VIJAY ENGINEERS AND DEVELOPERS BY THEIR PROPRIETOR SHRI NARESH SAKHARAM SALGAONKAR MAJOR MARRIED BUSINESSMAN R/O PLOT NO 4 SERVICE INDUSTRIES TALEIGAO GOA Vs. SURYADARSHAN CO-OP HOUSING SOCIETY LTD HAVING ITS OFFICE AT ALTO BETIM BARDEZ GOA THROUGH THEIR CHAIRMAN SHRI ANKUSH R HOBLE R/O "MAYA NIWAS" WADI MERCES P O ST CRUZ ILHAS GOA

JUDGEMENT

(1.) Both the above appeals are taken up together for final hearing as both challenge the same judgment and Decree dated 13-8-2004 passed by the learned Civil Judge, Senior Division at Mapusa in Special Civil Suit No. 102/1999. The parties shall be referred to in the manner they so appear in the cause title of the impugned Judgment. The Appellant in First Appeal No. 266 of 2004 are the Plaintiffs in the said suit whereas the Appellants in First Appeal No. 267 of 2004 are the Defendants in the said suit.

(2.) The Plaintiffs filed a suit on the ground that on 19-1-1989 the Defendants invited tenders through newspaper from Civil Contractors to develop the land purchased by the Defendants admeasuring an area of 14,300 sq. meters situated at Britona village of Village Panchayat area of Penha de Franca and surveyed under No. 13/6 of village Penha de Franca which included infrastructural development as also construction of houses for its members who were 31 in number. It is further the contention of the Plaintiffs that they submitted the tender to the Defendants and the contract for the said development of the said property was allotted to the Plaintiffs on turn key basis by its work order dated 6-3-1989. The Plaintiffs further contend that they got a portion of the suit property changed to settlement zone from the concerned authorities which took about two years as the Plaintiffs had to get the said land re-surveyed by the survey authorities which took another one year. The Plaintiffs contend that pursuant to the said work order dated 6-3-1989, the Plaintiffs prepared blocked level contour plans of the suit property so as to enable the authorities to change the land into settlement zone and the fees thereof for the portion of the said plans worked out to Rs. 83,000/-out of which the Defendants paid Rs. 41,500/-. RCC designs were also prepared for which the total fees incurred was Rs. 11,000/-which was not paid by the Defendants. Infrastructural development contemplated in the said order according to the Plaintiffs included carrying out of works such as road drainage, leveling of land, construction of culvert, development of wall, etc. The Defendants decided to develop the suit land as a group housing scheme under which infrastructural development and the construction of houses was to be simultaneously taken up for development by the Plaintiffs. The Plaintiffs further state that in terms of the said work order, the Plaintiffs were entitled for mobilization advance to the tune of Rs. 10,00,000/-for commencement of the work for infrastructural structure development and a further sum of Rs. 15,75,000/-as the first installment before construction of houses with 90% escalation thereof. It is further their case that the Defendants expressed their inability to pay mobilization advance of Rs. 10,00,000/-and as such they offered to the Plaintiffs a suggestion whereby a portion of the suit land which was in excess after providing the land for houses for all the 31 members, would be given to the Plaintiffs for development on their own account and appropriate receipts thereof so as to meet the infrastructural development costs of Rs. 14,55,217.60 for the suit land. The proposal was accepted by the Plaintiffs and the agreement for development was executed on 21-11-1993 between the parties hereto. The Plaintiffs contend that Defendants also agreed to accept the escalation contemplated in the work order dated 6-3-1989 as incorporated in the said agreement dated 21-11-1993. The Plaintiffs further state that the total area given to the Plaintiffs by the Defendants for the said development towards the costs of the said infrastructural development costs was totally admeasuring an area of 2,800 sq. meters as identified in Clause 2 of the said agreement. It is further their case that the Defendants took about one year to decide about the type of houses to be constructed in the said suit land to its members though 10 members out of 31 members selected from the building plans prepared by the Plaintiffs for the construction of the said houses. After securing the licences for the construction of the said houses, all the remaining 21 members selected the plans for their respective houses and the licences for the construction of the said 21 houses were submitted to the Panchayat though the same were not collected by the Defendants till about 18-11-1996. It is further their case that after obtaining the licences from the Village Panchayat dated 19-4-1994 for the construction of the 10 houses for the 10 members and the construction of 7 buildings of the blocks of flats and 2 bungalows to be constructed in the said portion allotted to the Plaintiffs, the Plaintiffs started the work of construction. The development carried out by the Plaintiffs included laying the foundation for the internal road to the extent of 140 meters, construction of RCC culvert and 2 wells and a retaining wall. The land was also cut to an appropriate gradient and leveled to suit the construction of houses and the building sites of 300 sq. meters each for the 31 members. The Plaintiffs also commenced construction of the flats in three portions of the suit land as per the agreement dated 21-11-1993. Agreements were also entered into for selling the flats proposed to be constructed by the Plaintiffs in the said portion of the land and the work of the said three buildings had reached the height of the first floor slab of one building plinth level of the second building and half plinth level and first floor level of the third building. The investment incurred by the Plaintiffs was amounting to Rs. 28,50,000/-in the suit land for the infrastructural development therein. It is further their case that in August, 1995, five of the members initiated proceedings against the Defendants objecting to the work carried out by the Plaintiffs, by filing arbitration proceedings. A temporary injunction was also obtained in the said proceedings which was subsequently vacated. The contention of the said five members was that the work of development was carried out by the Defendants in violation of the scheme of the Defendants of putting up construction of houses therein.

