Yusuf Khan @ Dilip Kumar Through Power of Attorney vs Prajita Developers Pvt. Ltd.

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2017 Supreme(SC) 785

SUPREME COURT OF INDIA
J. Chelameswar, S. Abdul Nazeer, JJ.
Yusuf Khan @ Dilip Kumar Through Power of Attorney – Appellant
Versus
Prajita Developers Pvt. Ltd. & Another – Respondents
Civil Appeal No. 11093 Of 2017 (Arising out of Special Leave Petition (Civil) No. 18912 of 2017) With M.A. No.629 of 2017 In SLP (Civil) No.7483-7484 of 2016
Decided On : 30-08-2017

Advocates Appeared:
For the Appellant :- Shashibhushan P. Adgaonkar, Adv.
For the Respondents:- Vandana Sehgal, Hardeep Singh Anand, Advs.

Headnote:Property law – Appellant entering into agreement with Developers for development of his property – Developers a JV of two companies – Appellant receiving 8.5 crores from Developers – One company assigning its share of the project to respondent herein – Agreement more than a decade old – No work done till date – Appellant seeking resumption of possession – Ready to pay 20 crores to respondent – Respondent claiming specific performance – Held, respondent should hand over possession to appellant on payment of 20 crores – Directions given – Plea of specific performance at such distant time rejected. (Para 20, 21)
       Facts of the case:
       The appellant granted to the DEVELOPERS under the AGREMEENT of 23rd June 2006 the "right to develop" the property in question;
       Under the AGREEMENT, the appellant is entitled to 50% of the "Development potential" and the DEVELOPERS jointly are entitled to the balance 50% of the "development potential".
       Between the two companies which jointly constituted the DEVELOPERS, each company is entitled to 50% of that portion of the "development potential" which falls to the share of the DEVELOPERS;
       In other words, the share of SHARYANS is only 25% of the "development potential";
       It was agreed between the parties that the construction must be completed within 24 months from the date of the issue of the commencement certificate of development, subject to some exceptions;
       M/s PRAJITA, the respondent, is not the original party to the AGREEMENT but stepped into the shoes of M/s SHARYANS on 20.04.2010 under a deed of assignment.
       As on date, no construction worth mentioning at all is made, not to mention about completing the construction;
       After several rounds of litigation respondent filed arbitration petition u/s 11 of Act 1996 which was disposed of as withdrawn with liberty to file suit. However, it was clarified that if the respondent files a Suit, the same shall be decided on its own merits and all contentions of the appellants herein including their contention that the Suit would not be maintainable, are kept open
       Finding of the Court:
       At such distant time, respondent should hand over possession to appellant on payment of 20 crores.
       Result: Civil Appeal and Miscellaneous Application disposed of.

JUDGMENT

Chelameswar, J.

Leave granted in Special Leave Petition (Civil) No.18912 of 2017.

2. The appellant aged about 95 years is also the applicant in Interlocutory Application No.75003 of 2017 in Miscellaneous Application No.629 of 2017 [Prayer: It is, therefore, most respectfully prayed that this Hon'ble Court may be pleased to:a. That pending the special leave petition, the Respondent No.1 by themselves, their servants, agents and/or otherwise howsoever, be ordered and directed to forthwith remove the security guards posted by them on the said property and to permit the petitioner to freely enter upon the said property as and when desired by the Petitioner and Respondent No.2;
b. That pending the special leave petition, the Respondent No.1 by themselves, their servants, agents and/or otherwise howsoever, be permanently restrained form entering upon or remaining on or using or occupying the said property.
c. That pending the special leave petition, the Court Receiver, High Court, Bombay or some other fit or proper person be appointed receiver in respect of the said property, with all power under Order XL Rule 1 of the Code of Civil Procedure, 1908, including the power to remove the security guards, agents, servants of the Respondent No.1 from the said property, with the help of police, if necessary; and
d. Pass such further and other orders and/or directions as may be deemed fit and property by this Hon'ble Court in the facts and circumstances of the case and in the interest of justice

.] filed in SLP(C) Nos.7483-7484/2016 filed by the 1st respondent herein, which stood dismissed by an order of this court dated 16.03.2016. For the sake of convenience, he is referred to hereafter as the appellant.

3. The appellant owns landed property admeasuring 2412 sq. yards in Plot No.16 of Pali Hill in the village of Dand, Bandra in the city of Bombay, now called Mumbai.

4. The appellant entered into an agreement dated 23.6.2006 (hereafter referred to as AGREEMENT) with two companies namely M/s Sharyans Resources Private Limited (hereinafter referred to as "SHARYANS") and the 2nd respondent herein, Goldbeam Construction Private Limited, both companies incorporated under the Companies Act, 1956 (hereafter collectively referred to as DEVELOPERS).

5. The substance of the AGREEMENT is that the appellant agreed to "grant to the DEVELOPERS the right to develop the said property" and the DEVELOPERS agreed to develop the property on various terms and conditions specified under the AGREEMENT. It appears from the record that there is some single venture partnership agreement between the two companies (DEVELOPERS). From the huge mass of documents filed in these appeals, it appears that there are two documents witnessing such partnership agreement. They are dated 16.6.2006 and 10.12.2008. The language and content of both the documents is substantially similar and an interesting fact which is required to be taken note of is that the 16th June 2006 document refers to the AGREEMENT dated 23.6.2006. The complete details of the terms and conditions of the AGREEMENT are not necessary for the purpose of this appeal.

For the present, it must be noted that under the AGREEMENT, the DEVELOPERS agreed to an amount of Rs. 10 crores in three installments as detailed in the AGREEMENT. It is agreed under clause 4 of the AGREEMENT that "the owner shall permit the DEVELOPERS to enter upon the said property and to commence the development thereof...." It is agreed under clause 6 that all the necessary permissions/NOCs/orders which are required to be obtained shall be obtained by the DEVELOPERS. The appellant is obliged to cooperate by executing appropriate documents for the said purpose. Under Clause 17 [Clause 17. Upon payment of the balance of monetary consideration by the Developers to the Owners as provided in Clause 3(b) the Owner shall permit and the Developers shall have the license to enter upon the said Property to develop the said Property to carry on construction on

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