( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO.2585 OF 2006 SUIT NO.2585 OF 2006 SUIT NO.2585 OF 2006 1. Vijay Gopal Salvi R/a. A/7, Geeta Ghar CHS Ltd., T.H. Kataria Road, Mahim, Mumbai - 400 016. 2. Sadhana Vijay Salvi R/a. A/7, Geeta Ghar CHS Ltd., T.H. Kataria Road, Mahim, Mumbai - 400 016. ...Plaintiffs Versus 1. Prithpalsingh Dharamsingh Hanspal R/a. 156, A, Basant Niwas, L.B.S. Road, Kurla (W), Mumbai - 400 070. 2. Kuljeet Singh S/o Saktar Singh R/a. Room No.69, Mithibai Bldg., Sewri, Mumbai - 400 015. 3. Shiv Sangam CHS Ltd. R/a. 7, Gopi Tank Road, Mahim, Mumbai - 400 016. Mr.Abhay D. Parab for the Plaintiffs. None for the Defendants. CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. DATED : 2nd December, 2008. DATED : 2nd December, 2008. DATED : 2nd December, 2008. ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : . The Plaintiff No.1 is husband of Plaintiff No.2. According to the Plaintiffs, Defendant No.1 agreed to sell to Plaintiffs Shop No.2 situate at the ( 2 ) Shiv Sangam Co-operative Housing Society, Gopi Tank Road, Mahim, Bombay (hereinafter referred to as "the suit shop") for a sum of Rs.13,50,000/- plus one Armada Jeep bearing No.MH-15-K-7804 costing about Rs.2,00,000/- (hereinafter referred to as "the said jeep"). Defendant No.2 is joined as at some point of time, Defendant No.2 was said to be in possession of the suit shop. Defendant No.3 is the Society in which the suit shop is situated. 2. The Plaintiffs have sought a decree for specific performance in respect of suit shop and that the Plaintiffs want that Defendants should execute sale deed. Plaintiffs want that the Court should issue a declaration that letter dated 24th August, 2005, issued by Defendant No.1 is illegal. The Plaintiffs have also prayed for compensation to the tune of Rs.15,50,000/- and have prayed for an interest @ 21% p.a. on Rs.3,04,000/- from the date of the filing of the Suit till realization and mesne profits @ Rs.6,000/- per month from May, 2006 till payment or realization. Plaintiffs have also prayed for costs of the Suit. 3. Few facts necessary for the disposal of the present Suit are as under : ( 3 ) 4. Plaintiffs came in contact with Defendant No.1 and according to Plaintiffs, Defendant No.1 agreed to sell to the Plaintiffs the suit shop for a consideration of Rs.13,50,000/- and the said jeep costing Rs.2,00,000/-. Plaintiffs admit that the Defendant No.1 had borrowed loan from Punjab & Maharashtra Co-operative Bank Ltd. and that Plaintiffs had paid to the said Bank a sum of Rs.70,000/- so as to pay off the entire loan amount. Plaintiffs claim that the agreement to sell to the suit shop was oral and wife and the daughter of Defendant No.1 were present when the agreement took place. Plaintiffs claim that they have paid to the Defendant No.1 Rs.2,90,500/- and the said jeep came to be delivered on 24th July, 2005. Out of the sum of Rs.2,90,500/-, a sum of Rs.70,000/- was paid to the said Bank on 4th May, 2005. The Plaintiffs, therefore, claim that in all a consideration to the tune of Rs.4,90,500/- is passed on to the Defendants. Plaintiffs claim that a sum of Rs.13,500/- was paid to the Government of Maharashtra towards the registration fee on 13th September, 2005. The Plaintiffs claim that sale deed was to be executed within one month from obtaining the no objection certificate by Defendant No.1 from the said Society. 5. Defendant No.1 sent a letter dated 24th ( 4 ) August, 2005, informing the Plaintiffs that the agreement is terminated, to which Plaintiffs sent reply dated 26th August, 2005 which is at Exhibit-P2. It is also the case of the Plaintiffs that complaints came to be filed by the Plaintiffs to the police authorities which are at Exhibits P-4 and P-5. Plaintiffs claim that they had filed a complaint on 14th November, 2005 to the Police Station and the said complaint was treated as F.I.R. and is treated as Exhibit P-3. According to Plaintiffs, the said jeep came to be seized by the police and the orders were obtained from the appropriate Court of the learned Metropolitan Magistrate being order dated 16th February, 2006 regarding the return of the property and the said jeep came to be redelivered to the Plaintiffs and the said order is at Exhibit P-6. The Plaintiffs ultimately issued notice dated 6th March, 2006 at Exhibit P-10, calling upon Defendant No.1 to perform his part of the contract. In substance, Plaintiffs claim that after the agreement was entered into, they have performed their part of the contract and have shown