Manas Shelters Pvt. Ltd. vs Vivek Madhavlal Pittie

Interim Application No. 4450 of 2026 is filed by the Plaintiff seeking summary judgment and preliminary decree in terms of provisions of Order XIII-A of the Civil Procedure Code, 1908 (the Code) as well as judgment on admission under Order XII Rule 6 in a suit filed essentially for specific performance. Preliminary decree is sought declaring that the notice dated 16 July 2013 terminating the Development Agreement, Power of Attorney and other connected documents is illegal. A decree is also sought in the sum of Rs.31,10,00,449/- along with interest. The Plaintiff further seeks a declaration that it has charge over the the suit property for a sum of Rs. 31,10,00,449/-.

Land bearing C.S. No. 321 of Tardeo division admeasuring about 1538.7 sq.mts, Pathe Baburao Marg, Falkland Road, Mumbai together with Building No. 15 consisting of ground plus one upper floor and Building No. 17 comprising of ground plus one upper floor standing thereon is the ‘suit property’.

One Maheshchandra Agarwal had filed Suit No. 224 of 1961 against the family members of Pittie Family seeking partition of ancestral properties of Narayanrlal Pittie (HUF). This Court appointed Court Receiver in respect of the properties, which included the suit property forming part of the present suit. By order dated 21 July 1967, Shri. Madhavlal Narayanrlal Pittie (Defendant No.1) was appointed as a private Receiver in place of Court Receiver of this Court. By the year 2002, Buildings Nos. 15 and 17, which were constructed prior to 1940, required urgent repairs as the same were in precarious and dilapidated conditions. Defendant No.1 approached this Court by filing Court Receiver's report seeking permission for redevelopment of the property. By order dated 10 April 2002, this Court granted permission for redevelopment of the suit property. Accordingly, Plaintiff was appointed as the developer for redevelopment of the suit property. The Development Agreement dated 16 December 2003 was executed in favour of the Plaintiff. Plaintiff was also required to accommodate the tenants of the two buildings in the rehabilitation building. There was also obligation to handover certain constructed portion in favour of MHADA in lieu of grant of NOC which condition was apparently deleted. To incorporate the various changed conditions, the Supplemental Agreement dated 25 February 2003 was executed. Another supplemental agreement dated 15 March 2004 was executed between Plaintiff and Defendant No.1. A Power of Attorney dated 22 May 2002 is also executed by Defendant No.1 in favour of the Plaintiff. The Development agreement, Supplemental Agreements and the Power of Attorney executed between Plaintiff and the Defendant No. 1 are described as the ‘development documents’.

Considering the limited controversy involved in the application, it is not necessary to narrate developments that had occurred post execution of the development documents. It appears that in pursuance of the Development Agreement executed in its favour, Plaintiff was able to complete construction of the suit property only till the plinth level. Defendant No.1 terminated the Development Agreement by notice dated 16 July 2013 accusing Plaintiff of not complying with the contractual obligations. Plaintiff has accordingly filed the present suit seeking a declaration that the development documents are valid, subsisting and that the letter dated 16 July 2013 terminating the development documents is illegal and does not bind the Plaintiff. Plaintiff has sought specific performance of the Development Agreement dated 16 December 2003. Plaintiff has sought injunction against Defendant No. 1 from disturbing possession of the Plaintiff on the suit property. Plaintiff has also sought decree in the sum of Rs.48.13 crores in addition to prayers for setting aside termination letters and for specific performance. In the alternative, Plaintiff has sought a decree for damages/compensation in lieu of specific performance in the sum of Rs.120 crores. Plaintiff has sought prayer for creation of charge over the suit property in the sum of Rs.168.13 crores.

