-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Notice of Motion No. 4542 of 2006 in Suit No.1173 of 2004 Suresh Shivram Palekar ..Plaintiff vs. 1. K.Y.Annapoorni and ors. ..Defendants Mrs.V.V.Thorat for plaintiff Mr.B.A.D’lima i/b D’lima and Associates for defendants. CORAM S.C.DHARMADHIKARI J. CORAM S.C.DHARMADHIKARI J. CORAM S.C.DHARMADHIKARI J. 8th April, 2008 8th April, 2008 8th April, 2008 P.C. P.C. P.C. 1. On 8th March, 2007 a statement was recorded that defendant nos. 6 and 7 shall maintain status quo in respect of the suit flat until further orders. I enquired from both sides as to whether they are agreeable to continue this arrangement. Mr.D’lima, after taking instructions, makes a statement that the defendants are not agreeable; and motion be heard on merits. 2. It is in such circumstances that I have heard Mrs.Thorat appearing for the plaintiff and Mr.D’lima appearing for the defendants. 3. The suit is filed by the plaintiff for specific -2- performance of an agreement for sale as more specifically mentioned in clause (c) of the plaint. At the same time a declaration is sought that the agreement for sale dated 5th December, 2001 executed by defendant nos. 1 to 5 in favour of defendant nos. 6 and 7 in respect of the suit flat is bad in law, illegal and not binding on the plaintiff. 4. The plaint allegations proceed on the basis that the plaintiff is residing at Ghatkoper, Mumbai. The first defendant is the absolute owner of the residential flat more particularly described in para 1 of the plaint. Defendant nos. 2 to 4 are the sons of defendant no.1 and defendant no.5 is his daughter. Defendant nos. 6 and 7 are the husband and wife and they claim to be the owners of the suit premises. In fact, the plaintiff is related to defendant nos. 6 and 7. Defendant no.6 is his real brother whereas defendant no.7 is his sister inlaw. 5. It is stated in para 2 of the plaint that the plaintiff approached the first defendant some time in the second week of November, 2001 as defendant no.1 intended to sell the suit flat. After negotiations, first defendant agreed to sell the suit flat to the plaintiff for a total consideration of Rs.9,00,000/- It is alleged -3- that defendant no.1 insisted upon part payment and, therefore, the plaintiff withdrew a sum of Rs.2,00,000/- on 10th November, 2001 and Rs.2,00,000/- further on 13th November, 2001 from his Savings Bank account with a Cooperative Bank at Ghatkoper. A sum of Rs.2,71,000/- was paid in cash, according to the plaintiff, to defendant no.1 in presence of defendant no.2 and wife of defendant no.2. The receipt for Rs.2,71,000/- was issued. Further, a sum of Rs.1,29,000/- was paid son 15th November, 2001 in cash and even that receipt is relied upon. Thus, the contention is that the flat was agreed to be sold for Rs.9,00,000/- The oral understanding/agreement is thus acted upon by accepting the sums which are evidenced by the receipts. The receipts and extracts from the bank account are relied upon. 6. It is contended that part consideration of Rs.4,00,000/- having been paid, the first defendant handed over possession of the suit premises to the plaintiff on the understanding and assurance that balance of Rs.5,00,000/- is to be paid on or before 31st December, 2001. Defendant no.1 allegedly suggested to the plaintiff that the agreement for sale in writing should be executed inrespect of the suit flat and for its registration certain charges will have to be paid and the -4- plaintiff,therefore, obtained a Demand Draft for Rs.32,750/- The plaintiff has alleged that oral assurance was given that the entire agreement would be executed on or before 25th November, 2001. It is alleged that the plaintiff moved with his articles and belongings in the suit flat and possession letter of 15th November, 2001 is relied upon. 7. It is alleged that his articles were removed from the suit premises on 27th November, 2001 and defendant nos. 6 and 7 were found in possession of the suit premises. Upon enquiries, defendant nos. 6 and 7 intimated the plaintiff that defendant nos. 1 to 5 have executed an Agreement of sale in their favour. There is a complaint made to Rajawadi Police Station on 27th November, 2001. The allegation is that defendant no.1 misused the Demand Draft dated 15th November,2001 handed over by the plaintiff for payment of stamp duty for the purpose of execution of the sale between defendant no.1 and defendant nos. 6 and 7 in respect of the suit flat.s Thus, the plaintiff being ready and willing to pay the balance consideration behind his back and without his knowledge and consent the agreement for sale in respect of the very suit flat was executed on 1st December, 2001. The plaintiff was put in possession and, therefore, this is in part performance of the -5- agreement. The suit was filed in the Civil Court but upon liberty being granted a substantive suit is filed in this Court. 8. It is in such circumstances that the reliefs which are referred to by me in the above paragraphs have been claimed. 9. Mrs.Thorat, learned Counsel appearing for the plaintiff urges that the plaint averments and documents which are annexed thereto would support the case of the plaintiff that the brother and sister in law so also the owners of the flat have colluded with each other and deprived the plaintiff of his legitimate claim towards the flat. After putting him in possession and accepting the substantial sums it is not permissible for defendant no.1 to have executed the agreement in favour of defendant nos. 6 and 7 and that is how the relief claimed in the Notice of Motion be granted. 