1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. Notice of Motion No.4263 of 2006 IN Suit No.756 of 2003 Subhash S. Runwal .. .. Plaintiff v/s. Hanumantrao P. Sonawane & ors. .. Defendants Mr.Vineet Jagtap i/by JMB Partners for plaintiff. Ms.Minaxi Iyer i/by Doijode & Associates for defendant Nos.7 & 8. Mr.Anil Singh with Mr.D.R.Shah for deft.Nos.2 & 3. ----- CORAM : SMT.ROSHAN DALVI, J. DATED : 6th June, 2008 P.C. : 1. The plaintiff has sued for specific performance of an Agreement dated 17.2.2000. The Agreement marked Exhibit-B to the Plaint shows receipt of Rs.1 Lac from the plaintiff by defendant No.1 as the owner of the plot. The Agreement is for a total consideration of Rs.55 Lacs. The balance amount of Rs.54 Lacs was to be paid upon the plaintiff being given vacant possession of the suit plot and signing the required documents 2 within a period of one month. The plaintiff was to incur all the other expenses. Defendant No.1 was to obtain ULC permission within one month. The Agreement mentions the details of the property, the consideration and the obligations of the parties, more specifically the payment of the balance amount of Rs.54 Lacs. 2. The plaintiff’s Advocate contends that payment of balance consideration was subject to obtaining of the ULC permission. That is not a part of the Agreement. The Agreement dated 17.2.2000 shows that the plaintiff must pay the balance consideration within one month and the defendants agreed to obtain the ULC permission within one month. Both these applications were not subject to one another. It is for both the parties to perform their respective part of the reciprocal promises. Since the plaintiff has sued for specific performance, he must show how he performed his part of the contract. That is not shown. 3. The plaintiff, who claims specific performance of the Agreement, is necessarily required to aver and show his readiness and willingness to perform his part of the 3 contract in the Plaint itself. The most important obligation of the plaintiff was the payment of the balance amount of Rs.54 Lacs. That amount was to be paid within one month. Upon such payment, further required documents were to be executed within one month. The plaintiff did not pay it. Hence, the plaintiff did not perform his part of the obligations under the contract. It is not seen how the statutorily imperative requirement of readiness and willingness could have been satisfied by the plaintiff when he made payment of Rs.1 Lac out of the total consideration of Rs.55 Lacs to claim specific performance of the Agreement and upon such a Suit, obtain the relief of appointment of Court Receiver or any injunction. 4. The plaintiff was directed to deposit Rs.54 Lacs pursuant to an ad-interim order in the Suit. In fact, that amount should have been willingly shown by the plaintiff to be paid as per the statutory requirement under the Specific Relief Act. Nonetheless, the plaintiff not having shown his readiness or willingness and not having paid the amount, was given an opportunity to pay the balance consideration. The plaintiff failed. 4 Hence, the plaintiff would not be entitled to any relief of specific performance in the Suit. 5. The plaintiff appealed the order enabling the plaintiff to do what the legislation required the plaintiff to do in the first place. 6. Since the plaintiff could not injunct the defendants from selling the property upon a mere payment of Rs.1 Lac out of total consideration of Rs.54 Lacs and since the plaintiff did not pay even after being given that opportunity to pay after filing the Suit, defendant Nos.1 to 6 sold the property to defendant Nos.7 and 8. This was made known to the plaintiff in the Appeal filed by the plaintiff against the order directing the plaintiff to pay the total consideration to be able to enforce the Agreement dated 17.2.2000. The order of the Division Bench of this Court dated 14.7.2003 shows the third party rights created under the Development Agreement dated 13.6.2003 in favour of defendant Nos.7 and 8 for a total consideration of Rs.1.10 Crores. This shows the value of the property. It shows how upon payment of Rs.1 Lac the plaintiff 5 seeks rights in respect of the property worth Rs.1 Crore and more. 7. For seeking those rights, the plaintiff had to sue defendant Nos.7 and 8. The application by way of the Chamber Summons for joining those defendants came to be made by the plaintiff more than two years thereafter i.e. on 25.11.2005. Defendant Nos.7 and 8 are now on record. 8. In the affidavit-in-reply filed by defendant Nos.2 and 3, it is mentioned that development of the property has been carried out and that development has been completed by defendant Nos.7 and 8. The Advocate for defendant Nos.2 and 3 has tendered the photograph of the property of defendant Nos.1 to 6. The photograph shows that the property is fully developed by constructing two buildings. The photograph signed by the Advocate is taken on record. 9. Under these circumstances, the plaintiff cannot be granted any of the reliefs sought. The Notice of Motion is dismissed. No order as to costs. 6 10. The defendants waive service. The defendants shall file their Written Statement within 8 weeks. Parties to exchange affidavit of documents and offer inspection. Suit to come up for directions on 16th September 2008. (SMT.ROSHAN DALVI, J.)