readiness and willingness to do so and because Defendant No.1 failed to perform his part of the contract, despite receiving Rs.4,90,500/-, Plaintiffs were compelled to institute the present Suit. ( 5 ) 6. No written statement is filed by Defendant Nos.2 and 3. Written statement has been filed by Defendant No.1. Defendant No.1 has contested the Suit and has come out with various contentions which can be summarised as follows : 7. Defendant No.1 claims that Plaintiffs had agreed to purchase the suit shop for Rs.26,00,000/- and had paid to him only a sum of Rs.2,20,500/-. According to him the deal was cancelled by notice dated 24th August, 2005 and that Plaintiffs filed a false complaint with the police. According to Defendant No.1, purchase of the jeep had no connection with sale of the suit shop and that the jeep was agreed to be sold to Plaintiff No.1 for a sum of Rs.80,000/-. Defendant No.1 has denied the allegation that during the talk with Plaintiffs, his wife and daughter were present. Defendant No.1 has denied the allegation that the consideration agreed was Rs.13,50,000/- plus the said jeep valuing about Rs.2,00,000/-. Defendant No.1 has denied receipt of Rs.2,90,500/- and the delivery of the jeep. Defendant No.1 has disputed the receipts purported to be issued by Defendant No.1. He has also denied the payment of Rs.70,000/- to the Bank. He has also denied payment of registration charges to the tune of Rs.13,500/-. According to him, the transaction as presented by the ( 6 ) Plaintiffs did not take place and he has contended that because Plaintiffs did not perform their part of the contract, Defendant No.1 had to terminate the agreement and hence the Plaintiffs’ Suit is required to be dismissed. 8. On the basis of the aforesaid pleadings, issues came to be framed on 19th June, 2008, which are as under. My answer to each of the issue is mentioned against respective issue. "1. Whether the Plaintiffs prove that the Defendants had agreed to sell the said shop by an oral agreement at the price of Rs.13,50,000/- (Rupees Thirteen Lakhs Fifty Thousand Only) plus Armada Jeep owned by Plaintiff No.1 bearing Registration No.MH-15-K-7804 worth Rupees 2,00,000/- (Rupees Two Lakhs Only) ? In the negative. In the negative. In the negative. 2. Whether the Plaintiffs prove that in part performance of the oral contract they have paid to the Defendant No.1 a sum of Rs.2,90,500/- (Rupees Two Lakhs Ninety Thousand Five Hundred Only) and had also handed over possession of the Armada Jeep owned by the Plaintiff No.1 bearing Registration No.MH-15-K- 7804 worth Rs.2,00,000/- (Rupees Two Lakhs Only) to the Defendants towards part performance of the oral agreement ? In the negative In the negative In the negative 3. Whether the Plaintiffs prove that they have paid a further sum of Rs.13,500/- (Rupees Thirteen Thousand Five Hundred Only) as registration fee for registering the Sale Deed ? In the affirmative In the affirmative In the affirmative ( 7 ) 4. Whether the Plaintiffs prove that the Defendant No.1 failed to get NOC from Defendant No.3 and also failed to make out marketable title to the property fee from all encumbrances and free from reasonable doubts and at this own cost had taken any steps to clear defects in title as it is mandatory on part of the Defendant No.1 ? In the negative In the negative In the negative 5. Whether the oral agreement for sale is valid and subsisting ? Does not Does not Does not survive in view of answer to issue survive in view of answer to issue survive in view of answer to issue No.1 in the negative. No.1 in the negative. No.1 in the negative. 6. Whether the oral agreement for sale should be specifically performed by the Defendants ? In the negative In the negative In the negative 7. Whether the Plaintiffs are entitled to enforce the said security and necessary orders be passed for the said purpose ? As per final order As per final order As per final order 8. Whether the Defendants be ordered to pay the costs of the suit ? If so the quantum thereof ? As per final As per final As per final order order order" 9. At trial on behalf of the Plaintiffs, Sadhana Vijay Salvi, Plaintiff No.2, gave evidence as PW-1. No other witness was examined on behalf of the Plaintiffs. Defendant No.1 remained absent at the time of evidence of Sadhana PW-1 and has not cross-examined the Sadhana PW-1. No witness was examined on behalf of Defendant Nos.1 to 3. 