- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.88 OF 2007 IN SUIT NO.42 OF 2007 Gordhandas K. Thakkar & Ors. ...Plaintiffs V/s. Deepak Dharamshi Sampat & anr. ...Defendants Mr.V.M.Vaghela for the plaintiffs Mr. B.V.Bhagat i/b M/s. Vasant & Co. for defendants CORAM: SMT.ROSHAN DALVI, J CORAM: SMT.ROSHAN DALVI, J CORAM: SMT.ROSHAN DALVI, J 14th July, 2008 14th July, 2008 14th July, 2008 P.C. P.C. P.C. . The Suit is filed for specific performance of agreements dated 27-11-2003, 5-12-2003 and 20-12-2003 and marked Exhibits B,C and D to the plaint. Exhibits B, C and D are in terms receipts for specified amounts issued from time to time by the defendants and confirmed by plaintiff no.1. 2. The Suit is based upon receipts issued by the defendants and confirmation of plaintiff no .1 thereunder, though it is contended that these are agreements between the parties. The Suit is for specific performance of the contract between the parties. Such specific performance need essentially be of one contract. However, in this Suit three separate contracts of three separate dates are shown. - 2 - 3. These documents are titled "Deposit Receipts". They show token amount paid towards sale agreement in respect of the Suit premises or part payment towards sale agreement. The entire agreement is stated to be for Rs. 54,50,000/-. 4. It is the plaintiffs’ case that the parties negotiated and orally agreed that the entire property of the defendants would be sold to the plaintiffs for Rs. 54,50,000/- and for which the plaintiffs made part payments on the aforesaid three dates and for which the aforesaid 3 receipts were issued. However, Plaintiff contends that these documents are not merely three receipts and that they constitute the agreement between the parties. 5. It is contended that the entire property is tenanted. The defendants live on the second floor. Unless the second floor was vacated, the plaintiffs would not be able to make any profit out of the transaction. Hence, the receipts show that consideration is to be paid when the possession of the second floor is given by the defendants to the plaintiffs. It is contended on behalf of the plaintiffs that it is the most essential part of the agreement. 6. The agreements said to be contained in what is titled "Deposit Receipt" and signed by the defendants and confirmed by plaintiff no.1 are produced. The first - 3 - original receipt is handwritten and shows "with second floor vacant possession" (the spelling of possession is incorrectly mentioned) in another ink. Evidence will have to be led as to whether that portion forms a part of the document and accordingly a part of the agreement dated 27-11-2003 when the defendants initially signed the document so as to confirm the clauses of the agreement more specially the clause relating to giving vacant possession of the second floor in which they reside. 7. The second deposit receipt, which is also handwritten, if it can be taken to be a second agreement between the parties, similarly mentions this important aspect in another ink. 8. The third deposit receipt which is titled "Deposit Receipt No.2" is undated. It shows the aforesaid expression already typewritten. It is on the letter head of the first plaintiff. 9. Reading the three deposit receipts together, it can be seen that from time to time and more specially on 27-11-2003, 5-12-2003 and 20-12-2003, the plaintiffs made certain token payments or part payments towards whatever was the agreement between the parties. 10. The deposit receipts, therefore, do not themselves show that they are the agreements between the - 4 - parties. There cannot be three agreements entered into on three different dates, the specific performance of which can be claimed. However, there may be an oral agreement between the parties. Consequent upon which, three part payments were made. It will be for the plaintiff to lead evidence to show whether the stage of negotiation was complete and an agreement was arrived at which is sought to be specifically performed. If that is so, the plaintiffs would have to show from oral evidence which was the date on which the negotiations culminated into the oral agreement to bind the parties. 11. The three receipts of the plaintiffs of different dates and stating the same facts do not show the culmination of negotiations on any given date. The different ink in the first two handwritten documents and typewritten third receipt containing that expression already typewritten show that the addition was made well after the first two receipts were executed by the defendants. In that case it will amount to interpolation. The three receipts read together only show the total part payment made of Rs. 4,00,000/- from the total amount of Rs. 54,50,000/- stated to be payable under the transaction. 