*1* nms.3685.09 kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3685 OF 2009 IN SUIT NO.2667 OF 2009 Rizvi Estate Hotels Pvt.Ltd.. ..Plaintiffs -Versus- Sushila Puran Nath Barry and others. ..Defendants .......... Mr.Dinyar Madon, Senior Counsel a/w Mr.Sandeep Bhimekar and Ms.Pallavi Smriti, i/b Wadia Ghandy & Company, for the Plaintiffs. Mr.T.N.Subramaniam, Senior Counsel a/w Mr.Rajesh Shah and A.T.Suryavanshi i/b M.Ghandhi and Company for the Defendant No.5. .......... CORAM : S.C.DHARMADHIKARI, J. DATE : 21st September, 2010. P.C. 1 This Notice of Motion is in a suit for enforcement of an agreement for sale which is referred to in paragraph-10 of the plaint, that is in relation to the property which is more particularly described in prayer clause (a) of the plaint. 2 It is stated that the agreement is valid, subsisting and binding on the Defendant Nos.1 to 4 and although a conveyance between the Defendant Nos.1 to 4 and 5 is referred to in paragraph-50 of the plaint, there is no declaration claimed with regard to its legality and validity. 3 It is contended that the suit agreement of sale is of the year 1979 and the structures on the property are occupied by the tenants. The *2* nms.3685.09 predecessors-in-title of the Defendant Nos.1 to 4 placed the Plaintiff in possession of the property and even issued the letter of attornment attorning the tenancy rights. Further a power of attorney was executed in favour of the Plaintiff which is registered. 4 It is stated that entire consideration under the agreement has been paid and therefore, there was no question of doing anything further. All that remained to be done was execution of conveyance/sale deed in favour of the Plaintiff, which having not been done and the Defendant No. 5 claiming under the conveyance in it’s favour as a bona-fide purchaser, that the instant suit is filed. 5 The Defendant Nos.1 to 4 are absent though served and it is stated that the Written Statement has been filed by the Defendant Nos.1 to 4 wherein they have raised a specific plea that there is no privity of contract between them and the Plaintiff. The specific contention raised is that to the knowledge of the Plaintiff, the property in question has been declared as slum as early as in the year 1977. The Defendant No.5 is implementing the Slum Rehabilitation Scheme. In view of the provisions of the Maharashtra Slum Areas (Improvement, Clearance & Redevelopment) Act, 1971, the suit of the present nature is barred. The very agreement on which reliance is placed by the Plaintiff is challenged and there is denial that such an agreement was executed. 6 The Defendant No.5 has filed an affidavit in reply and inter- alia raised a plea of limitation. 7 I have heard Mr.Madon, learned Senior Counsel appearing for the Plaintiffs, who submits that the Plaintiffs have been put in possession and it was agreed between the Plaintiffs and the vendors that the suit property would be transferred to the Plaintiffs or their nominees *3* nms.3685.09 including the Co-operative Housing Society as and when requested. Since such a request was contemplated, on its rejection the cause of action accrued. Hence, the suit cannot be said to be barred by limitation. Further in pursuance of the agreement of sale, all obligations have been discharged and entire consideration has been paid and the Plaintiff is put in physical possession of the property. In such circumstances and when there is attornment of tenancy rights and the power of attorney is registered, then, the claim of the Defendant No.5 that they are bona-fide purchasers for value without notice cannot be accepted. For all these reasons, a prima facie case for grant of interim junction is made out. 8 Mr.Subramaniam, learned Senior Counsel appearing for the Defendant No.5, on the other hand, urges that the suit claim is hopelessly time barred inasmuch as the agreement is dated 19.10.1979 and the suit is filed in the year 2009. The agreement contemplated taking of several steps including obtaining NOC under Section 230-A of the Income Tax Act. No time was contemplated for getting the sale deed registered. If their vendors had committed breach of the agreement, the Plaintiffs would have moved immediately for specific performance and further they have not made any effort to obtain NOC under the Urban Land (Ceiling and Regulation) Act, 1976. In such circumstances and when as per the knowledge of the Plaintiff the property is declared as slum way back in the year 1977 and if they are in physical possession, then, they ought to have moved expeditiously. However, no steps have been taken and this is not a fit case for grant of interim reliefs. 