ASOO K.NIHALANI Vs. SHEKHAR DADARKAR

JUDGEMENT

(1.) The applicant-plaintiff has preferred this application seeking permission to amend the plaint so as to incorporate averments as regards the alleged cheating committed by defendant nos.1, 3 and 4, and unearthed by the Investigating Agency during the course of investigation in CR No. 698 of 2015 (Goregaon Police Station) and CR No. 102 of 2018 (Economic Offence Wing, Mumbai Police ("EOW")), culminating in filing of the charge-sheet on 24/9/2021. The applicant has instituted the suit, inter alia, for a declaration that there is a valid and subsisting contract between the plaintiff and defendant no.1 as evidenced by the allotment letter dtd. 14/7/2009, whereby and whereunder defendant no.1 agreed to allot an area admeasuring 9805 sq. ft. super built up in the building Goregaon Unnati Co-operative Housing Society Limited, defendant no.2, of which defendant no.1 was the developer. The applicant has also prayed for a decree for specific performance of the said contract. Defendant nos.3 and 4 came to be impleaded in the capacity of the assignees of defendant no.1.

(2.) The plaintiff claims that defendant no.1 represented to the plaintiff that it had entered into an agreement for redevelopment with defendant no.2 Society. Defendant no.1 had agreed to allot an area admeasuring 9805 sq. ft. in the building to be redeveloped for a total consideration of Rs.2,41,22,500.00. The agreement was evidenced by the letter of allotment dtd. 14/7/2009, wherein defendant no.1 had acknowledged the receipt of Rs.50,00,000.00as and by way of earnest money. However, defendant no.1 failed to perform its part of the contract despite repeated request. Hence, the suit for specific performance.

(3.) In the instant application, the applicant avers that the applicant had also lodged a report with Goregaon police for the alleged offences of cheating, criminal breach of trust, forgery and use of forged document as genuine. Eventually the investigation in the said crime i.e. CR No. 698 of 2015 came to be transferred to EOW. Post completion of investigation, the Investigating Agency has lodged a charge-sheet for the offences punishable under Ss. 420, 409, 465, 467 and 471 read with Sec. 34 of the Indian Penal Code, 1860 ("the Penal Code"). The conclusions arrived at by the Investigating Officer demonstrate the falsity of the defence of the defendants that there was no agreement for sale and no portion of the suit property was ever allotted to the applicant.