: 1 : nms-1923-06=.sxw USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 1923 OF 2006 IN SUIT NO. 1680 OF 2006 Smt. Kanta Satish Kewalramani .. Plaintiff v/s. Jahangiram Radhakrishna Gidwani & Anr. .. Defendants ......... Mrs. Sushma Singh for the plaintiff in support of NMS Mr. R.M. Vasudeo for defendant no.1 None for defendant no.2. ......... CORAM : R.Y.GANOO, J. DATE : 16th NOVEMBER, 2010 P.C. : 1. Heard learned Counsel on both sides. By this motion, plaintiff wants that defendant no.1 should not deal with or dispose of and / or create third party rights in regard to Flat No. A-19/5 more particularly described in prayer clause (a) of the motion (hereinafter referred to as the suit flat). By prayer clauses (b) and (c), certain reliefs are sought which have some relevance with reference to redevelopment which is taking place in respect of the building wherein the suit flat is situated. : 2 : nms-1923-06=.sxw 2. The plaintiff has approached this Court for specific performance of oral agreement which according to plaintiff came to be entered into in July, 1975 in regard to the suit flat. The plaintiff admits that the agreement to purchase the suit flat was oral and in paragraph 8 of the plaint, the terms on which such an oral agreement was arrived at have been stated. The consideration for the sale of the suit flat is fixed at Rs. 40,000/- and other details are mentioned. It is pertinent to note that the date, time and the place where this agreement was entered into is not mentioned. 3. The plaintiff claims that the consideration was paid in installments as per the oral agreement and according to plaintiff the full consideration was paid as of 3rd December, 1982. The plaintiff has annexed table showing various payments made on different dates and reading of the same at Exh.”L” shows that a sum of Rs.1,000/- was paid on 3rd December, 1982 in cash thereby making payment being last installments and accordingly, it is the case of the plaintiff that Rs. 40,000/- came to be paid as of 3rd December, 1982. Certain letters are relied upon by the plaintiff. Those letters are purported to be addressed by defendant no.1 to husband of the plaintiff. Learned Counsel for the plaintiff wanted this Court to read those letters and accept the case of : 3 : nms-1923-06=.sxw the plaintiff that full consideration of Rs.40,000/- has been paid. However, no formal receipt for having received full consideration of Rs. 40,000/- or part thereof is relied upon. 4. For the purposes of disposal of the notice of motion, I am inclined to accept the word of the plaintiff that sum of Rs.40,000/- has been paid. However, subsequent conduct on the part of the plaintiff is important for the purposes of deciding whether the plaintiff should get an order injunction. It is pertinent to note that after 1982 development proposal was being entertained by defendant no.2 and it is at that point of time i.e. some time in 2005 the plaintiff thought it fit to address a letter to the defendant asking for specific performance of the agreement. This will go to show that from 1982 till 23rd April 2005, no efforts were made by the plaintiff to demand execution of Agreement to Sale or the conveyance. In the normal course, when the terms of the oral agreement were fulfilled by the plaintiff that is to say when full consideration was paid by the plaintiff to the defendants, a prudent plaintiff ought to have been insisted that the defendants should execute the conveyance in favour of the plaintiff. Nothing has been done by the plaintiff from 1982 till 2005. This, in my view, is against the interest of the plaintiff for the purposes of proving that she was ready and willing to perform her part of the agreement and that she was anxious to : 4 : nms-1923-06=.sxw purchase the suit flat. This inaction on the part of the plaintiff itself raises serious doubts about the case of the plaintiff as regards the oral agreement and the terms on which the suit flat was agreed to be sold as set out in paragraph 8 of the plaint. 5. In the circumstances mentioned aforesaid, I am inclined to observe that plaintiff has failed to make out prima-facie case as regards entering into Agreement to Sale in regard to the suit flat and related aspects. If this be so, the plaintiffs will not be entitled to interim relief. In view of the above, the notice of motion will have to be dismissed. Hence, following order is passed to dispose of the notice of motion. ORDER (i) Notice of motion is disposed of. (ii) There shall be no order as to costs. (R.Y.GANOO, J.)