ash 1 fa-778.91 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.778 OF 1991 Messers Rodrigues Construction, a ) partnership firm carrying on business ) at Kismat Building, Opposite Paradise ) Cinema, Mahim Mumbai – 400 016. ).. Appellant Versus Maria Philomina Pereira, ) Indian Inhabitant of Mumbai, ) at present residing at Chandan Villa First ) Floor, Tejpal Road, Mumbai – 400 007. ).. Respondent -- Shri Joaquim Reis, Sr. Advocate with Shri Shashipal Shankar for the Appellant. Shri Tushar V. Dahibawkar i/by M/s. Dahibawkar & Co for Respondent. -- CORAM : A.S. OKA, J DATED : 15TH SEPTEMBER, 2011 ORAL JUDGMENT : . Submissions of the parties were heard yesterday. The original Defendant has taken an exception to the Judgment and Decree dated 3rd May, 1991 passed by the learned Judge of the City Civil Court at Mumbai. 2. The Respondent Plaintiff filed a civil suit for enforcing the statutory obligations of the Respondent Promoter under the provisions ash 2 fa-778.91 of The Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (hereinafter referred to as “the said Act of 1963”). By the impugned judgment and decree, the learned Trial Judge has directed the Appellant to specifically perform the agreement dated 21st February, 1988. The Appellant has been ordered and decreed to hand over possession of the suit flat to the Respondent-Plaintiff. 3. With the view to appreciate the submissions made by the learned counsel appearing for the parties, it will be necessary to make a reference to the facts of the case in brief. The case made out by the Respondent/Plaintiff is that the Respondent-Plaintiff was offered a flat No.11 on the first floor of the building to be constructed by the Appellant. The area of the flat is 670 sq. feet. The said flat is hereinafter referred to as “the suit flat”. The Respondent relied upon the agreement for sale dated 14th August, 1980 executed by the Appellant in favour of the Respondent by which the suit flat was agreed to be sold for a consideration of Rs.67,000/-. The case made out by the Respondent is that a total amount of Rs.40,000/- was paid by her to the Appellant. It is stated that one Joseph Rodriques, a partner of the Appellant was looking after the affairs of the Appellant-firm. It is stated that the said Joseph Rodriques died in the year 1981 and thereafter, his father and brother took over the management of the Appellant-firm. ash 3 fa-778.91 4. Reliance is placed on further negotiations between the parties. It is alleged that due to enhancement in the cost of construction, the Appellant requested the Respondent to pay additional consideration of Rs.20,000/-. Accordingly, another Agreement dated 21st February, 1983 was executed by and between the parties. The said Agreement was for sale of the suit flat where consideration mentioned was Rs.87,000/-. Clause 3 of the said Agreement provided that all the terms and conditions of the earlier Agreement dated 14th August, 1980 stand incorporated in the said Agreement. The Agreement dated 21st February, 1983 (hereinafter referred to as “the second Agreement”) recorded that a sum of Rs.40,000/- was received by the Appellant and a further sum of Rs.10,000/- was to be payable on completion of the fourth slab. The Agreement further provided that on completion of internal and external work of brick and plaster, a sum of Rs.13,000/- shall be payable by the Respondent to the Appellant. The balance consideration of Rs.24,050/- was made payable at the time of the Appellant offering possession of the suit flat to the Respondent. The case of the Respondent which is not disputed by the Appellant is that a sum of Rs.40,050/- was already received by the Appellant at the time of execution of the second Agreement. Further amount of Rs.10,000/- was paid by the Respondent to the Appellant on 10th May, 1983. Another sum of Rs.13,000/- paid by the Respondent to the Appellant on ash 4 fa-778.91 20th September, 1983 and receipts were issued for both the said payments by the Appellant. It is stated in the plaint that a sum of Rs. 24,050/- was due and payable by the Respondent to the Appellant towards the balance consideration and the same was to be paid at the time of the Appellant offering possession of the suit flat to the Respondent. 