1/12 901 AO-275.22.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

APPEAL FROM ORDER NO.275 OF 2022

ALONG WITH

INTERIM APPLICATION NO.1975 OF 2022

M/s. Swastik Real Estate Developers

Through Partners

]

]

… Appellant

Vs.

Mahindra Happinest Developers

Limited.

]

]

… Respondent

…

Mr. K.S. Dewal i/b Mr. Yash K. Dewal for the appellant.

Dr. Milind Sathe, senior advocate with Mr. Bhushan Deshmukh,

Ms. Neha Mehta, Ms. Renuka Lele and Mr. Umair Merchant i/b

M/s. M.T. Miskita & Co. for the respondent.

…

CORAM

: SMT. BHARATI DANGRE, J.

DATED

: 28^TH APRIL, 2022.

ORAL ORDER :-

1.

Heard Mr. Dewal, the learned counsel for the appellant and

Dr. Sathe, the learned senior counsel for the respondent.

AJN

JAYARAJAN

ANJAKULATH

NAIR

Digitally signed by

JAYARAJAN

ANJAKULATH NAIR

Date: 2022.05.04

16:11:54 +0530

2/12 901 AO-275.22.odt

2.

The appeal is filed, being aggrieved by an order passed

below Exh.-5 in Special Civil Suit No.2 of 2021 instituted by the

plaintiff seeking specific performance of two Agreements i.e.

Agreement for Sale dated 09/07/2018 registered with the Sub-

Registrar of Assurances, Bhiwandi and the Supplementary

Agreement dated 17/10/2019 by pleading that they are legal, valid,

enforceable and binding upon defendant No.1.

3.

The suit for specific performance seeking also a declaration

and injunction came to be filed revolving around the suit property,

which was agreed to be sold and which could be discerned from

the Agreement dated 09/07/2018, titled as ‘Agreement for Sale’

entered into between the plaintiff, a partnership firm, constituted

under the Indian Partnership Act, referred to therein, as ‘the

Vendor No.1’ on the First Part and the defendant - Mahindra

Happinest Developers Limited, referred to therein, as “the

Purchaser”.

The said Agreement for Sale sets out the property distinctly

in three compartments, by referring to Property Nos.1, 2 and 3 and

collectively referring it as ‘the Property’ admeasuring in

aggregate 37,750 square meters and more particularly delineated

in red colour boundary line on the plan annexed to the said

Agreement. All the three properties being adjacent and contiguous

land parcels, the Agreement specifically sets out the manner in

which it shall be conveyed in favour of the Purchaser, for lawful

consideration. The exclusion in respect of certain parcel of land,

AJN

3/12 901 AO-275.22.odt

was however affected by road widening of the State highway,

which was considered to be not part of the Property as per recital

‘E’ of the said Agreement.

4.

The subject Agreement also stipulated a plan submitted by

the Vendor to develop the Property and refer to a sanction received

thereon, from the competent authority vide Approval dated

05/07/2017 wherein, total FSI of 1.95 was permitted to be utilized

on the property comprising of base FSI of 0.95. The property was

located in the residential zone under the development plan of

MMRDA and Bhiwandi Surrounding Notified Area. A specific

recital in the Agreement records as under:

“2.

The Vendor hereby agree to sell, transfer,

convey and assign in favour of the Purchaser and

the Purchaser hereby agrees to purchase and

acquire from the Vendors Property No.1, Property

No.2 and Property No.3 (upon acquiring the same

from the present owners pursuant to the Agreement

for Sale dated May 22, 2018) along with all

approvals obtained by the Vendors for the

residential / commercial development of the

Property till the date of entering into Deed of

Conveyance and all other definitive documents

(defined hereinafter) on the terms and conditions

more particularly set out herein. The Vendors

understand that the Property No.3 is a crucial and

integral part of the present transaction. In the

event the Vendors fail to acquire and convey the

ownership rights in Property No.3 within the

timelines contemplated herein, then t