1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.513 OF 2009 IN SUIT NO.296 OF 2009 Vivek Ganesh Bhartu .. Plaintiff Vs. Manoharlal H. Ahuja and Anr. .. Defendants Ms.Prachi Tatake for the plaintiff Mr.Y.R.Mishra for defendant no.1 Mr.Zal Andhyarujina a/w Mr.Neveilla Mukherjee i/b M/s.W.Ghandy and Co. for defendant no.2 Mr.D.A.Dubey for defendant no.3 CORAM : S.C.Dharmadhikari, J. DATE : September 15, 2010 P.C. : 1. The plaintiff has filed a suit for specific performance of an agreement for sale under which the immovable property, a residential flat, was agreed to be transferred and sold by defendant no.1. 2. My attention is invited by Ms.Tatake to the agreement and she states that the agreement has been entered into on 2.4.08. Defendant no.1 had stated 2 that he is absolutely seized and possessed of, so also owner of the suit flat and held the shares of the Co-operative Housing Society. He has acquired this flat in 1977. He has divided the flat but the entire area is agreed to be transferred and on the relevant date the possession was with the licensee. She submits that the flat was mortgaged with Bank of India by way of a collateral security in connection with the loans raised by defendant no.1 and further there is a criminal case filed against the owner/defendant no.1 and, therefore, the original title documents are in possession of the Court of Sessions. However, the defendant no.1 s loan amount was met with the part ’ consideration under this agreement for sale. The plaintiff parted with Rs.31 lacs by diverse cheques which have been duly encashed and the same was utilized to repay the loan. 3. However, the plaintiff was put in possession of the property and even keys of the flat were handed over. Noticing that the flat requires some alteration, architect came to be appointed by the plaintiff and that is how the plaintiff could not occupy the flat or use it. In the meantime, taking advantage of the fact that the Court of Sessions directed the Registry to return the documents and some time was taken for that, defendant no.1 with a view to defeat the rights of the plaintiff purported to gift the flat to defendant no.3 who is none other then the mother and thereafter, defendant no.3 has purported to transfer it to defendant no.2. She submits that the entire version of defendant no.1 on affidavit is false. 3 4. Therefore, this is a fit case where the agreement can be construed as being executed as security for the repayment of the sums which have been allegedly lent and advanced which is the version on affidavit. The plaintiff having parted with Rs.3150,000/- and being ready and willing to perform his obligation a prima facie case is made out. Balance of convenience is in favour of the plaintiff and he would be put to irreparable loss if the defendants are allowed to transfer the property further. 5. On the other hand, Mr.Mishra, the learned counsel appearing for defendant no.1 and Mr.Zal Andhyarujina appearing for defendant no.2 rely upon their affidavits filed in reply and submit that the entire suit is false, frivolous and vexatious. 6. Mr.Mishra submits that the plaintiff intentionally did not disclose that the plaintiff has given a loan of Rs.31,50,000/- to defendant no.1 and he has received back Rs.10,00,000/- on 20.01.10 which was paid by the defendants no.1's mother i.e. defendant no.3 on behalf of defendant no.1. 7. There is no question of any specific performance of an Agreement for sale in as much as the certificate issued by Bank of Rajasthan shows that the cheque/ D/D has been encashed. Further, defendant no.1 and his mother defendant no.3 were ready and willing to make payment of balance sum of Rs.21,50,000/- but the plaintiff started asking exorbitant rate of interest. 4 8. It is contended by Mr.Mishra that on affidavit it is pointed out that the plaintiff proposed to help defendant no.1 by giving loan of Rs.81,50,000/-. Relying upon the assurance, the defendant requested the Bank of India for release of the flat. However, when the defendant no.1 approached the plaintiff for actual loan of Rs.81,50,000/- the plaintiff backed out. He paid only Rs.31,50,000/- and it was defendant no.1 who had to arrange for the balance sum of Rs.90.0 lacs from other relatives. It is, therefore, stated that the version of defendant no.1 assumes significance and must be accepted as against purported agreement for sale on which the relief of specific performance is based. 