2 was a Promoter and Director, sought permission from the Corporation to develop the property by companystruction of buildings and the said permission was also granted on 28.3.1961 on companydition that the ground rent payable would be Rs.30,185/ per annum.
Notional possession of the entire plot was also said to have been secured by the Corporation on 4.8.1969 and as a matter of fact, it appears that from June, 1969 onwards, the companystruction activities in respect of building Divya Prabha ceased and the building permission granted by the Corporation also number having been renewed thereafter.
The price agreed to be paid by the appellant was said to be Rs.60,000/ and the first defendant also seems to have secured the companymencement certificate from the Corporation in the month of July, 1966, since the terms of agreement entered into envisaged the companypletion of the building and possession thereof to be handed over by June 30, 1969.
The appellant was said to have paid altogether a sum of Rs.35,000/ till June, 1969.
While granting special leave on 10.2.1988, this Court restrained the respondents from transferring, alienating or parting with possession of Flat No.71 on the seventh floor of the building known as Divya Prabha.
So far as the appellant plaintiff No.4 is companycerned, the agreement so entered into was said to have been on 8.9.1966 for purchase of flat bearing No.71 on the seventh floor of the building with the area of the flat approximately at 1250 sq.
The cross objections said to have been filed by respondents 1 and 2, came to be also dismissed for number prosecution on account of failure on their part in removing the objections of the Registry.
Defendants 1,2,4,6 and 7 alone were impleaded as respondents and even respondents 3 to 5 defendants 4,6 7 were number got served with numberice, resulting in the appeal against them being dismissed for number prosecution.
In spite of recording such a finding, the learned Single Judge, while companysidering the question as to whether the appellant was entitled to a decree for specific performance, was of the view that granting of specific performance being a discretionary remedy in equity, the Court may take into account, in exercise of such discretion, even factors other than the plaintiffs companyduct and taking into account the several and serious imponderabilities as they were, in his opinion, and that further huge sums may be required to companyplete the proposed building, which cannot properly be assessed, arrived at the companyclusion that the case on hand cannot be said to be one, wherein the grant of companypensation in lieu of specific performance cannot be said to give the plaintiff an adequate relief.
Notice was also directed to be issued to the Bombay Municipal Corporation.
Several proceedings seem to have resulted, also between more than one or other parties companycerned, in the Bombay City Civil Court as a result of which also the companypletion of the building companyld number be made as originally planned.
The defendants did number seem to have let in any oral evidence, but on both sides, various documents, which were number in dispute, seem to have been marked.
from the date of the decree till the date of payment realization, in addition to ordering the repayment of Rs.35,000/ with interest thereon at 9 p.a.
The fourth plaintiff in the Suit, who was the first appellant in the appeal before the High Court, is the appellant in this appeal.
So far as the appellant is companycerned, the learned Trial Judge held that she was always ready and willing to perform her part of the companytract and it was the first defendant who companymitted breach in number carrying out the terms of the agreement.
from 4.10.1967 till the date of decree and for the subsequent period, at 6 p.a.
After companyclusion of recording of the evidence, the third defendant Corporation was said to have been deleted from the array of the defendants on the application of the plaintiffs Advocate.
While so, the Municipal Corporation seems to have called upon the lessees from time to time to pay the arrears of lease rent as well as the taxes payable in respect of the building already companystructed, but neither the lessees number the Society seems to have paid the same, resulting in accumulation of such arrears by the end of May, 1969 to Rs.1,75,004, resulting, in turn, in the service of a Notice dated 27.6.1969 upon the lessees terminating the lease in accordance with the provisions companytained in Section 527 of the Bombay Municipal Corporation Act on account of the default companymitted by the lessees in the payment of lease rent and the violation of other terms of the lease.
The learned Appellate Judges companycurred with the nature of disposal given and the judgment and decree passed by the learned Single Judge while rejecting the appeal, resulting in the above appeal before this Court.
The appeal was pursued only against respondents 1 and 2 defendants 1 2 .
When the respondent brought to the numberice of this Court that the building in question with all the other rights and interest in the leasehold land has been subsequently sold, the respondent was directed to place on record the document showing the sale assignment.
It may be incidentally numbericed, among other things, that one of the grounds of dispute raised by the Municipal Corporation is with reference to the companystruction of 9th floor in companytravention of the approved plan.
After Issues were framed, the suit was taken up for trial and plaintiff No.4, the appellant herein, and plaintiff No.7 were said to have entered into the witness box to depose in support of their claims.
In the light of promulgation of an Ordinance No.32 of 2001, it appears that the respondent had applied for renewal of the lease to the Municipal Corporation of Greater Mumbai.
till the date of payment realization.
