The main legal point established in the judgment is the conditions for granting specific performance of a development agreement, including the need for a substantial interest in the performance of the contract and the nature of the suit claim.

ORDER :

1. This Appeal is directed against an order dated 4th February, 2023, passed by the learned Judge, City Civil Court in Notice of Motion No.1936 of 2022 in Suit No. 6889 of 2003, whereby the Notice of Motion came to be partly allowed restraining the defendants-appellants from creating third party rights, title or interest or permitting any third party under any Development Agreement, Assignment Agreement and Sale Agreement under any rights doing any construction activity on the suit plot and also from interfering with the plaintiffs rights in the suit emanating from the agreement dated 7th July, 1993, supplemental agreement dated 3rd December, 1996 and the consent terms dated 20th October, 2000 filed in Suit No.4262 of 2000.

2. For the sake of the convenience and clarity, the parties are hereinafter referred to in the capacity in which they are arrayed before the City Civil Court.

3. Though the litigation has chequered history peppered with sporadic settlements, the background facts can be stated in brief as under:-

(a) A building consisting of 40 tenements was situated at a plot of land bearing CTS No. 229 and 267, admeasuring 1392.12 sq. meters, Nehru Nagar Housing board colony, Kurla (E), Bombay. It was allotted to the defendant’s Society by MHADA. On 7th July, 1993, the defendant society entered into a development agreement with the plaintiff for redevelopment of the suit property. A supplemental agreement dated 3rd December, 1996 came to be executed between the plaintiff and defendant. It was the claim of the plaintiff that the defendant society and its members committed breach in performance of the obligations under the development and supplemental agreement. Proceedings commenced.

(b) In Suit No. 4262 of 2000, instituted in this Court, the plaintiff asserted that the defendant society failed to pay the construction costs as agreed under the development agreement and supplemental agreement and instead threatened to forcibly take possession of the flats which were entrusted to the plaintiff. In the said suit, pursuant to the settlement arrived at between the plaintiff and defendant, a consent order was passed on 20th October, 2000. In the consent order, the defendant society confirmed to have executed the development agreement dated 7th July, 1993 and supplemental agreement dated 3rd December, 1996 and agreed to allow the plaintiff to carry out the construction work and also accept the prospective purchasers of the flats sold by the plaintiffs as the members of the defendant society.

(c) The plaintiff asserts despite the consent order dated 20th October, 2000, in Suit No. 4262 of 2000 and having agreed to pay a sum of Rs.2,00,000/-, per member towards construction cost the defendant committed default in payment of the construction cost. Defendant also threatened to dispossess the plaintiff and obtain the possession of the flats forcibly. The plaintiff was thus constrained to institute Suit No.5732 of 2001 before the City Civil Court.

(d) Again a settlement was arrived at between the plaintiff and defendant. Consent terms were executed on 3rd December, 2001. Defendant agreed not to disturb the possession of the plaintiff over the flats, which were delivered on account of the failure on the part of the defendant to make the payment, and to surrender the rights of those members in favour of the plaintiff.

(e) Defendant again failed and neglected to perform the contractual obligations and the undertakings given in the consent terms. Plaintiff was forced to institute suit No. 2498 of 2002. In the said suit Minutes of Order were passed on 16th May, 2002. The defendant conceded to an order that the defendant No. 1 and its members be restrained form interfering with the construction activity to be carried out by the plaintiff at the suit property by purchasing F.S.I. from MHADA.

(g) Eventually, the plaintiff was constrained to institute the instant suit with the allegations that the defendant and its members were in arrears to the