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IN

IN

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

THE HIGH COURT OF JUDICATURE AT BOMBAY

THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY

ORDINARY

ORDINARY ORIGINAL CIVIL JURISDICTION

ORIGINAL CIVIL JURISDICTION

ORIGINAL CIVIL JURISDICTION

SUIT

SUIT

SUIT NO.1485 OF 1998

NO.1485 OF 1998

NO.1485 OF 1998

1.Shantilal Chakurbhai Rathod

2.Shantinath Builders Pvt.Ltd.

...Plaintiffs

vs.

Satish Shankar Gupte

...Defendant

Mr.Rajesh Shah for the Plaintiffs

CORAM

CORAM

CORAM: A.S.OKA,J.

A.S.OKA,J.

A.S.OKA,J.

DATE

DATE

DATE : SEPTEMBER 26,2007

: SEPTEMBER 26,2007

: SEPTEMBER 26,2007

JUDGMENT:

JUDGMENT:

JUDGMENT:

1. The suit is listed under the caption ‘Undefended suits for

exparte decree’. The plaintiffs have filed an Affidavit of

the first plaintiff Shri Shantilal Rathod for proving the

claim in the suit. The plaintiffs have also filed an

Affidavit of Shri Harshad Maniyar. The plaintiffs have also

filed various documents in support of their case.

2. The suit is filed for specific performance of oral

agreement for sale of the suit property the terms of which

have been set out in paragraph 4 of the plaint. In the

alternative there are two prayers. The first is for a decree

of damages in the sum of Rs.4,80,00,000/- and the second is

for refund of consideration of Rs.20,00,000/- together with

interest.

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3. The suit property is plot Nos.702 and 704 of Town Planning

Scheme No.IV of Mahim Division together with structures

standing thereon. According to the case of the plaintiffs, at

the relevant time there were three buildings existing on the

suit property. The existing structures viz. building Nos.1

and 2 were to be demolished. According to the case of the

plaintiffs, two new buildings were proposed to be constructed.

Building No.2 was to be constructed for housing the existing

tenants. The tenants in the existing building no.2 were to be

shifted to the existing building No.3. Subsequently, the

existing building no.2 was to be demolished for making the

provision of recreation garden.

4. The first plaintiff is a builder and developer. There was

a meeting between the first plaintiff and the defendant who is

the owner of the suit property. According to the case of the

plaintiffs, the defendant agreed to sell the suit property at

the price calculated at the rate of Rs.1600/- per sq.ft for

the purpose of construction. According to the agreed terms,

it was the responsibility of the defendant to shift the

existing tenants to the existing building No.3. The parties

were to submit form No.37-I for the purpose of obtaining no

objection certificate. The first plaintiff was to act as a

promoter of the second plaintiff. The transaction was entered

into for the benefit of the second plaintiff. The plaintiffs

agreed to pay a sum of Rs.2,00,000/- initially to the

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defendant as an earnest money and the balance amount of

Rs.18,00,000/- was to be paid by instalments as set out in the

paragraph 4 of the plaint. The building for the existing

tenants was to be constructed at the cost of the defendant.

It was alleged that till the time no objection certificate of

the appropriate authority was received, the agreement was to

be treated a