1 MNM IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 2036 OF 2008 IN SUIT NO. 1633 OF 2008 Om Health Centre Pvt. Ltd. ...Plaintiff Vs. Vijay Gangan ...Defendant Mr.D.D.Madon, Advocate i/b. M/s. Prakash & Co., for Plaintiff Mr. S.C. Naidu a/w. Y.C. Naidu, Mr. N.P. Dalvi, Mr. S.D.Kulkarni, Advocates i/b. C.R. Naidu & Co., for Defendant CORAM : SMT. ROSHAN DALVI, J. DATED : 22ND MARCH, 2010 P.C. : 1. The Plaintiff has sued for specific performance of an oral agreement entered into between the parties, the main contents of which have been put on record by the Director of the Plaintiffs (Plaintiff) in his letter dated 24th March 1995 addressed to an Advocate who is stated to be the Advocate for the Vendors. 2. The Defendant is one of the Executors and Trustees of one Chunilal Ukabhai Padia (the deceased) under the Will executed by the deceased dated 1st July 1985. The deceased was the owner inter alia of the suit 2 property alleged to be agreed to be transferred by the executors under his Will. 3. The Suit properties are one building called Garment House and a flat in another building called Banu Mansion, both of which admittedly were owned by the deceased. 4. Though it is argued on behalf of the Plaintiff that the suit is for specific performance of an oral agreement, the terms of the oral agreement have been incorporated in the aforesaid letter dated 24th March 1995, Exhibit-C to the plaint. We are not concerned with whatever were the terms between the parties. The Plaintiff is essentially required to show, whatever be the terms, that those were agreed upon by the Defendant with the Plaintiff. 5. The Defendant was one of the Executors under the Will and is at present the only Executor still surviving. The oral agreement, if any, which was entered into with the Plaintiff is required to be entered into by all the Executors and Trustees under the Will, surviving at the relevant time. One Amritlal Jajal (Amritlal) and the Defendant were admittedly the Executors. The letter Exhibit-C shows that only Amritlal and the Plaintiff met and finalised the terms and conditions which came to be incorporated in the letter. The letter shows the anxiety and urgency of Amritlal to enter into the agreement for sale with the Plaintiff. The letter is shown to be written to Amritlal’s then Advocate. The CC is sent to Amritlal. The Advocate has since expired. The receipt of the CC by Amritlal is not shown. 3 6. The aforesaid letter is followed by a Fax message 1½ month thereafter on 6th May 1995. The Fax message is sent by the Plaintiff to the same Advocate of the Vendors stating what Amritlal desired. It shows that Amritlal was desirous of signing the agreement of the terms and conditions of which have been agreed and both the parties were eager to complete the same. 7. It is the Plaintiff’s case that a draft of the agreement came to be prepared by the aforesaid Advocate. The draft is marked Exhibit-E to the plaint. The original draft produced in Court shows certain riders added in handwriting to the type-written draft stated to be of that Advocate. It bears certain additions and alterations. The agreement between the parties remained in the form of said draft which were shown to be made out in May 1995. 8. The draft of the agreement is followed by numerous letters all written by the Plaintiff to the aforesaid Advocate stating that the Plaintiff as well as Amritlal agreed upon the terms, approved the agreement and desired to sign the agreement. 9. These one-sided, unilateral letters, including the agreement itself, are stated to have sent by courier or through the peon of the Plaintiff to the Defendant. The Defendant has not signed any receipt of such delivery except of one letter. The initials on the courier receipts as well as the pass book are stated to be of the wife or the son of the Defendant. The Defendant has denied those signatures. He claims that his wife never 4 initial. 10.It may be mentioned that there was a dispute between the heirs of the deceased in respect of the grant of Probate of the Will of the deceased. The Probate which came to be granted was sought to be revoked in the Petition for Revocation which was filed. An injunction order had come to be issued by the High Court T & I,J Division restraining the Executors and Trustees from disposing off the properties of the deceased sought to be bequeathed under his Will. 11.It may also be mentioned that Amritlal expired on 20th February 1997. Thereafter the Defendant was the sole surviving Executor and Trustee. There are numerous letters written by the Plaintiff to the aforesaid Advocate. Thereafter there appears to have been a respite for about 2 years and 2 months during which time neither the surviving Executor and Trustee (the Defendant herein) nor the Plaintiff showed any anxiety or desire to complete the sale. On and after 2nd February 2000 there have been numerous letters and/or faxes similarly written and/or sent by the Plaintiff to the aforesaid Advocate to complete the sale. These letters show that the Defendant met the Plaintiff, desired to complete the sale, assured the Plaintiff in that respect, requested the Advocate to complete the document etc.. 12.On 6th November 2000 the Plaintiff sent P.O for Rs.10 lakhs to the aforesaid Advocate as earnest money which was to remain deposited with his Firm until the complete of sale. Even thereafter there are further similar letters 5 of the Plaintiff to the aforesaid Advocate setting out the meeting with the Defendants, discussions thereon and the co-operation of the Plaintiff assured by him. 13.It may be mentioned that there is not a single letter written by the Defendant himself or even Amritlal in the earlier correspondence showing any assurances or even queries made by them with regard to the agreement sought to be specifically enforced. 