TMI Blog2007 (2) TMI 664X X X X Extracts X X X X X X X X Extracts X X X X ..... ch is a better view and as long as the findings based on which the view is taken are not perverse. Whether on account of the term in the clause which permits acquisition of slum TDR the Appellants in so far as the additional F.S.I.is concerned, are not entitled for an injunction to that extent - In our opinion, the Appellant in the first instance have a right to use F.S.I. of the property and the S.F.I. by whatever name of the reservations of D.P. Road and/or P.G. of the entire property to the extent of 2,00,000 sq.ft. in terms of the agreements. To that extent the learned single Judge clearly erred in law in clarifying the order. Specific performance can be granted of the land or interest in the land, belonging to a person who has agreed to sell the land with interest therein. If the person is not the owner or has no interest in the land agreed to be sold or transferred there is no question of granting specific performance. Slum TDR is not interest on the owners property. It is F.S.I. of some other land which is transferable in terms of D.C. Regulations. TDR may be owned by the holder but not the land from which TDR was generated. It can only be used on the owners property ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legal heirs of one late Shaikh Farid Shaikh Kalander, who had filed a suit in respect of the suit property and other properties against Behramjee Jeejeebhoy Pvt. Ltd. being Suit No. 2105 of 1989, claiming adverse possession against Behramjee Jeejeebhoy Pvt. Ltd. Consent terms came to be filed on 22nd June, 1992 under which a declaration was granted declaring late Shri Shaikh Farid Shaikh Kalandar to be the owner of the property. The consent decree came to be registered on 24th August, 2000. It is the case of the Appellants that on 20th April, 2004 there was a Memorandum of Joint development entered into between 10th respondent and the appellants for joint development of the property which was identified as a specific part of Plot C-2 in terms of the lay out scheme/Sub Division sanctioned under reference No. C/Office-7A/Sub Division/SR/3496 dated 15th October, 2002. A certificate had been issued by the Advocates and Solicitors for respondent No. 10 that the title in the said property was in late Shaikh Farid Shaikh Kalandar and respondent No. 10. Respondent NO.10 in respect of the cause of action against respondent Nos. 1 to 9 filed a suit being Suit No. 2180 of 2004, for various re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 35 crore. A sum of ₹ 5.00 lakhs was to be paid on completion of transaction and on execution of vesting documents including Conveyance in favour of the Society/Societies, Organisations as may be formed and registered by the Developers of premises in the building/s to be constructed by the Developers under the Agreement. The possession was given to the appellant by letter dated 24th March, 2005 and recorded. A supplemental agreement was entered into on 25th March, 2005 whereby the price was increased to ₹ 3.35 crores. Pursuant to a public notice on 14th May, 2005 a claim was filed by the 11th respondent. The Respondent No. 11 is a company incorporated under the Indian Companies Act and whose Directors are the members of the family of respondent No. 10. Pursuant to this, correspondence was exchanged on one hand between the Appellants and Respondent No. 1 to 10. As Respondent Nos. 11, 12 and 13 were developing on an area which was to be provided as access to Plot No. C-1, a notice was also given to them. A suit came to be filed in which Notice of Motion was taken out, being Notice of Motion No. 1915 of 2005 for ad-interim relief. The impugned order came to be passed on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plan of the property and as such the relief as prayed for could not be granted. Respondent Nos. 1 to 9 adopted the stand of respondent No. 10. 4. The learned Single Judge held, relying on the Agreement that the area agreed to be sold was part of Plot C-2. based on the sanctioned lay out. The learned single Judge also held that at the prima facie stage it was not possible to hold whether the Agreement is a Development Agreement. The learned single Judge held that the Agreement would have to be read as a whole and material will have to be considered which could only be done at the trial of the suit. The contention urged that in view of Section 14 of the Specific Relief Act, the Agreement could not be enforced was rejected by the learned Judge by holding that the issue can only be decided at the final hearing of the suit. The various other contentions urged in support of the contention that the Agreement was a development agreement were rejected on the ground that the document would have to be construed by considering the other material on record and the evidence. After so holding and on considering the documentary evidence, the learned single Judge held that he was satisfied that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the judgment, could the learned Judge clarify the order by adding a rider at the end of para.46 of the judgment which reads as under: The injunction granted in the foregoing paragraphs be read in this light and the clause in the Agreement reproduced above which rider has the effect of nullifying the protection to the appellants and thereby permitting the respondents to deal with the TDR to the extent which could be made available by the respondents to the appellants by acquiring or purchasing slum TDR from the open market free from all encumbrances, claims and dues. (b) Whether inspite of the specific provision in the agreement granting to the appellants right of way through the Plot No. 2A to Plot A-2 of the respondents property the relief in respect thereof should have been refused. 8. On the other hand on behalf of the respondent No. 10 it is contended that the Agreement was an agreement for security and in the alternative is a development agreement and consequently the appellants are not entitled to specific performance of the agreement. On behalf of respondent No. 11 it is submitted that the rights of the respondent No. 11 were antecedent/prior to the righ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a prima facie case warranting grant of interim injunction subject to the other requirements of balance of convenience and irreparable loss and injury. The learned Single Judge on a consideration of the various documents including the agreement has come to the prima facie finding that the agreement is an agreement to sell, which can be specifically enforced. The respondents, therefore, will have to make out a case that the finding by the learned single Judge is perverse. The view taken by the learned trial Court, ordinarily will have to be upheld,if it was a view capable of being taken, irrespective of the Appellate