abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 3861 OF 2007 IN SUIT NO. 2870 OF 2007 S. Paul Mathew Chettiar .. Plaintiff V/s Brickswork Trading Pvt. Ltd. & Anr. .. Defendants Mr.N.N. Vaishnawa for the plaintiff. Mr.Birendra Saraf i/b I.C. Legal for the defendants. CORAM : D.G. KARNIK, J. DATE : 6TH APRIL 2009 P.C. P.C. P.C. : 1. Heard the learned counsel for the parties. 2. The plaintiff has filed the suit against the defendants for specific performance of an agreement of sale of a flat bearing flat no.1404 situated on the 14th floor of O-zone Towers, Goregaon (West), Mumbai. The - 2 - flat is more particularly described in paragraph 2 of the plaint and is hereinafter referred to as "the suit flat". 3. According to the plaintiff, the defendants orally agreed to sell him the suit flat for a sum of Rs.28,27,350/-. The plaintiff paid the initial advance of Rs.2,82,735/- being 10% of the price of the suit flat and paid to the defendants further amounts as demanded by them and in all has paid to the defendants a sum of Rs.12,90,880/-. He was ready and willing to pay the price of the suit flat as per the progress of the construction. However, by a letter dated 18th October 2006, the defendants, who are builders and promoters, purported to terminate the agreement. The plaintiff has therefore filed this suit for specific performance of the agreement of sale of the suit flat. In the said suit, the plaintiff has prayed for a relief of injunction restraining the defendants from selling, transferring, encumbering, alienating and/or parting with possession and/or creating third party rights and/or inducting third party into the suit flat. 4. Mr.Amol Savale has filed an affidavit on behalf of the defendants opposing the motion. In paragraph 5 of the affidavit in reply, the defendants have admitted that there was an agreement between the plaintiff and - 3 - the defendants. However, according to him, the agreed sale price of the suit flat was Rs.31,82,025/- and not Rs.28,27,350/-. According to him, the plaintiff defaulted in payment of the amounts on the due dates and, therefore, the agreement was terminated by a letter dated 18th October 2006. Admittedly, the defendants had received a total sum of over Rs.12,90,000/-. The defendants are promoters and builders. Under section 4 of the Maharashtra Ownership Flats Act, they were required to execute a written agreement of sale prior to the acceptance of any money as an advance. However, they have not executed the written agreement so far. There is no material on record to show that the instalments, which have been mentioned in paragraph 9 of the affidavit in reply, were as per the time scheduled agreed by the plaintiff. Model agreement to the Maharashtra Ownership Flats Rules provides for payment according to the stages of construction. The draft model agreement described under the Rules provides for issuance of a notice prior to termination of the agreement. Though the defendants claim to have issued a notice dated 4th October 2006 prior to the termination of the agreement, there is no proof that such a notice was received by the plaintiff. Under the Ownership Flats Rules and the model agreement, a promoter is required to give at least 15 days prior notice of his intention to terminate the agreement. Even if it is - 4 - assumed that the defendants had given the notice on 4th October 2006, the termination, which is made on 18th October 2006, is made before the expiry of 15 days contemplated under the model agreement. Thus, prima facie, there is non-compliance of the Maharashtra Ownership Flats Rules and the draft model agreement prescribed under the Rules. It is also settled position in law that in respect of the sale of immovable property, time is generally not the essence of the contract. The time for payment cannot be regarded as the essence of the contract and without a proper opportunity to the plaintiff, the agreement could not be cancelled by the defendants. 5. It may also be noted that by an order dated 16th October 2007, this Court directed the parties to maintain status quo. I see no reason to modify the order of status quo at this stage as, in my view, the plaintiff has made out a good prima facie case. 6. Hence, the order of status quo, as directed by this Court vide order dated 16th October 2007, is confirmed. The defendants are restrained from selling, transferring, encumbering, alienating and/or parting with possession and/or creating third party rights in the suit flat, till the disposal of the suit. - 5 - 7. As far as prayer (b) of the notice of motion is concerned, no ground is made out for appointment of the Receiver at this stage. Hence, the prayer for appointment of Receiver is permitted to be withdrawn with liberty to apply for the same if the cause arises. (D.G. KARNIK, J.)