Plaintiff filed Notice of Motion (L) No. 2370 of 2014 in the Suit seeking temporary injunction. By order dated 15 June 2015, the Single Judge of this Court allowed the Motion in terms of prayer clauses (a) and (c) thereby restraining Defendant No.1 from acting upon the termination notice and from obstructing development of the suit property. Defendant No.1 filed Appeal before the Division Bench challenging order dated 15 June 2015, which was withdrawn with a liberty to file an application under Order XXXIX Rule 4 of the Code for vacation of the interim injunction. Accordingly, Defendant No.1 took out application for vacation of interim injunction under Order XXXIX Rule 4 of the Code, which was dismissed by order dated 14 March 2017. An Appeal preferred by Defendant No.1 challenging the order dated 14 March 2017 was also dismissed. The Special Leave Petition challenging the order of the Appellate Court was also dismissed by the Hon’ble Supreme Court on 6 August 2018.

In the meantime, Defendant No.1 passed away and his son Vivek Madhavlal Pittie was apparently appointed as a private receiver in terms of orders dated 14 December 2021 and 29 December 2021 passed by this Court. Accordingly, he was impleaded as Defendant No.1A in the suit. Defendant No.1A filed Interim Application No. 4794 of 2022 once again seeking vacation of interim injunction granted vide order dated 15 June 2015 under Order XXXIX Rule 4 of the Code alleging that the Plaintiff did not take any steps for redevelopment of the suit property despite passage of long time after grant of temporary injunction. By order dated 27 March 2024, Single Judge of this Court allowed Interim Application No. 4794 of 2022 and vacated the interim injunction. Plaintiff filed Commercial Appeal (L) No. 14951 of 2024 challenging the order dated 27 March 2024. By judgment and order dated 24 June 2025, Division Bench of this Court dismissed the appeal preferred by the Plaintiff. Special Leave Petition filed challenging the order of the Division Bench was dismissed by the Apex Court by order dated 19 February 2026.

On 10 January 2023 Plaintiff has filed the present Interim Application (Interim Application No. 4450 of 2026) under the provisions of Order XIII-A, as well as Order XII Rule 6 of the Code seeking following substantive prayers:

The Application is opposed by Defendant No.1A by filing Affidavit in reply.

Plaintiff has filed two more applications viz. Interim Application (L) No. 15824 of 2023 and Interim Application (L) No. 34188 of 2023 seeking amendments in Interim Application No. 4450 of 2026 filed under Order XIII-A and Order XII Rule 6 of the Code. Since this Court is proposing to finally dispose of Interim Application No. 4450 of 2026, though the amendment applications are not opposed, with a view to facilitate decision of Interim Application No. 4450 of 2026 on merits, it is considered appropriate to allow both the applications for amendment. Accordingly, Interim Application (L) No. 15824 of 2023 and Interim Application (L) No. 34188 of 2023 deserve to be allowed.

Mr. Pai, the learned counsel appearing for the Plaintiff submits that the termination notice dated 16 July 2013 is clearly in the teeth of Clauses-16 and 30 of the Development Agreement. That under Clause-16, the Development Agreement could have been terminated only after giving one month’s notice to the Plaintiff. That under Clause 30 it was necessary to give prior notice of 2 months calling upon the Plaintiff to cure the alleged breaches. That since no prior notice is issued before terminating the Development Agreement, the termination notice dated 16 July 2013 is clearly bad in law and that the Defendants have no real prospect of successfully defending the claim in terms of prayer clause (a) of the plaint. That therefore summary judgment needs to be passed in the present Commercial Suit under Order XIII-A Rule 2 of the Code. He further submits that the parties had specifically agreed to issuance of prior notice under Clauses 16 and 30 of the Development Agreement and, since no prior notice was admittedly issued, Defendant No. 1A is bound to fail in respect of its grievances. That no real evidence is required to be led for determining the issue of validity of termination notice.

Mr. Pai further submits that since the private receiver was appointed with express permission of the Court for carrying out redevelopment of the suit property, the Development Agreement could not have been terminated by him without seeking prior permission of the Court. That appointment of the Plainiff as a developer was in pursuance of specific order passed by this Court on 10 April 2002 and that before terminating the appointment of Plaintiff, it was mandatory to secure permission of the Court.

