1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1323 OF 2007 IN SUIT NO.957 OF 2007 Agarwal Construction Company ....Plaintiff V/s. L.T. Construction Company & Ors. ....Defendants Mr.Arif Bookwala i/b N.S. Patel & Co. for the Plaintiff. Mr.Bipin Joshi for Defendant Nos.2 to 5. Mr.Sanjeev Singh for Defendant No.6. CORAM : S.J. VAZIFDAR, J. DATE : 13TH NOVEMBER, 2009. P.C. :- 1. The suit is filed for specific performance of an agreement for sale dated 21.1.1985 and for a declaration that an agreement between Defendant Nos.2 to 5 on the one hand and Defendant No.6 on the other, is not valid and does not operate against the Plaintiff. 2. By an agreement dated 22.9.2003 one Chogale agreed to sell inter-alia the suit property to Defendant No.1. 3. The agreement of which the specific performance is sought viz. the agreement dated 21.1.1985 was entered into between said Chogale, Defendant No.1 and the Plaintiff wherein the said Chogale was described as the owner and Defendant No.1, the partners of Defendant No.1 were described as the vendors and the Plaintiff was described as the purchaser. 2 By the agreement the suit property as also the rights and interest of Defendant No.1 under the said agreement dated 22.9.2003 were agreed to be sold to the Plaintiff for a price of Rs.4,50,000/- payable in the manner stated in clause 2. Admittedly, a sum of Rs.4,20,000/- has been paid leaving only a balance of Rs.30,000/-. In fact a sum of Rs.35,000/- has not even become payable as the same was to be paid only on completion of the sale as provided in the agreement or within a period of three years after the date of obtaining a commencement certificate whichever was earlier, time being the essence of the contract. 4. The property was described in the agreement as survey No.20, Hissa Nos.2 and 3 and C.T.S. Nos. 295 and 320 and bearing original plot Nos.138 and 155. Pursuant to the Town Planning Scheme at Borivali and the award of the Arbitrator, the said plots were given final plot Nos.190, 195 and 535. The present suit is limited to plot No.535. Plot Nos.190 and 195 had already been handed over to the Plaintiff who admittedly enjoyed the benefit thereof by constructing as well as causing to be constructed thereon through another developer two structures. 5. It appears however that the suit plot namely final plot No.535 came to be alloted to the original owners only subsequently. Considering the terms and conditions of the agreement, this plot was also sold to the Plaintiff under the agreement. Clauses 1,2, 7, 8, 17 and 27 read as under :- “1. The Vendors shall sell to the Purchasers and the Purchasers shall purchase from the vendors and the Owner shall confirm such sale of the said pieces of lands bearing Survey No. 20, Hissa No. 2 & 3 and C.T.S. No. 295 and 320 and bearing Original Plots N. 138 and 155 3 (which plots are hereinafter referred to as “the said property”) situate at Village Eksar, Taluka Borivli and more particularly described in the Schedule hereunder written together with the rights, benefits and advantages of the proposed Town Planning Scheme No. III of Borivli in respect of the said property as also the rights and interest of the Vendors under the aforesaid agreement dated 22nd September, 1983 at or for the lump sum price of Rs. 4,50,000/- (Rupees Four Lakhs and Fifty Thousand only) to be paid by the Purchasers as and in the manner set out in Clause (2) hereinafter mentioned and upon the terms and conditions hereinafter appearing, which the Owner hereby confirms. 2. The price of Rs.4,50,000/- (Rupees Four Lakhs and Fifty thousand only) referred to in clause (1) above shall be paid by the Purchasers in the manner following:- (a) The Purchasers shall pay to the Vendors a sum of Rs.2,250,000/- (Rupees Two Lakhs Twenty five thousand only) as and in the following manner:- (i) Rs.75,000/- (Rupees Seventy five thousand only) on or before the execution of this agreement (the payment and receipt whereof the Vendors do hereby admit and acknowledge). (ii) the balance amount of Rs.1,50,000/- (Rupees One Lakh fifty thousand only) to be paid by the Purchasers to the vendors as follows:- (a) Rs.50,000/- (Rupees Fifty Thousand only within four months from the date hereof time being of the essence of contract; (b) Rs.50,000/- (Rupees Fifty thousand only) within eight months from the date hereof time being of the essence of contract; (c) Rs.35,000/- (Rupees Thirty five thousand only) within one year from the date hereof, time being of the essence of contract; and (d) Rs.15,000/- (Rupees Fifteen Thousand only) on completion of sale as hereinafter provided or within a period of three years after the date of obtaining Commencement Certificate, whichever is earlier, time being of the essence of contract. 4 (b) The Purchasers shall pay to the Owner the sum of Rs. 2,25,000/- (Rupees Two Lakh twenty five thousand only) as and in the following manner:- (a) Rs.25,000/- (Rupees twenty five thousand only) on or before the execution of this agreement (the payment and receipt whereof the vendor parties do hereby admit and acknowledge). (b) The balance amount of Rs. 2,00,000/- (Rupees Two lakh only) to be paid by the Purchasers to the Owner as follows:- (i) Rs.50,000/- (Rupees Fifty thousand only) within four months from the date hereof time being of the essence of contract; (ii) Rs.50,000/- (Rupees Fifty thousand only) within eight months from the date hereof time being of the essence of contract; (iii) Rs.65,000/- (Rupees Sixty five thousand only) within one year from the date hereof, time being of the essence of contract; and (iv) Rs.35,000/- (Rupees Thirty five thousand only) on completion of sale as hereinafter provided or within a period of three years after the date of obtaining Commencement Certificate, whichever is earlier, time being of the essence of contract. In the event of default in payment of any one installment mentioned above on the respective due dates, this Agreement shall automatically stand terminated and the earnest moneys paid hereunder shall stand forfeited and thereupon the Purchasers will forthwith return back the possession of the said property to the owner. 