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 ORDINARY ORDINARY ORIGINAL ORIGINAL ORIGINAL CIVIL JURISDICTION CIVIL JURISDICTION CIVIL JURISDICTION SUIT SUIT SUIT NO.2864 NO.2864 NO.2864 OF 1998 OF 1998 OF 1998 Shri Shri Shri Kamlakar G.Bhoir Kamlakar G.Bhoir Kamlakar G.Bhoir ...... Plaintiff Plaintiff Plaintiff vs vs vs Smt.Leelabai Smt.Leelabai Smt.Leelabai Govind Thombre & ors..Defendants Govind Thombre & ors..Defendants Govind Thombre & ors..Defendants Mr.P.S.Tiwari Mr.P.S.Tiwari Mr.P.S.Tiwari for for for Plaintiff Plaintiff Plaintiff Mr.S.N.Shah Mr.S.N.Shah Mr.S.N.Shah for Defendant Nos. 1,9,10 & 11. for Defendant Nos. 1,9,10 & 11. for Defendant Nos. 1,9,10 & 11. CORAM CORAM CORAM : A.S.OKA, J : A.S.OKA, J : A.S.OKA, J DATED DATED DATED : : : 30th July, 2007 30th July, 2007 30th July, 2007 JUDGMENT JUDGMENT JUDGMENT 1.1.1. The suit was listed under the caption The suit was listed under the caption The suit was listed under the caption "undefended "undefended "undefended suits for ex parte decree". When the suits for ex parte decree". When the suits for ex parte decree". When the suit suit suit was called out on earlier occasion, it was was called out on earlier occasion, it was was called out on earlier occasion, it was brought brought brought to the notice of the learned counsel to the notice of the learned counsel to the notice of the learned counsel appearing appearing appearing for the plaintiff that the writ of for the plaintiff that the writ of for the plaintiff that the writ of summons summons summons has not been served to the defendant no.6. has not been served to the defendant no.6. has not been served to the defendant no.6. Learned Learned Learned counsel appearing for the plaintiff on counsel appearing for the plaintiff on counsel appearing for the plaintiff on instructions instructions instructions from the plaintiff stated that the from the plaintiff stated that the from the plaintiff stated that the plaintiff plaintiff plaintiff is is is not claiming any relief as against 6th not claiming any relief as against 6th not claiming any relief as against 6th toto to 11th defendants and the suit is pressed only as 11th defendants and the suit is pressed only as 11th defendants and the suit is pressed only as against against against 1st to 5th defendants herein. 1st to 5th defendants herein. 1st to 5th defendants herein. 2.2.2. The plaintiff has filed on record his affidavit The plaintiff has filed on record his affidavit The plaintiff has filed on record his affidavit inin in lieu of examination-in-chief. The said lieu of examination-in-chief. The said lieu of examination-in-chief. The said affidavit affidavit affidavit is marked ’X’ for identification and is is marked ’X’ for identification and is is marked ’X’ for identification and is taken taken taken on record. The plaintiff has also filed the on record. The plaintiff has also filed the on record. The plaintiff has also filed the 2 original original original documents along with a list of documents. documents along with a list of documents. documents along with a list of documents. The The The said said said original documents along with the list are original documents along with the list are original documents along with the list are marked marked marked ’Y’ (collectively) for identification and ’Y’ (collectively) for identification and ’Y’ (collectively) for identification and the the the same are taken on record. There is same are taken on record. There is same are taken on record. There is a separate separate separate affidavit affidavit affidavit of the plaintiff affirmed on 25th July, of the plaintiff affirmed on 25th July, of the plaintiff affirmed on 25th July, 2007. 2007. 2007. In the said affidavit, the plaintiff has In the said affidavit, the plaintiff has In the said affidavit, the plaintiff has stated stated stated that he was not pressing prayer clause (b) that he was not pressing prayer clause (b) that he was not pressing prayer clause (b) of of of the plaint as against 6th to 11th defendants. the plaint as against 6th to 11th defendants. the plaint as against 6th to 11th defendants. The The The said affidavit is marked ’Z said affidavit is marked ’Z said affidavit is marked ’Z’ for identification for identification for identification and and and the same is taken on record. the same is taken on record. the same is taken on record. 3.3.3. Before appreciating the submissions made by the Before appreciating the submissions made by the Before appreciating the submissions made by the learned learned learned counsel appearing for the plaintiff, it counsel appearing for the plaintiff, it counsel appearing for the plaintiff, it will will will be necessary to refer to the facts of the case be necessary to refer to the facts of the case be necessary to refer to the facts of the case inin in brief. brief. brief. 