1 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1822 OF 2007 IN SUIT NO. 1347 OF 2007 E. M. Brothers ....Plaintiffs V/s. Bonaventure Anthony Creado & ors ....Defendants Mr. Zal Andhyarujina a/w Mr B D’Souza, i/b Malvi Ranchoddas & Co, for the Plaintiffs. Mr.Mahendra Ghelani i/b Malvi Ranchoddas & Co for the Defendant Nos 11 to 13. CORAM : S.J. VAZIFDAR, J. DATE : 18TH NOVEMBER, 2009. P.C. :- 1. The suit is filed for specific performance of an agreement dated 9th May, 1981 entered into between the Plaintiffs and Defendant No.8. 2. As I am not inclined to grant any interim reliefs inter alia on the ground that the Plaintiffs had abandoned the agreement and that the suit is barred by limitation, it is not necessary to consider Mr. Ghelani’s submissions including that the agreement is fabricated. I have, therefore, not permitted Mr. Ghelani to address me or any of the other aspects. 3. The suit is filed almost 26 years after the agreement of 2 which specific performance is sought. The consideration under the agreement was Rs.7,70,000/-. Even according to the Plaintiffs only an amount of Rs.80,000/- has been paid. According to the Plaintiffs they were put in possession of the property on the execution of the agreement. The Plaintiffs also rely upon an alleged letter dated 2nd October, l982 executed by the occupant thereof claiming to hand over possession of the property on that day to the Plaintiffs. Considering all the facts of the case, it is difficult to accept even this case regarding possession. 4. Under clause 9 of the agreement, it was the Plaintiffs’ responsibility to obtain all permissions including from the authorities under the Urban Land (Ceiling & Regulation) Act, l976. It was agreed that if the Plaintiffs were unable to obtain the requisite permission within 36 months, the vendor would be entitled to terminate the agreement. 5. The Plaintiffs claim to have done various things between the execution of the agreement and the filing of the suit such as appointing security guards, constructing a compound wall and removal of encroachments on the suit premises with the help of the police. The evidence in this regard is not satisfactory. I hasten to add that even if there was evidence regarding the same, it would make no difference to the result of this Notice of Motion. Even assuming that the Plaintiffs did take some of 3 these steps, from the documents on record, it is not clear when such steps were taken and the extent to which such steps were taken. There appears to have been a clear abandonment by the Plaintiffs of the agreement over the years. 6. The reliance upon the letter dated 8th September, 1995 addressed by one of the vendors to the Plaintiffs, is of no assistance to the Plaintiffs’ case. Although the letter refers to the suit agreement, the letter requested the Plaintiffs to hand over documents in respect of the agreement, the same not being available with the said vendor, as his earlier advocate had expired. The letter does not constitute an admission of the subsistence of the agreement. 7. The agreement was ultimately terminated by a letter dated 5th January, 2004. It is pertinent to note that the only reply to this letter was a formal letter dated 27th January, 2004 addressed by the Plaintiffs’ advocate stating that they were taking instructions from the Plaintiffs and would revert after receiving the same. There was, however, no further letter. This fact also further establishes that the Plaintiffs retained no interest in respect of the said agreement and had abandoned the same. In any event the suit was filed only on 4th May, 2007 i.em more than three years after the termination of the agreement. The suit is, therefore, bared by limitation. 4 8. Faced with this, Mr.Andhyarujina relied upon paragraph l5 of the plaint wherein it is averred that the vendors had withdrawn the notice of termination dated 5th January, 2004. No particulars are furnished as to the alleged withdrawal of the notice. In any event there admittedly is no document evidencing the said withdrawal. In the facts of this case, I am not inclined to accept the averments in paragraph No.l5 of the plaint. The suit is therefore, clearly barred by the law of limitation. 9. The balance of convenience is also against the Plaintiffs. Defendant Nos 11 to 13 are the subsequent purchasers under an agreement dated 15th September, 2004. They have paid the entire consideration of Rs.25,47,000/-. Even assuming that Defendant Nos 11 to 13, were aware of the above facts it would make no difference. It is important to remember that to the letter of termination dated 5th January, 2004, there was no protest. Thus, even assuming that Defendant Nos 11 to 13 were aware of the above facts they justifiably would have acted upon the basis that the Plaintiffs did not intend enforcing their rights under the agreement as they had not even responded to the notice of termination for a period of over 8 months before the agreement dated 15th September, 2004. 10. Furthermore, the property has now been constructed upon and third party rights have been created. It will be unjust 5 not merely to Defendant Nos 11 to 13 but also to such third parties to grant any orders whatsoever. 11. The Notice of Motion is dismissed.