1 fa-1600-10.doc mgn IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL JURISDICTION FIRST APPEAL NO.1600 OF 2010 WITH CIVIL APPLICATION NO.4080 OF 2010 Shri Dattatray Babanrao Dhankawade...Appellant Versus Shri Shriniwas Ramchandra Gadgil ..Respondent Mr. Anil Anturkar, for the Appellant. Mr.R.S. Apte, Senior Advocate i/b. Mr. S.N. Chandrachud for respondent. CORAM: B.H.MAARLAPALLE & U.D.SALVI, JJ. RESERVED ON: December 8, 2010. PRONOUNCED ON: December 21, 2010. P.C. This Appeal filed under Section 96 of the Code of Civil Procedure, 1908, is directed against the decree granted by the 2 fa-1600-10.doc learned Civil Judge, Senior Division at Pune on 18th August, 2010 in Special Civil Suit No.1047 of 2005. The operative part of the order reads as under:- “1.Suit is partly decreed. 2. Defendant is directed to pay an amount of Rs.6,00,000/- (Rupees six lacs only) along with simple interest @ 18% per annum from the date of suit till realization of the entire amount. 3. The relief of specific performance of contract and other reliefs sought by plaintiff are hereby dismissed. 4. Parties to bear their own costs. 2. Copies of private Paper-book have been submitted. By the consent of the parties the appeal has been heard finally. 3. The appellant-plaintiff filed Special Civil Suit No.1047 of 2005 for the specific performance, injunction and damages, based on the Agreement dted 23rd August, 2002. It was contended that as per the said agreement the defendant agreed to 3 fa-1600-10.doc sell his rights, title and interest in the suit property i.e. the house located in City Survey No.40/80 along with the total plot area admeasuring 784.7 sq., meters located in village Erandwane, (Bhonde Colony), Taluka Haveli, District Pune at a consideration of Rs.1,350/- per sq. ft., amounting to a total consideration of Rs.59,31,000/-. On the same day i.e. on 23rd August, 2002 an amount of Rs.6.00 lakhs was paid to the defendant by the plaintiff and the defendant had agreed to obtain consent of Smt. Prafulla Ranade, who was occupying one of the two flats on the first floor admeasuring about 750 sq. ft. It was further agreed that the plaintiff shall be entitled to utilise the TDR of some other property in the project to be started on the suit property and to the extent of 40% as per the Corporation Rules and in that case the plaintiff shall pay an additional consideration of Rs.5.00 lakhs to the defendant. The plaintiff had repeatedly approached the defendant and requested him to furnish the necessary documents and to perform his part of the contract and fulfill his assurances and discharge the obligations, but the defendant avoided to take any effort to obtain the 4 fa-1600-10.doc consent of Smt. Prafulla Ranade. In so far as plaintiff is concerned he has taken all the required efforts to discharge his part of the contract and as the defendant was not taking any effort to perform his part of the contract the plaintiff issued a notice dated 8th May, 2003 and another notice dated 25th June, 2006 to the defendant through his Advocate and finally he filed the suit. 4. The defendant filed his written statement at Exhibit 5 and denied the execution of any Agreement to sell his right, title and interest in the suit property to the plaintiff. He admitted that in the month of August, 2002 he became the owner of the said property under the Will of his father, but his name was not mutated in the record of rights. His name was mutated only on 8th October, 2002 and the said fact was communicated to the plaintiff. He admitted to have received an amount of Rs.6.00 lakhs from the plaintiff but it was not towards the part consideration and was only a security deposit. He also avoided to execute the agreement dated 23rd August, 2002 to transfer the 5 fa-1600-10.doc suit property. However, he admitted that the agreement was signed on 23rd August, 2002, but it was not an Agreement