1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.711 OF 2006 IN SUIT NO.532 OF 2006 Nayana Mukesh Kothari ..... Plaintiff V/s. M/s.Yashodhan Development Corporation & Anr. .... Defendants Mr.Jayesh Bhatt, for the plaintiff. Mr.Pramod Kumar, for defendant No.1. Mr.Nitin Muley, for defendant No.3. Ms.P.P.Madhwani i/by V.T.Lulia for defendant No.2 CORAM: R.Y.GANOO, J. DATED: 17th FEBRUARY, 2009. P.C. 1. The plaintiff herein has instituted this suit for seeking specific performance of the agreement dated 12-10-2004 against the defendant No.1 who is named as Vendor in the agreement dated 12-10- 2004. The agreement dated 12-10-2004 shall hereinafter refer to as the ‘suit agreement’. The defendant No.2 is a Co-operative society which was somehow concerned in the present suit and defendant No.2 shall hereinafter refer to as the ‘said society’. The defendant No.3 is the husband of the plaintiff and who was named as a purchaser along with the plaintiff in the suit agreement, which shall hereinafter refer to as ‘defendant 2 No.3’. 2. The premises covered by the present suit are one room, more particularly set out in Exhibit A to the plaint, which shall be referred to as the ‘suit premises’. Few facts necessary for the disposal of the notice of motion are as under. 3. According to the plaintiff, defendant No.1 entered into the suit agreement for the purposes of sale of suit premises to the plaintiff and defendant No.3. The total consideration mentioned in the suit agreement is Rs.3,50,000/-. It is admitted by defendant No.1 that at the time of execution of the suit agreement, a sum of Rs.1,00,000/- was paid to the defendant No.1 as and by way of earnest money, as set out in the suit agreement and a sum of Rs.2,50,000/- was outstanding, as the same was required to be paid at the time of putting the plaintiff and defendant No.3 in possession of the suit premises. It is accepted by plaintiff as well as defendant No.1 that all the papers in order to see that NOC from the society is to be obtained along with the standard applications which were required to be submitted to the society, were jointly signed by the plaintiff and defendant No.1 and that those forms were placed with the society by 17-11-2004. It is also a matter of record that the society by their letter dated 18-01-2006, rejected the application filed by the defendant No.1 and the stand taken while rejecting the said application was that “the 3 maintenance amount is not paid by defendant No.1”. 4. By this present notice of motion, the plaintiff wants that the Receiver should be appointed in regard to the suit premises and that the plaintiff should be appointed as agent of the Court Receiver. By prayer clause (b), it is prayed that defendant No.1 should be restrained from transferring and/or creating third party rights and/or parting with the possession of the suit premises. The parties herein have completed filing of pleadings. The defendant No.3 who happens to be purchaser named in the suit agreement has filed an affidavit thereby stating that he has no objection if the possession of the suit premises is handed over to the plaintiff as agent of the Court Receiver, as may be considered fit and proper. This was required to be done because the suit agreement is executed by plaintiff and defendant No.3 on one hand, and defendant No.1 on the other, and on a query raised by the Court as to whether the relief sought by the plaintiff can be considered or not, the defendant No.3 has volunteered to file said affidavit dated 15-01-2009. 5. I have heard the learned counsel Mr.Bhatt appearing on behalf of the plaintiff and Mr.Vora, appearing on behalf of defendant No.1. The learned counsels on their part have taken me through the diverse terms of the suit agreement to press their respective contentions. My attention was drawn by the learned counsel for the plaintiff that the plaintiff 4 has performed his part of the contract, and that the defendant No.1 has failed to take steps to complete the transaction. 6. As against this, the learned counsel for the defendant No.1 had contended that the plaintiff has failed to perform his part of the contract and therefore, the plaintiff is not entitled to specific performance. With this, I wish consider the record and discuss the matter. It is admitted by the parties that papers in order to confer membership on the plaintiff were filed by the society as mentioned aforesaid, and the said application for membership was rejected by the society. It is seen that the plaintiff had made a grievance to the Registrar of Society by a letter dated 08-08-2005, stating that the society has not transferred the membership in favour of the plaintiff. The Registrar of the Society directed the plaintiff to file a regular appeal in accordance with the provisions of law and that question remains at that point itself. If