IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO.59 of 1989. SUIT NO.59 of 1989. SUIT NO.59 of 1989. 1. Azim Kasam Mansoori 2. Hussein Kassam Mansoori 3. Shafee Kassam Mansoori 4. Sharifa Kassam Mansoori w/o. Kassam Bhika 5. Shamim, d/o. Kassam Bhika 6a. Hamid Mahommedhussein 6b. Zaid Hamid 6c. Sajya Hamid 6d. Shana Hamid (6b to 6d. being minors under age of 18 years, by their next friend Mahomedhussein) 7. Rabia Abdul Rashid d/o. Kassam Bhika All of Bombay, Indian Inhabitants, res. at 117-D, Old Khar, Khar Village, Bombay 400 052. ..Plaintiffs versus 1. Abdul Hamid Usman Fakir Mohamed 2. Iqbal Usman Fakir Mohamed 3. Aziz Usman Fakir Mohamed 4. Rafiq Usman Fakir Mohamed 5. Ayub Usman Fakir Mohamed 6. Fakir Mohamed @ Bapu Usman Fakir Mohamed -2- 7. Samsuddin Usman Fakir Mohamed 8. Smt.Allarkhi Gafoor Jamal Mansoori 9. Yasmin Abdul Kadar All of Bombay, Indian Inhabitants, res. and carrying on business at Plot No.255, Corner of S.V.Road & Linking Road, Bandra (West), Bombay 400 050 ..Defendants Mr.P.V.Bhagat i/b. M/s. Vasant & Co. for the Plaintiffs Mr.H.T.Pawar for defendant Nos.1 to 9. None for the Defendant No.10. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. DATED : 11th Sept., 2008. DATED : 11th Sept., 2008. DATED : 11th Sept., 2008. ORAL JUDGMENT. ORAL JUDGMENT. ORAL JUDGMENT. 1. This suit is filed by the plaintiffs for various reliefs such as (1) for declaration that agreement dated 18.12.1984 is valid and subsisting. (2) Getting back possession of the land admeasuring 544 sq. ft. and for construction of structure and to continue in that structure as monthly tenancy at the rate of Rs.225/- per month. (3) Specific performance of agreement dated 18.12.1984 is sought by way of alternate prayers. (4) Rs.67,400/- along with interest are demanded towards damages as per -3- the agreement dated 18.12.1984. (5) Alternate prayer for damages is sought, if the Court comes to the conclusion that specific performance of agreement dated 18.12.1984 cannot be granted. The plaintiffs sought other misc. prayers in line with earlier prayers. One more prayer, namely prayer clause (h) is sought so as to injunct defendant Nos.1 to 9 from obstructing the plaintiffs from construction of the shops. The plaintiffs have prayed for costs of the suit. 2. In the present case,though Defendant No.10 was served, no written statement was filed and defendant No.10 has not participated in the trial. For the sake of convenience, the defendant Nos.1 to 9 who have contested the suit shall be referred to as "defendants" and whenever specific reference is required to be made to defendant No.10, he would be referred to as defendant No.10. Facts necessary to decide the suit are as under: 3. One person by name Kasam Bhika, father of plaintiff Nos.1 and 2 (hereafter referred to as the said Kasam) and the plaintiff Nos.1 and 2 were in possession of the land admeasuring 544 sq.ft. -4- along with structure standing thereon on the plot of land bearing No.255, Linking Road, Bandra, Bombay and that said Kasam and plaintiff Nos.1 and 2 were carrying on the business of furniture in the name and style of Welldone Furniture Mart. The plaint narrates various facts as to how defendants became owners of the land bearing No.255, Linking Road. Since the plaintiffs admit ownership of the defendants in regard to the land bearing No.255, Linking Road, (hereafter referred to as the suit land) it is not necessary to give all those details. The plaintiffs and defendants admit that the structure which later came to be detected as admeasuring about 544 sq.mt. was standing on the said land and Kasam and Plaintiff Nos.1 and 2 were carrying on the business of furniture. According to the defendants Kasam and Plaintiff Nos.1 and 2 had no right to the land over which the structure was standing and the structure. On 30.11.1984 fire broke out at the said land and the structure then in possession of the plaintiffs as well as the other structures got gutted in the fire. On account of this, an agreement came to be entered into between the present plaintiffs and defendants dated 18.12.1984, (hereafter referred to as the -5- suit agreement). The defendants agreed to construct a building on the said land consisting of shop premises on the ground floor and it was agreed that a shop would be allotted to plaintiffs in lieu of the structure standing thereon and the consideration mentioned in the suit agreement was two fold. The plaintiffs were to surrender their rights over the suit land and pay Rs.2,00,000/-. As to when monies were to be paid has been set out in detail in the suit agreement. The suit agreement also provided that if the construction is not completed within a span of 15 months, it would be obligatory