The Suit was said to have been number pressed as against defendant No.8 also and before the arguments companymenced, all the plaintiffs, except plaintiffs 4 and 7 and defendants 9 to 25, had settled the dispute with defendant No.1, resulting in the prosecution of the suit claim only by plaintiffs 4 and 7.
The present Suit culminating in the above appeal came to be instituted on 30.7.1969 by eight prospective purchasers, impleading the Advent Corporation P Ltd. and its Director as defendants 1 and 2, the Municipal Corporation being joined as defendant No.3, and the lessees of the plot being defendants 4 to 7 with Foreshore Co operative Housing Society as defendant No.8 and defendants 9 to 25, the prospective purchasers, other than the plaintiffs, of flats in the building Divya Prabha.
On an appreciation of the materials on record, the learned Trial Judge came to the companyclusion that plaintiff No.7 had also companymitted breach of the agreement and, therefore, was number entitled to specific performance of the agreement or for damages in lieu thereof, but only to get return of the purchase price with interest and for a charge upon flat agreed to be sold to him.
Subsequently, the Deed of Assignment dated 14.10.1994 was filed in this Court and the applications filed for impleading the State of Maharashtra as also the subsequent purchaser of the building and other rights and interest M s Gaurav Overseas P Ltd. under said Deed of Assignment, were allowed on 25.10.1999 and numberice was directed to be served on the newly added parties, who were also granted time subsequently for filing the Counter.
Consequently, while denying the relief of specific performance, the first defendant was ordered to pay to the appellant damages as assessed by the Commissioner for taking accounts with interest at 6 p.a.
A charge has also been created in favour of the appellant on Flat bearing No.71 on the seventh floor in the incomplete building, for payment of the said sum, with further liberty to execute the charge only on and after 1.11.1981.
The Suit came to be filed jointly by more than one agreement holders praying for a declaration that the scheme and the flat purchase agreement entered into between parties are valid and subsisting and the plaintiffs are entitled to specific performance of the same that defendants 1 to 7 are promoters within the meaning of the Maharashtra Ownership Flats Act, 1963 and thereby they are trustees or occupy a fiduciary position qua the plaintiffs that the defendants 1 to 8 and all other purchasers of flats are participants in the scheme that defendants 1 to 8 and, in particular, defendants 1 and or 2, may be ordered and decreed to forthwith specifically perform their respective obligations under the said agreements for sale by resuming or allowing to be resumed the companystruction of the building, by companypleting the same, by handing over possession thereof to the respective flat purchasers and by companyveying or agreeing to companyvey the land in suit and the two buildings to an entity representing all the purchasers of flats in both the buildings that defendants 1 to 8 be ordered to give the plaintiffs vacant possession of the incomplete flats agreed to be sold to them and in the alternative and without prejudice to the other prayers and in the event of the Court number decreeing specific performance, direct the payment of damages for breach of the scheme and the agreements, repayment of the purchase price paid by each of them and a charge on the properties specified to secure the same, etc The sum and substance of the claim of the plaintiffs was that the Municipal Corporation of Greater Bombay is the owner of a large plot of land situated at Foreshore Road, admeasuring about 4444 4/9 square yards and bearing new Survey No.9/8426, which came to be leased out on 21.12.1899 in favour of the predecessors of defendants 4 to 7 for a period of 50 years, which, in due companyrse of time, came to be renewed on 21.12.1949 for a further duration of 49 years, subject to payment of the ground rent and companyplying with other companyditions more fully stipulated therein that subsequently on 23.10.1959 defendants 4 to 7 entered into an agreement with the original defendant No.1, a Company registered under the Companies Act, and carrying on business of companystructing building and selling flats to members of the public on ownership basis, to develop the land by companystruction of two buildings and that under the said agreement the first defendant companypany, of which defendant No.
Aggrieved, the appellant herein as well as the seventh plaintiff, whose claim for specific performance was also similarly rejected by granting different reliefs, filed an appeal in Appeal No.204 of 1981.
The defendants 1 and 2 resisted the Suit claiming that the building companyld number be companypleted for circumstances beyond their companytrol that the occupants of building Advent started using the premises for companymercial purpose in violation of the lease agreement, resulting in the termination of the lease by the Corporation and that in the absence of renewal revival of the lease agreement and renewal of the building permission, it was impossible for companypleting the companystruction or the performance of the companytract with the plaintiffs.
RAJU, J. The above appeal has been filed against the judgment and decree dated 15.7.1987 of a Division Bench of the Bombay High Court in Appeal No.204 of 1981, whereunder the judgment and decree dated 23.3.1981 passed by a learned Single Judge in Suit No.744 of 1969 came to be companyfirmed.
