon the said findings and decide the subsequent case on the basis of the same findings and this is what has been done by the Reference Court. The judgment in the LPA No. 15/2000, being of Division Bench of this Court, is binding on me. In this judgment, it has been upheld that land bearing survey No. 106 of Carapur village belongs to Manoramabai Rauji Rane Group. It is not known as to how long the Special Leave Petition before the Hon'ble Apex Court would take for its final disposal. There is no point in keeping the present appeal pending till then. If the judgments are set aside in the said Special Leave Petition, Sanyogita Rane Group can take recourse to Section 144 of the Code of Civil Procedure.

Mrs. Sanyogita Rane and Others Vs. Mrs. Manoramabai Rauji Rane (Since deceased) and Others

Court : Mumbai - Goa
Judge : U.V. BAKRE
Decided On : May-11-2012
Case Number : First Appeal No. 105 of 2010 Alongwith Cross-Objection No. 11 of 2010
Citation;2013(7) ALLMR 633,2013(2) ABR 816
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