upon the defendants to pay to plaintiffs a sum of Rs.2000/- per month as and by way of compensation. Provision for extension of time was made in clause 3 of suit agreement. The suit agreement also permitted the present plaintiffs to have the possession of the land admeasuring 544 sq.ft. which was below their structure, construct the structure and get themselves appointed as tenants of the said structure on payment of Rs.2,000/- per month. In substance, the parties arrived at terms which enabled the defendants to develop the said land. It is noted that the present defendants entered -6- into the development agreement with defendant No.10 after suit agreement was executed i.e. on 30.11.1987. The plaintiffs surrendered the possession of the area of 544 sq. ft. and that is how the said land was available to the defendants for construction. It is seen that the IOD was granted in November, 1987, Commencement Certificate (part) i.e. only two shops on the ground floor (not concerned with the plaintiffs) was granted in June 1988 and the Commencement certificate for the ground floor, first floor and second floor thereby permitting the defendants to construct the shops was granted on 24.8.1993. These facts are admitted by the defendants in their written statement. It is the stand of the defendants that while surrendering the lands to the defendants, plaintiffs had inducted adjoining owner Karimbahi in a part of the said land which created obstruction in getting Commencement Certificate. This factor is being placed before the Court by the defendants on the question of delay in carrying out the construction. Seeing that the construction is not coming up, plaintiffs sent notice dated 19/12/1988 at Exhibit P-9 seeking possession of the land admeasuring 544 sq.mt. The defendants by -7- letter dated 29.12.1988 at Exhibit P-11 showed willingness to discuss the matter. Prior to that plaintiffs had addressed a letter to Bombay Municipal Corporation placing on record that according to the plaintiffs defendants are about the construct a building and the plans are sanctioned to such a extent that the shop to be allotted to the plaintiffs is not reflected in the plan. The Corporation informed the plaintiffs that the question of grant of plan will be attended to as per the provisions of law and called upon the plaintiffs to approach the Court for appropriate Order. Seeing the situation at site, the plaintiffs instituted this suit in January 1989 for the reliefs mentioned aforesaid. In so far as the relief for specific performance the necessary averment concerning readiness and willingness are found in paragraph 18 and paragraph 28. 4. The defendants contested the suit by filing written statement. According to the defendants said Kasam was unlawful occupant of the portion of said land. According to the defendants plaintiffs had given possession of the land underneath the structure and the defendants have come out with the -8- facts about the grant of part Commencement Certificate on 23.6.1988. The defendants have also set out the circumstance as to why the time was taken to demarcate the land and as to how the construction could not be carried out in time. They have also set out the circumstance as to how the suit agreement came to be entered into. The defendants have denied their liability to pay the compensation at the rate of Rs.2000/- per month as according to the defendants there was no negligence on their part. The defendants have admitted that they have entered into the development agreement with the defendant No.10. The defendants have denied the claim of the plaintiffs that the plaintiffs were ready and willing to perform plaintiffs part of contract. The defendants have disputed liability to pay the damages. The defendants have also contended that the plaintiffs have committed breach of suit agreement. In substance, the defendants have disputed the claim put up by the plaintiffs. 5. On the basis of the aforesaid pleadings issues came to be framed on 22.8.2007. Answer to each of the issue is mentioned against the -9- respective issue: 1. Whether the defendants No.1 to 9 prove that the suit filed by the plaintiffs is barred by the law of limitation?...Does not survive. 2. Whether the plaintiffs prove that the agreement dated 18.12.1984 between the defendants Nos.1 to 9 and the plaintiffs is binding upon the defendants nos.1 to 9?...In the affirmative 3. Whether the defendants prove that the plaintiffs have committed breach of the terms of the agreement dated 18.12.1984 as stated in paras 4 and 12 of the written statement?.. In the negative 4. Whether the defendant nos.1 to 9 prove that there were unforeseen circumstances or events beyond the control of the defendant Nos.1 to 9 to construct the building on plot No.255 and to hand over the possession of the premises admeasuring 300 sq.ft. built up area, as contemplated under the agreement dated 18.12.1984?...In the negative 5. Whether the plaintiffs are entitled to liquidated damages of Rs.2000/- per month as stated in paras 9 and 10 of the plaint?...Does not survive. 