5. It is alleged that in the year 1988, the Respondent found that the construction of the building was complete and possession of some of the flats was handed over to the purchasers. It is alleged that the Respondent along with her husband approached the Appellant and at that time the Respondent had carried with her a sum of Rs.24,000/- in cash. It is alleged that Shri Michael Rodriques and Shri F.X. Rodriques who were present in the office of the Appellant declined to accept the payment. Reliance is placed on the Advocate’s letter dated 8th August, 1988 sent by the Respondent to the Appellant by which the Respondent expressed readiness and willingness to pay the balance amount and called upon the Appellant to hand over possession of the suit flat. It is contended that the Respondent was entitled to possession of the suit flat. It is contended that under the provisions of the said Act of 1963, the Appellant was under an obligation to hand over possession of the suit flat. The prayer clauses (a) and (b) in the Plaint read thus:- ash 5 fa-778.91 “(a) That the defendants be ordered and decreed to specifically perform the agreement dated 21st February 1983 incorporating therein the agreement dated 14th August, 1980; (b) That the defendants be ordered and decreed to hand over the possession of flat No.11 on the 1st floor of the building kno2n as Mary Apartments situated at Eksar Taluka, Borivli bearing C.T.S. No.1108 and bearing Survey No.153, Hissa No.10.” 6. In the suit, a Notice of Motion for interim relief was taken out by the Respondent. Affidavit in reply was filed by the Appellant to the Notice of Motion which was later on treated as the Written Statement of the Appellant. In the Written Statement, it was contended that over and above the balance amount of Rs.24,050/- provided in the Agreement, each flat purchaser was liable to pay a sum of Rs.6,700/- being the enhancement in price at the rate of Rs.10/- per sq. feet as well as a sum of Rs.1,500/- for the use of copper-wiring. It is alleged that all the flat purchasers including the Appellant had agreed to pay the amounts. It is alleged that after receiving the letter dated 5th May, 1987 from the Advocate for the Respondent, it was made clear by the Appellant to the Respondent as well as the Advocate for the Respondent that the Appellant was ready and willing to hand over possession of the suit flat provided the Respondent pays the amount as aforesaid. Reliance has been placed on the letter dated 18th February, 1988 allegedly sent by the Appellant to the Respondent by which the Respondent was called upon to pay the balance consideration within ash 6 fa-778.91 one week. According to the Appellant, the Respondent was warned that in default of payment, the Appellant would be free to dispose of the suit flat thereby making the time essence of the contract. It was pointed out that the Respondent falsely addressed a letter dated 8th August, 1988 to the Appellant through another Advocate. It is contended that on failure of the Respondent to pay the amount, the Agreement stood terminated and the suit flat has been disposed of to one Shri R.J. Kore. 7. The Respondent stepped into the witness box. On behalf of the Appellant, one Shri Michael Francis Rodriques was examined as a witness. 8. learned counsel appearing for the Appellant has taken the Court through the pleadings, notes of evidence and documents on record of the Trial Court. The first submission is that under the relevant clauses of the Agreement, the Appellant was entitled to terminate the Agreement by sending a notice under certificate of posting. He submitted that the learned Trial Judge has discarded the notice only on the ground that a registered Agreement cannot be terminated by sending a notice under certificate of posting. He submitted that in the plaint, the Respondent has come out with a false case that construction was completed in the year 1988. He pointed out that the ash 7 fa-778.91 correspondence made by the Respondent herself shows that in the year 1987 itself, the construction was completed and the flats were being occupied. By inviting attention of the Court to the cross-examination of the Respondent, he submitted that the Respondent admitted that she had agreed to pay additional consideration of Rs.6,700/-. He invited the attention of the Court to the averments made in the Plaint as well as assertions made in the examination-in-chief of the Respondent. He pointed out that the Respondent has neither pleaded readiness and willingness to pay a sum of Rs.6,700/- nor has she proved her readiness and willingness to pay the said amount of Rs.6,700/-. Learned counsel invited the attention of the Court to the admission in Paragraphs 41 and 42 of the cross-examination of the Respondent. He pointed out that the Respondent claimed that she offered to pay Rs. 6,700/- to the Appellant on Saturday or Sunday after the second Agreement was executed. She stated that partner of the Appellant Michael Rodriques came to her house and demanded the amount of Rs. 6,700/- from her