The question that immediately arises is, of what is specific performance to be granted ? The agreements refer to the right to develop the property to a certain extent "described in the Schedule hereto written and shown on the plan thereto annexed". However in neither of the agreements is there a plan. To the first agreement, there is not even annexed thereto the Second Schedule referred to in the last recital and in Clause 2. Equally, if not more important is the fact that neither of the agreements even specify the location or the extent of the area of the part of the property supposed to have been marked in the plan. The extent of the development referred to in Clause 3 in both the agreements is not to be confused with or mistaken for the area of the land on which the same is to be exploited.
10. Order 7, Rule 3 of the Code of Civil Procedure reads as under :-
Rule 3. Where the subject-matter of the suit is immovable property - Where the subject matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement of survey, the plaint shall specify such boundaries or numbers.
11. It is impossible in respect of these agreements to identify either the location or the extent of the area of the land in any manner whatsoever. It would therefore not be possible for the Court to grant specific performance for the said agreements suffer from the vice of uncertainty.
Bombay High Court
Ramcharitra R. Singh vs Ramesh L. Agarwal And Ors. on 10 January, 2006
1. Defendant No. 2 is a partnership firm M/s. Atithi Builders. Defendant No. 3 is the Secretary, State of Maharashtra, Urban Development Department. Defendant No. 4 is the Additional Collector and Competent Authority under the U.L.C. Act. Defendant No. 5 is the Sub-Registrar of Assurances. Defendant No. 6, Vinod B. Mistry is an Advocate of this Court. Defendant No. 7 is one Nipun Ishwardas Thakkar carrying on business in the firm name and style M/s. Ami Corporation Builders and Developers, as the sole proprietor thereof. Defendant No. 8 is the Municipal Corporation of Greater Mumbai.2 (a). The Plaintiff has filed the suit for specific performance of two agreements, dated 29.3.1982 and 7.4.1982. The Plaintiff has also sought a declaration that certain orders, directions and agreements between some of the Defendants inter se are null and void. For the purpose of this order, it is necessary to consider only the Plaintiffs case for specific performance. Had the Plaintiff made out a case for specific performance, I may have considered protecting the Plaintiffs rights at least at this ad interim stage without going in detail into the other questions.
(b) By this Notice of Motion, the Plaintiff has sought interim orders for appointment of a Court Receiver and an injunction restraining the Defendants from dealing with the suit properties in breach of the agreements of which specific performance is sought.
3. It would be convenient to note the facts which according to the Plaintiff preceded the said agreements. Exhibit "A" to the plaint is divided into two parts - Part-I and Part-II. Each part describes the suit properties.
(a). By a registered lease deed dated 1.8.1972, one Anant Pandit, the owner of the properties, leased out the property described in Part-I of Exhibit "A" to M/s. Elite Builders, a firm in which one Lala Lakhpatrai Shadiram Agarwal (hereinafter referred to as Lala) and Defendant No. 1 held 75% and 25% shares respectively. By a deed dated 10.6.1980, Defendant No. 1 released his share in the firm after which Lala carried on business in the name and style of M/s. Elite Builders as the sole proprietor thereof. The Plaintiffs case is that thereupon the said Lala became the sole lessee in respect of the property described in Exhibit "A" Part-I.
(b) By another registered lease deed also dated 1.8.1972, the said Anant Pandit leased the property described in Part-II of Exhibit "A" to the said Lala, Defendant No. 1, one P. Gupta and one S.S. Uppal. Lala claimed to be the constituted attorney of the heirs of the said Gupta. The plaint proceeds on the basis that the said Uppal had released his 1/4th share to the other three lessees. It appears inter-alia from Exhibit "M" to the plaint that in fact Uppal took his 1/4th share leaving the balance with the other three lessees. This fact however has a bearing only on the quantum of Lala's right in the property which he is alleged to have transferred to the Plaintiff.
4. This brings me to the two suit agreements in respect whereof specific performance is sought.
5. (a) By the alleged agreement dated 29.3.1982 (Exhibit "B" to the plaint, which pertains to the property described in Part-I of Exhibit "A" to the plaint), Lala agreed to allow the Plaintiff to develop the property "more particularly described in the Second Schedules hereunder written and shown on the plan hereto annexed by red colour boundary line." (see the last recital). There is admittedly neither a plan nor a 'Second Schedule' to the agreement. Clauses 2 and 3 of the said agreement read asunder :-
2. Subject to what is provided above, the Vendors shall allow the Developers and the Developers shall develop the said property more particularly described in the Second Schedule hereunder written and shown on the plan hereto annexed by red colour boundary line which forms part of the property described in the Schedule herein against efforts put in by the Developers in getting the said land released and cleared.
