1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3719 OF 2007 IN SUIT NO.2752 OF 2007 M/s. NEETA BUILDERS (REGD) ..PLAINTIFF VS. MAGDALENA KAITAN MENDONCA & ORS. ..DEFENDANTS Mr. Satish P. Nagvekar for the Plaintiff Mr. C.P.Deogirikar for Defendants No.1 to 11, 13 to 16 Mr. Vipin Kamdi with Nirmala Bhosale for Defendant No.17 CORAM: Smt. ROSHAN DALVI, J. DATED: 16 th March, 2009 P.C.: 1. The suit is filed for specific performance of Agreement dated 10.11.2005 by and between the parties. The execution of the Agreement is admitted. Hence the clause in the Agreement governs the parties. There have been various other Agreements before and after that date with which we are not concerned in this Notice of Motion. That will be subject 2 matter of oral evidence if and when required. The Plaintiff's prima facie case of obtaining specific performance of the Agreement sought by the Plaintiff is essentially upon the Plaintiff performing its part of the contract. The Plaintiff is the purchaser. The Plaintiff must therefore pay the consideration. That is essential reciprocal promise of the Plaintiff. The Plaintiff has not paid the consideration required. The Plaintiff claims that even today it cannot make payment of the entire consideration as required. Hence the Plaintiff is not ready and willing to perform its part of the contract as of today. No relief can be granted in the specific performance suit. However, the execution of the Agreement is admitted. The Defendants have not claimed that they would not sell the suit property to the Plaintiff as per that Agreement. Consequently in the interest of justice the parties must be given some time to carry out their reciprocal promises. 2. Clause (4) of the Agreement is the consideration clause. The consideration is payable in five installments. The first installment of Rs.50 lacs is paid. 3. The second installment of Rs.25 lacs is to be paid upon which the Defendant have to carry out survey and obtain DILR plan showing boundaries of the suit plot of land. 3 4. Upon the Third installment being paid, the permission under the ULC was to be obtained. Urban Land & Ceiling Regulations Act, having been repealed, no permission is required to be obtained. Hence the third installment would have to be paid without any further reciprocal promises on the part of the Defendants. 5. The fourth installment is thereafter to be paid upon which the Defendants would have to obtain the plan of the City Survey Department and Property Register Card and the exact locations from DILR. That is much the same as the Defendants' reciprocal promises upon payment of the second installment with the addition of the Property Register Card order being obtained. However, the Defendants would have to give physical possession of the plot and give a title certificate to the Plaintiff upon the fourth installment being paid. 6. Only the last installment of the 10% is to be retained. 7. Hence it is seen that the Plaintiff should have already made payment of first four installments. That payment is not made The Plaintiff shall deposit the second, third and fourth installments of Rs.25 lacs each aggregating to Rs.75 lacs 4 with the Prothonotary & Senior Master of this court to the credit of this suit on or before 30.04.2009. If that amount is not deposited even by that date the Notice of Motion shall stand dismissed. If that amount is deposited the Defendants shall carry out the survey, obtain the DILR plan, demarcate the fixed boundaries, obtain the property card order of the SDO and hand over physical possession of the suit plot of land admeasuring 9000 sq.mt. to the Plaintiff. Upon the deposit made by the Plaintiff of Rs.75 lacs on or before 30.04.2009, the Defendants shall not create any third party rights or otherwise encumber the suit property pending the suit. Interim order shall continue up to 30.04.2009. 8. Notice of Motion disposed of accordingly. (Smt. Roshan Dalvi, J)