to sell the suit property and, therefore, the suit for specific performance was not maintainable for the reliefrs prayed for. 5. The plaintiff examined himself and did not examine any other witnesses though witness summons was issued to Prakash Kalbhor,Architect. Documentary evidence at Exhibits 55 and 56 i.e., the application submitted to the Municipal Corporation, Agreement for Sale at Exhibit 41, City Survey Extract at Exhibit 40 and notice dated 8th May, 2003 at Exhibit 42 along with the acknowledgement at Exhibit 43 and reply received from the defendant at Exhibit 44 were brought on record. The defendant examined himself at Exhibit 52. The trial Court framed the following issues:- Sr.No. Issues. Findings: 1. Does plaintiff prove that there was a concluded contract between plaintiff and defendant on 23.08.2002 by which defendant agreed to sell the suit property to plaintiff for consideration of Rs.59,31,000/-? No 2. Does plaintiff prove that plaintiff has paid an amount of Rs.6,00,000/- to defendant by way of earnest amount. Yes 3. Does plaintiff prove that he was ready and willing to No 6 fa-1600-10.doc perform his part of contract. 4. Does defendant prove that he had received Rs.6,00,000/- from plaintiff as security deposit/Visar? No 5. Whether plaintiff is entitled to the relief of specific performance of agreement dt. 23.08.2002 or in alternative refund of amount and damages Plaintiff is not entitled for specific performance of contract, damages of Rs.85 lacs & expenses of Rs.2,00,000/-. But Plaintiff is entitled for refund of Rs.6 lacs along with simple interest @ 18% per annum from the date of suit till realization of the entire amount. 6. What order and decree? As per final order. and recorded its findings as shown against each issue, after considering the averments made by the respective parties and the evidence produced. 6. The trial Court thus held that the plaintiff had paid an amount of Rs.6.00 lacs to the defendant by way of earnest amount, the plaintiff failed to prove that there was a concluded contract between him and the defendant so as to sell the suit property to him for a consideration of Rs.59,31,000/- and that 7 fa-1600-10.doc the plaintiff failed to prove that he was ready and willing to perform his part of the contract. The trial Court concluded that the plaintiff was not entitled for specific performance of the contract or damages of Rs.85.00 lakhs along with expenses of Rs.2.00 lakhs. The suit was partly allowed only for the refund of Rs.2.00 lakhs with simple interest at 18% per annum. 7. As per Mr. Anturkar, the trial Court failed to appreciate the evidence on the third point namely the plaintiff's readiness and willingness to perform his part of the contract. He submitted that it was the responsibility of the defendant to obtain the consent of Smt. Prafulla Ranade and the trial Court shifted the said burden on the plaintiff, which is an error apparent on the face of the record. He urged that on the face of the evidence adduced by the plaintiff it was necessary that the suit was decreed for the specific performance of the contract namely to sign the sale deed for transfer of the suit property to the plaintif. 8 fa-1600-10.doc 8. Mr. Apte, the learned Senior Counsel for the respondent on the other hand submitted that on the face of the terms of the Agreement dated 23rd August, 2002 the suit for the relief prayed for was not maintainable and for the said reliefs there was no concluded agreement so as to transfer the suit property to the plaintiff. He also pointed out that the Agreement dated 23rd Autgust, 2002 was only for signing of the Development Agreement and a suit for specific performance cannot be entertained for performance of such a contract. In support of his arguments, he relied upon the following judgments :- 1.Simon Reuben & Ors. v. Haji Shaikh Mahomed Shustary, AIR 1922 Bombay 404. 2.H.S. Khan & Sons & Anr. v. Homi J. Mukadam, 1991 (2) Bom.C.R.61. 9. The reliefs prayed for by the plaintiff in the said suit were as under:- 1.The defendant be directed to execute registered sale deed or such other documents desired by the plaintiff in 9 fa-1600-10.doc favour of the plaintiff in respect of suiut property as a performance of contract dated 23rd Auigust, 2002 by accepting the remaining consideration. 2.The defendant may kindly be directed to secure all necessary permissions, consents, orders, documents required to complete the said contract. 3. The Defendeant may kindly be directed to hand over vacant and peaceful possession of the suit property to the plaintiff. In the alternative, the plaintiff prayed for damages of Rs.85,00,000/- along with interest at 18% per annum from 23rd August, 2002. 10. The copy of the Agreement dated 23rd August, 2002 (Exhibit 41) is placed on record in the Paper-book. Clauses 3, 4(e) and 4(u) of the Agreement read as under:- “3- lnjph feGdr [kwi tquh >kysyh vlwu R;ke/kwu Eg.kkos rls mRiUu ;sr ukgh- lcc lnjph feGdr ikMwu R;koj ekydh rRokojhy 10 fa-1600-10.doc xkG;kaph ;kstuk jkcfo.;kps vkEgh Bjfoys ijarq iqjsls rkaf=d Kku o vkfFkZd ikBcG ;kapk vHkko vlY;kus v’kh ;kstuk jkcfo.;kpk gDd o vf/kdkj vkEgh rcfny d#u ns.;kps Bjfoys rs rqEgh rcfny d#u ? ks.;kph r;kjh n’kZfoyh o rqEgh nsow dsysyk ekscnyk gk vkEgkl ;ksX; oktoh o jkLr okVY;kus rqEgkl gDd rcfny d#u ns.;kps Bjys- R;kP;k vVh o ‘krhZ ;s.ksizek.ks 4- lnj feGdrhph fdaer rqeps o vkeps njE;ku izfr pkS-QqVkl #-1350@& izek.ks Bjysys vlwu R;kiSdh vkt jksth rqepsdMwu jDde #-6]00]000@& (v{kjh jDde #-lgk yk[k QDr) feGkYks- Hkj.kk rif’ky %& b- lnj feGdrhpk djkjukek vktiklwu ,d efgU;kP;k vkre/;s vkEgh vkeP;k ukokph uksan dkxnksi=h d#u ?ksowu rqEgkl feGdrhps fodlukpk djkjukek fygwu ns.;kpk vkgs- m- lnj feGdrhe/;s ifgY;k etY;kojhy ,d xkGk (vankts 750 pkS-QqV) vkEgh lkS- izQqYyk vjfoan jkuMs ;kauk fodysyk gksrk R;kaP;k’kh rqEgkal #tw #tokr d#u ns.;kph vlwu djkjukek R;kaP;k vko’;d laerh vkEgh rqEgkl osGksosGh nsow (R;kaPkh laerh feGkY;kuarjp fodlukP;k dkekyk lqjokr djko;kph vkgs)-” 11. A combined reading of Clauses 3 and 4(e) clearly shows that what was agreed between the parties was that the plaintiff would sign an agreement for development of the suit property in favour of the plaintiff and the plaintiff would develop the suit property. It was not an Agreement for transfer of the suit property by way of 11 fa-1600-10.doc sale. It is in this context thatq the trial Court held that so far as the relief for specific performance of the contract for signing the sale deed was concerned, it was an incomplete contract. The contract dated 23rd August, 2002 did not envisage transfer of the suit propety and the plaintiff was to act only as a developer of the same if the terms of the said contract were completed. Mr. Anturkar is not totaly right in his submissions that as per clause 4(u) of the contract it was the responsibility of the defendant to obtain consent of Mrs. Prafulla Ranade, but it was the responsibility of the defendant to bring the plaintiff and Mrs. Pr4afulla Ranade together on negotiating table and facilitate the execution of the agreement between the two. However, that by itself will not change the findings on the first issue recorded by the trial Court. Mr. Apte rightly relied upon the decision of this court and in our opinion the trial Court did not commit any error in holding that there was no concluded contract between the parties for transfer of the suit property to the plaintiff and the Agreement dated 23rd August, 2002 could not be said to be a 12 fa-1600-10.doc concluded contract for the said relief. 12. Hence this Appeal must fail at the threshold and the same is hereby dismissed. 13. In view of the dismissal of the First Appeal, the Civil Application does not survive. The same is disposed off as infructuous. (U.D.SALVI, J.) (B.H. MARLAPALLE, J.)