but she did not possess the said amount. He pointed out that in both notices issued by the Respondent in the year 1987-88, there is no assertion regarding readiness and willingness to pay a sum of Rs.6,700/- and there was no mention of the offer made of the amount of Rs.6,700/- to the said Michael Rodriques. He pointed out that from what is stated in Paragraph 49 of the cross-examination of the Respondent, the case made out by the Respondent that after execution ash 8 fa-778.91 of the second Agreement she had shown readiness and willingness to pay the amount is completely false. In Paragraph 49, she admitted that after the letter dated 5th May, 1987 was sent, the said Michael Rodriques informed her Advocate about the said amount. He pointed out that in Paragraph 49, she admitted that only after the letter dated 5th May, 1987, she met Michael Rodriques and offered to pay the amount. He pointed out that in Paragraph 51 of the cross-examination, the Respondent corrected herself by saying that she offered the amount to the said Michael Rodriques in the middle of 1988 and the statement made that she offered the amount in May, 1987 is incorrect. He submitted that apart from the fact that the Respondent has not shown her readiness and willingness, her case about the offer of payment made by her has been completed falsified by her answers in the cross- examination. He submitted that the earlier two payments were made by the Respondent by cheques and therefore, it is not possible to accept that the Respondent went with the cash amount of Rs.24,000/- and more and offered it to the Appellant. 9. He pointed out that in the cross-examination, the Respondent admitted that she was residing at the address set out in the letter dated 18th February, 1988. He placed reliance on a decision of this Court in the case of Amrutlal Weljibhai Rathod v. Vishwasrao Deorao Patil, (AIR 1989 Bom. 410) and submitted that once dispatch of ash 9 fa-778.91 the letter under certificate of posting at the correct address is proved, it raises a presumption about the service in view of the provisions of Section 114 of the Indian Evidence Act. He relied upon a decision of the Calcutta High Court in the case of Saral Kumar Chatterjee v. Madhusudan Auddy and Another, (AIR 1964 Calcutta 556 ) and the decision of the Travencore High Court in the case of Simon Jacob Silas v. Casper John Batthasar Kohlfoff, ( AIR 1954 Travancore Cochin 440 ) in support of the contention that the readiness and willingness has to be a continued readiness and willingness as a condition precedent for grant of decree for specific performance. He invited the attention of the Court to the various paragraphs of the judgment and he submitted that the learned Judge was impressed by the fact that the second Agreement was registered. Lastly, he submitted that by way of reply to the Notice of Motion, a case was made out that the suit flat has been disposed of to one Shri R.J. Kore. He pointed out that the evidence of the Respondent shows that even the Respondent was aware that the third person was in possession. He submitted that notwithstanding the disclosure of the name of Shri Kore in the reply to the Notice of Motion, the plaint was not amended and the said Kore who is the purchaser of the suit flat has not been impleaded as a party. His submission is that considering the conduct of the Respondent, she was not entitled to a discretionary relief from the Civil Court. ash 10 fa-778.91 10. Learned counsel appearing for the Respondent supported the impugned judgment and decree. He submitted that the claim of Rs. 6,700/- has not been incorporated in both the Agreements. He submitted that though there may be an admission on the part of the Respondent that she had agreed to pay the said amount, there is no evidence to show that there was an agreement to pay the additional consideration. He pointed out that the receipt of the notice dated 18th February, 1988 was clearly denied by the Respondent and, therefore, the burden shifted on the Appellant to prove the service of the said notice. He submitted that even assuming that there is a presumption under Section 114 of the Evidence Act, 1872, the presumption was rebutted. He submitted that no interference is called for with the impugned judgment and decree as the learned Trial Judge has rightly exercised the discretion. The learned counsel appearing for the Appellant replied that the case made out by the Respondent is inconsistent and the Respondent was not entitled to a discretionary relief. 