10. In the course of trial various documents have been marked as Exhibits. It is required to be mentioned that certain documents in the nature of ( 8 ) receipts purported to have been issued by Defendant No.1 were tendered by the Plaintiffs as documents on which they wanted to rely. In the absence of appropriate evidence proving those documents, they have been marked as "X" collectively for identification. One pay order purported to have been issued by Saraswat Co-operative Bank Ltd. in the name of Defendant No.1 (xerox copy) for Rs.60,000/- and another pay order purported to have been issued by COSMOS Co-operative Bank Ltd. (xerox copy) for a sum of Rs.1,00,000/- are marked as "X-1" and "X-2" for identification. 11. I have heard learned Advocate Mr.Abhay Parab appearing on behalf of the Plaintiffs and with his assistance I have perused the entire record. Since the evidence is led by only one witness Sadhana PW-1, I am of the view that it would be proper to consider the entire matter together, deal with all the issues together as they are inter-connected. . REASONS :- ISSUE NOS. 1 TO 8 . REASONS :- ISSUE NOS. 1 TO 8 . REASONS :- ISSUE NOS. 1 TO 8 12. The Plaintiffs have come out with the case that they entered into an agreement with Defendant No.1 in regard to the suit shop. It is required to be mentioned that there is no written agreement entered ( 9 ) into by and between the Plaintiffs on one hand and Defendant No.1 on the other. It is true that Defendant No.1 admits the claim of the Plaintiffs that a transaction had entered into between the Plaintiffs and Defendant No.1 in regard to the suit shop. It is the case of the Plaintiffs that the wife and the daughter of Defendant No.1 were present when oral agreement was entered into with Defendant No.1. It is required to be mentioned that except the evidence of Sadhana PW-1, no other witness has been examined by the Plaintiffs in support of the case that a talk took place between the Plaintiffs on one hand and Defendant No.1 in the presence of his daughter and wife. In my view, in the absence of an agreement in writing and in the absence of any other evidence, the bare word of Sadhana, PW-1, that an agreement took place between Plaintiffs and Defendant No.1 cannot be accepted. The evidence of Sadhana, PW-1, does not show as to the date, time and place where the talk took place. It is true that Defendant No.1 has admitted the transaction in regard to the suit shop. However, in my view, it was incumbent upon the Plaintiffs to plead and give evidence to show that the talk in regard to the suit shop took place at a particular place, on a particular date and at a particular time. A mere statement that an oral talk took place between the Plaintiffs on one hand and the Defendant No.1 on the other cannot be ( 10 ) considered as sufficient evidence to hold that talk ensued between parties to the suit agreement. It is also required to be mentioned that the Plaintiffs claim that the consideration agreed to was Rs.13,50,000/- in cash and the said jeep costing about Rs.2,00,000/- was also to be formed a part and parcel of the consideration. It can be said that the evidence of Sadhana, PW-1, has gone uncontroverted in regard to the total consideration namely Rs.13,50,000/- and a jeep. At the same time, the evidence of Sadhana, PW-1, does not give the full particulars as to how and when the consideration was to be paid. The Plaintiffs claim that a sum of Rs.2,90,500/- has been paid by the Plaintiffs from time to time. However, the Plaintiffs have not been able to produce receipts in support of the said payment. It is true that Defendant No.1 admits having received a sum of Rs.2,20,500/-, however that amount is not tallying with the amount mentioned by the Plaintiffs. In these circumstances, heavy burden was cast upon the Plaintiffs to show that they had paid to Defendant No.1 a sum of Rs.2,90,500/-. The Plaintiffs have failed to discharge that burden and as such case of the Plaintiffs to that extent is not proved. 