JUDGMENT - NIJJAR S.S., J.:The plaintiffs and the defendants entered into an agreement on 18th January, 1985, Exhibit-B to the plaint. In the second recital of the aforesaid agreement the defendants allowed the plaintiffs to develop the property described in the schedule thereunder. The plaintiffs were to construct building or buildings thereon on the terms and conditions recorded in the said agreement. In order to facilitate the development of the said land the defendants (hereinafter called "the Society") decided to appoint one Ganeshbhai B. Mali and Dharmasi R. Patel as the Constituted Attorneys of the society to act jointly and severally for and on behalf of the society to do the acts and necessary actions as provided in the agreement. The said Constituted Attorneys are none other than the plaintiffs. They were permitted on behalf of the society to take all necessary permissions for the purpose of development. By Clause 2 it was provided that in order to carry out the scheme envisaged under the agreement and in order to enable the plaintiffs to put up the construction the society puts the plaintiffs into possession of the suit plot. It is also recorded that the society has handed over the possession of the said vacant plot of land to the plaintiffs with a view to enabling them to put up construction. It is however agreed by the parties that the possession thereby granted to the firm does not amount to creating any right, title and interest in the plot of land in favour of the firm. Clause 3 provides that the plaintiff shall get the plans for construction of the building prepared by utilising the F.S.I. of 51,000/- sq.ft. approximately and to submit the same to the Municipal Corporation of Greater Bombay for its approval and sanction. The firm was to bear and pay the expenses involved in getting the said plan prepared, the Architect's fees, scrutiny fees, deposits with the Municipal Corporation as well as any other expenses that may have to be incurred in this behalf. Clause 4 provides that the firm is to get the plans duly sanctioned. The society was to execute a Power of Attorney in favour of the firm. This, as noticed above, was done by the society. Clause 5 stipulates that the plaintiffs shall not be entitled to utilise any F.S.I. more than 51,000/- sq.ft. It was further agreed that out of the said F.S.I. of 51000 sq. ft. the firm shall utilise the F.S.I. of 26480 sq.ft. (built up) for providing 50 flats of 465 sq.ft. (carpet area) to the members of the society at the concessional rate of Rs. 32,000/- per flat, aggregating to Rs. 16,00,000/- for the total of 50 flats. Thereafter the plaintiffs are at liberty to utilise the balance F.S.I. of 24431 sq.ft. (built up) by constructing the building or buildings to be disposed of by the firm as the firm may deem fit and proper and to appropriate the sale proceeds by itself. Even in regard to this power, preference had to be given to persons recommended by the society provided they were able to pay the price of the flats fixed by the firm. Clause 6 provides that if there is any extra F.S.I. being available on the suit land after the construction the same shall belong to the society and the plaintiffs shall not use the same except with the prior written consent of the society. Clause 7 provides that the plans prepared by the plaintiffs of the 50 flats have been approved by the society. Therefore, it shall not be open to the plaintiff to revise or submit fresh plans, alter or amend the specifications or carry out modifications to the plans in respect of the 50 flats except with the written consent of the society. Clause 8 provides that the firm shall arrange the construction of the proposed building under its supervision and in accordance with the sanctioned plans and specifications set out in Annexure-C to the said agreement. These specifications had been prepared and drawn up by Architect M/s. Kulkarni and Majgaonkar Associates which is agreed upon by both the parties. Clause 1

Click Here to Read the rest of this document