3.It is also agreed that subject to what is provided hereinabove the Developers will be entitled only to develop 30% of the total F.S.I, which will be made available for construction as per the anctioned plans, I.O.D. shall absolutely belong to the Developer. In such an event the parties have agreed to make a private sub-division of the said portion of the said property and an Indenture of Lease shall be executed in favour of the Developer or his nominee or nominees including a Co-Operative Housing Society Ltd., or a private Ltd. Company that may be formed for a period of perpetuating and on payment of the lease rent to be calculated at 1% per annum on the value of the said portion and/or that may be fixed by the Owner herein which will not be higher than the Owner paying presently to the Lessor and which will be accepted by the Developer herein without any objection whatsoever. The Developer shall observe and perform the terms, conditions and covenants as may be included in such Indenture of Lease.
(emphasis supplied)
(b). At the cost of repetition, it is important to note that there is neither a Second Schedule nor any plan annexed to the agreement as stated in the recitals and the above clauses.
6. The second agreement in respect of which specific performance is sought is dated 7.4.1982. (Exhibit B1' to the plaint which pertains to the property described in Part-II of Exhibit "A" to the plaint). By this agreement, the said Lala agreed to allow the Plaintiff to develop the property to the extent of 40,000 square yards "more particularly described in the Schedule hereunder written and shown on the plan hereto annexed by red colour boundary line ...."(see the last recital). There is admittedly no plan to the agreement. Clauses 2 and 3 of this agreement read as under :
2. Subject to what is provided above, the Vendors shall allow the Developers and the Developers shall develop the said property more particularly described in the Schedule hereunder written and shown on the plan hereto annexed by red colour boundary line which forms part of the property described in the Schedule herein against efforts put in by the Developers in getting the said land released and cleared.
3. It is also agreed that subject to what is provided hereinabove the Developers will be entitled only to develop 25% of the total F.S.I, which will be made available for construction as per the sanctioned plans, I.O.D. shall absolutely belong to the Owners. In such an event the parties have agreed to make a private sub-division of the said portion of the said property and an Indenture of Lease shall be executed' in favour of the Developer or his nominee or nominees including a Co-Operative Housing Society Ltd., or a private Ltd. Company that may be formed for a period of perpetuating and on payment of the lease rent to be calculated at 1% per annum on the value of the said portion and/or that may be fixed by the Owner herein which will not be higher than the Owner paying presently to the Lessor and which will be accepted by the Developer herein without any objection whatsoever. The Developer shall observe and perform the terms, conditions and covenants as may be included in such Indenture of Lease.
At the cost of repetition, it is important to note that there is no plan annexed to the agreement as stated in the recital and the above clauses.
7. For the purpose of this application, I have proceeded on the basis that the agreements dated 29.3.1982 and 7.4.1982 had in fact been entered into though there was considerable dispute regarding the same. Mr. J.D. Dwarkadas and Mr. A.P. Chinoy, the learned Senior Counsel appearing respectively on behalf of Defendant Nos. 1 and 2 submitted that the said agreements were fabricated and false. Considering the view that I have taken, I did not think it necessary to deal with this aspect of the matter at this stage.
8. The absence of the schedule and the plan in respect of the agreement dated 29.3.1928 and the absence of the plan to the agreement dated 7.4.1982 creates a hurdle at the threshold for the Plaintiff. In this regard, it is pertinent to note that what the Plaintiff seeks in this suit is specific performance of the agreements as a whole, in their entirety. The Plaintiff has not waived any part of his rights therein while seeking specific performance.
9. The question that immediately arises is, of what is specific performance to be granted ? The agreements refer to the right to develop the property to a certain extent "described in the Schedule hereto written and shown on the plan thereto annexed". However in neither of the agreements is there a plan. To the first agreement, there is not even annexed thereto the Second Schedule referred to in the last recital and in Clause 2. Equally, if not more important is the fact that neither of the agreements even specify the location or the extent of the area of the part of the property supposed to have been marked in the plan. The extent of the development referred to in Clause 3 in both the agreements is not to be confused with or mistaken for the area of the land on which the same is to be exploited.
10. Order 7, Rule 3 of the Code of Civil Procedure reads as under :-
Rule 3. Where the subject-matter of the suit is immovable property - Where the subject matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement of survey, the plaint shall specify such boundaries or numbers.
11. It is impossible in respect of these agreements to identify either the location or the extent of the area of the land in any manner whatsoever. It would therefore not be possible for the Court to grant specific performance for the said agreements suffer from the vice of uncertainty.
12. Mr. Chagla, the learned Senior Counsel appearing on behalf of the Plaintiff further relied upon the first of the two clauses numbered '8' in the first agreement and Clause 8 of the second agreement which are identical and read as under :-
8. After the said NOC the Owner and the Developers will carry out a joint survey of the land of the said property through their respective Surveyors and the boundaries properly marked and the area measured in joint survey will be included in the Conveyance of the said property.
