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2022 DIGILAW 131 (BOM)

Jayesh Mathurbhai Patel v. Bhakti Enterprises

2022-01-13

RIYAZ I.CHAGLA

body2022
JUDGMENT Riyaz I. Chagla, J. - Heard learned Counsel appearing for the Applicant/Plaintiff, learned Counsel appearing for Defendant Nos. 3 to 6 as also learned Counsel appearing for the Defendant No. 8. 2. By the present Interim Application, the Applicant/Plaintiff is seeking an injunction restraining Defendant Nos. 3 to 8, their agents, servants and/or person or persons claiming through them from selling, encumbering any third party right, title and interest in respect of the Suit fat being Flat No. 1304 admeasuring 800 Sq.ft. Carpet area on the 13th floor without car park level in the building known as Samaj Darshan, Parekh Lane, Kandivali (West), Mumbai 400 067 (for short 'Suit fat). The Interim Application also seeks appointment of Court Receiver as a receiver in respect of the Suit fat. Further direction is sought against Defendant Nos. 3 to 8 to reserve area equivalent to the suit fat admeasuring 800 sq.ft. (carpet area) to protect the legitimate right of the Applicant/Plaintiff in respect of the Suit fat. Certain other consequential relief is also sought for. 3. The Applicant/Plaintiff claims to have purchased the Suit fat for consideration under the Agreement for Sale dated 25th July, 2017 executed between Defendant No. 1 as Developer and the Applicant as purchaser. The Applicant/ Plaintiff has stated that he has paid the entire total agreed consideration price in respect of Suit fat of Rs. 1,03,00,000/-on or before execution and registration of the Agreement for Sale. As per the annexure to the Plaint at Exhibit 'M' the full consideration of the Suit fat is shown to have been paid in cash. The Receipt for which is stated to be annexed to the Agreement for Sale. 4. The Applicant/Plaintiff being aggrieved by not having been put in possession of the Suit fat No. 1304 has fled the present Suit for Specific Performance of the Agreement for Sale against the Defendant No. 1 and has sought a direction against Defendant Nos. 1, 3 to 8 to handover the Suit fat No. 1304 to the Plaintiff. In the Suit the present Interim Application has been taken out. 5. The learned Counsel appearing for the Applicant/Plaintiff states that at this stage the Applicant presses for ad-interim relief by way of injunction restraining the Defendant Nos. 1, 3 to 8 to handover the Suit fat No. 1304 to the Plaintiff. In the Suit the present Interim Application has been taken out. 5. The learned Counsel appearing for the Applicant/Plaintiff states that at this stage the Applicant presses for ad-interim relief by way of injunction restraining the Defendant Nos. 3 to 8 from creating any third party rights in respect of the Suit fat No. 1304 as well as directing Defendant No. 3 to 8 to reserve area equivalent to the Suit fat admeasuring 800 Sq.ft. (Carpet area) to protect the legitimate rights of the Applicant/Plaintiff in the Suit fat. 6. The ad-interim relief sought by the Applicant is vehemently opposed by learned Counsel appearing for Defendant No. 8 - New developer as well as learned Counsel for Defendant Nos. 3 to 6, the owners of the Suit property which is defined in paragraph 3 of the Plaint. It is submitted by the learned Counsel for Defendant No. 8 that the Applicant/Plaintiff being a purchaser of the Suit fat from Defendant No. 1, the erstwhile developer has no privy with the new developer and/or owner and cannot claim possession from them. His claim can be only against Defendant No. 1. The learned Counsel for Defendant No. 8 has relied upon the decision of this Court (Coram :- S.C. Gupte, J.) in Vaidehi Akash Housing Pvt. Ltd. Vs. New D.N. Nagar Co-Op. Housing Society Union Ltd. & Ors., Notice of Motion No. 961 of 2013 in Suit No. 262 of 2012 dated 1st December, 2014. He has in particular relied upon paragraphs 16.6 and 16.11 as well as 17 of the said decision. He has submitted that this Court had held in that case that there is no privity of contract between the Society and third party purchasers claiming under, VaidehiAkash Housing Pvt. Ltd. ('Vaidehi') the erstwhile Developer. The third party purchasers cannot claim specific performance of their respective agreements for sale except through Vaidehi. The third party purchasers were held to have no case against the Society or Rustomjee, the new Developer, for Specific Performance of their individual agreements. They only have independent rights to claim damages against Vaidehi. 7. In the present case, the Applicant/Plaintiff had entered into Agreement for Sale with the Defendant No. 1 who was the erstwhile developer. The third party purchasers were held to have no case against the Society or Rustomjee, the new Developer, for Specific Performance of their individual agreements. They only have independent rights to claim damages against Vaidehi. 