1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. NOTICE OF MOTION NO.208 OF 2007 IN SUIT NO.1326 OF 2007 Sanika A. Athavle alias Sabia Ali Dinath. ... Plaintiff. Vs. Aftab Moeen Shaikh. ...Defendant. .... Mr.Rajan Kakkar i/b. Aarkey legal for the Plaintiff. Mr.Anil C. Singh with Mr. S.R. Saudagar for the Defendant. ..... CORAM :DR.D.Y.CHANDRACHUD, J. January 15, 2008. P.C.: The Notice of Motion, has been taken out for the appointment of a Receiver or, in the alternative, for an order of injunction in a suit for specific performance. On the request of Learned Counsel and with the consent of the parties, the Notice of Motion is taken up for hearing and final disposal. 2. The suit is for specific performance of an agreement to sell dated 27th September 2006. The subject matter of the agreement is a 2 residential flat being Flat No.306 situated in a building known as Woodland Apartments at Mahim (West). The total agreed consideration for the flat was Rs.24 lakh of which, it has not been disputed before the Court, a sum of Rs.3 lakhs was paid. Clause 4 of the agreement stipulates that the balance payment remaining was to be effected through ICICI Bank within a period of 15 days, against which possession was to be handed over to the Plaintiff. Clause 8 of the agreement stipulated as follows : “8. The parties hereto shall sign and execute all further necessary documents, papers forms and writing as may be reasonably required for more perfectly assuring the said flat upto and to use of the Purchaser.” 3. The case of the Plaintiff is that it was within the contemplation of the parties that the Plaintiff would obtain a loan from ICICI Bank and that against the execution of the registered agreement to sell, the Defendant would hand over the document of title for submission thereof to the Bank which had to sanction the loan. The Plaintiff has averred that on or about 21st August 2006, the Bank had, in fact, sanctioned a loan. This was prior to the execution of the agreement. After the execution of the agreement, the Plaintiff was 3 permitted to store some of her goods in the flat. It is the case of the Plaintiff that the Defendant, despite a request made to that effect, failed to hand over the original document of title to the Plaintiff as a result of which, the Bank did not disburse the final payment of Rs.21 lakhs and the Defendant eventually started avoiding the performance of her obligations under the agreement to sell. The contention of the Plaintiff on affidavit is that notwithstanding this, she arranged to raise the balance of the amount of Rs.21 lakh from her own sources and on 7th September 2007, visited the Defendant together with the Estate Agent, but the Defendant refused to accept the payment and complete the transaction. 4. The case of the Defendant is that it was, at all material times, known to the Plaintiff that the Defendant was not in possession of the original document relating to the title to the residential flat and the Plaintiff was aware that the Defendant had strained relations with her spouse. According to the Defendant, an indemnity bond dated 17th November 2006 was handed over to the Plaintiff stating that the original agreement dated 4th June 1999 was not traceable. According 4 to the Defendant, the indemnity was given to the Plaintiff to protect the Plaintiff against any claim that may arise on account of the agreement being misplaced. 5. The Plaintiff has stated on affidavit that the indemnity bond came to be furnished only after the suit was instituted. At the present stage, from the evidence, it emerges, prima facie, since the fact is not in dispute, that the Defendant assumed the obligation of furnishing either the original agreement or, if that was not available, an indemnity on that account to the Plaintiff. In fact, it was on account of the non-availability of the original document that even according to the Defendant an indemnity bond dated 17th November 2006 was furnished. On the other hand, according to the Plaintiff, this indemnity though dated 17th November 2006, was furnished only after the suit was instituted. 6. Prima facie, at this stage, the Defendant has not terminated the agreement, nor has the Defendant at any stage prior to the institution of the suit, offered to refund the amount of Rs.3 lakhs which 5 was admittedly paid by the Plaintiff. Though the agreement to sell recorded that the balance of the consideration was liable to be paid within a period of 15 days of the agreement, the conduct of the Defendant in retaining the money which was deposited by the Plaintiff would prima facie lead to an inference that the period of 15 days was never regarded by the parties as an absolute or inflexible stipulation. In fact, even if the case of the the Defendant is believed, to the effect that the indemnity was furnished on 17th November 2006 or thereabout, that was also much after the expiry of a period of 15 days. In these circumstances, it cannot be said that the stipulation as to time was regarded as being of the essence of the contract. The Defendant having retained the money advanced by the Plaintiff towards part payment of the agreed consideration and not having terminated the agreement until date, a prima facie case has been made out for the grant of interlocutory relief. Counsel appearing on behalf of the Defendant submitted that the Plaintiff may be directed to deposit the balance of the purchase price. It would be inequitable to issue such a direction since the Defendant at the present stage is neither ready nor willing to hand over possession to the Plaintiff. The 6 Plaintiff cannot be required to deposit the entire sale price without the possession of the premises being handed over. The Plaintiff has pleaded her readiness and willingness and produced prima facie material to indicate that she had raised the funds required to complete the transaction. 7. In these circumstances, the Notice of Motion is made absolute in terms of prayer clause (b). The Defendant shall, pending the hearing and final disposal of the suit be restrained from selling, transferring, parting with possession, encumbering or inducting any third party in the suit premises. .......