: 1 : USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 71 OF 2010 IN SUIT NO.55 OF 2010 Pramod Kumar Singh .. Plaintiff v/s. Mrs. Aarti Anil Palande & Ors. .. Defendants ......... Mr. A.G. Damle i/by Shukla & Shukla for the plaintiff Mr. S.M. Sakhardande i/by P.H. Dharmadhikari for defendant nos.2 and 3. Mr. H.R. Pawar for defendant no.1 ......... CORAM : R.Y.GANOO, J. DATE : 19TH APRIL, 2010. P.C. : 1. The plaintiff has instituted the suit for specific performance of agreement dated 10th July, 2009 against defendant no.1 as vendor and defendant nos.2 and 3 being subsequent purchasers in regard to the suit flat and a garage more particularly described in para 1 of the plaint. The plaintiff has taken out this notice of motion for interim reliefs of diverse nature, ultimately to see that no new rights are created in regard to the : 2 : suit flat and the garage (hereinafter referred to as the suit premises). The parties have completed the pleadings and I have heard learned advocates on both sides. The plaintiff claims that on 10th July, 2009 an M.O.U. was executed between the plaintiff and defendant no.1, by which defendant no.1 agreed to sell to the plaintiff the suit premises for a sum of Rs.65 lakhs and on the said date i.e. on 10th July, 2009, plaintiff paid to defendant no.1 a sum of Rs.5 lakhs. 2. As per the terms of M.O.U., the transaction was to be completed within a period of two months. It is noticed that the plaintiff was made aware of the fact that defendant no.1 had borrowed loan from LIC and unless and until the said loan was repaid, LIC was not returning the original documents to defendant no.1. Noting this fact, plaintiff came forward to pay the dues of the LIC and record indicates that plaintiff paid to the LIC a sum of Rs.5.30 lakhs by a cheque drawn in favour of LIC dated 9th October, 2009. Defendant no.1 also paid a sum of Rs.500/- by a cheque dated 9th October, 2009 to the LIC. In reply to the Court’s query, defendant no.1 informed to the Court that a sum of Rs.500/- was paid by the defendant no.1 as and by way of sundry amount. The fact remains that on payment of the said amount of Rs.5.30 lakhs, the loan advanced by LIC, got squared off and the encumbrance on the suit premises were : 3 : removed. In the plaint, there is a positive averment that defendant no.1 showed to plaintiff the original documents and inspection of the same was taken on 30th October, 2009. This fact is not denied by the defendant no.1. This would clearly go to show that though the agreement dated 10th April, 2009 indicated that the transaction was to be completed within a period of two months, parties by conduct extended the time to complete the transaction. 3. According to defendant no.1, he had sent a letter dated 25th October, 2009 at the address mentioned in the cause title as well as at another address namely Wadala and in the said letter dated 25th October, 2009, it was communicated to the plaintiff that if he fails to come forward for further transaction by 30th October 2009, it would be presumed that plaintiff is not interested in purchasing the said flat and the defendant no.1 would be constrained to presume that the transaction is cancelled. Defendant no.1 has relied upon receipts purported to be issued by the Courier Company and by these two documents, defendant no.1 wanted to show that letter dated 25th October, 2009 was served upon the plaintiff. Considering the signatures appearing on the two receipts, which are annexed as “A1” to the affidavit in reply, it is difficult to believe the word of defendant no.1 that letter dated 25th October, 2009 was served upon the : 4 : plaintiff. In any case, pursuant to the letter dated 25th October 2009, the agreement dated 10th July, 2009 has not been terminated by defendant no. 1 because the last paragraph of the said letter if read properly would indicate that defendant no.1 wanted to treat the transaction as closed. If at all, defendant no.1 wanted to treat the transaction as closed on or after 31st October, 2009 and if the plaintiff had not come forward to complete the transaction as set out in letter dated 25th October, 2009, it was necessary for defendant no.1 to issue a specific letter terminating the agreement dated 10th July, 2009 that has not been done. 4. There is one more aspect, which is required to be considered namely defendant no.1 had obtained No Objection Certificate from defendant no.4 as regards the sale of the flat in favour of the plaintiff. That No Objection Certificate is dated 20th October, 2009. This will mean that on 20th October, 2009, defendant no.1 had a mind to complete the transaction. This will mean that the arguments advanced by defendant no.1 that the transaction came to an end on 9th September, 2009 as per the terms of MOU dated 10th July, 2009, cannot be accepted. 