11. I have given careful consideration to the submissions. I have perused the record. There is no dispute regarding the execution of both the Agreements. There is also no dispute about the fact that when the second Agreement was executed, the Appellant had received a sum of Rs.40,000/-. There is no dispute that considering the ash 11 fa-778.91 subsequent payments admittedly made by the Respondent, a sum of Rs. 24,050/- was due and payable by the Respondent towards the consideration. There is also no dispute that the provisions of the said Act of 1963 were applicable to both the Agreements. 12. Section 4 of the said Act of 1963 mandates the Promoter to execute an Agreement for sale and to get the said Agreement registered before accepting advance payment or deposit. Thus, the statute itself provides for execution of the registered Agreement by the Promoter for a sale of a flat. The form of the Agreement has been appended to 1964 Rules framed under the said Act of 1963. Thus, the Statute itself requires that the Agreement shall be executed in favour of the flat purchaser in a particular form. There are various provisions under the said Act of 1963 which lay down the statutory obligations of the Promoter. It is the statutory obligation of the Promoter to convey the title to the organization of the persons who have taken the flats. Thus, it is obvious that it is the statutory obligation of the Promoter to put the flat purchasers in possession in respect of the flats in respect of which Agreements have been executed in accordance with Section 4 of the said Act of 1963 and thereafter to transfer the title to their organization. Perusal of the averments made in the Plaint and in particular Paragraph 14 thereof shows that the suit was filed for enforcing the obligations of the Appellant under the said Act of 1963 ash 12 fa-778.91 and, therefore, the same was valued for Court Fees as per Section 6(iv) (j) of the Bombay Court Fees Act, 1959. In fact the said paragraph contains a specific averment that the suit was for enforcing the statutory obligations under the said Act of 1963. Though the first prayer in the suit is for a specific performance, the averments made in the Plaint, if read as a whole, make it clear that the suit is essentially for enforcing the obligations of the Appellant as the Promoter under the said Act of 1963. Though there may be a prayer made for specific performance, in effect the Court was required to consider whether a case is made out by the Respondent for enforcing the statutory obligations of the Appellant. One of the main submissions canvassed by the learned counsel appearing for the Appellant was that there was non-compliance of the requirement of Section 16(c) of the Specific Relief Act, 1963 ( hereinafter referred to as “the Specific Relief Act” ). As the suit is not for specific performance, there is no question of complying with the requirements of Section 16(c). Therefore, the suit cannot be thrown out on the ground of non-compliance of the provisions of Section 16(c) of the said Act of 1963. Therefore, the suit cannot be thrown out on the ground of the failure of the Respondent to plead and prove the readiness and willingness. 13. Prayer for perpetual injunction in mandatory form was incorporated in the form of prayer (b) for delivery of possession of the ash 13 fa-778.91 suit flat. The said prayer was for enforcing the obligation of the Applicant under the Specific Relief Act. It is well settled that the relief of perpetual injunction under the Specific Relief Act is always a discretionary and equitable relief. Therefore, it can be said that the readiness and willingness of the Plaintiff- flat purchaser to comply with the requirement of payment of price may be one of the considerations which will have to be taken into consideration while deciding the issue whether the Plaintiff is entitled to a discretionary and equitable relief of perpetual injunction. However, the said readiness and willingness need not be strictly in terms of stringent provision of Section 16(c) of the Specific Relief Act. 14. In the present case, the execution of both the Agreements is not disputed. It is also not disputed that out of the agreed consideration of Rs.87,000/- shown in the second Agreement, only a sum of Rs.24,050/- remained due and payable by the Respondents in terms of the second Agreement. 15. There will be two issues which require consideration. The first is whether the second Agreement is validly terminated and the second is whether the Respondent is entitled to a discretionary and equitable relief of mandatory injunction ? ash 14 fa-778.91 16. It will be necessary to make a reference to the affidavit in reply filed by the Appellant to the Notice of Motion which was treated as the Written Statement. In the Written Statement, there is a pleading that every flat purchaser had agreed to pay extra consideration amount of Rs.6,700/- and a sum of Rs.1,500/- towards copper-wiring. No particulars, such as the date and place when these Agreements were arrived at, were pleaded in the affidavit in reply. 