(3.) It is further the case of the Plaintiffs that by letter dated 26-9-1995, they called upon the Defendants to effect the payment of mobilization amount of Rs. 20,00,000/-for construction work of the said 10 bungalows/houses for the 10 members and there was no response from the Defendants to the said letter. Ultimately, by reply dated 14-6-1996 to the letter dated 16-5-1996, the Plaintiffs requested the Defendants to call for a meeting of its Managing Committee but, however, the Plaintiffs boycotted the said meeting as according to them there were strangers along with the office bearers. It is further their case that the development was supposed to be completed by the Plaintiffs within 24 months from the date of the receipt of all the approvals/permissions from the concerned authorities for the said development but, however, till November, 1996 permissions were received for only part development of the suit land whereas the permissions for putting up construction of the remaining land were not obtained. It is further their case that the Plaintiffs performed all their obligations under work order dated 6-3-1989 and the agreement dated 21-11-1993 and was ready and willing to perform their obligations under the said agreements and are still ready and willing to perform their obligations under the said work order and the said agreement. It is further their case that the Defendants have failed to perform their said obligations under the said work order/agreement and did not even pay the initial mobilization amount of Rs. 15,75,000/-and Rs. 12,00,000/-payable for commencement of the work. It is further their case that in view of the ex-parte Order obtained by the said members, the work had come to a stand still and even after the work order was vacated the Plaintiffs did not commence the work since they did not want to create any further misunderstanding with the Defendants. It is further their contention that the Plaintiffs have invested a sum of Rs. 28,50,000/-in the suit land including infrastructural development and out of the said amount a sum of Rs. 26,50,838.44 belongs to the prospective flat purchasers. The Plaintiffs stated that on 8-11-1996, a public notice was published in the Navhind Times wherein it was stated that the agreement between the Plaintiffs and the Defendants was terminated from 8-11-1996 and thereafter on 9-11-1996 the Plaintiffs received a letter/ notice from the advocate of the Defendants. The grounds for such termination was that the Plaintiffs neglected and failed to comply with the agreement and the road was not constructed and no sub-divisions of the said property into plots had been carried out nor has the work been carried out from the date of the execution of the work contract. It is further their case that the Plaintiffs were not liable to do any sub-division of the land nor that the Plaintiffs had not commenced the work as contemplated in the work order and the agreement. The Plaintiffs disputed the said grounds raised by the Defendants to terminate the said agreement and the said notice was replied on 12-11-1996 to the advocate of the Defendants. It is further their case that when they went to the suit plot on 12-11-1996 they saw some unknown people doing some work and found some G.I. sheets missing from the suit land which according to the Plaintiffs' estimate was Rs. 2,46,000/-. Immediately thereafter Arbitration Case was filed by the Plaintiffs on 18-11-1996 before the Assistant Registrar of Co-operative Society as a dispute under Section 91 of the Maharashtra Co-operative Societies Act, 1960. In the said proceedings, an application for temporary injunction was also filed and that by Order dated 9-12-1996 the authority held that he had no jurisdiction to entertain and try the said case. An appeal was also preferred by the Plaintiffs against the said judgment before the Co-operative Tribunal and by its final order dated 7-7-1999 the proceedings were remanded back to the Assistant Registrar to record a finding as to whether the Plaintiffs are entitled for temporary injunction in respect of the said area of 2,800 sq. meters as the Plaintiffs found that they could not obtain the effective reliefs to the said proceedings. The Plaintiffs filed the present suit and withdrew the said proceedings before the Assistant Registrar of Co-operative Tribunal. At para 50 of the said plaint, the Plaintiffs have contended that they have valued the work of infrastructural development carried out by the Plaintiffs in the said land. According to the Plaintiffs, a total amount spent works out to Rs. 21,06,940/-and the particulars thereof are found at para 50 of the plaint. The Plaintiffs have also stated that they have started the construction of three buildings in the plot allotted to him and collected a sum of Rs. 26,15,838.44 from the flat purchasers and invested a total amount of Rs. 28,50,000/-in the suit land. It is further their case that they are in possession of the suit land pursuant to work order dated 6-3-1989. The Plaintiffs further contend that they are also entitled for a fixed compensation of Rs. 18,05,000/-with escalation as mentioned in the said agreement and that the Plaintiffs had spent a total amount of Rs. 21,06,940/-and as such are entitled to recover a sum of Rs. 6,55,722/-which is in excess spent by the Plaintiffs. They also claimed a sum of Rs. 2,46,000/-towards the loss of materials in the said land and further in the alternative claimed for compensation of Rs. 28,50,000/-with interest at the rate of 18% per annum. Accordingly, the suit came to be filed praying for the transfer of the land admeasuring an area of 2,800 sq. meters in terms of the agreement of development dated 21-11-1993 and also to pay a sum of Rs. 18,05,000/-towards damages and compensation for wrongful termination of the agreement dated 21-11-1993 together with interest besides a sum of Rs. 2,46,000/-towards the said material and in the alternative to prayer (a) for specific performance for a sum of Rs. 28,50,000/- together with interest at the rate of 18% per annum.