44. WP 6645-2022.doc

Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION 6645 OF 2022

Rajendra Sitaram Goel & anr.

.Petitioners

Vs.

Jai Enterprises & Associates & ors.

.Respondents

Mr. Jaydeep S. Deo, Advocate, for the Petitioners

Mr. Rahul S. Kadam, Advocate, for the Respondents

CORAM

:

ROHIT B. DEO, J.

DATE

:

12.07.2022

P. C.

.

At the oral request of the Petitioners, leave to

amend the prayer clauses of the Petition. Amendment be

carried out forthwith.

2.

The Petitioner is the Plaintiff in Spl. Civil Suit 200

of 2011 which is brought for specifc performance of MOU

dated 11.07.2006.

3.

The suit property is described as land

admeasuring 4.67 HR situtated at Wakad, Pune.

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44. WP 6645-2022.doc

4.

For the purpose of deciding the issue involved, it

would not be necessary to consider in detail the suit

averments or the defence.

5.

The Plaintiffs preferred an Application seeking

amendment of plaint ( Exh. 119) under the provisions of O.

VII, Rule 17 of the Code of Civil Procedure, 1908 and

Sections 21 and 22 of the Specifc Relief Act, 1963, which is

only partly allowed by the order impugned, and to that

extent the Plaintiff is dis-satisfed.

6.

Proposed paragraph 20A seeks to bring on record

the readiness and willingness to perform the Plaintiffs’ part

of the contract. The learned trial Court has rejected this part

of the proposed amendment, and the learned counsel for the

Plaintiff fairly submits that the Plaintiff is not pressing that

part of the proposed amendment, atleast at the present

stage.

7.

Paragraphs 20B and 20C of the Application read

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44. WP 6645-2022.doc

thus :-

"20B)

The suit property is ideally

located and there is no land of this

magnitude available in the near vicinity

and the same is therefore invaluable.

20C)

The current market rate of

the vacant lands in the near vicinity with

NA potential is around Rs. 14,660/- per

sq. mtrs., and considering the fact that

Pune has been declared as Smart City

and necessary development projects

such as Metro rail, roads, bridges etc, are

already

commenced

and

being

implemented, the market price of the

subject suit property is going to increase

many fold in the near future and hence

the fgure of compensation in lieu of

specifc

performance

cannot

be

estimated now and hence if at all for any

reason whatsoever, this Hon’ble Court

comes to the conclusion that the Plaintiff

is not entitled for the primary relief of

specifc performance, then in that event

the Plaintiff is entitled for the refund of

the earnest money paid together with

interest @ 18% p. a., it being used by

Defendant No. 1 for commercial business

purpose

and

for

payment

of

consideration to the erstwhile owner

Chinchwad Devasthan Trust and the

Plaintiff is also entitled for the

alternative relief or damages in lieu of

specifc performance, which is to be

calculated and ascertained at the market

value of similar such lands in the near

vicinity, as may be prevailing as on the

date of the decree, for which necessary

relief to that effect is also sought.”

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44. WP 6645-2022.doc

8.

The learned trial Court has rejected the proposed

amendments at paragraphs 20B & 20C supra assuming that

the proposed amendment is connected with and seeks to

establish readiness and willingness of the Plaintiff. However,

the learned trial Court has permitted the Plaintiff to amend

the prayer clause and to incorporate prayers c1 and c2,

whereby the Plaintiffs’ claim damages, compensation and in

the alternate, refund of earnest amount.

9.

The learned trial Court has observed thus :-

"6.

I have gone through the entire

pleadings and it is found that the

alternate relief of compensation and

refund of the consideration is not

mentioned by the plaintiff in the

plaint. As per the new amendment in

Specifc