1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.1209 OF 2009 Sau. Mangala Dilip Davkhar Age 35 years, Occ.Business, R/o 6, Madhushri Apartment, BITCO Factory Road, Nashik Road, District : Nashik ..Appellant V/s. Sau.Ranjana Rajendra Vadnere Age 37 years, Occupation Business, R/o 18, Lokmanya Nagar, BITCO Factory Road, Nashik Road, District : Nashik .. Respondent Ms.Pallavi N.Dabholkar for the Appellant. Ms.A.R.S.Baxi for the Respondent. CORAM: R.G.KETKAR, J. DATE : 18th August, 2010 JUDGMENT: 1. Heard Ms.Pallavi Dabholkar, learned counsel for the Appellant and Ms.A.R.S.Baxi, learned counsel for the Respondent. Admit. Ms.Baxi waives service on behalf of the Respondent. By consent of the parties, Appeal is taken up for final hearing forthwith. 2. This appeal is preferred by the original Defendant challenging the judgment and decree dated 30th December, 2008 passed by the learned Joint Civil Judge, Senior Division, Nasik in Special Civil Suit No.101 of 1997 instituted by Respondent. By that judgment, the learned trial Judge decreed the suit instituted by Respondent and declared that the agreement of sale dated 21st October, 1995 is cancelled and not binding on Respondent. He further declared that the Appellant is not entitled to occupy the suit premises and ordered her to hand over vacant possession of the suit premises to Respondent plaintiff. Respondent was further directed to refund the amount of Rs.1 lakh within 30 days. The parties shall hereinafter be referred as per their original status in the trial Court. 3. The plaintiff instituted the suit for declaration that the Agreement of Sale dated 21st October, 1995 be declared as cancelled and that Defendant is not entitled to occupy the suit premises. She also prayed possession of the suit 2 premises on repayment of Rs.1 lakh to the Defendant. The facts and circumstances, giving rise to the filing of the present First Appeal are as follows: 4. It is the case of the plaintiff that Plot No.18 at City Survey No.122/3, 14/1 admeasuring 503 sq.mtrs. belonged to Manohar Ganesh Sonar. Under the development agreement dated 18th December, 1990 it was handed over to plaintiff for developing the said plot. Plaintiff obtained the building permission from Nasik Municipal Corporation and constructed the three storeyed building. Plaintiff issued advertisement whereupon Defendant approached her. Plaintiff agreed to sell flat bearing No.6 on the 2nd floor admeasuring 745 sq.ft.in the building known as “Madhushree Apartment” situate at Plot No.18, City Survey No.122/3, 14/1 village Devlali within the municipal limits of Nasik Municipal Corporation. (for short the “suit premises”). The total consideration agreed between the parties was Rs.2 lakhs, out of which, Defendant paid Rs.50,000/- in cash and 50,000/- by cheque, in all Rs. 1 lakh. On payment of Rs.1 lakh, plaintiff handed over possession to Defendant. Defendant issued cheque bearing No.041285 dated 10th January, 1996, drawn on Nasik Merchants Co-operative Bank, Nashik Road, Devlali Branch, for Rs.1 lakh. Under the terms of the agreement, it was provided that in case the said cheque is dis-honoured Plaintiff will refund the amount of Rs.1 lakh without any interest and Defendant will hand over vacant possession of the suit premises. The agreement further provided that the transaction was to be completed within three months from the date of the agreement and that Plaintiff will hand over necessary documents to the Defendant for obtaining the loan against the suit premises. One of the clauses in the agreement further declared that there is no encumbrances over the suit premises. It is the case of plaintiff that Defendant committed breach of the terms and conditions of the agreement. The cheque handed over by Defendant was deposited by plaintiff after due intimation to Defendant. However the cheque was dishonoured. Plaintiff therefore issued notice on 14th May, 1996 calling upon her to pay Rs.1 lakh 3 and complete the transaction. This notice was replied by Defendant. Since there was no compliance, plaintiff once again issued notice on 4th July, 1996 terminating the contract and calling upon Defendant to accept Rs.1 lakh and hand over vacant possession of the suit premises. Since there was no compliance to this notice also, plaintiff instituted the present suit for declaration that the agreement for sale dated 21st October, 1995 is terminated and Defendant has no right to occupy the suit premises. Plaintiff also claimed possession of the suit premises on refund of Rs.1 lakh. 5. Defendant resisted the suit by filing the written statement at Exh.8 on 21st April, 1998. It was contended that plaintiff did not hand over requisite documents and since plaintiff failed to hand over necessary documents, defendant could not obtain loan. Plaintiff also did not provide necessary amenities in the suit premises for which Defendant incurred expenses of Rs. 78,100/-. It was further asserted that at the time of entering into agreement, Defendant had paid Rs.1,55,000/- to plaintiff. It is the case of Defendant that it was the plaintiff who committed breach of the terms and conditions of the agreement. Subsequently on 5th March, 2000, Defendant set up the counter-claim for recovery of Rs.2,33,100/- (Rs.1,55,000/- + Rs.78,100/-). 