A covenant in a Deed of Conveyance runs with the land and binds successor parties, holding statutory presumption of validity unless specifically challenged.

JUDGMENT :

MILIND N. JADHAV, J.

1. Heard Mr. Tamboly, learned Advocate for Applicant / Plaintiff and Mr. Wassoodew, learned Advocate for Defendant/Respondent.

2. Interim Application is filed by Applicant / Plaintiff. Suit is filed seeking declaration for extra FSI / additional area in respect of Plaintiff's entitlement under the registered Deed of Conveyance dated 27.09.1994 executed between Mr. Alexander Benedict Joseph Pereira (ABJ Pereira) and predecessor-in-title of Plaintiff and Defendant Society. Pleadings are completed in the Interim Application. By consent, Interim Application is heard for interim reliefs.

3. Briefly stated Mr. ABJ Pereira was the owner of a plot of land bearing CTS No. C/257 (part) and C/258 (part) of Bandra being Municipal Ward No.II-E-1405-2 admeasuring approximately 1160 sq. yards situated at St. Joseph's Road, Bandra (W), Mumbai (hereinafter referred to as the "subject land"). Plaintiff is the son and legal heir of Mr. Pereira. Mr. ABJ Pereira established a Partnership Firm under the name of 'Erlyn Enterprises' along with three other partners under a Deed of Partnership dated 25.09.1978 to redevelop the subject land. The firm constructed one multi-storied building on the subject land and sold various tenements comprised therein to third party purchasers / members of Defendant Society and entered into agreements in this regard with them. There are two Agreements which are required to be looked into for determination of interim relief which are both appended to the Suit plaint. First is the Development Agreement i.e. Registered Deed of Conveyance dated 27.09.1974 and second is the individual MOFA Agreement for Sale executed between Developer and individual flat purchasers. Both learned Advocates Mr. Tamboly and Mr. Wassoodew have referred to and relied upon the contents and covenants in the aforesaid agreements. On 08.09.1982 occupation certificate was obtained and the Partnership Firm handed over possession of respective flats to the flat purchasers. Flat purchasers thereafter registered the Defendant Society some time in 1984 as per its registration certificate.

4. Mr. Tamboly appearing on behalf of Plaintiff would submit that by Deed of Dissolution dated 19.02.1991 the Partnership Firm was dissolved and Mr. Pereira took over the business of the Firm as his Proprietary concern. He would submit that upon dissolution of the Firm, Mr. Pereira received flat Nos.101, 102 and 111 in the building towards his share of the partnership profits and became the sole owner thereof. He would submit that these flats were registered in the name of Erlyn Enterprises with Mr. ABJ Pereira being the sole proprietor thereof.

4.1. He would submit that on 27.09.1994 Deed of Conveyance was executed by Mr. ABJ Pereira as Vendor and by his Proprietorship concern “Erlyn Enterprises” as confirming party in favour of Defendant Society as Purchaser, inter alia, conveying the subject land to the Society on the terms and conditions set out therein. He would straight away draw my attention to the Deed of Conveyance (appended as Exhibit ‘B’ at page Nos.110-130 of Suit plaint) and covenants (i) to (iv) appearing immediately before Schedule “A” in the said Conveyance, interpretation and enforcement of which is the contentious issue between the parties. After reading the aforesaid 4 covenants, he would submit that as per clause (i) it is agreed between parties that if any extra or additional FSI is made available concerning the said property then in that case the Vendor shall be entitled to such extra or additional FSI to the extent of 900 sq.ft. Therefrom and it shall