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of <h1>Court dismisses motion for specific performance in development agreement; suit non-maintainable; termination upheld.</h1> <h3>Gurudev Developers Versus Kurla Konkan Niwas Co-op. Hsg. Society</h3> Gurudev Developers Versus Kurla Konkan Niwas Co-op. Hsg. Society - 2000 (3)MhLj 131 Issues Involved:1. Whether the plaintiffs were entitled to specific performance of the development agreement.2. Whether the suit was maintainable in light of the provisions of the Partnership Act and the Maharashtra Co-operative Societies Act.3. Whether the plaintiffs had performed their obligations under the agreement.4. Whether the agreement was terminable and if the termination was valid.Summary:Issue 1: Specific Performance of the Development AgreementThe plaintiffs sought specific performance of the development agreement dated 18th January 1985. The court noted that the agreement was primarily a development agreement and not an agreement to sell or lease. Citing previous judgments, it was held that such agreements are not specifically enforceable as they are essentially building contracts aimed at profit-making, and any breach could be compensated by damages. The court concluded that prima facie, an agreement of this nature cannot be specifically enforced.Issue 2: Maintainability of the SuitThe defendants argued that the suit was not maintainable due to a change in the constitution of the partnership, which was not registered with the Registrar of Firms, invoking section 69(2) of the Partnership Act. The court found that the plaintiffs failed to counter this argument effectively. Additionally, the suit was challenged for lack of notice u/s 164 of the Maharashtra Co-operative Societies Act. The court upheld that the requisite notice was mandatory and its absence rendered the suit non-maintainable.Issue 3: Performance of ObligationsThe plaintiffs claimed they had performed all obligations under the agreement and that delays were caused by the defendants, including issues with plot possession, FSI division, and architect cooperation. However, the court found that u/s 18 of the agreement, it was the plaintiffs' responsibility to obtain necessary permissions and sanctions. The court noted that the plaintiffs' averments were not substantiated by the agreement's clauses.Issue 4: Termination of the AgreementThe defendants terminated the agreement citing clause 22, which allowed termination if construction was not completed within the stipulated time. The court found that the termination was valid as the plaintiffs had not met the conditions of clause 12 regarding the commencement and completion of construction. Consequently, the notice of termination was deemed legal and binding.Conclusion:The court dismissed the Notice of Motion, finding no merit in the plaintiffs' claims for specific performance, and upheld the validity of the agreement's termination by the defendants. The suit was also deemed non-maintainable due to procedural lapses under the Partnership Act and the Maharashtra Co-operative Societies Act. The plaintiffs' request for a stay on the order was declined.
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