TaxTMI 
TaxTMI 
2007 (2) TMI 664
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....hich a declaration was granted declaring late Shri Shaikh Farid Shaikh Kalandar to be the owner of the property. The consent decree came to be registered on 24th August, 2000. It is the case of the Appellants that on 20th April, 2004 there was a Memorandum of Joint development entered into between 10th respondent and the appellants for joint development of the property which was identified as a specific part of Plot C-2 in terms of the lay out scheme/Sub Division sanctioned under reference No. C/Office-7A/Sub Division/SR/3496 dated 15th October, 2002. A certificate had been issued by the Advocates and Solicitors for respondent No. 10 that the title in the said property was in late Shaikh Farid Shaikh Kalandar and respondent No. 10. Respondent NO.10 in respect of the cause of action against respondent Nos. 1 to 9 filed a suit being Suit No. 2180 of 2004, for various reliefs amongst others for an injunction against respondent Nos. 1 to 9 from causing any obstruction or hindrance or interfering with the right of the respondent No. 10 from exercising the power under the Power of Attorney. The plaint was amended by adding respondent No. 11 as defendant. The suit came to be decreed on 10....
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....ession was given to the appellant by letter dated 24th March, 2005 and recorded. A supplemental agreement was entered into on 25th March, 2005 whereby the price was increased to Rs. 3.35 crores. Pursuant to a public notice on 14th May, 2005 a claim was filed by the 11th respondent. The Respondent No. 11 is a company incorporated under the Indian Companies Act and whose Directors are the members of the family of respondent No. 10. Pursuant to this, correspondence was exchanged on one hand between the Appellants and Respondent No. 1 to 10. As Respondent Nos. 11, 12 and 13 were developing on an area which was to be provided as access to Plot No. C-1, a notice was also given to them. A suit came to be filed in which Notice of Motion was taken out, being Notice of Motion No. 1915 of 2005 for ad-interim relief. The impugned order came to be passed on 1st September, 2005. 3. The defence of Respondent Nos. 10 is that there were two immovable properties belonging to respondent Nos. 1 to 10, one at Goregaon and the other the suit property at Kandivali. Respondent No. 10 approached the appellants for financial assistance for development the property at Goregaon to the tune of Rs. 5.00 c....
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....stage it was not possible to hold whether the Agreement is a Development Agreement. The learned single Judge held that the Agreement would have to be read as a whole and material will have to be considered which could only be done at the trial of the suit. The contention urged that in view of Section 14 of the Specific Relief Act, the Agreement could not be enforced was rejected by the learned Judge by holding that the issue can only be decided at the final hearing of the suit. The various other contentions urged in support of the contention that the Agreement was a development agreement were rejected on the ground that the document would have to be construed by considering the other material on record and the evidence. After so holding and on considering the documentary evidence, the learned single Judge held that he was satisfied that a prima facie case has been made out. The learned Judge thereafter was pleased to make the Motion absolute in the following terms: Defendants, their servants, agents are restrained by an order and injunction from in any manner disposing of or alienating and encumbering an area admeasuring 2 lakh sq.ft. on Plot No. C-2 more particularly described ....
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....ting the respondents to deal with the TDR to the extent which could be made available by the respondents to the appellants by acquiring or purchasing slum TDR from the open market free from all encumbrances, claims and dues. (b) Whether inspite of the specific provision in the agreement granting to the appellants right of way through the Plot No. 2A to Plot A-2 of the respondents property the relief in respect thereof should have been refused. 8. On the other hand on behalf of the respondent No. 10 it is contended that the Agreement was an agreement for security and in the alternative is a development agreement and consequently the appellants are not entitled to specific performance of the agreement. On behalf of respondent No. 11 it is submitted that the rights of the respondent No. 11 were antecedent/prior to the rights of the appellants as the agreement entered into between the respondent No. 11 and respondent No. 10 was dated 22nd January, 2004 prior to the agreement between the appellants and respondent Nos. 1 to 10 which was on 20th April, 2004 and further that the agreement dated 22nd January, 2004 had been acted upon and that the agreement between the appellants an....