5. On consideration of the entire record, I hold that defendant no.1 had not terminated the agreement dated 10th July, 2009 till filing of the suit. : 5 : 6. Defendant no.1 without formerly terminating the agreement dated 10th July, 2009, proceeded to execute an Agreement to Sale in regard to the suit premises on 2nd December, 2009 in favour of defendant nos.2 & 3. A notice came to be published in the newspaper about the aforesaid transaction and that was objected to by the plaintiff and that is how at the time of institution of the suit itself plaintiff had joined defendant nos.2 and 3 as party defendants. 7. The plaintiff in the present suit has specifically averred in the plaint that he is ready and willing to pay / deposit in the Court the balance consideration namely Rs.54.70 lakhs. This figure of Rs.54.70 lakhs is arrived at after giving credit to the plaintiff to the extent of Rs.10.30 lakhs because defendant no.1 had in turn admitted that he has received a sum of Rs.10.30 lakhs from the plaintiff. It is true that a sum of Rs.5.30 lakhs was not paid to defendant no.1, but it was paid to LIC for and on behalf of defendant no.1 and defendant no.1 has had benefit of satisfying the loan of LIC and that is how the property was made free from encumbrances. 8. It is to be noted that during the pendency of the hearing of this notice of motion, defendant no.1 was directed to deposit in this Court a : 6 : sum of Rs.10.30 lakhs. The defendant no.1 has deposited the said amount. After this deposit was paid, parties tried to arrive at some negotiation as overall settlement, however, overall settlement could not be arrived at however between defendant no.1 and defendant nos.2 and 3 the settlement came to be arrived at. Consent terms duly signed by the defendant no.1 and defendant nos.2 and 3 and their respective advocates dated 15th April, 2010 are filed. Defendant no.1 has agreed to pay to defendant nos. 2 and 3 a sum of Rs.10.30 lakhs, which defendant no.1 has deposited in the Court and pay balance of the amount i.e. Rs.4.70 lakhs so that the transaction between defendant no.1 and defendant nos.2 and 3 dated 2nd December, 2009 would come to an end and defendant nos. 2 and 3 would not stake any claims on the suit premises based on agreement dated 2nd December, 2009. Defendant no.1 and defendant nos. 2 and 3 have also agreed to execute appropriate documents so as to cancel the agreement between defendant no.1 and defendant nos.2 and 3. In short, after defendant nos. 2 and 3 get a sum of Rs.15 lakhs as set out in the consent terms, their rights to have the specific performance in regard to the agreement dated 2nd December, 2009 would come to an end. The plaintiff in principle had no objection to this arrangement because defendant nos. 2 and 3 had by the aforesaid consent terms relinquished their rights in regard to agreement dated 2nd December, 2009. : 7 : 9. In view of the aforesaid discussion, I am inclined to observe that plaintiff has made out prima-facie case that he is interested in purchasing the suit property and that he is ready and willing to pay / deposit in the Court the balance consideration of Rs.54.70 lakhs. 10. In the Course of the arguments, learned advocate for defendant no.1 after instructions from defendant no.1 has made a statement that as of today defendant no.1 is in possession of the suit premises and that he has not created third party rights in favour of anybody other than the agreement dated 2nd December, 2009 in favour of the defendant nos.2 & 3. In the aforesaid circumstances, keeping in view the readiness and willingness on the part of the plaintiff to deposit the balance consideration, the possession in regard to the suit premises can be handed over to the plaintiff on deposit of Rs.54.70 lakhs in the Court. The plaintiff can be permitted