13. Further, Mr. Chagla made a statement on behalf of the Plaintiff that the Plaintiff would accept any demarcation of the property done by the first Defendant's Surveyors. This according to him would fill the lacunae of the missing schedules and the missing plan.
14. I am unable to agree. Firstly, the clauses clearly indicate a survey to be carried out on the basis of the plan. In the absence of a plan, it is not possible to carry out a survey. For the land on which the permissible FSI is to be exploited is not demarcated and even the measurement thereof is not mentioned. At which location i.e. on what part of the larger plot would the surveyor demarcate it ? To what extent i.e. how large a plot would the surveyor allot within the larger area ?
15. Mr. Chagla, to his said statement, understandably added a caveat, that the area should be "utilizable area". There are hutments/structures on the land. Why must it be presumed that the Plaintiff is entitled to "utilizable area". The agreement is totally silent in respect thereto. I can see no aid in either of the agreements or from anything on record to fill this lacunae.
16. It is virtually impossible therefore for the Plaintiff to obtain specific performance of the said agreements.
17. Further the agreements were entered into twenty three years ago. Apart from the few facts indicated by Mr. Chagla, to which I shall refer, the Plaintiff has done nothing qua the said properties. He has taken no steps for the development thereof. He has taken no steps to obtain permission for the development thereof. He has spent no money in respect thereto. Indeed he has done precious little qua the suit properties.
18. In any transaction of the nature alleged to have been entered into between the Plaintiff and Defendant No. 1, it would legitimately be expected of the developer to take effective steps to exploit his rights thereunder. Indeed, under the said agreements and in particular Clauses 5 and 6 thereof the Plaintiff was specifically granted permission and liberty to prepare the plans, to have the plans approved from the Municipal Authorities, to put up on a conspicuous part of the property boards indicating that the property is being developed by the Plaintiff and to invite offers from prospective customers to purchase the flats, shops and garages in the building proposed to be erected. Nothing whatsoever has been done by the Plaintiff. Even upto the date of the alleged agreement dated 16.11.1995, the Plaintiff did nothing. I am conscious of the fact that the suit may not be barred by limitation under Article 65 of the Limitation Act. However what is relevant is the question of abandonment. Also relevant is the question of readiness and willingness. If the Plaintiff had not intended to abandon the agreements and had been ready and willing to perform the agreement surely, he would have done something at least during the first thirteen years indicating that he considered the agreement as valid and subsisting.
19. Mr. Chagla referred to four circumstances to indicate that the Plaintiff kept the agreements alive and had not abandoned the same.
20. (a). Firstly, he referred to an alleged letter dated 14.9.1998 (Exhibit "H" to the plaint) addressed by the Plaintiff to Defendant No.
1. The letter refers to the two suit agreements. The letter also refers to two alleged agreements both dated 16.11.1995 and two alleged powers of attorney executed by the Plaintiff in favour of Defendant No. 7. Further under cover of the said letter, the Plaintiff allegedly forwarded copies of the said agreements and the said powers of attorney.
(b). There is no explanation why this letter was addressed by the Plaintiff to Defendant No. 1. There are no surrounding circumstances that suggest any reason for the Plaintiff having addressed the said letter. No reasons were furnished at the hearing.
21. Secondly, Mr. Chagla relied upon the fact of the Plaintiff having entered into the said agreements dated 16.11.1995 with Respondent No.
7. The agreements dated 16.11.1995 are themselves under challenge. Mr. Diwan, the learned Counsel appearing on behalf of Defendant No. 7 was unable to explain his client's conduct of being a signatory to an agreement entered into by Defendant No. 1 with one Ravi Foundation in 1995 in respect of the entire property. If Defendant No. 7 had acquired rights in respect of the suit property by virtue of the said agreements dated 16.11.1995 this conduct is inconsistent with his being a signatory to this agreement between Defendant No. 1 and Ravi Foundation.
22 (a). Added to this is the fact that the Plaintiff and Defendant No. 7 embarked on a rather curious litigation in this Court. On 22.3.2005, Defendant No. 7 applied for and obtained a certified copy of an agreement dated 22nd March, 2005 entered into between Defendant No. 1 and Defendant No. 2 in respect of the suit property. On 6.4.2005, a public notice was published at the instance of Defendant No. 1 (Exhibit "P" to the plaint) inviting objections. The Plaintiff by his Advocate's letter dated 18.4.2005 raised objections.
