SPB IN THE HIGH COURT OF JUDICATURE OF BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 1522 OF 2007 IN SUIT NO. 991 of 2007 Shri Nandkishore G. Sawant & Anr. .. Plaintiffs. Versus Smt. Charu Subodh Kadam & Anr. .. Defendants. ... Mr.D.D.Madon i/by A.S.Kode for plaintiffs. Mr.D.H.Mehta i/by D.K.Ailawadi for the defendant no.1. Ms. P.Chhatrapati i/by M/s. Vijaykumar & Co. for defendant no.2. ... CORAM : D.G.KARNIK, J DATED : 23rd June 2008 P.C.: 1. Heard learned counsel for the parties. 2. By this motion, the plaintiffs seeks appointment of a Receiver in respect of the suit property viz. Bungalow No.16, Gulab View, Mishad Co-op. Hsg.Society Ltd., at Chembur (for short hereinafter referred as ‘the suit property’) and also for injunction restraining the defendants from selling, transferring, alienating or otherwise creating any third party interest in the suit property. 3. The suit property belongs to the defendant no.1. By an agreement of sale/ memorandum of understanding (for short MOU) dated 6th of January, 2006, the defendant no.1 agreed to sell to the plaintiffs the suit property for a total consideration of Rupees One crore. Consideration was to be paid in instalments : i.e. Rs.2,00,000/- on 2nd of December, 2005; Rs. 15,50,000/- on 4th of January, 2006; Rs. 32,50,000/- after one month and the balance of Rs.50,00,000/- on handing over physical possession of the premises. 4. According to the plaintiffs they were ready and willing to perform their part of the contract; however, the defendants failed and neglected to perform their part and therefore, the plaintiffs filed the suit for specific performance of the agreement. 5. Mr. Madan, learned senior counsel appearing for the plaintiffs submitted that clause 4 of the MOU required the defendant No.1 to make out clear and marketable title including obtaining NOC of the society within 15 days from the date of execution of the MOU and since the same was not done by the defendants, the plaintiffs were not required to pay the balance consideration. Mr. Madan submitted that prior to filing of the suit, the plaintiff No.1 has paid to the defendants in all Rs.20,50,000/- and balance amount was not payable as the defendants had not performed their part of the contract. 6. Section 16(c) of the Specific Relief Act requires the plaintiffs to plead and prove his continuous readiness and willingness to perform their part of the contract. Perusal of clause 3 of the MOU discloses that the payments of first three instalments amounting Rs.50,00,000/- were to be made on the fixed dates and unconditionally. It was the last instalment of Rs.50,00,000, which was to be paid at the time of sale which was dependant on the defendants obtaining NOC of the society and making out a markatable title. The payment of first three instalments was not conditional upon any of the happenings and the plaintiff was required to pay to the defendants first three instalments on the given dates. 7. Mr. Madan, learned counsel for the plaintiffs contended that the plaintiff had issued to the defendant a cheque of Rs. 30,00,000/- on 20th of May, 2007 which shows readiness and willingness of the plaintiffs to perform their part of the contract. The said cheque has been issued after the suit was filed and therefore, is not a proof of the readiness or willingness of the plaintiffs. Even otherwise also it would be noticed that the plaintiffs did not have sufficient balance in their bank account to honour the said cheque. The plaintiffs were directed to produce the bank’s statement of their bank to show that they had enough balance in their account when the cheque was issued and /or payable. Accordingly the plaintiffs have produced an extract of the bank’s statement. The balance in the plaintiff’s account on 20th of May, 2007 (i.e. the day on which the cheque was issued) was about Rs. three lakhs fortythree thousand. The cheque was post dated as of 25th of May, 2007 and on that date the balance in the plaintiff’s account was only Rs.3,64,259/-. At no point of time the plaintiffs had balance even of Rs. Six lacs in their bank account. This shows that the plaintiffs did not have a balance of Rs. 30,00,000/- in their account on the relevant dates. There was no material on record to show that the plaintiffs had sufficient money in their account and they were willing to pay the agreed amount at the agreed time to the defendants. The only way the plaintiffs could have shown their readiness and willingness to perform their part was by showing that they had sufficient money with them. I am of the prima facie view that the plaintiffs have not proved that they were ready and willing to perform their part of the contract. 8. The plaintiffs, therefore, are not entitled to injunctive relief. The motion is accordingly dismissed. (D.G. KARNIK, J) .....