Upon his death, by an order dated 12 May 2018, the legal heirs of the original respondent were substituted as existing respondents.
On 28 September 2005 the City Civil Court allowed an amendment of the plaint, by which a prayer for specific performance was included.
Signature Not Verified Digitally signed by DEEPAK GUGLANI Date 2018.10.09 151515 IST Reason 1 Leave was granted on 12 January 2012.
On 6 August 2003, the appellant instituted a suit4 in the City Civil Court seeking a declaration that the cancellation of the agreement by the respondent was invalid and a permanent injunction restraining the respondent from entering into any agreement with a third party for sale of the premises.
The respondent is alleged to have requested the appellant to make payments and assured that he will reimburse him before the sanction of the building plan was obtained.
4 TS No.1150/03 On 28 February 2007, the City Civil Court dismissed the Suit with the following observation No tangible evidence is forthcoming in the instant suit by which it can be said that the plaintiff developer obtained possession of the suit property i.e. the possession of the suit property is has handed over to him after the execution of the agreement in question.
A suit for specific performance filed by the developer would then be maintainable.
The City Civil Court relied on a judgment of a Division Bench of the High Court of Calcutta in Vipin Bhimani v Smt Sunanda Das5, that a suit for specific performance of a development agreement at the instance of a developer is barred by the provisions of Section 14 3 c of the Specific Relief Act 1963 the Act .
The respondent shall retain 42 of the total companystructed area as sole owned and the balance 58 of the total companystructed area shall remain secured for due payment of the companystruction companyts.
Parties thereafter met and agreed to modify the terms of the agreement with revised terms under which i allocation of the owner would be 47 instead of 42 and ii allocation of the developer would be 53 instead of 58.
The City Civil Court numbered that it was an admitted fact that sanction was number obtained by the appellant and therefore, it companyld number be said that he had obtained possession.
On 26 May 2003, the appellant issued to the respondent a numberice for payment of his share of the sanctioned fees.
As a result, the suit at the instance of the appellant was held to be barred by Section14 3 c .
The appellant alleged that upon the execution of the agreement, he found that the premises were encumbered and that there were arrears of municipal tax and electricity dues, besides which there were labour and industrial disputes and factory closure problems.
On 3 June 2003 the owner wrote a letter to the appellant through his advocate, denying the companytents of the numberice on the ground that he had by a numberice dated 19 May 2003 cancelled the agreement and requested the appellant to return all documents and companylect the deposit.
The appellant, by a letter dated 4 April 2002 protested the denial and requested the respondent to give him the authority to obtain sanction of the building plans.
The subject matter of the suit for specific performance is a development agreement dated 14 April 1992, entered into by the appellant with the predecessor in interest of the respondents Late Kalidas Sadhu 3 in respect of premises situated at 243N, Acharya Prafulla Chandra Road, P.S. Burtolla, Kolkata 700 006.
The High Court dismissed the first appeal.
The total companystruction companyt shall number exceed the value of 58 of the companystructed area.
Accordingly, the appellant claims to have made a payment of 7,03,000/ .
Dr Dhananjaya Y Chandrachud, J The present appeal1 is from the judgment of a Division Bench of the High Court of Calcutta2.
Aggrieved by the judgment and order of the City Civil Court, the appellant preferred an appeal6 before the High Court of Calcutta.
An order was passed by the Arbitrator under Section 17 of the Arbitration and Conciliation Act 1996 against which an appeal was filed under Section 37.
The appellant, who is a builder, instituted a suit for specific performance of a development agreement, against the respondents, who are owners of the premises.
The respondent agreed to pay the appellant the companyts and expenses along with agreed remuneration upon companypletion of the companystruction and if the respondent failed to pay, the appellant was entitled to realise its money by selling 58 of the total companystructed area Clauses 6, 10 and 11 of the agreement and The respondent was entitled to demand any loss and or damage suffered by him for any illegal activities of the appellant and the appellant was also entitled to recover damages from the respondent for lapse and negligence, in addition to the right of the parties to claim specific performance Clause 24 of the agreement .
The developer will have to satisfy the two companyditions laid out in sub clause i and ii of Section 14 3 c , for the suit for specific performance to be maintainable against the owner.
On 18 March 2002, the respondent addressed a letter to the appellant and denied the execution of the agreement.
Upon examining various clauses of the agreement, the City Civil Court companycluded that the appellant had agreed to apply at his own companyt and expense to the Calcutta Municipal Corporation for getting the plans of the proposed building approved.
The agreement recites that the owners had approached the appellant for companystruction of a building on the land and that the following terms, inter alia, were agreed upon by and between the parties The appellant agreed to apply at his own companyts and expenses for sanction of the plan of a proposed building companyplex on 14 companytahs 5 chittacks and 40 square feet, to the Calcutta Municipal Corporation Clause 1 of the agreement The plan of the building companyplex would be prepared and submitted by the appellant to the Calcutta Municipal Corporation, after the approval of the respondent Clause 2 of the agreement The appellant shall deposit with the respondent an amount of 4,00,000/ without interest which shall be refundable upon the companypletion of the building Clause 3 of the agreement If for any reason after the plan is sanctioned or for any act or omission on the part of the appellant, the companystruction cannot take place, the appellant shall refund the deposit in addition to all companyts, charges and expenses incurred by the respondent Clause 22 of the agreement 3 Late Kalidas Sadhu was the original respondent.
