-1-

IN

IN

IN

THE

THE

THE

HIGH

COURT

OF

JUDICATURE

AT

BOMBAY

HIGH

COURT

OF

JUDICATURE

AT

BOMBAY

HIGH

COURT

OF

JUDICATURE

AT

BOMBAY

ORDINARY

ORDINARY

ORDINARY

ORIGINAL

ORIGINAL

ORIGINAL

CIVIL

JURISDICTION

CIVIL

JURISDICTION

CIVIL

JURISDICTION

NOTICE

NOTICE

NOTICE

OF

OF

OF

MOTION

NO.1934

OF

2005

MOTION

NO.1934

OF

2005

MOTION

NO.1934

OF

2005

IN

IN

IN

COUNTER

COUNTER

COUNTER

CLAIM

CLAIM

CLAIM

STAMP

NO.2508

OF

2004

STAMP

NO.2508

OF

2004

STAMP

NO.2508

OF

2004

IN

IN

IN

SUIT

SUIT

SUIT

NO.1330

OF

2000

NO.1330

OF

2000

NO.1330

OF

2000

Kanayalal M. Thakkar

...Plaintiff

v/s

M/s Shree Padmanabh Builders

...Defendants

Mr T.N. Subramanian with Mr Snehal Shah and Mr Sanjay

Korde i/b M/s Purnanand and Co. for Plaintiff.

Mr Abhay Patki i/b Mr Anil Gala for Defendants.

CORAM : D.K. DESHMUKH J.

DATE : 24TH NOVEMBER 2006.

-2-

P.C. :-

1.

This is a notice of motion taken out by the

original

plaintiffs

who

are

defendants

in

the

counter

claim

for

dismissal

of

the

counter

claim

filed

by

the

original

defendants

on

the

ground

that

the

decree

claimed

in

the

counter

claim

is

barred

by

the

law

of

limitation.

Perusal

of

the

counter

claim

shows

that

by

prayer

clause

(a),

the

defendants

who

are

plaintiffs

in

the

counter

claim

are

claiming

a

decree

of

declaration

that

the

plaintiffs

are

entitled

to

all

rights,

title

and

interest

and

benefit

of

suit

property

and

development

agreement

dated

1st

October

1989

and

the

conveyance

of

nine

shops

dated

11th

November

1991

and

receipts

of

Rs.1/-

lac

for

balance

/

residual

right

of

defendants

and

various

power

of

attorneys

dated

1st

October

1989,

8th

June

1990

and

20th

September

1992

read

with

letter

dated

20th

June

1994

at

Exh.’B’

are

valid,

subsisting

and

binding

on

the

defendants

and

defendants

have

no

right,

title

or

interest

left

in

suit

property

i.e.

Survey

No.77,

Hissa

No.10,

C.T.S.

No.4648

to

4667

admeasuring

4399.25

sq.yds.

together

with

structures

standing

thereon

situated

at

Village

Korole,

District

of

Bombay

Suburban

District,

Kurla,

M.G.

Road,

Ghatkopar

(East),

Mumbai

400

077

known

as

Kanjui

Khatau

Wadi

now

-3-

known

as

Parekh

Market.

By

prayer

clause

(b),

the

plaintiffs

seek

a

decree

of

specific

performance

of

the

agreement

which

is

referred

to

in

prayer

clause

(a)

i.e.

agreement

dated

1st

October

1989.

The

relief

claimed

by

prayer clause (c) makes a very interesting reading.

Prayer clause (c) reads as under :-

"(c)

that

this

Hon’ble

Court

be

pleased

to

declare

that

the

defendants

have

no

right,

title

or

interest

in

the

suit

property

in

view

of

the

aforesaid

agreement

and

full

and

final

payment made by the plaintiffs to the

defendants."

.

Thus, by prayer clause (c), the plaintiffs

claim

a

decree

of

declaration

that

the

defendants

have

no

right,

title

or

interest

in

the

property

because

they

have

entered

into

the

agreement

and

because

they

have

accepted

payment

from

the

plaintiffs.

One

wonders

if

the

defendants

do

not

have

any

right,

title

or

interest

in

the

property,

how

can

a

decree

of

specific

performance

be

passed

against

them

in

relation

to

the

property

which

they

do

not

own.

According

to

the

defendants

-

original

plaintiffs,

in

the

suit,

principal

relief

claimed

is

a

decree

of

specific

performance

of

the

agree