4.4.4. The suit relates to land bearing survey no.36 The suit relates to land bearing survey no.36 The suit relates to land bearing survey no.36 (pt) (pt) (pt) City Survey no.782 admeasuirng 5321.4 City Survey no.782 admeasuirng 5321.4 City Survey no.782 admeasuirng 5321.4 sq.meters sq.meters sq.meters of village Nahur, Taluka Kurla, Bombay of village Nahur, Taluka Kurla, Bombay of village Nahur, Taluka Kurla, Bombay Suburban Suburban Suburban District. The 1st to 5th defendants are District. The 1st to 5th defendants are District. The 1st to 5th defendants are the the the legal representatives of the deceased Govind legal representatives of the deceased Govind legal representatives of the deceased Govind Keshav Keshav Keshav Thombre who died on 15th August, 1997. The Thombre who died on 15th August, 1997. The Thombre who died on 15th August, 1997. The suit suit suit is is is essentially for specific performance of the essentially for specific performance of the essentially for specific performance of the agreement agreement agreement for sale dated 22nd December, 1984 for sale dated 22nd December, 1984 for sale dated 22nd December, 1984 allegedly allegedly allegedly executed by the said Govind Keshav executed by the said Govind Keshav executed by the said Govind Keshav Thombre Thombre Thombre (hereinafter referred to as the said (hereinafter referred to as the said (hereinafter referred to as the said deceased) deceased) deceased) in favour of the plaintiff. As per the in favour of the plaintiff. As per the in favour of the plaintiff. As per the said said said agreement, the deceased agreed to sell the agreement, the deceased agreed to sell the agreement, the deceased agreed to sell the suit suit suit property property property in favour of the plaintiff for a lump in favour of the plaintiff for a lump in favour of the plaintiff for a lump sum sum sum price of Rs.2,00,000/-. The agreement recites price of Rs.2,00,000/-. The agreement recites price of Rs.2,00,000/-. The agreement recites 3 that that that a a a sum of Rs.51,000/- was paid by the plaintiff sum of Rs.51,000/- was paid by the plaintiff sum of Rs.51,000/- was paid by the plaintiff toto to the deceased by way of earnest money and the the deceased by way of earnest money and the the deceased by way of earnest money and the balance balance balance amount was to be paid on or before the amount was to be paid on or before the amount was to be paid on or before the execution execution execution of the conveyance. In the recitals of of the conveyance. In the recitals of of the conveyance. In the recitals of the the the agreement, it is stated that the deceased was agreement, it is stated that the deceased was agreement, it is stated that the deceased was seized seized seized and possessed and was otherwise entitled to and possessed and was otherwise entitled to and possessed and was otherwise entitled to sell sell sell the suit property. The agreement further the suit property. The agreement further the suit property. The agreement further recites recites recites that that that one M/s Bhandup Estate (6th defendant) one M/s Bhandup Estate (6th defendant) one M/s Bhandup Estate (6th defendant) are are are the owners of the suit property as per record the owners of the suit property as per record the owners of the suit property as per record of of of rights. Clause 2 provides that the deceased rights. Clause 2 provides that the deceased rights. Clause 2 provides that the deceased vendor vendor vendor shall cause the said M/s Bhandup Estate, the shall cause the said M/s Bhandup Estate, the shall cause the said M/s Bhandup Estate, the original original original owners to confirm this agreement. owners to confirm this agreement. owners to confirm this agreement. 