- 1 - 59.nms.986.11 s720.11 skt IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 986 OF 2011 IN SUIT NO.720 OF 2011 Dilkhush R. Doshi ..Plaintiff -Versus- Mrs.Vimladevi J. Bhandari & Anr. ..Defendants .......... Mr.P.M.Shah for the Plaintiff. Mr.Mahesh Patil i/b G.S.Manasawala for Defendant No.1. .......... CORAM : S.J. VAZIFDAR, J. DATE : 4TH JULY 2011. P.C. 1 This is a suit for specific performance of an agreement dated 13th August 2010. 2 By the said agreement, defendant No.1 had agreed to sell a flat to the petitioner for a consideration of Rs.4,50,00,000/-. An aggregate amount of Rs.50,00,000/- has been paid upto date of the agreement. By a letter dated 15th November 2010, the defendant stated that the plaintiff had agreed to complete the purchase within one to two months. Defendant No. - 2 - 59.nms.986.11 s720.11 1 stated that as time was of the essence, the plaintiff should complete the transaction latest by 24th November 2010 by paying the balance. Defendant No.1 further stated that if the plaintiff failed to do so, the agreement would stand revoked and come to an end. 3 On 16th November 2010, the defendant had applied for the NOC from the society. The plaintiff by a letter dated 22nd November 2010 alleged that the defendant had agreed to bring the NOC and no dues certificate from the society, but had failed to do so. The plaintiff stated that there was no time limit to complete the transaction and that she was always ready and willing to perform the agreement. The plaintiff denied that the agreement was to be completed within a month or two. 4 By a letter dated 24th November 2010, the defendant denied the plaintiff’s allegations and stated that without a NOC the flat could not be transferred but that the same was not required to be given in advance to the purchaser. The defendant stated that she had already informed the society about the NOC and the No Dues certificate and that she was waiting for the plaintiff to pay balance consideration. Defendant no.1 stated that she had the NOC. The defendant stated that the plaintiff could not keep the defendant waiting and that if the plaintiff is not ready and willing to complete the sale by making payment, the defendant was ready - 3 - 59.nms.986.11 s720.11 and willing to repay or refund the earnest money. The plaintiff was, however, given a last chance to complete the deal latest by 30th November 2010, failing which, it was stated that the agreement would stand revoked, cancelled and terminated. 6 Thus, by till time, there was no offer by the plaintiff to complete the transaction inter alia by paying the balance consideration. The plaintiff failed to respond to the said letter dated 24th November 2011. The defendant, therefore, by a letter dated 3rd December 2010 terminated the agreement. 7 Thereafter, the plaintiff by a letter dated 6th December 2010, stated that the letters dated 24th November 2010 and 3rd December 2010 were received by him only on 6th December 2010. 8 It is significant to note that the plaintiff only denied the receipt of the letters, but did not offer to complete the transaction within any particular/stipulated period of time. The plaintiff only by his advocate’s letter dated 6th December 2010 agreed to complete the transaction. The defendant however, by her advocates’ letter dated 10th December 2010, refused to do so and returned the advance payment. - 4 - 59.nms.986.11 s720.11 9 Prima facie, it appears that the plaintiff was throughout only trying to buy time. There was no obligation on the defendant to forward the NOC before the execution of the agreement. 10 The suit was filed on 17th February 2010. The plaintiff and his advocate were absent when the matter was called out for ad-interim orders. The Notice of Motion was, therefore, made returnable. No ad- interim reliefs were granted. Even when the Notice of Motion reached hearing, the plaintiff expressly stated on 29th June 2011 that the plaintiff refused to make the payment of the balance amount within a reasonable time. They stated that they would only to do so within a period of six to eight weeks. I appreciate that a party is not bound to keep the sale consideration ready in his pocket throughout. However, considering all the facts and circumstances of the case, their refusal to make payment even when the Notice of Motion reaches hearing establishes that the plaintiff was not ready and willing at all material times to discharge his obligations under the said agreement. 11 In the circumstances, the Notice of Motion is dismissed. -