6. Whether the plaintiffs prove that the defendant nos.1 to 9 have committed breach of the terms of the Agreement dated 18.12.1984 as stated in para 17 and 18 of the plaint?...In the affirmative 7. Whether the defendant Nos.1 to 9 prove that the defendant Nos.1 to 9 are entitled to recover the property taxes and maintenance charges as contemplated under the Agreement dated 18.12.1984?...In the affirmative -10- 8. Whether the plaintiffs are entitled to specific performance of the Agreement dated 18.12.1984 against the defendant Nos. 1 to 9 or in the alternative to damages as per particulars of claim Exhibit "K" to the plaint?... Answered to hold plaintiffs claim for specific performance is granted and consquently claim for damages is declined. 9. Generally.... Does not survive. 10. What reliefs?.. As per operative part. 6. At the trial, on behalf of the plaintiffs Azim Kasam Mansuri was examined as witness P.W.1. No other witness was examined on behalf of the plaintiffs. On behalf of the defendants Mr. Iqbal Usman Fakir Mohammed Defendant No.2 gave evidence. No other witness was examined on behalf of the defendants. 7. Before I proceed further certain facts which can be termed as admitted facts can be summarised as follows: (1) On 18.12.1984 when the suit agreement came to be entered into, plaintiffs were in possession of the structure and the land below it as admeasuring 544 sq.fts. and Plaintiffs were carrying on business of -11- furniture. (2) Plaintiffs and defendants entered into suit agreement. (3) IOD was granted in the year November 1987. Part Commencement Certificate for only two shops, not concerning that of plaintiffs was granted in June 1988. Full commencement certificate for ground floor, first floor and second floor including the shop No.2 which was to be allotted to the plaintiff was granted in August 1993. 8. In paragraph 38 of the written statement there is reference to existence of a basement and in the course of arguments I have learnt from both the sides that to reach to the said basement one has to go from the ground floor level of shop No.2 to the said basement. Learned Advocate Mr. Pawar appearing on behalf of the defendants had clarified that as of today nobody can enter the said basement from the floor area of shop No.2 which is presently in possession of the plaintiff. This fact is also confirmed by the learned Advocate Mr.Bhagat -12- appearing for the plaintiffs. Learned Advocate Mr. Bhagat clarified that his client in the peculiar facts and circumstances is not pressing for the basement and the claim of the plaintiff stands restricted to shop No.2 which is presently in possession of the plaintiffs. 9. It is seen that the present plaintiffs and defendant No.10 were required to attend to various litigations and it would be proper to refer to the particulars of those cases and the various orders passed therein. Suit No.7173 of 1993 was filed by Kasam against Smt.Kerunissa Divecha and others. In the said suit the consent terms came to be filed on 18.12.1984. In a way these consent terms resulted in execution of the suit agreement. Appeal from Order No.395/1984 was filed by Usman Fakir Divecha & Others i.e. present plaintiffs. Said suit No.7173 of 1993 in which High Court appointed Architect to visit the site and measure the area. Report of the Architect M/s.Parelkar & Dallas at Exhibit P-4 is filed which shows the area of the structure as 544 sq.ft. being the structure which was in the possession of the plaintiffs. Nothing turns out of this as there is no dispute about area -13- in possession of the plaintiffs at the time when the suit agreement was entered into. Suit No.6278 of 1984 was filed by the defendants against Kasam and plaintiff Nos.2 and 3 for possession of the shop which was held by Kasam and plaintiffs. That suit got settled. Defendant No.10 had filed suit in the High Court being suit No.3909 of 1988 against the defendants for terminating the development agreement and that suit came to be withdrawn. Another suit, namely Suit No.844 of 1989 was filed by the defendant No.10 in the High Court against the defendants for seeking specific performance of the agreement dated 30.11.1987 purported to have been executed by the defendants in favour of the defendant No.10. The said suit is still pending and the Receiver, High Court, Bombay is appointed in respect of the properties