Case Note & Summary
The appellant, Kedar Chandrakant Berde, was the original plaintiff in a suit against Rishabraj Housing and Virangula Cooperative Housing Society Limited. The dispute arose out of a redevelopment agreement whereby the appellant was to be allotted Flat No.702 admeasuring 830 sq. ft. carpet area in the suit building to be constructed by the respondent. The learned Single Judge, by judgment and order dated 15/06/2015, restrained the respondent from creating third party rights in respect of the flat and held that the appellant was entitled to 562.5 sq. ft. carpet area free of cost out of the 830 sq. ft. flat. The appellant appealed against this restriction. The Division Bench of the Bombay High Court, comprising V.M. Kanade and Dr. Shalini Phansalkar Joshi, JJ., allowed the appeal. The court held that the redevelopment agreement entitled the appellant to the entire 830 sq. ft. flat and that the learned Single Judge had erred in restricting the free area to 562.5 sq. ft. The court set aside the impugned order to that extent and directed that the appellant was entitled to the entire flat as per the agreement. The judgment was pronounced on 20/10/2015.
Headnote
A) Contract Law - Specific Performance - Interpretation of Agreement - The appellant entered into a redevelopment agreement with the respondent for allotment of a flat of 830 sq. ft. carpet area. The learned Single Judge held that the appellant was entitled to only 562.5 sq. ft. free of cost. On appeal, the Division Bench held that the agreement clearly entitled the appellant to the entire 830 sq. ft. flat and that the restriction imposed by the Single Judge was erroneous. (Paras 1-3)
Issue of Consideration
Whether the appellant was entitled to the entire 830 sq. ft. flat as per the redevelopment agreement or only 562.5 sq. ft. free of cost as held by the learned Single Judge.
Final Decision
Appeal allowed. The impugned judgment and order of the learned Single Judge is set aside to the extent it restricts the appellant's entitlement to 562.5 sq. ft. free of cost. The appellant is entitled to the entire Flat No.702 admeasuring 830 sq. ft. carpet area as per the redevelopment agreement.
Law Points
- Specific performance of contract
- interpretation of redevelopment agreement
- entitlement to entire flat area
- no restriction on free area
Case Details
2015 LawText (BOM) (10) 79
Appeal (L) No. 531 of 2015 in Notice of Motion No.1519 of 2013 in Suit No.760 of 2013
V. M. Kanade, Dr. Shalini Phansalkar Joshi
Mr. Milind Sathe, Senior Counsel alongwith Mr. Kaushal Tamhane, Meenakshi Dhanuka, Mr. Pranesh Gada i/b Dhanuka & Partners for the Appellant; Mr. P.S. Dani, Senior Counsel alongwith Mr. Sunil R. Sharma for Respondent No.1
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Nature of Litigation
Civil appeal against judgment and order of learned Single Judge in a suit for specific performance of redevelopment agreement.
Remedy Sought
Appellant sought to set aside the restriction imposed by the learned Single Judge and to be declared entitled to the entire 830 sq. ft. flat.
Filing Reason
The learned Single Judge held that the appellant was entitled to only 562.5 sq. ft. free of cost out of the 830 sq. ft. flat, whereas the appellant claimed entitlement to the entire flat.
Previous Decisions
Learned Single Judge by judgment dated 15/06/2015 restrained Defendant No.1 from creating third party rights in respect of Flat No.702 and held that Plaintiff was entitled to 562.5 sq. ft. carpet area free of cost from 830 sq. ft. flat.
Issues
Whether the appellant is entitled to the entire 830 sq. ft. flat as per the redevelopment agreement or only 562.5 sq. ft. free of cost.
Submissions/Arguments
Appellant argued that the agreement entitled him to the entire flat of 830 sq. ft. and the Single Judge erred in restricting the free area.
Respondent argued that the Single Judge's order was correct and the appellant was only entitled to 562.5 sq. ft. free of cost.
Ratio Decidendi
The redevelopment agreement clearly entitled the appellant to the entire flat of 830 sq. ft. carpet area, and the learned Single Judge erred in restricting the free area to 562.5 sq. ft. The appellant is entitled to specific performance of the agreement in its entirety.
Judgment Excerpts
By the said Judgment and Order dated 15/06/2015, the learned Single Judge was pleased to restrain Defendant No.1 from creating third party rights in respect of Flat No.702 admeasuring 830 sq. ft. carpet area in the suit building.
The learned Single Judge further held that the Plaintiff was entitled to the judgment in terms of prayer clause (b) in respect of Flat No.702 admeasuring 830 sq. ft. carpet area in the suit building which was to be constructed by Defendant No.1 as per the re development agreement.
It was further held that the Plaintiff was entitled to 562.5 sq.ft. carpet area free of cost from 830 sq.ft. of carpet area of the flat
Procedural History
The appellant filed Suit No.760 of 2013 seeking specific performance of a redevelopment agreement. The learned Single Judge passed an order on 15/06/2015 in Notice of Motion No.1519 of 2013, partly allowing the motion. The appellant filed Appeal (L) No.531 of 2015 against that order. The appeal was heard by a Division Bench and judgment was reserved on 19/10/2015 and pronounced on 20/10/2015.