12. Consequently, even if the first receipt itself is read as an agreement between the parties, it shows only part payment made towards the entire consideration. It does not reflect any other term or condition between - 5 - the parties in the agreement entered into by them which can be specifically performed. 13. The averment in paragraph 8 of the plaint shows that the parties have agreed to complete the sale transaction with vacant possession of the second floor of the suit premises within three months from December 2003. That term of the agreement is not reflected in the three deposit receipts which are taken to be the agreements. That part of the agreement is, therefore, only an oral agreement. It would have to be proved by oral evidence of the plaintiffs. 14. Despite the fact that the defendants were to give vacant possession within three months from December 2003, the plaintiffs are not seen to have called upon the defendants to perform their part of the contract within three months from December 2003. The first notice has been issued to the defendants on 22-5-2004. The defendants have replied to the notice on 16-6-2004 stating that the plaintiffs have not performed their part of the agreement. That would be a payment of the additional consideration. It was for the plaintiffs to show, at every material time, that they were ready and willing to perform their part of the agreement between the parties, oral or reflected in the aforesaid documents. That was not shown. 15. On 2-3-2005 the plaintiffs gave a public notice - 6 - of the agreement between the parties. That has been replied by the defendants on 11-3-2005. The Suit has been filed only on 21-11-2006. 16. One of the requirements of the specific performance claimed by the plaintiffs is for the defendants to make out a marketable title. No term relating to showing the marketability of the title is also reflected in the aforesaid three deposit receipts/agreements. Hence, that term also must be considered to be contained in any oral agreement between the parties for which oral evidence will be required. 17. The Defendants have entered into an earlier agreement with one Kulkarni dated 2-9-2002. That agreement has been cancelled on 15-12-2003. It is cancelled after the defendants received the first two token/part payments under the aforesaid receipts and before the defendants received the third part payment. 18. Upon the plaintiffs requiring the defendants to specifically perform the agreement between the parties, the defendants have forfeited the amounts of deposits. 19. From the aforesaid facts it is seen that the complete agreement between the parties is not shown. Atleast a part of the agreement is only oral, part of the agreement would be reflected in deposit receipts. The most important part in first two receipts is in - 7 - another ink and consequently not shown to be present in the document when the defendants signed it. The plaintiffs have long delayed their action in law. 20. The Defendants have relied upon two judgements in the case of Bhikaram son of Nathuji Vanjari & Ors. Bhikaram son of Nathuji Vanjari & Ors. Bhikaram son of Nathuji Vanjari & Ors. V/s. Saraswatibai w/o Motilal Zarkariya (1996(4) ALL MR V/s. Saraswatibai w/o Motilal Zarkariya (1996(4) ALL MR V/s. Saraswatibai w/o Motilal Zarkariya (1996(4) ALL MR 655) and in the case of K.S.Vidyanadam & Ors. Vs/ 655) and in the case of K.S.Vidyanadam & Ors. Vs/ 655) and in the case of K.S.Vidyanadam & Ors. Vs/ Vairavan (1997(2) ALL MR 249) Vairavan (1997(2) ALL MR 249) Vairavan (1997(2) ALL MR 249) in which delay of more than two years is held fatal to a case of specific performance and the readiness and willingness to be shown by the plaintiff is to be at the time of filing of the Suit which is required to be pleaded and proved. 21. In this case the plaintiffs readiness and willingness is not shown. The advocate for the plaintiffs stated that the plaintiffs would deposit the further consideration in Court or give a Bank Guarantee. The advocate for the plaintiffs also states that he will be able to issue a cheque drawn in the name of Prothonotary and Senior Master for the further consideration. These acts do not show readiness and willingness as statutorily required for claiming specific performance. 22. Under these aforesaid circumstances, plaintiffs are not entitled to be granted the reliefs claimed in the Notice of Motion. - 8 - 23. Notice of Motion is dismissed. No order as to costs. 24. Written-statement of the defendants is taken on record. - 9 - 25. Suit is adjourned to 19th November, 2008 for framing issues. (SMT. ROSHAN DALVI, J) (SMT. ROSHAN DALVI, J) (SMT. ROSHAN DALVI, J)