Mr. Pai further submits that the claim for damages under the prayer clauses (e) and (f) of the plaint is independent of the prayer clause (b) for specific performance. That alternate relief of damages is sought in prayer clause (f) which is not being pressed at this juncture. That once termination notice is declared invalid, the Plaintiff would automatically be entitled to seek damages in the sum of Rs.31,10,00,449/-. He submits that the amount is determined by taking into consideration the most conservative and the least value of development rights granted in favour of the Plaintiff. That if termination notice is declared invalid, this is the minimum that the Plaintiff must secure from the Defendants. He submits that no oral evidence is required to be led for granting claim for damages in the sum of Rs.31,10,00,449/-.

In support of his contentions, Mr. Pai relies on judgments of the Delhi High Court in Deepali Designs and Exhibits Private Limited Versus. Encompass Events Private Limited^{11.2022 SCC Online Del 3269} and Su-Kam Power Systems Ltd. Versus. Kunwer Sachdev And Another^{22.2019 SCC Online Del 10764} and of this Court in Ashok Commercial Enterprises and another Versus. Rajesh Jugraj Madhani^{33.2023 SCC Online Bom 248}.

Mr. Pai further submits that independent of the provisions of Order XIII-A, the Plaintiff is also entitled to a decree on admission under Order XII Rule 6 of the Code. In support, he relies on judgments of the Apex Court in Uttam Singh Duggal and Co. Ltd. Versus. United Bank of India and others^{44.2000 (7) SCC 120} and Karam Kapahi and others Versus. Lal Chand Public Charitable Trust and another^{55.2010 (4) SCC 753}. Mr. Pai further submits that the observations made by this Court while vacating the temporary injunction are of little relevance while deciding the prayers for summary judgment. That the inquiry in six proceedings was restricted to Plaintiff’s readiness and willingness to perform the contract. That the issue of readiness and willingness may have some bearing on the issue for prayer of specific performance in which decree is not currently sought. That for claiming damages, it is not necessary to prove readiness or willingness. On the basis of the above submissions, Mr. Pai would pray for summary judgment in terms of the prayers sought in the Interim Application. Mr. Pai prays for alternate relief of making an order for deposit of an amount of Rs. Rs.31,10,00,449/- in the event this Court does not make a summary judgment in that amount at this stage.

Mr. Andhyarujina and Mr. Engineer, the learned Senior Advocates have opposed the Interim Application submitting that the Suit is for specific performance which requires establishment of readiness and willingness on the part of the Plaintiff to perform the contract and which requires leading of oral evidence. That even for claiming damages, readiness and willingness must be established. In support, they rely on judgments of the Privy Council in Abdullah Bey Chedid and others. Versus. Tenenbaum^{66.1933 SCC Online PC 48} and Tan Ah Boon Versus. State of Johore in support of their contention that Plaintiff must aver and prove readiness and willingness from the date of contract to the date of the decree. Reliance is also placed on judgment of the Apex Court in N.P. Thirugnanam (dead) by LRS. Versus. Dr. R. Jagan Mohan Rao and others^{88.1995 (5) SCC 115}. That there cannot be automatic award of compensation even if termination is held to be wrongful and in order to claim compensation, the Applicant will have to establish that it suffered losses by leading appropriate evidence. In support, reliance is placed on judgment of this Court in Bharat Sanchar Nigam Ltd Versus. Media Marketing Services (MMS)^{99.2015 (2) Mh.L.J. 281}.

It is further submitted on behalf of Defendant No. 1A that the valuation presented by the Applicant is not an admitted one. That the valuer needs to be examined as a witness. That ready reckoner rates can sometimes be higher than the actual market rates and cannot be an accurate guide for valuation of damages and compensation. In support, reliance is placed upon judgments in Bharat Sanchar Nigam Ltd Versus. Nemichand Damodardas and another and Jawajee Nagnatham Versus. Revenue Divisional Officer, Adilabad A.P. and others^{1111.1994 (4) SCC 595}. It is further submitted that Defendant No.1A has several valid defenses in the present case. That additionally a counterclaim is filed claiming sums against the Plaintiff. That therefore it cannot be contended that Defendant No.1A has no real prospect of successfully defending the claim. In support of the contention of scope of inquiry under Order XIII-A, reliance is placed on judgments in Northern ARC Capital Ltd. Versus. Sambandh Finserve Private Limited and others^{1212.2022 SCC Online Mad 2904} and Reliance Eminent Trading and Commercial Private Limited Versus. Delhi Development Authority^{1313.2026 SCC Online SC 744}. In support of the contention that summary judgments should be refused if there are compelling reason to conduct a trial, reliance is placed on judgments in ED&F Man Liquid Products Limited Versus. Patel and ANR^{1414.2003 EWCA Civ 472}, Elite Property Holdings Ltd. and another Versus. Barclays Bank PLC^{1515.2019 EWCA Civ 204} and Sze Ming Yeung Versus. Jeckz Investment Ltd. and others^{1616.2024 EWCA Civ 1413}.