one peruses the terms of the agreement and in particular, Clause 4(b), it is clear that the balance amount of Rs.2,50,000/- was to be paid to the purchaser within one month from the date of the registration of the suit agreement and against the vendor putting the purchaser in vacant peaceful possession of the suit premises. It is common ground that the suit agreement is registered on the day when it was executed i.e. on 12-10-2004. Clause 5 of the suit agreement, if perused, goes to show that the possession of the suit premises was to be 5 given to the purchaser at the time of completion of the transaction and vendor i.e. defendant No.1 was required to pay all the dues and NOC also was to be given granted by the society. Clause 6 of the agreement indicates that the vendor was to get the relevant NOC for the transfer. The said words are as under : “It shall be an obligation of the vendor to get the relevant NOC for transfer” 7. Before the Court, the point was raised as regards not making the arrangements to supply electricity and water to the suit premises. In so far as this is concerned, it was contended by the plaintiff that it was agreed by defendant No.1 to see that the suit premises are provided with water and electricity supply. In this connection, it is required to be mentioned that in the introductory recitals itself, there is an averment as regards common WC facilities and the bathroom and it is clear that the parties at the time of execution of the suit agreement, knew very well that there is no electricity supply to the suit premises and there is no independent water connection in the suit premises. The argument was advanced by the learned counsel for the plaintiff that defendant No.1 has failed to take steps to supply separate water connection and/or electric connection. 6 8. A perusal of the agreement as a whole would clearly show that no duty was cast upon defendant No.1 to see that the premises should be provided with the separate water connection and electric supply. To that extent, it cannot be said that the defendant No.1 has failed to perform his part of the contact. Clause 6 of the agreement also goes to show that a joint application was required to be made by vendor defendant No.1 and it is admitted by all the parties that the said joint application was made. If one considers the entire agreement in its proper perspective, the following steps were required to be attended to by the respective parties. (1) Agreement to be signed by both the sides. This step has been complied with. Execution of the agreement, genuineness of the agreement is accepted by both the parties. (2) Defendant No.1 was required to pay taxes. The defendant No.1 has by his letter dated 29-11-2004 forwarded a cheque of Rs.30,000/- and forms were forwarded duly singed by both the sides on 17-11-2004, which fact is admitted by the plaintiff in the correspondence. The society letter dated 18-01-2006 no doubt, says that the application for membership cannot be granted because the society came to the conclusion that the maintenance amount is not paid. At the same time, there is no correspondence coming from the society informing the defendant No.1 that a particular amount is due and payable and that should be paid by defendant No.1. (3) The responsibility to apply for NOC 7 was that of defendant No.1 as set out in Clause 6 and the society has not granted NOC and no steps have been taken by defendant No.1 apparently after 18-01-2006, after he received a letter rejecting the application of transfer. 9. With these aforesaid facts, one will have to consider whether the plaintiffs have performed their part of the contract. The learned counsel Mr.Bhatt appearing on behalf of the plaintiff, contended that because NOC was not obtained by defendant No.1, the plaintiff could not perform his part of the contract and because the defendant No.1 was in arrears, the society did not grant any permission to give NOC. The fact that the NOC has not been granted by the society is a matter of record. Infact, the society has rejected the application for membership by a letter dated 18-01-2006. 10. The learned counsel for the plaintiff contended that the plaintiff has taken every step and the defendant No.1 has failed to obtain NOC and the defendant No.1 is a defaulter in terms of maintenance and therefore, the interest of the plaintiff is required to be protected by passing an order of Receiver in regard to the suit premises and the society be permitted to supply water and electricity connections. In reply to the arguments of Mr.Bhat, the learned counsel for defendant No.1 had relied upon three judgments, which are as under : 8 (1) Chand Rani V/s. Kamal Rani, AIR 1993 SC 1742; (2) M/s.P.R.Deb & Associates V/s. Sunanda Roy, AIR 1996 SC 1504; (3) Sau.Chandraprabha Prabhakar Ghorpade V/s. Maruti @ Marutrao Shivram Patil & Anr., 2008(6) All MR 193. 