1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO.1193 OF 2003 Sanjay Tulsidas Rukhana ...Plaintiff vs. Feroza Mabood Khan ...Defendant Mr.V.M.Acharya i/b M/s.Mayur Narendra & Co.for the plaintiff None for the defendant CORAM :A.S.OKA,J. DATE : DECEMBER 10, 2009 JUDGMENT : 1 The suit is shown under the caption undefended suits for exparte decree . 2 The suit is filed for declaration that the suit agreement dated 20 th August 1999 is valid and subsisting and is binding on the defendant. The prayer for specific performance has been also incorporated in the suit. There are consequential prayers made in the suit. 3 The suit agreement relates to a flat more particularly described in paragraph 2 of the plaint. The defendant executed the suit agreement dated 20 th August 1999 in favour of the plaintiff by which the defendant agreed to sale the suit flat to the plaintiff and to transfer the share certificate in favour of the plaintiff. Consideration was fixed at Rs.9,50,000/-. A sum of Rs.6,50,000/- was to be paid on or before 2 execution of the suit agreement. A sum of Rs.1,00,000/- was already paid on 16 th August 1999 and balance amount of Rs.2,00,000/- was payable on or before 1 st March 2000 at the time of delivery of possession of the suit flat to the plaintiff. Reliance is placed on various terms and conditions of the agreement and power of attorney executed by the defendant in favour of the plaintiff. 4 By letter dated 15 th July 2000, the plaintiff had called upon the defendant to perform his part of the contract. However, there was no response from the defendant and therefore, an Advocate s notice dated 7 th September 2001 was addressed to the defendant. As the defendant did not come forward to comply with his part of the suit agreement, the present suit has been filed. 5 There is no written statement filed by the defendant. The plaintiff has filed an affidavit in lieu of the examination in chief. The plaintiff is relying upon the suit agreement dated 20 th August 1999 which was lodged for registration on 25 th August 1999. Affidavit in lieu of evidence shows that the plaintiff had paid a total sum of Rs.7,50,000/- to the defendant. The averments made in the plaint have gone unchallenged. The averments made in the plaint have been proved by the plaintiff and the documents including the suit Agreement have been proved. There is already an injunction 3 operating in favour of the plaintiff restraining the defendant from creating third party interests and from parting with possession in respect of the suit flat. 6 In the circumstances, a case is made out for passing a decree in favour of the plaintiff in terms of prayer clauses (a) to (c) subject to the plaintiff depositing the balance consideration of Rs.2,00,000/- in this Court within three months from today. 7 Hence, I pass the following order : i) There will be decree in terms of prayer clauses (a) to (c) subject to the condition of the plaintiff depositing with this court a sum of Rs.2,00,000/- within three months from today. The plaintiffs will be entitled to receive costs of the suit from the defendant. ii)In the event the plaintiff fails to deposit a sum of Rs.2,00,000/- with this Court within a period of three months from today, the suit will stand dismissed. iii)The plaintiff will be entitled to refund of court fees as per the rules. JUDGE