17. The Respondent through her Advocate issued notice dated 5th May, 1987 to the Appellant. It is stated therein that the flat has been ready and that inspite of the repeated requests, the Appellant has not handed over possession of the flat. By the said letter, readiness and willingness was shown by the Respondent to pay the balance amount of consideration. Receipt of the said letter is not in dispute. Admittedly, there is no reply sent by the Appellant setting out the case that the additional sum of Rs.6,700/- was payable. In the letter dated 9th June, 1986 sent by the Advocate for the Respondent to the Appellant, it is specifically asserted that only the last installment of Rs.24,050/- was remaining. There was no reply even to the said letter contending that an amount more than a sum of Rs.24,050/- was payable by the Respondent. Reliance has been placed by the Appellant on the letter dated 2nd December, 1985 by which a demand was made by the Appellant for payment of a sum of Rs.6,700/-. This letter has been sent ash 15 fa-778.91 under certificate of posting, a receipt of which has been denied by the Respondent. If there was really such a letter dated 2nd December, 1985 sent to the Respondent, surely the Appellant would have replied to the letters dated 9th June, 1986 and 5th May, 1987 sent by the Advocate for the Respondent by pointing out that a sum of Rs.6,700/- was payable by the Respondent. As stated earlier, the receipt of the said letter has been denied by the Respondent. Reliance was placed on the letter dated 18th February, 1988 which was again sent under certificate of posting. By the said letter, the Appellant purportedly called upon the Respondent to pay the dues and to take possession of the flat. In the second last paragraph of the said letter, it was stated that this was sent as final reminder and in case, nothing was heard from the Respondent within a period of one week, the Appellant would think that the Respondent was not interested in the suit flat. The receipt of the said letter has been denied by the Respondent. Surprisingly in the said letter dated 18th February, 1988, there was not even a reference to the demand of Rs.6,700/-. Admittedly, the letter dated 8th August, 1988 sent by the Advocate for the Respondent was served to the Appellant. Admittedly, the Appellant received the said letter. But did not give reply on the ground that the notice of termination was already issued. 18. It is true that the agreement provides for sending letters under certificate of posting. However, nothing prevented the Appellant ash 16 fa-778.91 from sending the letter by Registered Post Acknowledgment due so that acknowledgment could have been obtained. There is no reference made to the letter dated 2nd December, 1985 allegedly by the Appellant in any further correspondence. Even after receiving the notice dated 8th August, 1988 from the Advocate for the Respondent, there was no reply sent by the Appellant by making reference to the letter dated 2nd December, 1985. Therefore, a serious doubt is created as regards the dispatch of letters dated 2nd December, 1985 and 18th February, 1988. The name of the Respondent mentioned in the cause title of the plaint is Maria Philomina Pereira. Both letters dated 2nd December, 1985 and 18th February, 1988 are addressed to Philomina Maria Pereira. There is denial on oath by the Respondent of having received the said letters and therefore, assuming that there is a presumption under Section 114 of the Evidence Act, the said presumption is duly rebutted and therefore, the case of the Appellant was that the Agreement was terminated cannot be accepted. 19. Admittedly, in both the Agreements, there is no reference to the additional consideration of Rs.6,700/-. This theory was propounded by way of reply to the Notice of Motion. There is no pleading in the reply that at on a particular day, an agreement was arrived at for payment of the additional amount. Even the so called letter of termination was silent regarding payment of Rs.6,700/-. ash 17 fa-778.91 20. The case made out by the Appellant in the cross- examination of the Respondent that she was liable to pay a sum of Rs. 6,700/- has been accepted by her and some effort has been made by the Respondent to show that she had offered to pay the said amount. Perusal of the lengthy cross-examination