6. On the basis of rival pleading of the parties, the learned trial Judge framed necessary issues. Parties led oral as well as documentary evidence in support of their case. On the basis of material on record, the learned trial Judge came to the conclusion that Defendant has committed breach of the terms and conditions of the agreement and consequently plaintiff is entitled to declaration that the agreement of sale is terminated, as also to possession of the suit property on refund of Rs.1 lakh. The learned trial Judge also held that the Defendant has not proved counter-claim of Rs.2,33,100/-, as also the counter-claim is time barred. 7. I have heard Ms.Pallavi Dabholkar, learned counsel for Appellant-original Defendant and Ms.A.R.S.Baxi, learned counsel for Respondent-original plaintiff at length. Since the learned counsel for Appellant submitted compilation of relevant documents, I thought it fit to dispense with calling 4 for Record and Proceedings of the case as per Order 41 Rule 11 of the Code of Civil Procedure, 1908. 8. Ms.Dabholkar submitted that the learned trial Judge committed error in decreeing the suit. She submitted that it was the plaintiff who committed breach of the terms and conditions of the agreement and not the Defendant. Learned trial Judge failed to appreciate that Plaintiff did not supply necessary documents to Defendant for obtaining the loan. The learned trial Judge ought to have decreed the counter-claim made by the Defendant and committed error in holding that the same was barred by limitation. 9. On the other hand, Ms.Baxi, supported the impugned judgment and decree. She submitted that Defendant has committed breach of the terms and conditions of the agreement. Plaintiff had issued notice on 4th May, 1996 calling upon Defendant to pay the balance amount and complete the transaction. Defendant did not comply the said notice. Plaintiff was compelled to issue second notice on 4th July, 1996, intimating Defendant about the termination of the contract and calling upon her to receive amount of Rs.1 lakh paid pursuant to the agreement for sale. Since the Defendant did not comply even this notice, plaintiff was constrained to institute the present suit. She therefore prayed for dismissal of the appeal 10. Considering the submissions made by the learned counsel for the parties, following points arise for my consideration:- (i) Whether the plaintiff has proved that the Defendant has committed breach of the terms and conditions of the agreement for sale dated 21st October, 1995? Answer – Affirmative. (ii) Whether the Plaintiff is entitled to recover possession of the suit premises on payment of Rs.1 lakh? Answer – Affirmative. (iii) Whether the Defendant has proved her counter-claim of Rs. 2,33,100/-? Answer – Negative. 5 (iv) Whether the counter-claim made by the Defendant is within limitation? Answer – Negative. 11. I will consider all the points together as they are interlinked. In support of the plaintiff’s case, she examined her father in law, Manohar Ganesh Wadnere. Defendant examined her husband Dilip Davkhare at Exh.104. It is not in dispute that under the registered agreement for sale dated 21st October, 1995 plaintiff agreed to sale suit premises to the Defendant for total consideration of Rs.2 lakhs. It is also not in dispute that the Defendant paid Rs.50,000/- in cash and Rs.50,000/- by cheque, in all Rs.1 lakh on 21st October, 1995. On receipt of Rs.1 lakh, it is also not in dispute that the Defendant was handed over possession of the suit premises. One of the recitals in the agreement also declared that there is no incumbrances over the suit premises. One of the clauses of the agreement provided that the plaintiff was to supply necessary documents within two months from the execution of the agreement for sale to the Defendant for the purpose of obtaining loan. It is the case of the Defendant that the plaintiff has committed breach of the terms and conditions of the agreement by not supplying necessary documents. On the other hand it is the case of the Plaintiff that the Defendant has committed breach of the terms and conditions of the agreement. 