7. In the present case, the Applicant/Plaintiff had entered into Agreement for Sale with the Defendant No. 1 who was the erstwhile developer. The claim if at all which the Applicant/Plaintiff can have would be against Defendant No. 1 and that to in damages. The Applicant/Plaintiff has no privy with the Defendant No. 8 - new developer who has been appointed under the aegis of this Court i.e. by order dated 26th November, 2020 and/or the owner. No ad-interim relief can be sought against either owners of the Suit property as well as the new developer. 8. The learned Counsel appearing for the Defendant No. 8 has further submitted that the Applicant/Plaintiff in the present case has not come with clean hands. He has submitted that infact the Applicant/Plaintiff's family member had approached the MahaRERA making the same complaint that the developer had not handed over possession of the fats to the purchasers which included the Suit fat to the Plaintiff as per the registered Agreements for Sale executed on 25th July, 2017. The MahaRERA had dismissed the complaint and found the Agreements executed lacking in particulars and not as per the prescribed format of RERA Act and Rules made thereunder. 9. The learned Counsel appearing for the Defendant No. 8 has submitted that no ad-interim relief can be granted in the facts of the present case and particularly considering the settled law in Vaidehi (Supra) as well as the subsequent decision of this Court in Goregaon CHSL Ltd. Vs. Dr. Seema Mahadev Paryekar decision dated 14th October, 2019 which has followed Vaidehi (Supra). 10. The learned Counsel appearing for the Defendant Nos. 3 to 8 has supported the submissions of the learned Counsel for Defendant No. 8. Dr. Seema Mahadev Paryekar decision dated 14th October, 2019 which has followed Vaidehi (Supra). 10. The learned Counsel appearing for the Defendant Nos. 3 to 8 has supported the submissions of the learned Counsel for Defendant No. 8. He has referred to paragraph 13 of the Plaint, wherein it is stated that the Advocate for Defendant No. 3, being Petitioner in theCommercial Arbitration Application No. 54 of 2018 taken out by the Defendant No. 3 addressed letter dated 16th October, 2018 to the Plaintiff's Advocate wherein it is stated that this Court had passed order dated 3rd May, 2018 wherein it is stated that the intervenors before this Court are not allowed as party Respondent to the Commercial Arbitration Petition No. 54 of 2018 fled by the Defendant No. 3 as Petitioner therein and this Court will hear the intervenor only at the time of final hearing of the Arbitration Petition. It is stated in the said letter that the Plaintiff and other family members have no right in respect of the subject fats including the Suit fat and Defendant No. 3 declined to recognize the rights of the Plaintiffs in respect of the Suit fat. He has submitted that if at all there is a cause of action of the Plaintiff in the present Suit it arose from this date as the Defendant No. 3 had categorically stated that the Plaintiff has no right in respect of the Suit fat. Having belatedly fled the Suit as well as the present Interim Application, no ad-interim relief can be to the Plaintiff. 11. Having considered the submissions, I am of the view that no ad-interim relief can be granted against the Defendant Nos. 3 to 8 as sought for by the Applicant/Plaintiff in view of the settled law laid down by this Court in Vaidehi Akash Housing Pvt. Ltd. (Supra). This Court has in the said decision held that there is no privity of contract between Applicant purchaser and the new developer or owner of the Suit property when the agreement was entered into by the Applicant purchaser with the erstwhile developer. It was held in the facts of that case that specific performance cannot be claimed and/or granted either against the Society as owner or Rustomjee as the new Developer of the Suit property. It was held in the facts of that case that specific performance cannot be claimed and/or granted either against the Society as owner or Rustomjee as the new Developer of the Suit property. The remedy of the purchaser would be to claim damages from the Vaidehi, the erstwhile developer under their agreement. 