DISHA CONSTRUCTION Vs. JAYSEN S. MASTAKAR

JUDGEMENT

(1.) The above Suit is filed by the Plaintiff for (i) a declaration that the Suit Contract (Exhibits O, U and II to the Plaint) is valid, subsisting and binding upon the Defendants; (ii) a mandatory order and injunction directing Defendant Nos. 1 to 28 to comply with the Suit Contract (Exhibits O, U and II to the Plaint); (iii) an order directing Defendant Nos. 1 to 27 to sign and execute the Tripartite Agreements in terms of Clause 4 of the Second Supplemental Agreement (ExhibitII to the Plaint); (iv) a mandatory order and injunction directing Defendant Nos. 1 to 28 to forthwith hand over quiet, vacant and peaceful possession of the property more particularly described in ExhibitA to the Plaint, for the purpose of carrying out redevelopment thereof in accordance with the terms and conditions of the Suit Contract (Exhibits O, U and II to the Plaint); (v) a perpetual order and injunction restraining Defendant Nos. 1 to 28 from, in any manner selling, transferring, alienating, dealing with, disposing off and/or creating third party rights and/or encumbrances in respect of the property described in ExhibitA to the Plaint; and (vi) to order and decree Defendant Nos. 1 to 27 to jointly and severally pay to the Plaintiff a sum of Rs. 28,85,76,232/, as per the particulars of the claim (ExhibitNNN to the Plaint) and a further sum of Rs. 5,35,781/ per day, till such time as Defendant Nos. 1 to 27 comply with the Suit Contract (Exhibits O, U and II to the Plaint) along with interest thereon at the rate of 21 per cent per annum till payment and/or realization.

(2.) The Plaintiff has in the above Suit, also taken out Notice of Motion No. 859 of 2013, inter alia seeking interim reliefs i.e. directing Defendant Nos. 1 to 27 to execute the Tripartite Agreements in terms of Clause 4 of the Second Supplemental Agreement being ExhibitII to the Plaint; for an order and injunction restraining Defendant Nos. 1 to 28 from in any manner selling, transferring, alienating, dealing with, disposing off and/or creating third party rights and/or encumbrances in respect of the property described in ExhibitA to the Plaint or any part thereof and/or parting with possession thereof and/or obstructing, interfering with and/or creating hurdles in the redevelopment of the property, more particularly described in ExhibitA to the Plaint; restraining Defendant Nos. 1, 3, 4 (a) & (b), 5, 7, 8 (a) & (b), 10, 11 (a) & (b) from resuming occupation of their respective premises and for appointment of Receiver in respect of the premises, more particularly described in ExhibitA to the Plaint together with all powers under Rule 1 of Order XL of the Code of Civil Procedure, 1908, including the power to take physical possession thereof with police assistance if necessary, from Defendant Nos. 1 to 27 and/or any person found in possession thereof and to hand over the same to the Plaintiff for the demolition thereof and for redevelopment in accordance with the Suit Contract being Exhibits O, U and II to the Plaint.

(3.) The Plaintiff is a Developer and carries on the business of developing properties. Defendant No. 28 is a Cooperative Housing Society. Defendant No. 28 is the owner of land bearing CTS No. 717, 717/1 to 51 of Vile Parle Division of Vile Parle Village, Taluka Andheri, Mumbai Suburban District admeasuring about 4474 square metres and lying, being and situated at Hanuman Cross Road No.2, Vile Parle (East), Mumbai400 057 ("the Suit Plot") together with four buildings standing thereon comprising of 120 flats. The Suit Plot and the four buildings are hereinafter collectively referred to as "the Suit Property". These 120 flats belong to 116 members of Defendant No.28. Defendant No. 28 has appointed the Plaintiff to redevelop the Suit Property. Defendant Nos. 1 to 11 (b), 13 to 24 (a) and 25(a) to 27 (noncooperating Members) having in all 27 flats have certain differences with the Plaintiff and Defendant No. 28 as regards reduction of 80 square feet of area agreed to be given to the Members of the Defendant No. 28 Society by the Plaintiff towards Permanent Alternate Accommodation.