Mr. Andhyarujina and Mr. Engineer would further submit that nonperformance on the part of the Plaintiff is actually an anticipatory breach and a ground to terminate the contract. That therefore the termination in the present case is not only in terms of contractual clauses but also by virtue of provisions of Section 39 of the Indian Contract Act, 1872 (Contract Act) and that the termination therefore is statutory and not contractual. In support, he relies on judgments in Frost Versus. Night ^{1717.(L.R.) 7 Exch 111}, Maredelanto Compania Naviera S.A. Versus. Bergbau-Handel G.m.b.H. The Mihalis Angelos^{1818.(1970) 2 WLR 907} and Geden Operations Ltd. Versus. Dry Bulk Handy Holdings Inc; The M/V Bulk Uruguay^{1919.(2014) 2 ALL ER (Comm) 196}. That in any case, Clause-16 contemplated seeking of extension, which was never sought by the Plaintiff and that therefore it was not necessary to serve prior notice before terminating the contract.

Lastly, it is submitted on behalf of Defendant that Plaintiff has no wherewithal of completing the project and adverse observations are made against it by the learned Single Judge and the Division Bench while vacating the interim injunction. That the order of vacation of interim injunction has attained finality upto the Hon’ble Apex Court. That no permission was required to be obtained from this Court since Suit No.224 of 1961 was disposed of on 2 May 2008. It is accordingly prayed on behalf of Defendant No.1A that the Interim Application be dismissed with costs.

Rival contentions urged on behalf of the parties now fall for my consideration.

The development documents executed in favour of the Plaintiff during the years 2003-04 are terminated by Defendant No.1 on 16 July 2013 since Plaintiff was unable to construct the building beyond plinth level during 9 long years. As observed above, though initially injunction was granted in favour of the Plaintiff, the same has ultimately been vacated by the Single Judge of this Court under the provisions of Order XXXIX Rule 4 of the Code by order dated 27 March 2024. Vacation of interim injunction is upheld by the Appeal Court on 24 June 2025, and the Special Leave Petition has also been dismissed on 19 February 2026.

The present Application was filed by the Plaintiff in January 2023 when it had the protection of interim injunction. After filing of the present Application, the temporary injunction came to be vacated by order dated 27 March 2024, which order has attained finality on account of order passed by the Hon’ble Apex Court on 19 February 2026. The situation has thus dramatically changed after filing of the present Interim Application. The Interim Application is for seeking summary judgment under the provisions of Order XIII-A read with Order XII Rule 6 of the Code. The same was filed when the Plaintiff was enjoying an injunction restraining Defendant No. 1/1A from obstructing it from carrying out redevelopment activities at the suit property. After filing of the present Interim Application, the temporary injunction granted in favour of the Plaintiff has been withdrawn by making adverse observations about failure to take any steps for carrying out construction of the building for a considerable time after grant of temporary injunction, primarily due to lack of financial wherewithal.