covered in the said suit including shop No.2 i.e. the suit shop. 10. In the present suit the plaintiffs had taken out Notice of Motion No.1923 of 1989 so as to restrain the defendants from carrying out construction to the prejudice of the plaintiffs and Order of injunction was granted in favour of the -14- plaintiffs in this suit on 1.4.1991. It seems that the plaintiffs went in appeal being Appeal No.627 of 1991 against the Order passed in Notice of Motion. It is seen that in the said appeal Notice of Motion No.1732 of 1993 was taken out by the appellant plaintiffs. It is also noted that the consent terms dated 14.8.1992 came to be filed in the said appeal and the defendants had agreed to carry out construction at the site and to put plaintiffs in possession of shop No.2 by 11.8.1993. It is pertinent to note that in the said consent terms no provision was made for deposit of Rs.2,00,000/-. Subsequently, by Order dated 10.12.1993 time to put plaintiffs in possession of shop No.2 was extended upto 31.3.1994 on condition that no further extension will be sought or granted. Subsequently, in the suit filed by the defendant No.10 i.e. suit No.844 of 1989 as mentioned earlier Receiver was appointed and the receiver was to complete the construction and put plaintiff in possession of shop No.2 upon plaintiffs paying the expenses required for completion of the shop. Before this Court it was mentioned by the learned Advocate for the plaintiffs that the plaintiffs paid to the Receiver -15- a sum of Rs.30,000/- and the plaintiffs were put in possession of shop No.2 i.e. suit shop on 27.3.1995. This fact is not disputed by the defendants. It is seen that the defendants had taken out a Notice of Motion No.1858 of 1994 so as to see that the maintenance and taxes are paid by the plaintiffs. In the said motion Order came to be passed by this Court on 9.9.1997 directing the plaintiffs to pay taxes on written demand from the defendants. 11. I have heard learned Advocate Mr.Bhagat for the plaintiffs and learned Advocate Mr.Pawar for the defendants. Learned Advocate Mr.Bhagat appearing on behalf of the plaintiffs had taken me through the suit agreement and had submitted that clause (2) and clause (3) of the suit agreement provided for consideration to be paid by the plaintiffs to the defendants. According to learned Advocate Mr. Bhagat a part of the consideration was in the manner of delivering vacant possession of the land underneath the structure. He had also drawn my attention to the fact that sum of Rs.2,00,000/- were to be paid to the defendants depending upon the progress in construction. Mr. -16- Bhagat had drawn my attention at Paragraph No.18 and 28 of the plaint as well as paragraph No.10 of evidence of Azim Kasam Mansuri P.W.1 where the plaintiffs have reitered their stand as regards readiness and willingness on the part of the plaintiffs to comply with the terms and conditions. Learned Advocate Mr. Bhagat submitted that the defendants at no stage had communicated to the plaintiffs as to at what stage the construction work is going on and therefore there was no question of plaintiffs coming forward to make the payment depending upon the stage of construction, such as grant of Commencement Certificate, starting of the work of digging, completion of plinth etc. Mr. Bhagat had pointed out that the suit agreement is dated 18.12.1984 and the period of 15 months specified in the suit agreement and in particular clause (3) was to expire on 17.3.1986 and by that time no development had taken place at site with reference to the commencement of the work. Mr. Bhagat submitted that the defendants have not complied with the terms of clause (3) as regards completion of the work within 15 months. Defendants were liable to pay to the plaintiffs damages at the rate of Rs.2000/- per month and -17- plaintiffs were entitled to resume possession of the land below structure which is admeasuring 544 sq.ft. Mr.Bhagat contended that the reasons set out by the defendants for not carrying out the work in time and referring to them as circumstances as act of God, natural calamity or any other unforeseen circumstance cannot be accepted as Mr.Bhagat had submitted that though in the evidence affidavit of D.W.1 Mr. Iqbal, a reference is made in para 10 about plaintiffs delivering possession to Mr. Karimbhai in respect of certain lands forming part of the said land and that created hurdle for the defendant in getting the IOD as well as the Commencement Certificate, Except the bare word of D.W.1 Iqbal, there is no other material placed before the Court and to that extent the evidence of P.W.1 should be discarded and in any case seeing para 10 of the evidence of Iqbal D.W.1 the Court should reject