5.5.5. It is alleged in the plaint that the deceased It is alleged in the plaint that the deceased It is alleged in the plaint that the deceased executed executed executed a General Power of Attorney dated 4th a General Power of Attorney dated 4th a General Power of Attorney dated 4th October, October, October, 1992 in favour of the plaintiff. The 1992 in favour of the plaintiff. The 1992 in favour of the plaintiff. The plaintiff’s plaintiff’s plaintiff’s case case case is that the deceased had agreed to is that the deceased had agreed to is that the deceased had agreed to make make make out a marketable title to the suit property out a marketable title to the suit property out a marketable title to the suit property but but but the deceased failed and neglected to comply the deceased failed and neglected to comply the deceased failed and neglected to comply with with with the the the terms and conditions of the said agreement terms and conditions of the said agreement terms and conditions of the said agreement dated dated dated 22nd December, 1984. It is stated in the 22nd December, 1984. It is stated in the 22nd December, 1984. It is stated in the plaint plaint plaint that one Vijay Kumar Salian claimed to have that one Vijay Kumar Salian claimed to have that one Vijay Kumar Salian claimed to have purchased purchased purchased the suit property from the 6th defendant the suit property from the 6th defendant the suit property from the 6th defendant and and and the 9th to 11th defendants claimed to have the 9th to 11th defendants claimed to have the 9th to 11th defendants claimed to have purchased purchased purchased the suit property from the said Vijay the suit property from the said Vijay the suit property from the said Vijay Kumar Kumar Kumar Salian. It is stated that the deceased Salian. It is stated that the deceased Salian. It is stated that the deceased through through through the plaintiff as his Constituted Attorney the plaintiff as his Constituted Attorney the plaintiff as his Constituted Attorney filed filed filed a a a suit being Suit No.2047 of 1992 against the suit being Suit No.2047 of 1992 against the suit being Suit No.2047 of 1992 against the 6th 6th 6th defendant, 9th to 11th defendants and the said defendant, 9th to 11th defendants and the said defendant, 9th to 11th defendants and the said VijayKumar VijayKumar VijayKumar Salian for a declaration that the Salian for a declaration that the Salian for a declaration that the 4 deceased deceased deceased was the owner of the suit property. was the owner of the suit property. was the owner of the suit property. During During During pendency of the suit, the said Vijay Kumar pendency of the suit, the said Vijay Kumar pendency of the suit, the said Vijay Kumar Salian Salian Salian expired and 7th and 8th defendants herein expired and 7th and 8th defendants herein expired and 7th and 8th defendants herein were were were brought on record as heirs and legal brought on record as heirs and legal brought on record as heirs and legal representatives representatives representatives of of of the deceased Vijay Kumar Salian. the deceased Vijay Kumar Salian. the deceased Vijay Kumar Salian. The The The plaintiff has placed reliance on an interim plaintiff has placed reliance on an interim plaintiff has placed reliance on an interim order order order passed on a Notice of Motion taken out in the passed on a Notice of Motion taken out in the passed on a Notice of Motion taken out in the suit suit suit in the City Civil Court. in the City Civil Court. in the City Civil Court. 6.6.6. According to the case of the plaintiff on the According to the case of the plaintiff on the According to the case of the plaintiff on the basis basis basis of the suit agreement, following amounts were of the suit agreement, following amounts were of the suit agreement, following amounts were paid paid paid by him to the deceased:- by him to the deceased:- by him to the deceased:- 1.1.1. Rs.25,000/- on 13th November, 1990 Rs.25,000/- on 13th November, 1990 Rs.25,000/- on 13th November, 1990 2.2.2. Rs.35,000/-on 23rd November, 1990 Rs.35,000/-on 23rd November, 1990 Rs.35,000/-on 23rd November, 1990 3.3.3. Rs.25,000/- on 17th September, 1991 Rs.25,000/- on 17th September, 1991 Rs.25,000/- on 17th September, 1991 According According According to the case of the plaintiff, the to the case of the plaintiff, the to the case of the plaintiff, the deceased deceased deceased passed receipts for the said amounts in passed receipts for the said amounts in passed receipts for the said amounts in favour favour favour of the plaintiff. of the plaintiff. of the plaintiff. 