to enjoy the said premises till the disposal of the suit, of course on payment of necessary outgoings, which may be due and payable to defendant no.4. The aforesaid amount of Rs.54.70 lakhs can be withdrawn by defendant no.1. Similarly, appropriate orders can be passed in regard to the payment of money to defendant no.2 being the amount which is deposited by defendant no.1 in this Court as mentioned in the : 8 : consent terms. Appropriate orders can be passed in terms of the consent terms which have been tendered by the defendant no.1 and defendant nos. 2 and 3. In order to see that the possession of the suit premises is handed over to the plaintiff, I am inclined to appoint Receiver, High Court, Bombay. Once, this job is done, the Receiver will get discharged. Receivers charges are fixed at Rs.5,000/-. These charges are to be born by the plaintiff. Pending the hearing and final disposal of the suit, the plaintiff will have to be restrained from creating third party rights and / or part with possession as regards suit premises. Similarly, defendant no.1 will have to be restrained from creating third party rights in regard to the suit premises. 11. Keeping in view the aforesaid discussion, following order is passed to dispose of the notice of motion. ORDER (i) Receiver, High Court, Bombay is hereby appointed in regard to the suit premises more particularly described in para 1 of the plaint. Upon production of authenticated copy of this order duly authenticated by the Associate of the Court by the plaintiff or by : 9 : defendant no.1, Receiver shall take formal possession of the suit premises from defendant no.1. (ii) Plaintiff shall deposit Rs.54.70 lakhs in this Court on or before 4th June, 2010. Upon depositing the aforesaid amount, he shall produce the receipt issued by the Office before the Receiver so that the Receiver shall handover vacant and peaceful possession of the suit premises to the plaintiff. Upon handing over the vacant and peaceful possession in regard to the suit premises, the Receiver shall stand discharged. (iii) Upon handing over the vacant and peaceful possession to the plaintiff, Office shall pay to defendant no.1 a sum of Rs.54.70 lakhs without any security or guarantee. The plaintiff shall deposit within 15 days from today a sum of Rs.5,000/- towards Receiver’s charges for performing the job as mentioned aforesaid. During the pendency of the suit, plaintiff is hereby restrained from creating third party rights and / or parting with possession in regard to the suit premises. Similarly, during the pendency of this suit, defendant no.1 is restrained from creating third party rights in the suit premises. (iv) Upon production of the authenticated copy of this order duly authenticated by the Associate of the Court, office shall pay to defendant nos.2 and 3 a sum of Rs.10.30 lakhs. A cheque shall be : 10 : drawn by the office in favour of the defendant no.2 as set out in clause 5 of the consent terms. Defendant no.1 shall pay to defendant nos.2 and 3 a sum of Rs.4,70,000/- as set out in the consent terms by drawing demand draft or by pay order in favour of defendant no.2. (v)Upon payment of the aforesaid sum of Rs.15 lakhs, defendant nos. 2 and 3 shall cease to have rights in regard to suit premises qua the agreement dated 2nd December, 2009 and to that extent defendant nos. 2 and 3 will not be able to claim specific performance and/or any right in regard to the suit premises and to that extent rights of defendant nos.2 and 3 under the said agreement shall stand extinguished without any further orders from the Court and that the suit would remain pending as between the plaintiff and defendant no.1. (vi) The consent terms dated 15th March, 2010 referred above are already on record. Undertakings given by the respective parties as set out in the consent terms are accepted. (vii) There shall be no order as to costs. (viii) At the request of defendant no.1, the operation of this order is stayed till 5th May, 2010. After the aforesaid order is passed, learned Counsel for defendant nos.2 and 3 submitted that the order need : 11 : not be stayed so far as arrangement between defendant no.1 and defendant nos.2 and 3. Such a request cannot be granted as order is passed in the motion as a whole. Suit to come up on board in usual course. [R.Y.GANOO, J.]