Court arriving at a conclusion that another view is probable which is a better view and as long as the findings based on which the view is taken are not perverse. Before we answer the issue, let us consider the judgments cited at the bar for the proposition as to which contract can be specifically enforced. Let us first deal with the judgment relied upon by the appellants. In the case of Vallammal Rangarao Ramachar v. Muthukumaraswamy Gounder and Anr. , the Supreme Court noted, that there were interpolations of material nature in the document and no explanation was of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he terms of the contract. The dispute is whether it is an agreement to sell or a security agreement or alternatively development agreement. In an unreported judgment in Mrs. Pallavi R. Karani v. Dadhawala Builders Pvt. Ltd. and Ors. in Appeal No. 784 of 1991 in Notice of Motion No. 2743 of 1990 in Suit No. 3067 of 1990 a learned Division Bench after considering the earlier judgments of this Court, noted that the order of 7th March, 1988 in Appeal No. 285 of 1988 in Notice of Motion No. 76 of 1987 cannot be read as laying down the law that specific performance for development can never be granted or interim relief in such a suit should always be refused. In Notice of Motion No. 763 of 1989 in Suit No. 844 of 1989 Ghori Khatri Builders (Regd) v. Iqbal Hussein Usman Fakir Mohamed Mansoori and Ors. decided on February 8, 1991 a learned single Judge of this Court relying on the judgment in Appeal No. 285 of 1988 in Notice of Motion No. 76 of 1987 in Suit No. 3419 of 1986 held on the facts there, that the agreement was a development agreement and accordingly refused to grant injunction. In the Appeal which was preferred, being Appeal No. 218 of 1991 in Notice of Motion No. 763 of 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... compensation in money is adequate. In other words in a case of transfer of immovable property, the normal rule is that if there is a breach of contract to transfer the immovable property that cannot be adequately relieved by compensation in money unless the contrary is proved. 13. In our opinion from a conspectus of these judgments, what is relevant would be the facts of each case and the agreement under consideration. Agreements considering what is discussed, amongst others, could be: (a) An Agreement only entrusting construction work to a party for consideration; (b) An Agreement for entrusting the work of development to a party with added rights to sell the constructed portion to flat purchasers, who would be forming a Co-operative Housing Society to which society, the owner of the land, is obliged to convey the constructed portion as also the land beneath construction on account of statutory requirements. (c) A normal agreement for sale of an immovable property. An Agreement of the first type normally is not enforceable as compensation in money is an adequate remedy. An Agreement of the third type would normally be specifically enforceable unless the contr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment. In our opinion the learned Single Judge has construed the various terms of the agreement and the other material on record and at the prima facie stage has come to the conclusion that the Agreement can be specifically performed. An Appellate Court, more so a Court considering an interim order which involves exercise of discretion normally will not interfere with the finding of fact recorded by the trial Court and the exercise of discretion unless the finding is perverse. Nothing has been brought on record to hold that the findings are perverse. The document on the face of it, cannot be an agreement for security. It can only be construed as an Agreement to sell or a development agreement. In our opinion in this case, the finding recorded by the learned Single Judge was a finding eminently possible on the material on record. We are, therefore, clearly of the opinion that the Agreement prima facie is an agreement which can be specifically enforced and consequently the Appellants have made out a prima facie case. The other predicates for grant of an injunction will be answered in the discussion that follows. 14. We then come to the issue of the clarification to the order issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We may refer to some judgments for that purpose. In Sikandar and Ors. v. Bahadur and Ors. XXVII Indian Law Reporter, 462, a Division Bench of the Allahabad High Court held that right to collect market dues upon a given piece of land is a benefit arising out of land within the meaning of Section 3 of the Indian Registration Act, 1877. A lease, therefore, of such right for a period of more than one year must be made by registered instrument. A Division Bench of the Oudh High Court in Ram Jiawan and Anr. v. Hanuman Prasad and Ors. AIR 1940 Oudh 409 also held, that bazar dues, constitute a benefit arising out of the land and therefore a lease of bazar dues is a lease of immovable property. A similar view has been taken by another Division Bench of the Allahabad High Court in Smt. Dropadi Devi v. Ram Das and Ors. on a consideration of Section 3(26) of General Clauses Act. From these judgments what appears is that a benefit arising from the land is immovable property. FSI/TDR being a benefit arising from the land, consequently must be held to be immovable property and an Agreement for use of TDR consequently can be specifically enforced, unless it is established that compensation in mon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n such cases, would not be adequate. To that extent, we are clearly of the opinion, that the clarification given in para.46 of the impugned order is liable to be set aside and we accordingly do so. 17. That leaves us with the second contention, as to whether the Appellants are entitled to right of way as claimed in the Agreement and in the suit. In the instant case this is not an easement of necessity nor an easement by prescription. The only term of the contract was to provide an access. The plot has been sub-divided and the sub-division sanctioned by the Planning Authority. The Appellants are entitled to develop a part of the plot C-2 in terms of the Agreement. Plot No. C-2 has an independent access in terms of the sanctioned sub division. Even in a case of easement of prescription or necessity, the owner can always on the facts of a case alter the access on the same land as long as it is provided on the same property and is easily accessible and does not have any impediments. In our opinion the learned Single Judge prima facie, on the facts, was right in not granting the injunction . We are clearly of the opinion that the Appellants have failed to make out a case irreparable ..... X X X X Extracts X X X X X X X X Extracts X X X X
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