1 MNM IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 2605 OF 2008 IN SUIT NO. 2309 OF 2008 Smt. Shobha Arvind Patel ...Plaintiff Vs. M/s. Pashupatinath Construction & Ors. ...Defendants Mr.M.M.Vashi for the Plaintiff Mr. Roshan Pinto i/b. Nivit Shrivastav for Defendants 1 to 3 Mr. A.R. Shaikh for Defendant No.4 Mr. R.D.Soni i/b. Ram & Co., for Defendants 5 and 6 CORAM : SMT. ROSHAN DALVI, J. DATED : 5TH APRIL, 2010 P.C. : 1. This is a Suit for specific performance of an agreement to purchase a flat by a flat purchaser against the developers and thereafter against the 3 rd party to whom the flat agreed to be purchased initially by the Plaintiff’s husband came to be sold. The flat was booked on 18 th April 2004. Rs.25,000/- was paid even before the agreement was signed on 21 st March 2004. Thereafter from time to time until 20 th January 2005 Rs.3.05 lakhs came to be paid by 2 the Plaintiff’s husband leaving a balance of Rs.3.88 lakhs. This shows that less than half the consideration amount was paid until then. The Plaintiff’s husband expired on 11 th April 2005. The developers have written six letters to the Plaintiff’s husband dated 1 st April 2005, 17 th May 2005, 29 th July 2005, 4 th October 2005 and 13 th October 2005 and 14 th November 2005 initially calling for the payment of the installments and later, upon default, giving a notice that they would terminate the agreement and thereafter terminating the agreement itself. 2. The first of such letters was written during the life time of the Plaintiff’s husband. Hence the first default is seen to be committed by him during his life time. 3. Upon the defaults the agreement came to be validly terminated. Upon the termination the developers became entitled to sell the suit flat to a third party. The Defendants 5 and 6 have made payment of consideration initially of Rs.1 lakh at the time of execution of their agreement which came to be registered and later of Rs.12 lakhs when they came to be put in possession of the flat, initially agreed to be sold to the Plaintiff’s husband. 4. The Court Receiver has been appointed in respect of the Suit flat and Defendants 5 and 6 have been appointed as Agents of Court Receiver. They are in possession. They have made payment of the entire consideration. 5. The Plaintiff unfortunately could not make payment of installments and a sum of Rs.3.88 lakhs came to remain in balance. 3 6. It is contended on her behalf that Defendants 1 to 3 stated that they have created 3 rd party rights on 16 th March 2007 though the agreement by them in favour of Defendant No.4 came to be made only on 24 th December 2007 for a consideration of Re.1/-. Thereafter the Defendant No.4 entered into another agreement with Defendants 5 and 6 for consideration of Rs.13 lakhs on 14 th July 2008. 7. Even if there was no agreement between the Defendants 1 to 3 and Defendant No.4 or if that agreement was sham, by now rights have been created in favour of the independent 3 rd party being bonafide purchasers for value. 8. The Plaintiff cannot, therefore, be given the discretionary relief of specific performance and an equitable interim reliefs which amenate therefrom. Defendants 1 to 3 have offered to return the amount of Rs.3.05 lakhs paid by the Plaintiff’s husband, but without interest. It is seen that this amount was paid since 2005. 9. The Plaintiff is a widow who could not make payments thereafter. Though for her defaults she is not entitled to the equitable reliefs of specific performance, she might be entitled to get interest upon the amounts deposited by her husband. 10.The Plaintiff may consider investing that amount elsewhere. 4 11.No relief in the Notice of Motion can be granted. 12.The Notice of Motion is disposed off accordingly. 13.The Court Receiver shall continue as directed in the interim order for 4 weeks. (SMT. ROSHAN DALVI, J.)