9 With the assistance of the learned Senior Counsel appearing for the parties, I have perused the plaint and annexures thereto and the affidavits and the Written Statement of the Defendant Nos.1 to 4. To my *4* nms.3685.09 mind, the only question that is required to be considered is whether the Plaintiffs have made out a prima facie case for interim injunction. 10 In this behalf if the plaint averments are perused, it is averred that Plaintiffs have an agreement of sale in their favour which has been executed by late Puran Nath Barry who is stated to have expired on 01.06.1999 viz. the husband of Defendant No.1 and father of the Defendant Nos.2, 3 and 4. The consideration stipulated is Rs.1,26,875/- and the entire sum has been paid by cheque drawn in favour of the vendors. As to how the sum has been paid is set out and further it is stated that the letter attorning the tenancy has been addressed to all tenants, a copy of the said letter is annexed at Annexure-E. All that letter states is that late Puran Nath Barry and his brother have agreed to surrender and the purchasers have agreed to purchase the suit property on “as is where is” basis. It is stated that the claims of existing tenants have also been settled by them and all existing tenants should pay monthly rent/ compensation to the Plaintiffs. Neither is there any document showing the details of tenancy nor there is any pleading to indicate the number of tenants, compensation payable i.e. whether month to month or otherwise and from when the Plaintiffs have been recovering the said sums. The Plaintiffs refer to the obligations including obtaining of the NOC under the Income Tax Act and the Urban Land (Ceiling and Regulation) Act, 1976. Surprisingly after the death of Puran Nath Barry on 01.06.1999 no letter has been exchanged to his heirs if the obligations under the agreement are to be performed by the heirs as well. At the same time, reference is made to repeal of the Urban Land (Ceiling and Regulation) Act, 1976. *5* nms.3685.09 11 To my mind, in the light of assertions in the Written Statement and even otherwise from what has been stated in the plaint, the Plaintiffs have not been prompt enough to move this Court. When their agreement is of the year 1979 and the entire consideration was allegedly paid, then, there is no question of the Plaintiffs waiting till 2009. As far as the limitation is concerned, in the plaint all that has been stated is that the only when the construction work on the suit property was going on the Plaintiffs became aware that the Defendant Nos.1 to 4 are not abiding by their commitment so also their obligations, therefore, the suit has been filed. Prima facie, it is doubtful as to whether in the teeth of assertions of the Plaintiffs that the agreement has been never terminated and there was no date fixed for performance, the suit filed in the year 2009 claiming specific performance of such an agreement can be said to be within time. 12 Even otherwise, the land is occupied by slums and presently slum rehabilitation scheme is being implemented by amalgamation of adjoining plots. The said scheme is being implemented by the Defendant No.5 and the Defendant No.5 also claims rights under the deed of conveyance executed in it’s favour by the Defendant Nos.1 to 4. To the knowledge of the Plaintiffs, the construction at site has been going on. The reference to some other proceedings does not mean that the Plaintiffs were unaware of the construction at site. The construction has been noticed by the Plaintiffs themselves. The photographs of construction are also annexed to the plaint, that being in advanced stage and the claim of Plaintiffs being in doubt on account of the pleas raised in the Written Statement, in my view, the Plaintiffs have failed to make out a prima facie case. Merely on the basis of the documents annexed to the plaint, it *6* nms.3685.09 cannot be said that there was an agreement of sale and in any event the Plaintiffs are ready and willing to perform their obligations there-under. Therefore, even the balance of convenience is not in favour of the Plaintiffs. 13 For all these reasons, Notice of Motion fails and is, accordingly, dismissed. (S.C. Dharmadhikari, J)