12. In order to consider this case, if the material on record is considered it is evident that the Defendant’s witness gave admission in the cross- examination to the effect that after expiry of two months from the date of execution of the agreement, Defendant did not issue any notice calling upon the plaintiff to supply documents. He also admitted that he approached Diwan Housing Finance Corporation as suggested by the Plaintiff for availing loan. He admitted that he did not remember the name of the officer with whom he made enquiry about the loan. He deposed that the said officer handed over list of documents necessary for sanctioning of the loan. He however admitted that he could tell which documents were necessary for 6 the purpose of availing loan. He also did not produce the list handed over by the said officer setting out the list of documents required for sanctioning the loan. The witness of the Defendant further admitted that other two flat owners viz.Sarvarshree Phadtane & Agnihotri availed loan from Diwan Housing Finance Corporation. In so far as counter-claim is concerned, the Defendant’s witness did not produce any documentary evidence to substantiate the said claim. 13. In so far as the evidence of plaintiff is concerned, her witness deposed that the responsibility for providing documents for obtaining the loan was taken over by their Architect Mr.Amrute, who took money from the flat purchasers, and therefore it was between the Defendant and Mr.Amrute to take necessary steps for sanctioning the loan. Even the Defendant came out with the case that she had paid Rs.10,000/- towards the Architect’s fees. The Defendant’s witness deposed that Rs.10,000/- was paid as Architect’s fees. Considering the material on record, the learned Trial Judge came to the conclusion that the responsibility for supplying the documents was taken over by the Architect of the Plaintiff. That apart, even the Defendant did not issue any notice calling upon the plaintiff to supply the documents for sanctioning the loan. During the course of cross-examination, the witness of the Defendant admitted that he did not remember the name of the officer to whom he approached for sanctioning the loan. He also did not produce any list showing the necessary documents for sanctioning the loan though he deposed that the concerned officer handed over said list. In these circumstances, it cannot be said that the plaintiff committed breach of the terms and conditions of the agreement. Even assuming that the plaintiff was under obligation to supply the documents, there is no material on record to indicate that the Defendant ever called upon plaintiff to supply such documents. It has also come on record that the other flat purchasers Mr.Phadtane & Mr.Agnihotri purchased the flats in Madhushree Apartment after availing the loans. 14. As noted earlier, the plaintiff deposited cheque of Rs.1 lakh which was 7 dishonoured on 30th April, 1996. Plaintiff issued notice on 14th May, 1996 calling upon Defendant to pay the balance amount of Rs.1 lakh and complete the transaction. Defendant did not comply with that notice. Plaintiff issued second notice on 4th July, 1996 terminating the contract and called upon the Defendant to hand over vacant possession of the suit premises by accepting the amount of Rs.1 lakh received by her pursuant to the agreement for sale. Even this notice was not complied by the Defendant. It is also relevant to note that the Defendant did not institute the suit for specific performance of the contract. In view of this, I do not find any error in the finding recorded by the learned Trial Judge that it was the Defendant who committed breach of the terms and conditions of the agreement for sale. I am of the opinion that the plaintiff has not committed breach of the terms and conditions of the agreement, and on the other hand, it is the Defendant who has committed breach of the terms and conditions of the agreement. 15. The Defendant has set up counter-claim of Rs.2,33,100/-. The Defendant claims to have paid Rs.1,55,000/- pursuant to the agreement for sale and not Rs.1 lakh. The Defendant claims that the expenses of Rs.78,000/- were incurred by her for providing amenities in the suit premises. Thus, in all Defendant claims Rs.2,33,100/-. In order to substantiate the expenses incurred by the Defendant to the tune of Rs.78,100/- for various amenities, the Defendant has not produced any documentary evidence on record to substantiate the said claim. No receipts are produced by the Defendant to in order to substantiate the said expenses. This aspect is considered by the learned Trial Judge in paragraph Nos.21 to 23 of the judgment. 