The judgment emphasizes the importance of fulfilling obligations as per consent terms in a Development Agreement and upholds the enforceability of possession warrants in cases of breach.

Abhay Shreeniwas Oka, J.

1. By this Appeal, the Appellant has taken an exception to the Judgment and Order dated 14th June, 2012 passed by the learned Single Judge in a Chamber Summons in the pending Execution Application. Briefly stated the facts of the case are as under:

(a) A Development Agreement was executed by and between the Appellant and the fourth Respondent which is a Co-operative Housing Society duly registered under the Maharashtra Co-operative Societies Act, 1960 (for short "the Co-operative Societies Act"). The first to third Respondents filed a dispute under Section 91 of the Co-operative Societies Act before the Co-operative Court at Mumbai. The Dispute was filed against the present Appellant and the fourth Respondent Society. Even the fifth Respondent who was at the relevant time the Chairman of the fourth Respondent Society was a party to the Dispute. There was a prayer made in the Dispute directing the Appellant to hand over the possession of the property of the fourth Respondent which was the subject matter of the Development Agreement;

(b) On 20th February, 2008, the consent terms were filed in the said Dispute to which the parties to this Appeal are signatories;

(c) On 17th June, 2008, a commencement certificate was obtained by the Appellant from the Mumbai Municipal Corporation. This fact was communicated by the Appellant by its letter dated 26th June, 2008 to the fourth Respondent stating therein that the bank guarantee in the sum of Rs. 1.5 crores will be furnished by 15th July, 2008;

(d) Under the consent terms, the Appellant agreed to construct a building consisting of stilt plus podium and 9 upper residential floors as per the amended plan submitted to the Mumbai Municipal Corporation, a copy of which was annexed to the consent terms. It was provided that for making any variation or change in the said plans, the Appellant shall take permission of the fourth Respondent Society;

(e) Under the consent terms, the Appellant agreed to provide a new flat on ownership basis free of cost on the first floor immediately above the podium car parking of the proposed building in lieu of the existing Flat No. 1A to the first and second Respondents. The area of a new flat was agreed to 750 sq. ft. (carpet area). The Appellant also agreed to provide a new flat on ownership basis free of cost on the same floor to the third Respondent. The said flat in the proposed building was agreed to have an area of 750 sq. ft (carpet area). Clause 7 of the consent terms provides that the Appellant shall get the proposed amended plan approved and commencement certificate for construction of the building within a period of 45 days from filing of the consent terms;

(f) An undertaking was given by the Appellant to provide a bank guarantee of Rs. 1.5 crores to the fourth Respondent Society within a period of 30 days from the date on which the commencement certificate is issued by the Mumbai Municipal Corporation. It was provided in the consent terms that the bank guarantee shall be valid till the Appellant obtains an occupation certificate in respect of the proposed building and the first to third Respondents are placed in vacant and peaceful possession of the flats respectively agreed to be allotted to them free of cost;

(g) An undertaking was given by the Appellant not to commence construction unless and until the bank guarantee as aforesaid was furnished. The consent terms also record that first to third Respondents have handed over the possession of the flat Nos. 1A and IB to the Appellant to facilitate development of the property;

(h) Certain amounts were to be paid by the Appellant to the first to the third Respondents as provided in Clause 15 of the consent terms. The Appellant was to pay corpus fund of Rs. 18 lakhs to the first and second Respondents together for the Flat No. 1A and Rs. 18 lakhs to the third Respondent for the Flat No. IB;

(i) Various other undertakings of the Appellant were incorporated in the consent terms d