11. The theme which is appearing in the aforesaid judgments is if the purchaser does not pay consideration as per the term framed, the purchaser is not entitled for specific performance of the agreement. These judgments are indicative of the circumstances under which the Court should consider the request for specific performance and decide the particular matter. In the course of arguments, the learned counsel for defendant No.1 had contended that the plaintiff did not make her husband i.e. present defendant No.3, as a party on her own and the defendant No.3 came to be joined subsequently. It was contended that if the agreement was in favour of plaintiff and her husband defendant No.3, it was necessary that defendant No.3 ought to have been joined as a party and he should have been impleaded as a defendant by making proper averments that he is not available for singing the plaint so as to justify his case. The learned counsel for defendant No.1 contended that taking the suit as it is, the specific performance in favour of plaintiff alone, cannot be granted when the suit agreement is in favour of two persons and an order of injunction 9 should not be granted as the order of injunction in aid of the suit to be decided by the Court. 12. Having considered the rival submissions advanced on behalf of both the sides and the facts involved in the matter, it is clear that the society, though rejected the application on 18-01-2006, did not inform defendant No.1 as to the quantum of arrears. If that would have been done properly, defendant No.1 would have been able to pay the arrears and comply with this application. It is clear that because the society rejected the application for membership, naturally the NOC could not be granted in favour of the parties. It is seen that the defendant No.1 had taken steps to tender an application for membership and other applications and had taken lead and had obtained the signature of the plaintiff and had filed the same. He had also sent a cheque of Rs.30,000/- along with the letter dated 29-11-2004 and thereafter, he faced the difficult situation as set out in a letter dated 18-01-2006, by which he was told that the application for membership has been rejected without mentioning the arrears of. All this will clearly show that the defendant No.1 had taken said steps which were required to be done. 13. As against this, the conduct of the plaintiff is required to be tested. The plaintiff entered into the said agreement on 12-10-2004. The plaintiff signed the forms which were made available by defendant No.1 10 and the forms were submitted to the society on 17-11-2004. Thereafter, no correspondence is entered into by the plaintiff with the society or defendant No.1 so as to know the fate of the application which was made by the plaintiff and defendant No.1 jointly. It appears that when the plaintiff got the hint that the application for membership has been rejected, the plaintiff filed a letter with the Deputy Registrar of Societies, stating therein that he has not received the reply from the society and he sought help from the Deputy Registrar. The said letter dated 08-08-2005 addressed to the Deputy Registrar clearly mentions that he is waiting for reply from the society. At the same time, the plaintiff did not enter into any correspondence with the defendant No.1 or the society and tried to seek the knowledge or better particulars as to what has transpired in the office of the said society. There is no mention on the record to show as to what steps were taken by the plaintiff after 08-08-2005 till 23-12-2005. By 23- 12-2005, the plaintiff sent notices to defendants i.e. defendant No.1, 2 and the Society and the Registrar, calling upon them to perform their respective obligations and those showing readiness and willingness to pay the balance of consideration. The plaintiff in the said notice dated 23-12- 2005in Clause No.5, added one more responsibility of obtaining separate water and electric connection on defendant No.1 and 2, though the said responsibilities was not spelt out in the suit agreement. 