16. After considering the material on record, I do not find any material to take a different view. I am therefore of the opinion that the Defendant has not established the counter-claim. As indicated earlier, the Defendant filed written statement on 21st April, 1998 and set up the counter-claim on 5th March, 2000. The learned trial Judge came to the conclusion that the claim set up was time barred as it was not made within three years. As indicated earlier, the plaintiff had issued notices to the Defendant on 14th May, 1996 8 and 4th July, 1996 and subsequently suit was instituted in the year 1997. The written statement was filed by the Defendant on 21st April, 1998 and since the case of the Defendant is that she had incurred expenses of Rs. 78,100/- even before the institution of the suit, she ought to have made the claim within three years. Admittedly, the claim was set up in the year 2000/- which was obviously time barred. Even assuming that the said claim was within limitation, having regard to the material on record, I find that the plaintiff has not substantiated her claim. In so far as payment of Rs. 1,55,000/- on the date of agreement for sale is concerned, the plaintiff has admitted that on the date of agreement of sale, she has received Rs.1 lakh and she is willing to refund the said amount. In so far as the balance amount of Rs.55,000/- is concerned, the Defendant has not established the said claim by leading cogent evidence. In view of this, I am of the opinion that the learned Trial Judge has rightly dis-allowed the counter-claim made by the Defendant by holding that the same is time barred as also Defendant did not bring any material on record to substantiate the said claim. It has also come on record that the Defendant issued cheque of Rs.1 lakh to the Plaintiff. The same was dishonoured on 30th April, 1996. Plaintiff issued notice dated 14th May, 1996 calling upon Defendant to pay balance amount of Rs.1 lakh and complete the transaction. This notice was not complied by the Defendant. I am therefore of the opinion that the plaintiff is entitled to possession of the suit premises. 17. Before parting with this judgment, I must record that the agreement for sale was executed on 21st October, 1995 where-under the Defendant paid Rs.1 lakh out of the total consideration of Rs.2 lakhs and the possession of suit premises was handed over to the Defendant. The plaintiff issued first notice on 14th May, 1996 and second notice on 4th July, 1996. The suit was thereafter instituted in the year 1997. The written statement was filed on 21st April, 1998 and the counter-claim was made on 5th March, 2000. The Defendant did not set up the plea available u/s.53-A of the Transfer of Property Act, 1882, namely, in part performance of the agreement for sale 9 the Defendant was put in possession of the suit premises and that she was and is ready and willing to perform her part of contract. Even in the counter-claim she had made demand of money and did not claim relief of specific performance of contract. The suit of the plaintiff was decreed on 30th December, 2008. The Defendant also did not take any steps for filing the suit for specific performance of the contract till date. This shows that Defendant was and is not ready and willing to perform her part of contract. 18. Considering over all facts and circumstances of the case, I do not find that the learned Trial Judge has committed any error while decreeing the suit of the Respondent-original plaintiff. In these circumstances, appeal fails and the same is dismissed with no order as to costs. 19. In view of dismissal of the first appeal, no orders are necessary in the Civil Application No.3263 of 2009, and the same is dismissed with no order as to costs. 20. On the motion made by learned counsel for the appellant, operation of this order is stayed for a period of ten weeks from today, subject to the appellant filing an undertaking within three weeks from today, incorporating therein that :- (1) appellant has not created any third party interest in the suit property so far, and that appellant will not create any third party interest in the suit property. (2) appellant shall deposit in this Court an amount of Rs.500/- per month for a period from the date of institution of the suit till 30th August, 2010 within a period of eight weeks from today. If the appellant fails to deposit the said amount. the same shall be adjusted against the amount of Rs.1 lakh deposited by Respondent in the trial Court. (3) appellant will pay compensation @ Rs.500/- per month to Respondent from 1st September, 2010 till the expiry of period of ten weeks mentioned in paragraph No.20 above. 10 (4) In case the appellant is unable to obtain suitable orders within ten weeks from today, appellant shall hand over vacant and peaceful possession of the suit premises to Respondent. (R.G.KETKAR, J.)