10. On the other hand, Mr.D’lima invited my attention to the affidavit in reply which was filed by respondent no.6 who is none other than the brother of the plaintiff. The brother has categorically stated, according to Mr.D’lima, that the plaintiff has come with completely false case and -6- he has abused the process of law. The plaintiff is fully aware that the flat was to be acquired by defendant nos. 6 and 7 from defendant no.1. The plaintiff has no right in respect of the suit flat. The plaintiff has withdrawn the proceedings which are filed under section 145 of the Code of Criminal Procedure and also the suit in the City Civil Court. It is urged by defendant nos.6 and 7 that they have availed of the housing loan from H.D.F.C. and the flat is mortgaged in favour of H.D.F.C. Equal monthly instalments are being deducted from his salary till date. It is denied that defendant nos. 6 and 7 would dispose of or alienate the flat. It is contended that the agreement between themselves and defendant no.1 is to the knowledge of the plaintiff and, therefore, no case is made out for any interim relief. My attention was invited by Mr.D’lima to the agreement and signatures below the same.It is contended that the plaintiff has signed the agreement as a witness. 11. On the last occasion, I had called upon Mrs.Thorat to produce the original documents, copies of which are annexed to the plaint. 12. Original of Exhibit A to the plaint has been produced for my perusal. It bears no date and other details as to -7- where the same was allegedly executed. It is a receipt for Rs.2,71,000/- although it states that it is towards the part payment for transfer of flat C-2/7, Pramod Society, Vidyavihar (East), Mumbai 400 077. The said flat does not appear to be identical to the description in para 1 of the plaint. Para 1 of the plaint describes the suit premises as being flat no.7 in building C-2 admeasuring 460 sq.ft. Further the bank statement would not be of any assistance far from evidencing an agreement for sale of an immovable property. In so far as pay order for Rs.32,750/- is concerned, even that would not evidence that the same is the payment towards transfer of suit flat. Similarly, Exhibit D which is receipt has also been executed allegedly but without any particulars or details of date and place. At Exh.F is the letter dated 28th October, 2002 in which the plaintiff raised a dispute and in para 2 of this letter, this is what is stated:- "Thereafter you have negotiated with my brother Dilip for the sale of said flat to him, behind my back. You are aware that I had even taken the Bank draft for payment of Stamp Duty. However, in order to avoid the dispute I have reluctantly agreed to sell the flat to my brother, you your sons, my brother and his wife expressly agreed that my -8- amount of Rs.4,00,000/- (Rupees Four lacs only) @ 18% will be paid to me from the consideration of the flat payable by my brother, all of you had agreed that I will continue in possession of the said flat till the amount of Rs.4,00,000/- with interest is repaid. On that condition I also helped my brother to pay stamp duty by using the pay order obtained by me and the said amount he had to reimburse." However, with reference to Exh.F to the plaint, the averment in the plaint is that the plaitniff sought repayment of part consideration of Rs.4,00,000/- and the demand draft of Rs.32,750/- There is no explanation as to why in this letter the plaintiff would state that he has reluctantly agreed that the suit flat be sold to his brother. Thus, apart from there being no material to indicate that any agreement for sale of the suit flat was executed between the plaintiff and defendant no.1, it is clear from a perusal of the letter dated 28th October, 2002 that the plaintiff was fully aware of the agreement of sale of the suit flat between defendant no.1 and defendant nos. 6 and 7. A careful perusal of the original documents which are produced before me today, would also substantiate my above prima facie conclusion. -9- 13. In the result, the plaintiff has failed to make out a prima facie case of defendant nos. 1 to 5 having agreed to sell the suit flat to him for the consideration mentioned in the plaint. The very foundation for the relief of specific performance or to claim protection of section 53A of the Transfer of Property Act is thus lacking. From the plaint averments and contents of the plaintiff’s own letter it is apparent that the balance of convenience is also not in his favour. He was fully aware of the agreement between defendant nos. 1 to 5 and defendant nos. 6 and 7. Further there is no explanation as to why the plaintiff’s name appears as a witness so also his signature on the agreement between defendant nos. 1 to 5 and defendant nos. 6 and 7. In the above circumstances, I am of the opinion that defendant nos. 6 and 7 so also defendant nos. 1 to 5 would suffer irreparable harm and injury if any interim reliefs are granted in the present suit, more so when defendant nos.6 and 7 have denied that they have any intention to dispose of the flat and the same stands mortgaged to HDFC. In the result there is no reason to continue the ad-interim order. Prima facie, the plaintiff has failed to make out a case for any interim relief. The Notice of Motion is dismissed. -10- 14. However, it is clarified that all observations are tentative and prima facie so also made for the purpose of deciding the notice of motion and will not affect the outcome of the suit which will be tried on its own merits. The original documents are returned to the plaintiff on usual undertaking. (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.)