13. It is also the case of the Plaintiffs that the Armada Jeep was delivered to Defendant No.1 as a part ( 11 ) of consideration. Except stating the registration number of the jeep, no other particulars are mentioned as to the year of manufacture and other particulars to justify the value of the said jeep at Rs.2,00,000/-. Even if the word of Sadhana, PW-1, is to be accepted that the value of the jeep was Rs.2,00,000/- and was to be adjusted as a part of the total consideration payable, it was absolutely necessary for the Plaintiffs to place before the Court appropriate documentary evidence to show that the jeep was delivered to Defendant No.1 as a consideration towards purchase of the suit shop. It is required to be mentioned that the Plaintiffs have not produced any documentary evidence to show that the jeep was delivered to Defendant No.1 and that the said delivery was towards the part payment of the consideration. In my view, a bare word given by Sadhana, PW-1, that the jeep was delivered to Defendant No.1 as a part of consideration cannot be accepted to say that the Plaintiffs had performed their part of the contract. The Plaintiffs have produced order dated 16th February, 2006 passed by the Court of Metropolitan Magistrate, Mumbai and have also stated that that jeep was recovered from the possession of the Defendant No.1. This may at the most go to show that said jeep was in possession of Defendant No.1. It will not be possible to hold that the said jeep was with the ( 12 ) Defendant No.1 as a part of consideration in the absence of any documentary evidence to prove that the jeep was delivered as a part of consideration. 14. It is the case of the Plaintiffs that they had paid a sum of Rs.70,000/- to the Punjab & Maharashtra Co-operative Bank Ltd. towards repayment of the loan so as to see that the suit shop is without any outstanding loan. Except the bare word of Sadhana, PW-1, no evidence is placed before the Court to show that the Plaintiffs had paid to the said Bank a sum of Rs.70,000/-. In my view, if it was the case of the Plaintiffs that a sum of Rs.70,000/- was paid by the Plaintiffs to the said Bank so as to see that a part of consideration is paid by the Plaintiffs and to see that the suit shop is relieved of the loan liability, it was necessary for the Plaintiffs to prove by appropriate documentary evidence that the Plaintiffs had paid to the said Bank a sum of Rs.70,000/-. Hence I hold that the Plaintiffs have failed to prove that they had paid Rs.70,000/- to Defendant No.1. 15. It is admitted by the Defendant No.1 that he received Rs.2,20,500/- but it is difficult to accept the case of the Plaintiffs that said sum of Rs.2,20,000/- (as admitted by Defendant No.1) was paid in accordance with the terms of the agreement entered ( 13 ) into between the Plaintiffs and Defendant No.1. This is so because the precise terms of the oral agreement are not pleaded in the plaint and not stated in the evidence. In my view, if the Plaintiffs approached this Court with a positive case, that an oral agreement took place between Plaintiffs and Defendant No.1 in regard to the suit shop, it was necessary for the Plaintiffs to specifically plead the terms of the oral agreement and give evidence in support of such a case. The Plaintiffs have, through Sadhana, PW-1, merely stated that an oral agreement took place between the Plaintiffs and Defendant No.1 to sell the shop for Rs.13,50,000/- plus the said jeep. In my view, in a transaction regarding the purchase of a shop it was, if not a regular agreement in writing, a document in the nature of something in writing ought to have been produced by the Plaintiffs to show that the terms of the agreement were arrived at so as to fix the consideration of the suit shop at Rs.13,50,000/- and the jeep costing about Rs.2,00,000/-. In my view, a bare statement in the evidence of Sadhana, PW-1, cannot be considered as sufficient to say that the Plaintiffs have made out a case that Defendant No.1 had agreed to sell the suit shop to Plaintiffs for a sum of Rs.13,50,000/- in cash and a jeep. It is true that Defendant No.1 has not stepped into the witness box to support his case that ( 14 ) the consideration was for Rs.26,00,000/- and the jeep had nothing to do with the suit shop. In my view, even if Defendant No.1 has not stepped into the witness box, the primary burden was on the Plaintiffs to show that the agreement was arrived at as claimed by them and in the absence of proper evidence, the Plaintiffs’ case that he had agreed to purchase the shop from Defendant No.1 for Rs.13,50,000/- and Armada Jeep valuing about Rs.2,00,000/- is not proved and to that extent, Plaintiffs have failed. 16. Once it is observed that the Plaintiffs have failed to show that they had agreed to purchase from Defendant No.1 the suit shop for Rs.13,50,000/- and the Armada Jeep, the question of readiness and willingness on the part of the Plaintiffs to perform their part of the contract is immaterial and to that extent though the Plaintiffs have pleaded that they were ready and willing to perform their part of the agreement, those pleadings and the evidence of Sadhana, PW-1, is of no assistance to the Plaintiffs. 