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....respondents, therefore, will have to make out a case that the finding by the learned single Judge is perverse. The view taken by the learned trial Court, ordinarily will have to be upheld,if it was a view capable of being taken, irrespective of the Appellate Court arriving at a conclusion that another view is probable which is a better view and as long as the findings based on which the view is taken are not perverse. Before we answer the issue, let us consider the judgments cited at the bar for the proposition as to which contract can be specifically enforced. Let us first deal with the judgment relied upon by the appellants. In the case of Vallammal Rangarao Ramachar v. Muthukumaraswamy Gounder and Anr. , the Supreme Court noted, that there were interpolations of material nature in the document and no explanation was offered on that count. The Appeal preferred by one of the appellants (Defendant No. 2) was dismissed. The Court held that the motivated interpolation in a solemn document completely vitiates the document. In the other Appeal which was pending, the Court noted that the High Court after evaluating the evidence recorded a conclusion that the plaintiff was always read....
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....ng the earlier judgments of this Court, noted that the order of 7th March, 1988 in Appeal No. 285 of 1988 in Notice of Motion No. 76 of 1987 cannot be read as laying down the law that specific performance for development can never be granted or interim relief in such a suit should always be refused. In Notice of Motion No. 763 of 1989 in Suit No. 844 of 1989 Ghori & Khatri Builders (Regd) v. Iqbal Hussein Usman Fakir Mohamed Mansoori and Ors. decided on February 8, 1991 a learned single Judge of this Court relying on the judgment in Appeal No. 285 of 1988 in Notice of Motion No. 76 of 1987 in Suit No. 3419 of 1986 held on the facts there, that the agreement was a development agreement and accordingly refused to grant injunction. In the Appeal which was preferred, being Appeal No. 218 of 1991 in Notice of Motion No. 763 of 1989 in Suit No. 844 of 1989, the Appellate Bench by order dated March, 9, 1993 held that the contention advanced was that it was a finance agreement. The learned Appellate Bench did not agree with the view of the learned single Judge and held that the Agreement would indicate that the respondents therein had created interest in the land and felt that the Agreemen....
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.... the facts of each case and the agreement under consideration. Agreements considering what is discussed, amongst others, could be: (a) An Agreement only entrusting construction work to a party for consideration; (b) An Agreement for entrusting the work of development to a party with added rights to sell the constructed portion to flat purchasers, who would be forming a Co-operative Housing Society to which society, the owner of the land, is obliged to convey the constructed portion as also the land beneath construction on account of statutory requirements. (c) A normal agreement for sale of an immovable property. An Agreement of the first type normally is not enforceable as compensation in money is an adequate remedy. An Agreement of the third type would normally be specifically enforceable unless the contrary is proved. A mere agreement for development, which creates no interest in the land would not be specifically enforced. We are however dealing with a case of the second type. Courts for construing such a contract in this State will have to take into consideration, the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and ....
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....the finding of fact recorded by the trial Court and the exercise of discretion unless the finding is perverse. Nothing has been brought on record to hold that the findings are perverse. The document on the face of it, cannot be an agreement for security. It can only be construed as an Agreement to sell or a development agreement. In our opinion in this case, the finding recorded by the learned Single Judge was a finding eminently possible on the material on record. We are, therefore, clearly of the opinion that the Agreement prima facie is an agreement which can be specifically enforced and consequently the Appellants have made out a prima facie case. The other predicates for grant of an injunction will be answered in the discussion that follows. 14. We then come to the issue of the clarification to the order issued by the learned Single Judge. The crux of the issue is, whether after having come to the conclusion that the Agreement could be specifically enforced, the learned single Judge could have in so far as FSI/TDR clarified the earlier part of the order. It is no doubt true that the clause in the Agreement provides that the Appellants will purchase from the owners the right....
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....period of more than one year must be made by registered instrument. A Division Bench of the Oudh High Court in Ram Jiawan and Anr. v. Hanuman Prasad and Ors. AIR 1940 Oudh 409 also held, that bazar dues, constitute a benefit arising out of the land and therefore a lease of bazar dues is a lease of immovable property. A similar view has been taken by another Division Bench of the Allahabad High Court in Smt. Dropadi Devi v. Ram Das and Ors. on a consideration of Section 3(26) of General Clauses Act. From these judgments what appears is that a benefit arising from the land is immovable property. FSI/TDR being a benefit arising from the land, consequently must be held to be immovable property and an Agreement for use of TDR consequently can be specifically enforced, unless it is established that compensation in money would be an adequate relief. 16. In the instant case as we have noted, FSI from the Plot is to be used, but if it is not sufficient, then from the other portion of the entire property. The question is whether the latter part of Clause 2(a). of the Agreement which provides "and/or to be acquired and purchased Slum TDR by the Owners at their costs from open market" would....