9. Mr.Andhyarujina appearing on behalf of defendant no.2 has invited my attention to the agreement and has submitted that the agreement in the recital and particularly with regard to the payment recites that the purchase price is Rs.81,50,000/- but the mode of payment will be that sum of Rs.50 lacs (balance) shall be paid by the plaintiff to defendant no.1 within one month period or upon registration of the agreement with the sub registry whichever is earlier. 10. It is clear that the amount of Rs.31,50,000/- was paid under an unregistered agreement and therefore, such a recital would not find place according to Mr.Andhyarujina had it not been a case of loan or finance transaction. 11. Having perused the relevant material including the plaint and the annexures, 5 I am of the view that from the documents that are annexed by the plaintiff, it becomes crystal clear that the defendant no.1 was partner of M/s.Swift Services Lining. It was a partnership firm to which a facility came to be granted by the banker. The Bank ultimately filed a criminal case before the Central Bureau of Investigation in Misc. Application No.58 of 2008 in Special Case No.69 of 2005 for release of the documents/title deeds. From the copies of the orders that are annexed to the plaint it is apparent that the Bank of India had given facilities to defendant no.1 and he had failed to repay and ultimately a settlement was reached at Rs.1.25 crores. In the order passed, there is a reference to the reply of CBI / Special task force which had charged defendant no.1 with the offences of cheating/forgery under sections 120-B r/w 420, 468, 471 of the IPC and punishable u/s 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 wherein CBI had stated that defendant no.1 had mortgaged his flat as collateral security for obtaining the loan. The documents were filed and title deeds were with the prosecution/CBI. 12. The assertion in the plaint together with the recitals in the agreement go to show that prima facie this is a case where defendant no.1 approached the plaintiff for financial assistance and in return of that the agreement was executed. There are several cheques, copies of which are annexed. It is stated that before the agreement was registered, a sum of Rs.31,50,000/- was paid whereas plaintiff asserts that there was a licensee in possession of the flat. Defendant no.1 denies this fact. If the plaintiff states that a licensee 6 was in physical possession of the suit flat, then, prima facie, his version that he was in physical possession or that he was having one key of he same appears to be contradictory and false. 13. The assertion in the plaint and particularly para 9 would go to show that the plaintiff was aware that the documents /title deeds in respect of the property are with CBI. 14. The version that the plaintiff was put in possession is also not supported by any document because what is annexed is a copy of some plan prepared by an Architect, beyond that there is nothing to show that the plaintiff was put in possession although the agreement recites that one set of keys are with the plaintiff. 15. For obvious reasons and on the doubt raised because of the plaintiff s’ version, his pleas cannot be accepted. Ordinarily, at this stage, by virtue of section 91 and 92 of the Evidence Act, 1872, the court will not brush aside the written document but these provisions do not bar raising a plea that the real transaction is something else and not which is stated in the Agreement. If the material in that behalf is produced and doubts are raised by the plaintiff s case then, the court can for its prima facie satisfaction, look into ’ and consider the same. Therefore, the plaintiff has failed to make out a prima facie case that there was an agreement for sale of the suit flat. 7 16. In such circumstances, no interim relief can be granted in favour of the plaintiff. However, defendant no.1 has stated on oath that he is ready and willing to pay the sum of Rs.21,50,000/- to the plaintiffs. In my view interest of justice would be served if the following order is made: 17. Defendant no.1 to deposit in this court Rs.25.0 lacs within a period of 3 months from today. There will be interim injunction restraining the defendants, their servants and all those claiming through them from transferring the suit flat, so also, parting with possession thereof in any manner. Needless to state that on deposit of the said amount, the order of injunction to stand vacated, without any further reference to the court. ( S.C.Dharmadhikari, J. )