7.7.7. A specific case has been made out in paragraph A specific case has been made out in paragraph A specific case has been made out in paragraph 5 of the plaint that 1st to 5th defendants were of the plaint that 1st to 5th defendants were of the plaint that 1st to 5th defendants were refusing refusing refusing to honour the suit agreement and were to honour the suit agreement and were to honour the suit agreement and were refusing refusing refusing to complete the sale of the suit property to complete the sale of the suit property to complete the sale of the suit property inin in favour of the plaintiff. The Contention of the favour of the plaintiff. The Contention of the favour of the plaintiff. The Contention of the plaintiff plaintiff plaintiff is that the suit agreement dated 22nd is that the suit agreement dated 22nd is that the suit agreement dated 22nd 5 December, December, December, 1984 is valid and subsisting and 1984 is valid and subsisting and 1984 is valid and subsisting and is binding binding binding on the 1st to 5th defendants being the on the 1st to 5th defendants being the on the 1st to 5th defendants being the legal legal legal representatives of the deceased vendor. representatives of the deceased vendor. representatives of the deceased vendor. Thus, Thus, Thus, the present suit has been filed for a the present suit has been filed for a the present suit has been filed for a declaration declaration declaration that the suit agreement is valid and that the suit agreement is valid and that the suit agreement is valid and subsisting subsisting subsisting and also for a declaration that 6th to and also for a declaration that 6th to and also for a declaration that 6th to 11th 11th 11th defendants have no right, title and interest defendants have no right, title and interest defendants have no right, title and interest inin in respect respect respect of the suit property. The plaintiff has of the suit property. The plaintiff has of the suit property. The plaintiff has also also also prayed for a decree of specific performance of prayed for a decree of specific performance of prayed for a decree of specific performance of the the the suit agreement. suit agreement. suit agreement. 8.8.8. Learned counsel for the plaintiff has invited Learned counsel for the plaintiff has invited Learned counsel for the plaintiff has invited my my my attention to the affidavit in lieu evidence of attention to the affidavit in lieu evidence of attention to the affidavit in lieu evidence of the the the plaintiff and the original documents placed on plaintiff and the original documents placed on plaintiff and the original documents placed on record. record. record. He pointed out that apart from the earnest He pointed out that apart from the earnest He pointed out that apart from the earnest money money money of Rs.51,000/-, the plaintiff has paid a of Rs.51,000/-, the plaintiff has paid a of Rs.51,000/-, the plaintiff has paid a further further further amount of Rs.85,000/- to the deceased amount of Rs.85,000/- to the deceased amount of Rs.85,000/- to the deceased vendor. vendor. vendor. He pointed out that a sum of Rs.25,000/- He pointed out that a sum of Rs.25,000/- He pointed out that a sum of Rs.25,000/- was was was paid on 13th November, 1990 against a receipt paid on 13th November, 1990 against a receipt paid on 13th November, 1990 against a receipt executed executed executed by the deceased vendor. He pointed out by the deceased vendor. He pointed out by the deceased vendor. He pointed out that that that a sum of Rs.35,000/- was paid on 23rd a sum of Rs.35,000/- was paid on 23rd a sum of Rs.35,000/- was paid on 23rd November, November, November, 1990 1990 1990 and a further sun of Rs.25,000/- was and a further sun of Rs.25,000/- was and a further sun of Rs.25,000/- was paid paid paid on 17th September, 1991 and for both the on 17th September, 1991 and for both the on 17th September, 1991 and for both the payments, payments, payments, receipts have been executed. He receipts have been executed. He receipts have been executed. He submitted submitted submitted that Suit No.2022 of 1991 was filed and that Suit No.2022 of 1991 was filed and that Suit No.2022 of 1991 was filed and prosecuted prosecuted prosecuted by the plaintiff in his capacity as the by the plaintiff in his capacity as the by the plaintiff in his capacity as the Constituted Constituted Constituted Attorney of the deceased vendor. He Attorney of the deceased vendor. He Attorney of the deceased vendor. He submitted submitted submitted that after the demise of the deceased that after the demise of the deceased that after the demise of the deceased vendor, vendor, vendor, 1st to 5th defendants who are the legal 1st to 5th defendants who are the legal 1st to 5th defendants who are the legal representatives representatives representatives of the deceased declined to abide of the deceased declined to abide of the deceased declined to abide 6 by by by the agreement and therefore, a legal notice was the agreement and therefore, a legal notice was the agreement and therefore, a legal notice was issued issued issued by the advocate for the plaintiff on 30th by the advocate for the plaintiff on 30th by the advocate for the plaintiff on 30th April, April, April, 1998 1998 1998 to the