7. Upon payment of the aggregate sum of Rs. 75,000/- (Rupees Seventy five thousand only) including earnest money by the Purchasers to the vendors and also upon payment of the aggregate sum of Rs.25,000/- (Rupees Twenty five thousand only) including the earnest moneys by the Purchasers to the Owner, the Owner shall place the Purchasers in vacant and peaceful possession of the said Original Plots of land. Immediately upon handing over of possession of the said Original Plots of lands as aforesaid the Purchasers shall be entitled to develop the said property and / or the said Final Plots by constructing 5 a building or building thereon in accordance with the approved municipal plans. 8. The transaction shall be completed within a period of five years from the date of the Purchasers obtaining possession of the Final Plots or within three years from the date of obtaining the Commencement Certificate, whichever is earlier, when upon receipt of the full consideration moneys by the Vendors and the owner, the Owner and all necessary and interested parties shall make and execute the proper conveyance or conveyances and the Vendors shall join in such Conveyance or Conveyances in favour of the Purchasers or the Cooperative Society or Societies to be formed in respect of the said property. Such Conveyance or Conveyances shall be prepared by the Purchasers’ Advocates and Solicitors and shall be approved by the Vendor’s Advocates and Solicitors as also by the Owners Advocates & Solicitors. 17. IT IS EXPRESSLY AGREED AND UNDERSTOOD that upon payment by the Purchasers of the aggregate sum of Rs.2,10,000/- (Rupees Two Lakh Ten Thousand only) to the Vendors and the aggregate sum of Rs.1,90,000/- (Rupees One Lakh Ninety Thousand only) to the Owner, neither the Vendors nor the Owner shall be entitled to terminate, revoke or rescind this agreement. 27. The Purchasers shall be entitled too and hereby agree to accept the plot or plots of land which will be allotted by the Town Planning Authorities in lieu of the Property described in the Schedule hereunder written. On allotment of such plot the Purchasers along shall be entitled to receive the compensation, if any, payable by the Town Planning Authorities in respect of the said property more particularly described in the Schedule hereunder written under the provisions of the Maharashtra Regional and Town Planning Act, 1966 and likewise the Purchasers alone shall be liable to pay and discharge all liabilities including the liability for payment of betterment charges, if any, payable under the provision of the said Act.” 6. It was contended that the suit is barred by limitation. 7. The submission is not well founded. The suit plot was allotted to the original owners only in March, 2004. Thus till that date, there was no 6 question of the Plaintiff filing any proceedings for specific performance in respect thereof. The suit was filed on 7.3.2007. It is further pertinent to note that under clause 2(iv), the balance amount of Rs.35,000/- was payable within the period of three years after the date of obtaining the commencement certificate. It is nobody’s case that the commencement certificate was obtained prior to 7.3.2004. 8. It was then submitted that the Plaintiff was not ready and willing to perform the agreement. The submission is unsustainable. The Plaintiff has already paid a sum of Rs.4,20,000/- out of a total consideration of Rs.4,50,000/-. The Plaintiff immediately took possession of the other two plots and developed the same. There was nothing left for the Plaintiff to do in respect of the third plot till the same was ready to be handed over. The balance consideration is not payable even today. 9. It is further pertinent to note that under clause 17 of the suit agreement, the original owners were not even entitled to terminate the agreement in view of the Plaintiff having paid a sum of over Rs.4,00,000/-. 10. Defendant No.6 claims to be a bona-fide purchaser of the said plot from the daughter of the deceased, Defendant No.2 and the children of another deceased daughter of the original owner one Smt.Kamla Pathare. Defendant Nos.2 to 5 however, were not entitled to deal with the property to the detriment of the Plaintiff in view of the Plaintiff having entered into the agreement dated 21.1.1985 during the life time of the deceased. The alleged agreement between Defendant Nos.2 to 5 on the one hand and Defendant No.6 alleged to have been entered into in the year 2004, has not even been produced in Court. 7 11. The above facts clearly establish that the Plaintiff is not disentitled to the reliefs claimed merely because the agreement was entered into in the year 1985. Under the agreement, all the plots in lieu of the original plots were to come to the Plaintiff. The Plaintiff had paid almost the entire consideration for the same. The plot came to the original owners only in the year 2004. There is nothing on record that disentitles the Plaintiff to the benefit thereof clearly conferred by the suit agreement. 12. In the circumstances, the Notice of Motion is made absolute in terms of prayer (b). The Notice of Motion is accordingly disposed of.