GIRDHAR CREATIONS Vs. BABAN BABURAO RATHARE

JUDGEMENT

(1.) THIS Appeal from Order (A.O. 292/2007) was heard on earlier occasion. It was placed yesterday for passing judgment/final orders. However, it was noted that Mr. S.M. Gorwadkar has filed his Vakalatnama on behalf of the original defendant-respondent No. 10 who is the contesting defendant and who has claimed that who has taken over the rights in the immovable property of the original defendant Nos. 1 to 3. Thus, the contesting parties who were represented by Mr. Gorwadkar could not be heard as he was not present. Equally the respondent Nos. 12 and 13 have been represented by Mr. Jaydeep Deo. He was also present on earlier occasion. Therefore, I have heard the Advocates yesterday at some length and at the request of Mr. Gorwadkar, final orders were deferred today because, he sought time to take instructions from his client with regards to the prayers that are made in Civil Application No. 96 of 2010 in Appeal from Order No. 292 of 2007.

(2.) THE submissions of the parties would be noted a little later after referring to the order challenged in the present appeal.

(3.) THAT the trial Court has noted that the suit was filed by appellants alleging that there is an agreement in their favour dated 15th September, 2004. The agreement is duly registered i.e. the agreement between them and the original defendants Nos. 1 to 11. Though it is styled as a development agreement, it is an agreement creating right in the immovable property and in fact, amounts to an agreement of development-cum-sale. The defendant Nos. 1 to 9 had agreed to convey and sell the suit property in favour of any legal entity which may be established and created by the appellants-plaintiffs in respect of the flats/tenants on the buildings to be constructed on the suit property. There is also an irrevocable general power of attorney executed in their favour on the very day. Equally, there is a deed of declaration-cum-indemnity wherein, the original defendant Nos. 10 and 11 are consenting parties. It was averred that consideration under the said agreement was paid by way of cheques and what has then been noted by the trial Court is the case that the building plans were submitted for construction and development of the property and they have been duly sanctioned by the Pune Municipal Corporation. The construction activity was going on and the same was in accordance with the sanctioned plan. The construction activities then noted was completed up to plinth in respect of two buildings and third slabs in respect of another building. The plinth checking certificate was issued by the Pune Municipal Corporation. There were third party rights created and prospective purchasers of the flats/units have agreements in their favour. As on the date when the trial Court passed the impugned order, the agreements in respect of more than 90 flats/units were stated to have been entered into by the appellants-plaintiffs, apart there from there was readiness and willingness to perform their part under agreement has been noted.