14.All of the aforesaid letters have been not only sent by the Plaintiff unilaterally, but sent to the aforesaid Advocate only. 15.The Plaintiff has relied upon the affidavit filed by the partner of the Advocate’s firm, initially M/s. Gagrat and Company and later Vigil Juris setting out how the agreement came to be made between the parties. The affidavit shows the negotiations between the parties that took place and the acts done by the Advocates. The affidavit does not show how the clients of the Advocates, who were the Executors and Trustees under the Will of the deceased, were informed about the negotiations that took place or about what was contained in the Plaintiff’s letters and faxes sent to them. There is not a single letter of the Advocates calling for instructions from the clients upon receipt of the letter by the Plaintiff who was not their client. Upon the Court’s query, Counsel on behalf of the Plaintiff, upon taking instructions from the Firm of the said Advocate, states that the Firm does not have and cannot produce the correspondence file of this matter. 6 16.The oral agreement relied upon by the Plaintiff is, therefore, not substantiated by a scrap of documentary evidence despite there being voluminous amounts of letters and faxes written and numerous meetings allegedly held. 17.No case for grant of injunction in a Suit for specific performance of an oral agreement, thus totally unsubstantiated, is made out. 18.It has been argued on behalf of the Defendant by Mr. Naidu that in the teeth of the injunction order which included the restraint upon disposal, as also alienation of the Suit property, granted by the Court in the Testamentary Petition, the Executors and Trustees could never have entered into any oral agreement. Wharton’s Law Lexicon, Fifteenth Edition, page 531 explains Disposal as transfer of title in the goods to any other person (See CST Vs. Thomas Stephan & See AIR 1988 SC 997 @ 999 = 1988 2SCC 264 ) Advanced Law Lexicon by P. Ramanatha Aiyer 3rd Edition, 2007 at page 1426 explains Disposal and the action of disposing of i.e., settling or definitely dealing with (a case); being disposed of; the action of disposing of i.e., transferring into new hands or getting done with. It further shows Disposal to mean transfer of title in the goods to any other person, and therefore, it would not include mere dispatch to own, self or to its 7 agents or to its branch offices or depots (See Gordyear India Ltd. Vs. State of Haryana 1990 (27) ECR 5(SC). 19.It is argued by Mr. Naidu that the Plaintiff’s contention that there were negotiations itself shows that the Defendant would alienate the Suit property despite the order of injunction against him. 20.The alienation implies transfer of the property. Immovable property can be transferred essentially by the 5 modes of transfer enumerated under Transfer of Property Act. It also implies handing over of the possession or parting of possession. In one case it was held that lease was not an alienation. However a compromise, decree, award or a release by which property is implicitly transferred to another person indirectly has been held to be alienation. The concept and impact of alienation is explained in Advanced Law Lexicon by P. Ramanatha Aiyar 3rd Edition 2005 at page 209 thus :- 1. Alienation is transferring property to another. The act whereby one man transfers the property and possession of lands, tenements, or other things, to another person (Terms de la Ley); generally applied to absolute conveyances of immovable property. 2. Conveyance or transfer of property to another (alienation of one’s estate). “Any transfer of real estate short of a conveyance of the title is not an alienation of the estate. A John Alan Appleman & Jean Appleman, Insurance Law and Practice. S.2741, at 325 n. 12 (rev.Vol.1969). 8 3. “Alienation” is as much to say, as to make a thing another man’s or to alter or put the possession of lands, or other things, from one man to another” (Terms de la Ley). “Alienation” imports an actual transfer of title. 4. In Words and Phrases, Permanent Edition, Volume 3 while referring to the scope of different meanings of the term alienation, it is shown that an execution and sale also would come under the term ‘alienation’. 5. Alienation means transfer of ownership of property to another person. The word applies to absolute conveyance of immovable property and imports an actual transfer of title. It does not include a lease. Pitamber Govinda Bhavasar Vs. Abdul Gafoor Abdul Rejak, AIR 1972 Bom 43, 46 [Bombay Agricultural Debtors Relief Act (28 of 1947), S.40]. 6. The word ‘alienation’ in Art. 125, Limitation Act, 1908 does not include an auction sale held in execution of a decree but is confined to cases of voluntary alienation, Birendra Nath Banerjee Vs. Shibaram Aditya, AIR 1952 Cal 473) 7. The action of transferring property or any interest therein to another [S.64, CPC (5 of 1908)] 8. The word Alienation in Art. 125, Limitation Act, 1908 is not used as synonymous with a transfer by way of sale, mortgage, exchange, lease or gift. If a compromise decree or an award or a release is used by the widow as a pretext or cloak for parting with property belonging to the estate in favour of another person, there 9 is an ‘alienation’ by the widow, though no formal conveyance of the property is executed by her. Sister Yegnanarayanan Sastry Vs. Chilukari Lakshminarayana, AIR 1952 Mad 495, 497. 21.Though it is seen that the negotiations, if any, held by and between the parties would not have been a contemptuous act as it would not result in disposal or alienation of the Suit property for which an order of injunction was passed, there is nothing to show that the Defendant would have or could have entered into the alleged oral agreement. 22.Consequently the Notice of Motion is dismissed. 23.No order as to costs. 24.Written Statement is filed. Inspection of the documents of the Plaintiff is offered and taken. I S S U E S 1. Whether the Suit is barred by the Law of Limitation. 2. Whether the Plaintiff has locus to file the Suit 3. Whether the Plaintiff proves that the Excutors and Trustees of the Will of the late Chunilal Padia entered into an oral agreement with the Plaintiff for sale of the said properties. 4. What relief, if any, is the Plaintiff entitled to ? 10 25.Since the pleadings are filed Issue No.1 shall be tried as a preliminary issue under the provisions of Order 14 Rule 2 of the C. P. C. 26.Suit adjourned to 5th May 2010 for preliminary issue of limitation of the Suit. (SMT. ROSHAN DALVI, J.)