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CASE NO.:

Appeal (civil) 2573 of 2008

PETITIONER:

Bharat Karsondas Thakkar

RESPONDENT:

M/s Kiran Construction Co. & Ors

DATE OF JUDGMENT: 09/04/2008

BENCH:

A.K. MATHUR & ALTAMAS KABIR

JUDGMENT:

J U D G M E N T

CIVIL APPEAL NO. 2573 OF 2008

(@ SPECIAL LEAVE PETITION (C) NO.2328 of 2007)

ALTAMAS KABIR,J.

1. Leave granted.

2. On 27.5.1949 one Sowar Ramji Vaity was given

a grant by the Collector of Thane, which entitled

him to lease of the lands in Serial Nos.83-91 in

village Mulund for a term of 999 years. Sowar Ramji

Vaity died in 1965 leaving behind him four legal

representatives, namely, Jagannath, Babu, Vishnu

and Bhaskar. On 1.10.1973 the Vaitys entered into

an Agreement with one K.L. Danani to sell their

rights and interests in the said land for a total

consideration of Rs.2 lakhs. In between April and

June 1974, Mr. K.L. Danani constituted a

partnership firm with one Mr. K.B. Thakkar and S.S.

Thakkar under the name of M/s Swas Construction

Company. B.K. Thakkar, the appellant herein, who

was then a minor, was also admitted to the benefits

of the partnership firm. As his contribution

towards the partnership firm K.L. Danani brought

the benefits of the said Agreement dated 1.10.1973

to the partnership firm. In 1976, with the

enactment of the Urban Land (Ceiling and

Regulation) Act, 1976, K.L. Danani claiming to be

in possession of the lands in question under the

Agreement dated 1.10.1973 filed a statement as

required under Section 6(1) of the aforesaid Act.

On 12.6.1979 the Government of Maharashtra executed

a lease in favour of the Vaitys for a total term of

60 years.

3. Soon, thereafter, on 18.6.1979 the Vaitys

entered into another Agreement with M/s Modern

Development Corporation granting them development

rights over the same properties. Clause 14 of the

Agreement mentioned the fact that the Vaitys had

entered into an Agreement to sell the said lands to

M/s Thakkar and Associates. M/s Modern Development

Corporation, in their turn entered into an

Agreement with Kiran Construction Company, the

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respondent No.1 herein, to transfer its beneficial

interest in the suit land, except for Sl.No.91, in

favour of the said respondent No.1. Clause 12 of

the said Agreement required Modern Development

Corporation to obtain confirmation from M/s Thakkar

and Associates that there was no subsisting

Agreement for sale in their favour in respect of

the property agreed to be sold.

4. On 18.2.1980 the present appellant Bharat K.

Das Thakkar and K.B. Thakkar filed Suit No.252 of

1980 in the Bombay High Court against K.L. Danani

and S.S. Thakkar seeking a declaration that a

partnership had subsisted between them and that

K.L. Danani and S.S. Thakkar have retired from Swas

Construction Company, and, in the alternative, for

an order of dissolution of partnership, accounts,

costs and other reliefs. On Notice of Motion No.283

of 1980 filed by the appellant and K.B.Thakkar in

Suit No.252 of 1980, K.L. Danani gave an

undertaking not to part with the possession of the

suit land pending disposal of the Notice of Motion.

The said Notice of Motion No.283 of 1980 was

finally disposed of on 9.10.1980 and a Court

Receiver was appointed by the Bombay High Court and

put into possession of the suit lands.

5. On 15.5.1981 the Vaitys terminated the

Agreement dated 18.6.1979 with M/s Modern

Development Corporation Limited. Such termination

was followed by Suit No.1578 of 1981 instituted by

the respondent No.1 on 7.9.1981 against the Vaitys

and the partners of M/s Modern Development

Corporation Limited for specific performance of the

Agreements allegedly executed on 18.6.1979 and

24.8.1979. On 14.9.1981 the Bombay High Court

restrained the Vaitys and the partners of M/s

Modern Development Corporation Limited from

selling, transferring or further