1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. Notice of Motion No.3091 of 2007 IN Suit No.2267 of 2007 Manilal Revabhai Solanki .. .. Plaintiff v/s. Sadhubela Udasin Ashram & ors. .. .. Defendants Mr.V.S.R. Singh for Plff. Mr.Shrinivas Deshmukh i/by Reza A.K. Nazam- es- Sam for Deft.No.1 . Mr.A.M. Saraogi for Defts. 2, 3 & 4. Ms.Smita Gaidhani, AGP for Deft.5. ------ CORAM : SMT.ROSHAN DALVI, J. Dated : 24 th March 2009 P.C. : 1. The Plaintiff has sued for specific performance of the Agreement to sell the suit property to the Plaintiff and Defendants 2, 3 and 4 by Defendant 1 dated 11.6.2001. Defendant 1 is a Public Trust. 2. The consideration, which was payable under the agreement, is Rs.15 Lakhs by 4 purchasers shown therein. The Plaintiff is one of the 4 purchasers. The Plaintiff claims to have paid his contribution to Defendant 3 who was also one of the purchasers. 2 3. The Plaintiff claims that thereafter there was an agreement to pay Rs.2 Lakhs more for legal and other expenses. The Plaintiff claims to have paid his contribution of that amount also to Defendant 1 through Defendant 3. 4. The Plaintiff claims to have been put in possession of the property under the said Agreement dated 11.6.2001. The possession could not have been given by the Trust to any of the purchasers before the permission of the Charity Commissioner was obtained. The Plaintiff was earlier a tenant in respect of a certain portion. The Plaintiff claims to have continued in possession. 5. The Trust could not sell the suit property to the Plaintiff without the permission of the Charity Commissioner under the provisions of Section 36 of the Bombay Public Trust Act, 1950 (BPT Act). Hence the Trust applied for permission of the Charity Commissioner on 11.8.2001. 6. Pending that application, the Trust entered into a Supplementary Agreement with Defendant 3 on 25.7.2006. The recitals in the said agreement show that Defendant 3 represented to the Trust that the other co-purchasers were not interested in the suit property and that he has returned their contribution made under the Agreement for sale dated 3 11.6.2001. The recitals further show that the trustees called upon Defendant 3 to furnish those letters of disclaimer or declaration of the co-purchasers and indemnify the trustees. Defendant 3, under the said Agreement, indemnified the trustees in respect of any adverse claim made by the co- purchasers. 7. It is seen that pending the application for sanction of the Charity Commissioner, the Plaintiff, Defendant No.2 and Defendant 4 were no longer interested in purchasing the suit property. 8. The order of the Charity Commissioner dated 10.10.2006 shows that the amount of Rs.15 Lakhs mentioned as consideration for the suit property was a meagre amount and hence the trustees were directed to invite fresh offers by giving public notices in newspapers. The notices were given. The offers were invited. 3 offers were received. Defendant 3 independently and singly made an offer of Rs.22 Lakhs which was the highest offer. Thereafter the Charity Commissioner invited bids. Defendant 3's bid was the highest bid of Rs.45,60,000 /- . That was accepted by the Charity Commissioner. The order of the Charity Commissioner shows the consideration which could be obtained by the Trust for the sale of the suit property to be 4 Rs.45,60,000 /- . Of course, the order of the Charity Commissioner also shows that the Trust will sell that property to Defendant 3. The Plaintiff has challenged the jurisdiction of the Charity Commissioner directing to sell to a particular person being Defendant 3 in this case. The order of the Charity Commissioner to that extent appears to be incorrect. But the Civil Court is not a forum in which that order can be corrected. 9. The fact remains that the suit property is worth much more than the consideration paid. 10. Defendant 3, who claims to have purchased the suit property individually upon the highest bid made by him before the Charity Commissioner, has shown the return of the consideration paid by Defendant 3 to the Plaintiff. The receipt shows Rs.2,50,000 /- paid initially on 13.11.2001. It is admittedly received by the Plaintiff and the receipt is signed showing Rs.2,50,000 /- jama . Thereafter there is another similar entry of Rs.1 Lakh dated 14.2.2002. Consequently, the Plaintiff has been admittedly paid off Rs.3,50,000 /- . Below this receipt is a further entry of Rs.1,50,000 /- , aggregating to Rs.5 Lakhs dated 10.3.2002 shown as jama . Against this entry also there is an initial. It is the case of Defendant 3 that that is the Plaintiff's initial. 5 The first signature of the Plaintiff is made in Gujarati. It is a full signature. The receipt of that amount is admitted. The second entry does not show the full Gujarati signature of the Plaintiff. Yet that amount is admitted. Hence admittedly the Plaintiff has received Rs.3,50,000 /- . The rest of the amount is not admitted. 11. The fact remains that the agreement executed by the Plaintiff is for inadequate consideration. The Charity Commissioner has not granted sanction for sale under that agreement. That agreement cannot, therefore, be specifically enforced. The Plaintiff's Suit for specific enforcement of that agreement goes thus far. The receipt also shows the admitted payment of Rs.3,50,000 /- returned by Defendant 3 to the Plaintiff. That shows that the Plaintiff has accepted that the agreement entered into by him is no longer effective and has been compensated by his co-purchaser to whom he had contributed his part of the consideration. It is argued by the Plaintiff's Advocate that Rs.1.5 Lakhs further shown to be received on 10.3.2002 is not admitted. A specific performance suit is not the remedy. 12. After the Charity Commissioner rejected the sanction and directed the Trust to sell the suit property for Rs. 45,60,000/- , the trustees entered into another Agreement 6 dated 7.8.2007 with Defendant 3 individually. The Suit has been filed on 27.7.2007. The agreement is entered into after the filing of the Suit. The Plaintiff, therefore, contends that it is bit by Section 52 of the Transfer of Properties Act. The agreement is not shown to be registered. Hence the Plaintiff claims that it is hit by Section 49 of the Registration Act also. 13. This Notice of Motion is taken out for several reliefs, aside from the appointment of Court Receiver and the usual injunctions. The Plaintiff claims that the order of the Charity Commissioner be stayed. A Civil Court has no jurisdiction to stay the order of the Charity Commissioner. Hence prayer (a) must be rejected. 14. The Plaintiff claims that certain unauthorised structures are put up on the suit property by Defendant 3. The Plaintiff applies for removal of the structures. That relief cannot also be granted by this Court. The Plaintiff may take appropriate proceedings before the appropriate Authority to obtain relief. Prayer (b) also must be rejected. 15. The Plaintiff requires Defendants 2, 3 and 4 to contribute the sums paid by the plaintiff to make a total consideration of Rs.30 Lakhs under certain further agreement with the 7 Plaintiff. That case is not made out. The sum of Rs.3,50,000 /- is returned by Defendant 3. The Plaintiff shall be entitled to claim refund of any amount in appropriate proceedings, including this Suit at the hearing of the Suit and upon the evidence being recorded. No case for appointment of the Court Receiver or the Court Commissioner is made out. 16. Hence the Notice of Motion is dismissed. No order as to costs. (SMT.ROSHAN DALVI, J.)