12. Paragraph 16.6 of Vaidehi Akash Housing Pvt. Ltd. (Supra) reads thus:- ''16.6 There being no privity of contract between the Society and the third party purchasers claiming under Vaidehi, the third party purchasers cannot claim specific performance of their respective agreements for sale except through Vaidehi. They stand or fall by Vaidehi. If the rights of Vaidehi are brought to an end upon a lawful termination of the Society Development Agreement, the third party purchasers cannot lay any independent claim against the Society or anyone claiming through the Society. The agreements with third party purchasers are premised upon a valid, subsisting and enforceable agreement between their vendors, namely, Vaidehi and the owners, namely, the Society and in fact refer to the Society Development Agreement in this behalf. Admittedly, therefore, the third party purchasers had, or at any rate, ought to have, notice of the Society Development Agreement and its terms and conditions, and Vaidehi's obligations to perform the same. If Vaidehi fails to perform these obligations, the purchasers cannot but suffer the consequences. In other words, the purchaser's rights are subject to Vaidehi's rights and not higher than those. Therefore, from a contractual standpoint, the third party purchasers have no case against the Society or Rustomjee, who claim through the Society. 13. In the present case, the Defendant No. 8 - new developer has been appointed under the aegis of this Court vide order dated 26th November, 2020. The Defendant No. 1, the erstwhile developer had executed the Agreement for Sale with the Applicant/Plaintiff as purchaser for which the specific performance is sought in the present Suit. The Suit proceeds on the premise that the Applicant continues to have a right to claim Specific Performance i.e. a right to be put in possession of the Suit fat. However, with the appointment of the Defendant No. 8 - new developer, prima facie I am of the view that the Applicant/Plaintiff's remedy will be in damages against the Defendant No. 1, the erstwhile developer. However, with the appointment of the Defendant No. 8 - new developer, prima facie I am of the view that the Applicant/Plaintiff's remedy will be in damages against the Defendant No. 1, the erstwhile developer. The Applicant/Plaintiff cannot claim any ad-interim relief against either the new developer or the owner of the Suit property with whom he has no privy to seek protection of his alleged right to the Suit fat. 14. It is further pertinent to note that the Applicant/Plaintiff's family member had approached MahaRERA making the same complaint of not being put in possession of the respective fats including the Suit fat under the said Agreement for Sale dated 25th July, 2017 with Defendant No. 1, the erstwhile developer which had been duly registered. The complaint had been made as this was a MahaRERA project. The MahaRERA by order dated 13th October, 2017 dismissed the complaint on the ground that Agreement for Sale was not executed as per the prescribed format of RERA Act and Rules made thereunder. There was no specific date of possession of the fats mentioned in the Agreements for Sale as also the possession was due on or before the occupation certificate. Since, the date of possession was not specified, and the Authority felt that there is no cause of action for the complainant to present the complaint and dismissed the complaint. Other then annexing the said order of MahaRERA the Applicant/Plaintiff has not mentioned in the Plaint that the complaint for not being put in possession of the Suit fat was dismissed. Inspite of the complaint having been rejected by MahaRERA by order dated 13th October, 2017, the Applicant/Plaintiff has belatedly fled the present Suit on 18th August, 2021 and taken out the present Interim Application, whereby they have sought for ad-interim relief to be passed. The Applicant/Plaintiff were also aware of the Defendant No. 3, the owner of the Suit property had not recognized any right of the Applicant/Plaintiff to the Suit fat way back on 16th October, 2018 by correspondence addressed by the Advocate for Defendant No. 3. 15. In view thereof, I find that there is no case made out for grant of ad-interim relief against Defendant Nos. 3 to 8 apart from the fact that there is much delay in making such application as the Applicant/Plaintiff's cause of action, if any, would have arisen much earlier. 16. 15. In view thereof, I find that there is no case made out for grant of ad-interim relief against Defendant Nos. 3 to 8 apart from the fact that there is much delay in making such application as the Applicant/Plaintiff's cause of action, if any, would have arisen much earlier. 16. Accordingly, ad-interim relief sought for is not granted. 17. The Interim Application shall come up in due course. 18. The Defendant Nos. 3 to 6 shall file their Affidavits in Reply to the Interim Application on or before 3rd February, 2022. 19. The Defendant No. 8 shall also file Affidavit in Reply to the Interim Application on or before 3rd February, 2022. 20. The Applicant/Plaintiff is at liberty to file Affidavit in Rejoinder within a period of one week thereafter i.e. on 10th February, 2022.