(b). On 10.8.2005, Defendant No. 7 filed a suit being Suit No. 2166 of 2005 against the Plaintiff for specific performance of the two agreements dated 16.11.1995. Defendant No. 7 did not disclose the claims and contentions of Defendant Nos. 1 and 2 in respect of the suit property, despite the fact that Defendant No. 7 was fully aware of the same. His knowledge is established from the fact of the said application dated 22.3.2005 for certified copies of the agreement between Defendant No. 1 and Defendant No. 2 and the Plaintiffs Advocate's letter dated 18.4.2005 in response to the first Defendant's public notice dated 6.4.2005.
(c). A consent order dated 31.8.2005 was passed on a draft Notice of Motion (Exhibit "V-1" to the plaint). By an order dated 31.8.2005, S.U. Kamdar, J., with the consent of the parties passed an order permitting the Plaintiff to carry out the construction in respect of the suit property in accordance with the agreements of sale dated 16.11.1995 provided they deposited a sum of Rs.40,00,000/- in Court within two weeks.
(d). On 29.9.2005, a consent decree (Exhibit "V-2" to the plaint) was passed granting specific performance of the agreements dated 16.11.1995 and two deeds of confirmation in respect thereof dated 1.11.2004.
(e). Needless to say this consent decree cannot even remotely affect the rights of strangers thereto which Defendant Nos. 1 and 2 admittedly are.
23. (a). Thirdly, Mr. Chagla relied upon an alleged certificate dated 6.3.1982 issued by the Competent Authority under the Maharashtra Slum Area (Improvement, Clearance and Redevelopment) Act, 1971 Clause 1 of both the agreements are similar and read as under :
1. This Agreement shall come into operation and/or force from the date of the Competent Authority under Section 8(3) of the said Maharashtra Slums Act, 1971, granting the necessary permission for development of the said property more particularly described in the Schedule hereunder written. Only upon the said permission being granted by the said Authority that this Agreement shall come into operation as otherwise the Developers will not be entitled to claim any right under these presents or otherwise or concerning the said property more particularly described in the Schedule hereunder written or any part thereof in any manner whatsoever and this Agreement shall automatically come to an end. In such circumstances the Owner shall be at fully liberty to deal with or dispose of the said property. The developer till then has agreed not to make any claim or demand or any right, title and/or interest either under these presents or concerning the said property or any part thereof in any manner whatsoever.
(b). It was alleged that the slum clearance certificate dated 6.3.1982 was in fact obtained. The concerned Defendants contended that the same was a fabricated document. I will assume that the same is genuine. That does not carry the Plaintiffs case any further. In fact it only makes matters worse for the Plaintiff. For despite a slum clearance certificate dated 6.3.1982, the Plaintiff did not take any steps to implement the agreements.
24. Lastly, Mr. Chagla relied upon an alleged "AFFIDAVIT CUM DECLARATION CUM CONFIRMATION" dated 21.1.2004 allegedly executed by Respondent No. 1 in favour of Lala's son confirming the suit agreements. Prima facie it is difficult to accept the genuineness of this document. There is no cogent reason why the same was executed in the year 2004 when the disputes between the parties thereto were allegedly settled in 1995. Further this document was not even referred to in the Plaintiffs Advocate letter dated 18th April, 2005 in reply to the said public notice.
25. It is also pertinent to note that under the second agreement dated 7.4.1982, Lala had allegedly granted in favour of the Plaintiff the right to develop the suit property to the extent of 40,000 square yards. I realise that under Clause 3, the Plaintiff is entitled only to 25% of the total FSI. The fact is that the Plaintiff was granted the right to develop the property to the extent of 40,000 square yards. Lala admittedly, could never have granted the right to this extent for he was not entitled to 40,000 square yards in the property described in Part-II of Exhibit "A" to the plaint. Exhibit "A" Part-II specifies that the property admeasures 61,515 square yards. This was because Uppal had, as aforesaid, taken his 1/4th share from the property which originally admeasured 86,515 square yards. Despite the same, the schedule to the agreement dated 7.4.1982 refers to the original area of 86,515 square yards whereas the actual area would be only 61,515 square yards. Thus Lala was entitled to only a l/3rd of 61,515 square yards. Admittedly as stated in paragraph 15 of the plaint itself, the 1/3rd share of the heirs of Gupta was assigned by Lala as their Constituted Attorney in favour of Defendant No. 1. Defendant No. 1 also held a l/3rd share therein. Thus Lala had only a 1/3rd share in the property described in Exhibit "A" Part-II i.e. 18,838.33 square yards. He could never therefore have created a right in respect of 40,000 square yards in respect of the property described in Exhibit "A" Part-II in favour of the Plaintiff.
26. In the circumstances, no ad interim orders. The order dated 22nd November, 2005 (Exhibit "X" to the plaint) shall continue for a period of four weeks from today to enable the Plaintiff to challenge this order.
The Notice of Motion is made returnable after six weeks.
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