JOGANI AND SACHDEV DEVLOPMENTS Vs. LAWRENCE DSOUZA

JUDGEMENT

(1.) By the present petition the order dated 9-8-2005 passed by the City Civil Court on a preliminary issue of jurisdiction in L. C. Suit no. 2974 of 2004 is challenged. Some of the material facts of the present case can be briefly set out as under :-

(2.) The original plaintiffs being respondents herein are the tenants in respect of tenements situated on a plot of land bearing No. 298, Hissa No. 9 and 15 admeasuring 4961 sq. yards equivalent to 4098 sq. mtrs. at Kole Kalyan, Taluka andheri in the City of Bombay. The original landlord was one Sheikh Gafoor sheikh Cassum. By an agreement dated 12-8-1987 entered into by the between sheikh Gafoor Sheikh Cassum and M/s Jogani and Sachdev Development the original landlord was selling the said property to the purchaser for the sum of rs. 1,80,000/ -. Under the said agreement for sale dated 12-8-1987 the original landlord also executed a power of attorney in favour of Avtarsingh Sachdev and ghewarchand Lalchand Jogani inter alia conferring therein a right to develop the said property and/or settle the tenants and obtain sanction and after obtaining sanction of the B. M. C. construct a building on the said plot of land. Pursuant to the said agreement the said purchaser namely, Ghewarchand Lalchand Jogani has issued the rent receipts to the tenants being respondents herein and the respondents have paid the payment of the rent to the said developer for the purpose of said tenements which were in their use, occupation and possession. On 1-3-1992, the petitioner who was the developer and who has entered into an agreement for sale with the original landlord and obtained the power of attorney to collect rent and settle the claim of the tenants for the purpose of redevelopment of the said plot of land entered into 24 agreements with the 24 occupiers of the premises in Goodluck House as agreed that on the respondents-original plaintiffs vacating the said premises and handing over the vacant and peaceful possession of the plot to the petitioner developer, the petitioner will give them in a reconstructed building residential flats of a round 324 sq. ft. built-up area with amenities which are stipulated therein. On 8-3-1992 a separate letter was executed by and between the developer and the tenants that the tenants will have an option to acquire ownership right in the new premises but for the purpose of the same the tenants will have to pay the sum of Rs. 5000/- to the developer for the purpose of acquiring ownership right in the said new premises. In any event if the tenants do not wish to exercise the said right then the tenants will be entitled to get the newly constructed premises on a tenancy basis and not on the ownership basis. On 27-8-1993, the plans of the building were sanctioned. Under the proposal it was provided to construct two buildings on the said plot of land, one building for rehabilitation of the tenants and another building for sale of flats in open market. The plans for both the said buildings were sanctioned on 27-8-1993 and 2-1-1996 respectively. Sometime in or about 2002, the respondents herein filed a writ petition being Writ Petition No. 530 of 2002 against the petitioner and sought a relief that the petitioner should not be permitted to construct the building as per the sanctioned plan. On 17-10-2003 after completion of the construction, the petitioner obtained an occupation certificate from the Bombay Municipal Corporation in respect of the building which was constructed for rehabilitating the tenants and made an offer to the occupier of the premises to vacate their premises and asked them to shift to the newly constructed building as per the development agreement.

(3.) In June, 2004, the respondents herein have filed a suit in the City Civil court being Suit No. 2794 of 2004. The averments made in the plaint inter alia indicate in para 2 that the respondents-plaintiffs admitted that the petitioner is the purchaser of the said property from the original landlord and as the purchaser he has become owner of the said property meaning thereby that petitioner is the landlord of the respondents (original plaintiffs) who have filed the said suit. It has been stated in the plaint that the agreement which has been executed by and between the plaintiffs and the defendant being agreement dated 1-3-1992 is invalid. A declaration is sought that the said agreement is void and unenforceable and not binding on the plaintiffs. Alternatively, the plaintiffs have sought that it should be declared that the said agreement is only valid vis-a-vis one IOD file and not subsisting vis-a-vis another IOD file. Alternative prayer has an effect that the said agreement dated 1-3-1992 must be performed only as against one IOD file which file was in fact for resale component building and not in respect of the tenancy premises. The remaining prayers in the suit are for interim reliefs. The main prayer on the basis of which the said suit is filed is prayer (a) which reads as under :-" (a) "that the agreement dated 1-3-1992 executed between the plaintiffs and the defendant No. 1 be declared as void and unenforceable and not binding upon the plaintiffs, or in the alternative. The agreement dated 1-3-1992 be declared as void and unenforceable vis-a-vis IOD file No. CE/065/ws/ah dated 2-1-1996 and valid subsisting and enforceable visa-vis iod file No. CE/913/bsii/ah dated 2-8-1993. " the averments made in the plaint proceed on the footing that the petitioner is the landlord-cum-developer and that he has obtained the agreement dated 1-3-1992 without complying with various details. It has been contended in para 4 that after entering into the agreement the tenants have come to know that the total area occupied by each of them in the old premises is approximately 362 sq. ft. and not 324 sq. ft. as suggested by the petitioner landlord. It has been further contended that they were not informed that they will be accommodated in the rehabilitation building only and not in the other building. It has been contended that the respondent-plaintiff should be put in possession on payment of Rs. 5,000/- on ownership basis in the first building and not in pending rehabilitation building. The plaintiffs also claim that the agreement dated 1-3-1992 is invalid and the landlord should enter into fresh agreement and thereafter only is he entitled to develop the said property. "