:1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3775 OF 2006 IN SUIT NO.3500 OF 2005 Neeta Tikam Nariani and anr. ..Plaintiff. Vs. Sudhir V.Sonecha and ors. ..Defendant. Mr,.J.G.Shukla i/by M/s. G.M.Shukla & Co. for the Plaintiff. Mrs. Divya Trivedi for the Defendant No.1. Mr.R.G.Lad, AGP. for the Defendant No.3. CORAM : R.S. MOHITE, J. DATE : 17/4/2009. P.C. P.C. P.C. 1. This is a notice of motion taken out by the original plaintiffs for a decree on admission under order 12 Rule 6 of the Code of Civil Procedure.The plaintiffs had filed a suit for specific performance against the defendants in respect of an agreement of sale dated 2.7.2005. The said agreement of sale was a registered document executed between the defendant No.1 and one Kamlesh Tikam Nariani. The agreement indicated that the plaintiffs were to purchase a flat bearing Flat No.11 situated at the first floor of Charkop Shree Balvi Co. Op. Hsg.Society Ltd. Charkop, Kandivali (West) for a total consideration of Rs.16,00,000/-. It was mentioned in the agreement that out of the total consideration, an amount of Rs.3,50,000/- was paid as earnest money by a cheque. The balance amount of Rs.12,50,000/- was payable by the purchasers to the :2: vendor at the time of handing over of the possession of the premises or after passing of the loan. 2. According to the plaintiffs on 27.9.2005, they addressed a notice to the defendant No.1 asking for certain documents which were required to be furnished to ICICI Bank for the purpose of disbursement of the aforesaid loan. 3. It is seen from this notice that the consideration of the flat is mentioned as Rs.20/- lacs. It was contended that there was a cash arrangement beyond the suit agreement. This requisition notice was replied to by the defendant No.1 on 9.10.2005 wherein the defendant No.1 contended that there was an agreement that the balance amount of Rs.12,50,000/- was to be paid at the time of handing over the possession which the purchaser had agreed would be within 7 days from the date of the execution of the agreement. By this reply, the defendant No.1 terminated the agreement and contended that the amount of Rs.3,50,000/- paid by the plaintiffs would stand forfeited. The suit in question thereafter came to be filed on 16.12.2005 and along with the suit the plaintiffs took out a Notice of Motion No.4106 of 2005 for grant of interim reliefs such as injunction, which has been granted in the plaintiffs’ favour. Subsequently the present motion has been taken out for decree on admission and the :3: basis of this motion is that in the reply filed to the notice of Motion No.4106 of 2005 an admission was made on behalf of the defendant No.1 which would entitle the plaintiffs for the relief sought in the present motion. 4. My attention was drawn to the admission contained in Para 11 of an affidavit dated 20.4.2006 and affirmed by the defendant No.1. The said alleged admission is in the following terms. "I say that both parties admit that the sum of Rs.12,50,000/- is due and payable to me for sale of the suit flat with terrace. I say that I am ready and willing to complete the transaction provided the plaintiffs pay me the said balance of Rs.12,50,000/- along with reasonable interest as this Hon’ble court may deem fit and proper". 5. In my view, this is not a statement that will entitled the plaintiffs to obtain a decree on admission. To succeed in a suit for specific performance, the plaintiffs have to show that they were ready and willing to complete the transaction. I find no documents on record to indicate that the plaintiffs took any concrete steps to pay the amount of Rs.12,50,000/-. The Advocate appearing for the plaintiffs drew my attention to his rejoinder filed to this notice of motion in which he has indicated that :4: prior to the filing of the suit the plaintiffs had with them an amount of Rs.12,50,000/-. Reference has been made to certain personal loans of smaller amounts and certain other amounts lying in the bank which, if totalled, was in excess of the balance due. Prima facie, if this was the correct position, then, there was no impediment on the plaintiffs to actually offer the payment by tendering a cheque. The question as to whether the plaintiffs were ready and willing required something more than the plaintiffs statement to this effect. The plaintiffs have not been able to show from the record that the ICICI bank had actually disbursed the amount. On the contrary, it appears that the amount was not disbursed for want of completion of documents. An admission made by the defendant No.1 to the effect that he is willing to accept the amount is not an admission that the plaintiffs had shown readiness and willingness to pay the amount. 6. In this view of the matter, according to me, the notice of motion cannot succeed and the same is therefore, dismissed. (R. S. MOHITE, J.)