VIBHIT ENTERPRISES PVT LTD Vs. M B CONSTRUCTIONS

JUDGEMENT

(1.) The parties in the aforesaid suits have entered into two transactions, one being an agreement simplicitor and the other being a deed of mortgage both dated 18th July 2005. The deed of mortgage has been executed immediately prior to the agreement. The deed of mortgage is registered; the agreement is not. The Plaintiff in Suit No.172/2011 (Vibhit) has sought performance of the agreement in which it is shown as the purchaser. The Plaintiff in Suit No.325/2011 (MBC) has sought to redeem the mortgage upon payment of the mortgage amount a day prior to its due date.

(2.) Under the agreement the Defendant in Suit No.172/2011 M/s. M.B. Constructions Ltd. (MBC) as the owner of an immovable property desired to acquire new properties adjacent thereto. For want of sufficient finance the Plaintiff in Suit No.172/2011 M/s. Vibhit Enterprises Pvt. Ltd. (Vibhit) agreed to acquire two new properties in the name of MBC and jointly developed the properties with MBC. Since joint development was not possible the parties agreed that Vibhit would pay Rs.5.5 crores to acquire the properties from out of its funds as an investment, and notwithstanding the deed of mortgage entered into by the parties earlier on that day, MBC would allot to Vibhit 23 residential flats with 23 car parking spaces together admeasuring 17764.10 sq. ft. carpet area to be constructed by MBC as shown in the sanctioned plans to Vibhit. The parties laid down the terms and conditions for the construction of the flats more specially the time limit therein being 30 months from the date of the agreement. Vibhit was not concerned with the profits and losses of the firm. MBC was accepted to be the sole owner.

(3.) The parties further agreed that Vibhit would be entitled to sell those flats to third parties without payment of transfer charges to MBC and MBC would handover those flats and car parking spaces to Vibhit along with the occupation certificate. Upon failure of this covenant they would pay additional liquidated compensation to Vibhit @ Rs.6/- per day per sq. ft. of saleable area and for securing such payment would allot additional flats aggregating to 4463.15 sq. ft. of carpet area to Vibhit. This is stated to be 10 other flats in addition to 23 aforesaid flats.