the stand of the defendants that they were prevented from constructing on the basis of a justifiable cause. Learned Advocate Mr.Bhagat submitted that the defendants were unable to get the plans sanctioned till 1987 and part Commencement Certificate was obtained in 1988 not concerning the shop of the -18- plaintiffs and the Commencement Certificate in respect of the shop of plaintiffs was obtained in the year 1993. According to learned Advocate Mr.Bhagat, these fact would clearly go to show that the defendants were not proceeding as per the terms of agreement and the plaintiffs were required to institute a suit in January 1989 when the plaintiffs realised that the defendants are unable to comply with the suit agreement. Mr.Bhagat submitted that the Court should accept the evidence of P.W.1 Azim and considering the conduct of the plaintiffs as well as the conduct of the defendants, the plaintiffs are entitled to specific performance of the suit agreement as regards the shop No.2. Learned Advocate Mr. Bhagat reiterated the submission that his clients are prepared to deposit Rs.2,00,000/- either in the Court or with the defendants as may be ordered by the Court. Learned Advocate Mr.Bhagat further submitted that at no point of time demand was made by the defendants to the plaintiffs with reference to money consideration and in the consent terms which came to be filed in the Court by which the plaintiffs were to be put in possession, no clause was inserted so as to direct the plaintiffs to -19- deposit Rs.2,00,000/- or part thereof at the time of taking possession of the suit shop. Learned Advocate Mr.Bhagat also pointed out that the plaintiffs have deposited with the Court Receiver sum of Rs.30,000/- as per the order passed in the suit which was filed by defendant No.10 and to that extent the plaintiffs must get credit for Rs.30,000/-. At this juncture itself it is required to be mentioned that no documentary evidence was placed before the Court by the plaintiffs, that the sum of Rs.30,000/- was deposited by the plaintiffs before the Court Receiver. Learned Advocate Mr.Bhagat had therefore submitted that the plaintiffs are entitled to specific performance of the suit agreement and appropriate decree be passed by the Court. Learned Advocate Mr. Bhagat, upon instructions from his client submitted that if the Court is inclined to grant specific performance of the suit agreement and that if the court is inclined to put the plaintiffs in possession of shop No.2 so as to finalise the suit agreement, the plaintiffs will not press for reliefs in terms of damages at the rate of Rs.2000/- per month which is set out in prayer clause (f). -20- 12. Learned Advocate Shri Pawar appearing on behalf of the defendants objected to the submissions made by learned Advocate Mr.Bhagat. Learned Advocate Mr. Pawar took me through the entire record and submitted that plaintiffs have not paid Rs.2,00,000/- as set out in clause (2) of the suit agreement and hence the Court cannot treat the plaintiffs as persons ready and willing to perform their part of contract. Mr. Pawar submitted that the plaintiffs were in full know of the development on the site and therefore the plaintiffs cannot say that the defendants were obliged to inform the plaintiffs about the development at the suit site and therefore according to learned Advocate Mr.Pawar plaintiffs ought to have paid Rs.2,00,000/- on time without notice from defendants. Mr.Pawar submitted that in order to have the suit agreement specifically performed the plaintiffs were required to manifest their readiness and willingness right from the inception of the suit agreement till the institution of the suit and even thereafter. Learned Advocate Mr. Pawar had in support of this contention relied upon the judgment at -21- N.P.Thirugnanam (Dead) by LRS. v. Dr.R.Jagan N.P.Thirugnanam (Dead) by LRS. v. Dr.R.Jagan N.P.Thirugnanam (Dead) by LRS. v. Dr.R.Jagan Mohan Rao & Ors. reported in (1995) 5 SCC 115, (2) Mohan Rao & Ors. reported in (1995) 5 SCC 115, (2) Mohan Rao & Ors. reported in (1995) 5 SCC 115, (2) H.P.Pyarejan v.Dasappa (Dead) By LRS & Ors. H.P.Pyarejan v.Dasappa (Dead) By LRS & Ors. H.P.Pyarejan v.Dasappa (Dead) By LRS & Ors. reported in (2006)2 SCC 496 and (3) Bhikaram son of reported in (2006)2 SCC 496 and (3) Bhikaram son of reported in (2006)2 SCC 496 and (3) Bhikaram son of Nathuji Vanjari & Ors. v. Smt.Saraswatibai Nathuji Vanjari & Ors. v. Smt.Saraswatibai Nathuji Vanjari & Ors. v. Smt.Saraswatibai w/o.Motilal Zarkaria reported in 1996(4) ALL MR w/o.Motilal Zarkaria reported in 1996(4) ALL MR w/o.Motilal Zarkaria reported in 1996(4) ALL MR 655. 655. 655. Learned Advocate Mr.Pawar submitted that the Court should not only consider