Plaintiff has sought summary judgment in terms of Order XIII-A of the Code, which applies to a commercial dispute of a specified value. Order XIII-A provides thus:

Thus, under Rule 2 of Order XIII-A, an applicant can apply for summary judgment at any time after the summons has been served on the Defendant. The application for summary judgment cannot be made after the Court has framed issues in the suit. Under Rule 3, the Court can give summary judgment against the Plaintiff or Defendant on a claim if it is satisfied that Plaintiff has no real prospect of succeeding in the claim or the Defendant has no real prospect of successfully defending the claim and that there is no compelling reason why the claim should not be disposed of before recording oral evidence. That when Plaintiff seeks summary judgment under Order XIII-A Rule 3, the same can be given by the Court only on satisfaction of two conditions viz. (i) the defendant has no real prospect of successfully defending the claim and (ii) there is no other compelling reason why claim should not be disposed of before recording of oral evidence. The nature of inquiry to be made in an application for summary judgment has been subject matter of several decisions. In Reliance Eminent Trading and Commercial Private Limited (supra), the Apex Court has dealt with the scope of enquiry under Order XIII-A of the Code and has held in paragraphs 50, 51 and 59 of the judgment as under:

Since the judgment of the Apex Court in Reliance Eminent Trading and Commercial Private Limited lays down the principles of inquiry while deciding an application for summary judgment under Order XIII-A, it is therefore not necessary to discuss the ratio of the judgments of various High Courts [Northern ARC Capital Ltd., Deepali Designs and Exhibits Private Limited, Su-Kam Power Systems, Ashok Commercial Enterprises (supra)] relied upon by the parties dealing with the scope of such inquiry.

In the present case, the Plaintiff believes that Defendant No. 1/1A has no real prospect of successfully defending the claim seeking a declaration that the termination notice is invalid. Plaintiff has placed reliance on Clause-16 of the Development Agreement which reads thus:

A careful perusal of Clause-16 of the Development Agreement would indicate that the same makes the time stipulated in the contract the essence of the contract. Under Clause-16, if Plaintiff failed to commence and complete redevelopment of the property within the time so stipulated, he could request for extension of time and Defendant No.1 could grant such extension by 6 more months. It is only in the event of non-completion of redevelopment within the extended time of 6 months that Defendant No.1 was required to give one month’s notice in writing. It is the case of Defendant No.1A that no extension of time was sought by the Plaintiff and therefore Clause-16 does not apply in the present case. Thus, there is some defence raised by Defendant No.1A qua contractual stipulation under Clause-16. Correctness of defence of the Defendant needs to be examined at the time of final disposal of the Suit. It therefore cannot be contended that Defendant No.1A has no real prospect of successfully defending the claim of the Plaintiff based on Clause-16 of the Development Agreement.

Plaintiff had never relied upon Clause-30 of the Development Agreement either in the plaint or in the Interim Application as originally drafted. Today, I have allowed amendment permitting the Plaintiff to rely upon Clause-30, which reads thus:

Thus, under Clause-30 of the Development Agreement, upon breach or default being committed by either of the parties, the opposite party was entitled to give 2 months’ notice to the defaulting party for rectification of the default/breach and thereafter the aggrieved party is entitled to specify performance of terms and conditions as contained in the Agreement or to terminate, rescind or cancel the same. In the present case, the Plaintiff has crossed the time limit agreed in the Development Agreement and despite passage of 9 long years, he could construct building only up to plinth level.

It is the case of Defendant No.1A before me that termination of the Development Agreement is on account of anticipatory breaches committed by the Plaintiff. It is contended that since Plaintiff did not construct the building beyond the plinth and failed to perform the promise within the meaning of Section 39 of the Contract Act, the contract has been put to an end. It is contended that Defendant No.1 has exercised statutory right under Section 39 of the Contract Act and not merely a contractual right and therefore Clauses-16 and 30 of the Development Agreement may not strictly apply for determining validity of the termination notice. Reliance is placed on English judgments in Frost Versus. Night, Maredelanto Compania Naviera S.A. and Geden Operations Ltd. (supra) in support of the contention that non-performance of the contract can be treated as an anticipatory breach and a ground to terminate the contract. I need not delve deeper into the question as to whether Defendant No. 1 was justified in treating the conduct of the Plaintiff as constituting a breach of the contract or a refusal to perform the promise, and whether Defendant No.1 was consequently entitled to terminate the contract under Section 39 of the Contract Act. Suffice it to observe at this juncture that Defendant No.1A has raised a defence in respect of the termination notice. Therefore, it is difficult to arrive at a finding that there is no real prospect for Defendant No.1/1A in successfully defending the claim qua the termination.