17. It has been the case of the Plaintiffs that Defendant No.1 was required to obtain NOC from the Defendant No.3 and thereafter within one month the document was required to be executed. Since the case of the Plaintiffs as regards entering into the oral ( 15 ) agreement is rejected, there is no question of accepting the case of the Plaintiffs that Defendant No.1 was to obtain NOC from Defendant No.3 and then execute the agreement. To that extent, case of the Plaintiffs is required to be declined. 18. The Plaintiffs have demanded compensation to the tune of Rs.15,50,000/- as and by way of alternate prayers to prayer clauses (a) to (c) After having gone through the evidence of Sadhana, PW-1, except a bare statement that the Plaintiffs are entitled to compensation of Rs.15,50,000/-, there is no other evidence coming before the Court in support of such a claim. It is apparent that the Plaintiffs have arrived at this figure on the basis of the case that the cash consideration was Rs.13,50,000/- and the value of the jeep was Rs.2,00,000/-. If the Plaintiffs have failed to prove their case that the shop was agreed to be sold for Rs.13,50,000/- by way of a cash consideration and the jeep valuing about Rs.2,00,000/-, it will be difficult to accept the case of the Plaintiffs that they are entitled to compensation to the tune of Rs.15,50,000/-. The Plaintiffs have failed to prove their case and therefore there is no question of Plaintiffs getting compensation in lieu of specific performance. ( 16 ) 19. The Plaintiffs have claimed that they have paid to the Defendants a sum of Rs.2,90,500/-. Defendant No.1 in his written statement has admitted that the Plaintiffs have paid to Defendant No.1 a sum of Rs.2,20,500/-. Since the request for specific performance of the agreement is being rejected and since the prayer for compensation also is being rejected, the question is whether the Plaintiffs are entitled to receive from Defendant No.1 the amount which the Plaintiffs had paid to Defendant No.1. Defendant No.1 has in paragraph 7 admitted having received Rs.2,20,500/-. 20. Defendant No.1 has not appeared before this Court and has taken a stand that the amount which was deposited by the Plaintiffs with Defendant No.1 got forfeited. If this is so, there is no evidence on record to show that the amount of Rs.2,20,500/- stands forfeited. Consequently I hold that the Plaintiffs are entitled to get back this amount from Defendant No.1. To that extent, I am inclined to pass the decree in favour of the Plaintiffs. 21. So far as the interest is concerned, the Plaintiffs have issued notice to Defendant No.1 on 6th March, 2006 at Exhibit P-10. If Plaintiffs are granted interest on Rs.2,20,500/- w.e.f. 6th March, ( 17 ) 2006 till realisation, it will meet the ends of justice. The Plaintiffs have not produced evidence to justify the demand of interest at the rate of 21%. In my view, considering the case as a whole, if interest at the rate of 10% per annum is granted on Rs.2,20,500/- from 6th March, 2006 till filing of Suit, it will meet the ends of justice. Similarly, Plaintiffs can be granted interest @ 6% per annum on Rs.2,20,500/- from the date of filing of Suit till realisation. 22. Plaintiffs have sought relief in terms of prayer clause (d) by which Plaintiffs want that Defendant No.1 should pay to the Plaintiffs mesne profits @ Rs.6,000/- per month from May, 2006 till he hands over possession to the Plaintiffs. Since decree for specific performance is being declined, there is no question of grant of any mesne profits. 23. The Plaintiffs claim that they have deposited with the Government of Maharashtra a sum of Rs.13,500/- towards registration charges. Receipt at Exhibit P-1 is produced in support of such payment. Now that the Plaintiffs are not entitled to the specific performance, the Plaintiffs can be permitted to take up the matter with the appropriate Department of Government of Maharashtra to get back a sum of ( 18 ) Rs.13,500/- or part thereof, if such an amount is refundable. Since the said sum of Rs.13,500/- has not been paid to Defendant No.1, there is no question of passing an order against Defendant No.1. 24. The Plaintiffs can be granted costs of this Suit. 25. Keeping in view the aforesaid, I now proceed to answer the various issues as under :- (1). Issue No.1 is answered in the negative. (2). Issue No.2 is answered in the negative. (3). Issue No.3 is answered in the affirmative. (4). Issue No.4 is answered in the negative. (5). Issue