11 14. With this, it is clear that the plaintiff after entering into the suit agreement and paying a sum of Rs.1,00,000/- to defendant No.1, and after signing the forms on 12-11-2004, did not take any steps till 23-12- 2005 i.e. practically one year after the forms were delivered to the society as to show his readiness and willingness to perform his part of the contract. The plaintiff did not enter into any correspondence with defendant No.1 and tried to inquire in the matter with him as to what stage the matter is pending as regards finalization of the transaction. The record clearly indicates that the plaintiff did not take any active steps in order to complete the transaction and did not come forward to know as to what steps defendant No.1 is taking after the papers were submitted on 17-11-2004. This conduct on the part of the plaintiff is not in consonance with the purchaser, who is interested in seeking specific performance of the suit agreement. It may be true that defendant No.1 may not be very active in the matter of performing his part of the contract or defendant No.1 may be taking things in his own stride. However, the plaintiff in his capacity as a purchaser and as a person now coming to the Court as a plaintiff was required to take steps, which will go to show that the plaintiff was anxious to follow up the matter so that he could pay the balance of consideration and take possession from the defendant No.1 in regard to the suit premises. There is no mention in the record that the plaintiff contacted 12 defendant No.1 at least in person, and tried to know what developments are taking place. That was easily possible. Instead, the plaintiff entered into correspondence with the Deputy Registrar of the Society and thereafter, practically, after four months demanded specific performance by notice in writing and thereafter, the present suit for specific performance came to be filed in February 2006 i.e. by keeping the gap of two months. 15. To me, it appears that defendant No.1 became the victim of situation in as much as after he tendered application to the society, nothing more was required to be done by him because he had forwarded a cheque and had signed the necessary documents. It is nobody’s case that the proper documents were not filed. Similarly, defendant No.1 was not informed by the society the actual arrears of maintenance and therefore, the defendant No.1 was left to guess work and it is only when letter dated 18-01-2006 was received by defendant No.1, he learnt that the application was rejected and that too without mentioning the quantum of arrears. In my view, considering the conduct of both the sides, the plaintiff is at fault in the matter of establishing his case about his desire to have the specific performance. If this is the position, I am inclined to observe that the plaintiff has failed to make out a prima facie case that he is entitled to a specific performance of the suit agreement. Needless to mention that a purchaser of an immovable property should take steps to see that the suit 13 transaction is fulfilled at the earliest. In my view, if once it is observed that the plaintiff has failed to make out a prima facie case for grant of specific performance, then there is no need to appoint Court Receiver in regard to the suit premises. To that extent, the plaintiff has failed to make out a prima facie case for appointment of the Court Receiver. 16. The plaintiff has also sought an order for injunction restraining the defendant No.1 from creating third party rights and/or part with possession. In the entire plaint, there is no averments whatsoever so as to suggest that during the pendency of the suit, the defendant No.1 made some attempts to create third party rights. It is required to be noted that the notice of motion was taken out in the year 2006 and there is no ad- interim relief granted, infact ad-interim application was rejected on 03-05- 2006. It is not the case of the plaintiff that the defendant No.1 has taken some steps even remotely to say that the rights in respect of the suit premises are about to be transferred to other person. No prima facie case is made out as of today that the defendant No.1 is likely create third party rights or part with possession of the suit premises. It is to be noted that the suit premises does not have electricity connection and that it does not have independent water connection. As admitted by the parties, there is a common WC and bathroom. If this is so, it appears that today, that there is absolutely no possibility of a prudent purchaser coming forward and to 14 occupy the premises for occupation. This view is supported by the fact that the plaintiff has not made any whisper in the plaint as well as by filing an additional affidavit to suggest that there is every likelihood that the defendant No.1 would create third party rights. If this is the position, the plaintiff would not be entitled to injunction as set out in prayer clause (b). 17. I have observed that the plaintiff has failed to make out prima facie case for grant of Receiver and an injunction. Once it is observed that the plaintiff has failed to make prima facie case, the question of balance of convenience would also go in favour of defendant No.1. In the circumstances, the notice of motion is required to be dismissed. I do not wish to saddle the plaintiff with the costs of the notice of motion. Hence, the following order. : O R D E R : 1. The notice of motion stands dismissed with no order as to costs. 2. Suit to come up in usual course. ( R.Y.GANOO, J. )