said defendants. He pointed out to the said defendants. He pointed out to the said defendants. He pointed out that that that a reply was received on 28th May, 1998 from a reply was received on 28th May, 1998 from a reply was received on 28th May, 1998 from the the the advocate advocate advocate for 1st to 5th defendants by which the for 1st to 5th defendants by which the for 1st to 5th defendants by which the said said said defendants declined to perform their part of defendants declined to perform their part of defendants declined to perform their part of the the the agreement and therefore, the present suit was agreement and therefore, the present suit was agreement and therefore, the present suit was filed filed filed on 25th June, 1998 for specific performance. on 25th June, 1998 for specific performance. on 25th June, 1998 for specific performance. He He He submitted submitted submitted that none of the 1st to 5th defendants that none of the 1st to 5th defendants that none of the 1st to 5th defendants have have have chosen to contest the suit and therefore chosen to contest the suit and therefore chosen to contest the suit and therefore a decree decree decree must follow. He placed reliance on a must follow. He placed reliance on a must follow. He placed reliance on a decision decision decision of the Apex Court in the case of Devalsab of the Apex Court in the case of Devalsab of the Apex Court in the case of Devalsab (Dead) (Dead) (Dead) by LRs Appellant v. Ebrahimsab F.Karajagi by LRs Appellant v. Ebrahimsab F.Karajagi by LRs Appellant v. Ebrahimsab F.Karajagi and and and another, Respondent) (AIR 2005 SUPREME COURT another, Respondent) (AIR 2005 SUPREME COURT another, Respondent) (AIR 2005 SUPREME COURT 1940). 1940). 1940). He also placed reliance on a decision of He also placed reliance on a decision of He also placed reliance on a decision of the the the learned Single Judge of this Court in the case learned Single Judge of this Court in the case learned Single Judge of this Court in the case of of of Abdul Mutalik Rajjak Musalman & Ors vs. Smt Abdul Mutalik Rajjak Musalman & Ors vs. Smt Abdul Mutalik Rajjak Musalman & Ors vs. Smt Khubai Khubai Khubai w/o Majidkha Musalman & Ors 2005 (1) ALL MR w/o Majidkha Musalman & Ors 2005 (1) ALL MR w/o Majidkha Musalman & Ors 2005 (1) ALL MR 593). 593). 593). He submitted that considering the payment of He submitted that considering the payment of He submitted that considering the payment of subtantial subtantial subtantial amount by the plaintiff, this is a fit amount by the plaintiff, this is a fit amount by the plaintiff, this is a fit case case case for exercising discretion in favour of the for exercising discretion in favour of the for exercising discretion in favour of the plaintiff. plaintiff. plaintiff. Learned counsel appearing for the Learned counsel appearing for the Learned counsel appearing for the defendant defendant defendant nos. 9 to 11 submitted that they have nos. 9 to 11 submitted that they have nos. 9 to 11 submitted that they have acquired acquired acquired title to the property through the 6th title to the property through the 6th title to the property through the 6th defendant defendant defendant and therefore, if this Court is inclined and therefore, if this Court is inclined and therefore, if this Court is inclined toto to pass a decree for specific performance as pass a decree for specific performance as pass a decree for specific performance as against against against the 1st to 5th defendants, rights of the the 1st to 5th defendants, rights of the the 1st to 5th defendants, rights of the said said said defendant nos. 9 to 11 will be seriously defendant nos. 9 to 11 will be seriously defendant nos. 9 to 11 will be seriously affected. affected. affected. He therefore submitted that a decree He therefore submitted that a decree He therefore submitted that a decree cannot cannot cannot be passed though a statement is made by the be passed though a statement is made by the be passed though a statement is made by the 7 learned learned learned counsel for the plaintiff that he does not counsel for the plaintiff that he does not counsel for the plaintiff that he does not want want want to press for any reliefs as against the 6th to to press for any reliefs as against the 6th to to press for any reliefs as against the 6th to 11th 11th 11th defendants. defendants. defendants. 9.9.9. I have carefully considered the submissions. I have carefully considered the submissions. I have carefully considered the submissions. ItItIt will be necessary to refer to the suit will be necessary to refer to the suit will be necessary