So far as claim for damages of Rs.31,10,00,449/- is concerned, the same is premised on valuation made by Plaintiff by taking into account the ready reckoner rates. The valuation report dated 16 July 2013 is appended to the application at Exh.I. Here again, I see multiple difficulties standing in the way of the Plaintiff. In the plaint, there are two types of damages sought. In prayer clause (e) of the plaint, damages of Rs.48,13,00,000/-are sought in furtherance or in addition to a decree for specific performance. In prayer clause (f) of the plaint, damages in the sum of Rs.120 crores are claimed as an alternate relief to the prayer for specific performance. It is now contended that Plaintiff is not claiming the alternate relief of damages as of now and would press both the reliefs of specific performance and alternate relief of damages at the time of trial of the suit. This Court, therefore, enquired as to whether a claim for summary judgment in the sum of Rs. 31,10,00,449/- could fit within the scheme of the suit? Mr. Pai has clarified that the amount of Rs. 31,10,00,449/- forms part of the claim made in prayer clause (e) of the plaint. The figures however do not match. Be that as it may. Even otherwise, there are multiple reasons why this Court cannot make a summary judgment at this stage in the sum of Rs.31,10,00,449/-. The first and foremost reason is that this Court is unable to make a summary judgment declaring the termination notice to be invalid. If validity of termination notice cannot be decided at this juncture, there is no question of awarding damages to the Plaintiff by way of summary judgment. In fact, this reason is sufficient for declining summary judgment towards damages. Secondly, even if this Court was to declare the termination notice to be invalid, the Plaintiff will have to prove sufferance of loss and quantification thereof cannot be presumed in absence of evidence. In this regard, observations made by this Court in Bharat Sanchar Nigam Ltd Versus. Media Marketing Services (MMS) in para-23 of the judgment are apposite in which it is held thus:

Therefore, even if Plaintiff was to succeed in securing the summary judgment declaring termination notice to be invalid, it will have to prove sufferance of loss and the quantum thereof. Even otherwise, it is well settled position of law that Plaintiff will have to ultimately prove its readiness and willingness to perform the contract even qua the prayer for damages. The law in this regard is well settled and reference on judgments of the Privy Council in Abdullah Bey Chedid and Tan Ah Boon is apposite. Even for claiming damages as the main or alternate relief, Plaintiff must prove that it was ready and willing to perform the contract. For proving so, trial of the suit is necessary.

The next difficulty in seeking summary judgment for damages is that the Plaintiff will have to also prove the correctness of the valuation report. In the absence of the valuer being examined as a witness by Defendant No. 1A, this Court cannot readily accept the contents thereof. Whether the methodology adopted for determining the valuation is correct or not would again be subject matter of trial in the suit.

In my view, therefore no case is made out for grant of summary judgment in favour of the Plaintiff.

Even otherwise, it is too optimistic for the Plaintiff to expect a summary judgment holding termination notice to be invalid and for damages in the sum of Rs. 31,10,00,449/- when it has lost upto the Apex Court in respect of withdrawal of temporary injunction. When Plaintiff could not convince the learned Single Judge and Division Bench of this Court and the Apex Court that it has any prima-facie case on merits, it is too much to expect that this Court would grant a summary judgment in Plaintiff’s favour by holding that Defendant No.1A has no real prospect of successfully defending the claim. On the contrary, the findings recorded while withdrawing the temporary injunction would indicate that Plaintiff was unable to establish a prima-facie case. Though it is sought to be contended that Mr. Pai that the inquiry under Order XXXIX Rule 4 was restricted to readiness and willingness aspect only, ultimately Plaintiff was unable to demonstrate a strong prima-facie case for presuming that he is likely to succeed in the suit. In these circumstances, this Court cannot readily presume that Defendant has no real prospect of defending the suit on merits. In my view, therefore the Interim Application is totally baseless and deserves to be dismissed.

I accordingly proceed to pass the following order: