1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2591 OF 2005 IN SUIT NO.2426 OF 2005 1.Shri.Chandrakant S.Shah & anr. ...Plaintiffs vs. Shri.Shashikant Padamshi Mehta ...Defendant. --- Mr.Kevik Setalwad i/b. Vimla & Co., for Plaintiffs. Mr.Jose George, for Defendant. CORAM: D.K.DESHMUKH,J. DATED: 21st April,2007 P.C.:- 1. This is a notice of motion taken out by the plaintiffs. In the suit, the plaintiffs pray for decree of specific performance of the agreement at 2 Exhibit B dated 26.4.2005. Perusal of that agreement shows that by that agreement the defendant agreed to sell a flat admittedly owned by the defendant to the plaintiffs for consideration of Rs.22,00,000/- (Rupees Twenty Two lakhs only). Admittedly, the amount of Rs.2,50,000/- (Rupees Two lakhs and Fifty thousand only) was paid as earnest money even before the agreement was signed. The possession was to be delivered on payment of full consideration. The sale was to be completed by payment of full consideration on or before 31.5.2005. According to the plaintiffs, after the agreement was signed, he arranged for a loan from the Bank and got in touch with the defendant and requested him to accept the balance consideration and to accompany them to the office of the Sub-Registrar of Assurances for registration of the agreement. According to the plaintiffs, the defendant did not accompany them for registration of the agreement and therefore, the suit has been filed for a decree of specific performance. According to the defendant, the plaintiffs are guilty of suppressing material and relevant facts. According to the defendant, he had agreed to sell the property because he wanted to buy some other property. The date 31st May,2005 was fixed as outer limit for 3 payment of balance consideration. In fact, as per the oral agreement between the parties, the balance of consideration was to be paid on or before 15.5.2005. According to the defendants on 30.4.2005, the plaintiffs had given a cheque of Rs.3,50,000/- to the defendant. When that cheque was put in the bank for realisation it was dishonoured. This fact is totally suppressed by the plaintiffs in the plaint. It is also contended by the defendant that the plaintiffs were never ready and willing to pay the balance amount of consideration, and therefore, they are not entitled to decree of specific performance. It is also pointed out by the defendant that as a condition of the ad-interim order passed in this notice of motion, the plaintiffs had deposited an amount of Rs.10 lakhs. In the appeal, the ad-interim order was modified and the plaintiffs sought liberty for withdrawal of the amount of Rs.10 lakhs deposited by them and that amount has actually been withdrawn by the plaintiffs. According to the defendant, the conduct of the plaintiffs of withdrawing even the amount of Rs.10 lakhs deposited in the Court shows that the plaintiffs were never ready and willing to perform their part of the contract. 4 2. I have heard the learned Counsel appearing for both the sides. Perusal of the agreement shows that in clause (3) of the agreement it is clearly stated "the sale shall be completed on or before 31st day of May,2005 against the payment of balance consideration of Rs.19,50,000/- by the transferees to the transferor." Thus, the parties had agreed that the balance amount of consideration has to be paid on or before 31.5.2005. Perusal of the plaint shows that though the plaintiffs claim that they had balance of consideration ready with them and a request is made to the defendant to come to the office of the Sub-registrar for registration of the document, in the plaint the plaintiffs have not disclosed the date on which they requested the defendant to accompany them. Even, the correspondence which are annexed to the plaint which are exchanged between the parties do not disclose the date on which, according to the plaintiffs, they called the defendant to accompany them to the Registration office as they are in a position to pay the entire amount of balance consideration. In my opinion, as the agreement itself contemplates payment to be made on or before 31.5.2005, the plaintiffs were under a duty to disclose to the Court whether 5 they offered the balance amount of consideration to the defendant on or before 31.5.2005. In my opinion, non disclosure of this relevant fact dis-entitles the plaintiffs to any interim relief which is in the discretion of the Court. It is further to be seen here that though the agreement between the parties does not contemplate payment of any part of balance amount of consideration before completion of transaction, in fact the plaintiffs had given a cheque of Rs.3,50,000/- to the defendant and that cheque was dishonoured. This fact was relevant from the point of view of considering the question whether the plaintiffs were ready and willing and in a position to perform their part of the contract. This fact has been clearly suppressed by the plaintiffs. The only explanation that is given by the learned Counsel appearing for plaintiffs for not disclosing the fact that the cheque for Rs.3,50,000/- given by the plaintiffs to the defendant was dishonoured is that this payment was not contemplated by the agreement. Though the payment was not contemplated by the agreement, the fact remains that the payment was made under the agreement and that the cheque was given for performance of the obligation on the plaintiffs under the agreement and therefore, the 6 fact that the cheque was given and it was dishonoured was a relevant fact. The plaintiffs are clearly guilty of suppressing the relevant facts. It appears that the necessary funds were not available with the plaintiffs and therefore, the plaintiffs were not in a position to perform their part of the contract. The conduct of the plaintiffs of withdrawing even the amount which was deposited by them as a condition of the ad-interim order passed by the Court in this notice of motion shows that the plaintiffs are not ready and willing to perform their part of the contract because they are not in a position to do it. The defendant has stated in the affidavit that he had agreed to sell the flat to the plaintiffs because he wanted to shift to some other premises and to buy some other premises. Considering the conduct of the plaintiffs, the plaintiffs are guilty of suppressing relevant and material facts from the Court. In my opinion, the plaintiffs are not entitled to any interim order. The notice of motion is therefore, disposed of. 3. At the request of the learned Counsel appearing for plaintiffs, it is directed that ad- interim order passed by the Appeal Court which is 7 operating shall continue to operate for a period of six weeks from today. ---