- 1 - 907.nms 71.11.s,55.11 skt IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 71 OF 2011 IN SUIT NO. 55 OF 2011 Laxmibai T.ukaram Kohe and Madhuri Madhukar Kohe ..Plaintiffs -Versus- Karm Yogi Property Developers Pvt. Ltd. & Ors. ..Defendants .......... Mr.R.V.Govilkar a/w. Ms.V.N.Bangera for the Plaintiffs. Mr.Sowmya Srikrishna i/b Rohit Shetty for Defendant No.1. Mr.Snehal shah i/b Ram U. Singh for Defendant Nos.3 & 4. .......... CORAM : S.J. VAZIFDAR, J. DATE : 28TH JULY 2011. P.C. 1 This is a suit for specific performance of the alleged agreement dated 24th November 2007 entered into between the plaintiffs and the defendants for purchase of a flat admeasuring 1,143 sq.ft. for a consideration of Rs.24,75,000/-. 2 A sum of Rs.3,00,000/- was paid before the execution of the agreement. The balance amounts were payable in installments of Rs. 1,08,750/- each on the completion of the plinth and each slab thereafter. - 2 - 907.nms 71.11.s,55.11 3 The case of defendant no.1 is that the plaintiffs had failed and neglected to make payment of the amounts due and payable by them despite several notices. As a result whereof defendant no.1 terminated the agreement by a letter dated 25th March 2004. Thereafter, an agreement was entered into between defendant no.1 and defendant no.3. This agreement is registered and the entire consideration has been paid by defendant no.3. 4 The suit was lodged on 2nd December 2010 i.e. after over seven years. The question is whether in the circumstances, the plaintiffs are entitled to any interim reliefs. 5 In view of the facts of this case, I am unable to discard the first defendant’s submission that at the time of the execution of the agreement, the plaintiffs were bound and liable to pay the amounts due up to the seventh slab as the building had come up to the 7th floor. Prima facie this appears to be so. 6 Pursuant to an order passed in Writ Petition (PIL) Nos.379 of 2003 and 2822 of 2003, the Municipal Commissioner filed a report dated 23rd February 2006. The report mentions that the building had come up to the 7th floor, at least as on 21st October 2002 i.e. much before the suit - 3 - 907.nms 71.11.s,55.11 agreement which was entered into on 24th November 2003. Defendant no. 1 contended that the plaintiffs required some time to make payment of the balance amount due up to the date of agreement namely Rs.8,70,000/- and was therefore given time to do so. 7 In view of all the surrounding circumstances, this is probable. The building was completed up to the 7th floor and there is no reason why the amounts would not be payable up to the 7th slab. The plaintiffs have offered no explanation as to why the amounts were not paid or were not payable up to the 7th slab though the building was completed up to the 7th floor. 8 In view of these facts, I am not inclined to disregard the correspondence that is relied upon by the first defendant as having ensued between the plaintiffs and the first defendant merely on the ground that the receipt thereof is acknowledged by the not very reliable mode of a UCP although service by UCP is permissible under the agreement. 9 By a letter dated 8th January 2004, defendant no.1 called upon the plaintiffs to make payment of the balance amount then due of Rs. 8,70,000/-. Reminders dated 5th February 2004 and 9th March 2004 were also addressed in this regard. The plaintiffs having failed to pay the - 4 - 907.nms 71.11.s,55.11 amount, Defendant No.1, by a letter dated 24th March 2004, finally called upon the plaintiffs to make the payment of the amount of Rs.8,70,000/- within fifteen days, failing which it was stated that the letter be treated as a letter of termination of the agreement dated 24th November 2003. The plaintiffs having failed to make payment of the said amount, the agreement stood terminated. 10 Thereafter, defendant no.1 and defendant no.3 entered into an agreement dated 14th September 2004 for the sale of the said flat. The stamp duty in respect thereof had been paid earlier on 10th September 2004. The agreement was registered on 16th September 2004. Incidentally, the agreement between the plaintiffs and defendant no.1 was not registered. Defendant no.3 has paid the entire consideration for the said flat. 11 In the circumstances, even if the plaintiffs have a prima facie case against defendant no.1, it would be unfair to pass any orders against defendant no.3, who is a bona fide purchaser for value without notice. It is not the plaintiffs’ case that there is any collusion between defendant no.1 and defendant no.3. Thus, assuming that there is any dishonesty on the part of the defendant no.1, there is no justification for visiting the consequences thereof upon defendant no.3. - 5 - 907.nms 71.11.s,55.11 12 The plaintiffs allege having paid an amount of Rs.5,00,000/- in cash at the time of the execution of the agreement. Defendant no.1 denies having received the same. 13 Even assuming that the amount of Rs.5,00,000/- had been paid, it would make no difference. In paragraph 9 of the plaint, the plaintiffs stated that they had paid an amount of Rs.5,00,000/- in cash and that one Mangesh Sawant, a director of defendant no.1 had endorsed the receipt thereof on a visiting card. 14. Inspection of this document was sought by the defendants and was given by the plaintiffs. It is of vital importance to note that this very document also acknowledges the repayment of the amount of Rs.5,00,000/- to the plaintiffs. In an affidavit-in-reply dated 16th March 2001, this document was annexed as Exhibit 1. Further, in paragraph 50 of the affidavit, it is specifically stated that the plaintiffs have not offered any explanation regarding the repayment of Rs.5,00,000/- to the defendants. Despite the same, no explanation has been furnished by the plaintiffs in this regard. Prima facie, this would indicate the plaintiffs’ were satisfied with the return of the money. - 6 - 907.nms 71.11.s,55.11 15 In the circumstances, the Notice of Motion is dismissed. -