1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL JURISDICTION NOTICE OF MOTION NO. 969 OF 2008 IN SUIT NO. 748 OF 2008 Sudha alias Sushma Suresh Narwekar & Anr. .... Plaintiffs. V/s. Dr. Ceasar Manoel Fernandes (Since deceased) Through his legal heirs. .... Defendants. ....... Mr. Vineet Naik with Mr. Jay Bhatia for the Plaintiffs. Mr. J.B. Mitra i/b. P.S. Gidwani for Defendants 1(a) and 1(b). ........ CORAM : DR. D.Y. CHANDRACHUD, J. 12TH MARCH 2008. P.C. :- On the request of the learned Counsel and in view of the fact that an affidavit-in-reply has been filed, the Notice of Motion is taken up for hearing and final disposal by consent. The suit has been instituted on 14th February 2008. The suit is for specific performance of an agreement to sell dated 26th June 1990 2 purported to have been entered into by Dr. Ceasar Manoel Fernandes, who expired on 13th October 2007. The Defendants are respectively the widow and the son of the alleged vendor. The contention of the Plaintiffs is that an agreement was entered into on 26th June 1990 under which they agreed to acquire certain immoveable property which consists of a building at Colaba (34, Nawroji Street) at and for consideration of Rs.1.75 lakhs. The Plaintiffs admit that they have neither the original nor a copy of the alleged agreement. According to the Plaintiffs, possession was delivered to them and in pursuance of the notice issued by the Municipal Corporation, they demolished the first and second floors of the building. The Plaintiffs also claim to have paid the arrears of Municipal Taxes. The property had been bequeathed to the predecessor in interest of the Defendants under a Will dated 23rd August 1979. Some time in the year 1995, Miscellaneous Petition 19 of 1995 was filed for the revocation of the probate which was granted in favour of Dr. Fernandes, the predecessor in interest of the Defendants. During the course of the interlocutory proceedings therein, Dr. Fernandes made a statement on 7th February 1996 that he will not create third party rights or part with the possession of the property. In 3 August 1995, Dr. Fernandes is stated to have filed an affidavit in those proceedings, referring to the alleged agreement dated 26th June 1990. The Miscellaneous Petition for the revocation of the probate was dismissed by a judgment and order dated 22nd February 2008 of a learned Single Judge of this Court. The contention of the Plaintiffs is that so long as the aforesaid proceedings for the revocation of the probate held the field, the interim order dated 7th February 1996 restrained the predecessor in interest of the Defendants from creating third party rights and that as a consequence, there was no reason for the Plaintiffs to institute a suit for specific performance. After the vendor of the Plaintiffs, Dr. Ceasar Fernandes, expired on 13th October 2007, a letter was addressed on 18th December 2007 to the Defendants for completing the transaction of sale. On 14th January 2008, the Defendants called upon the Plaintiffs to furnish copies of the alleged agreement and denied that any such agreement has been executed with Dr. Fernandes. Therefore, according to the Plaintiffs, it was when a notice of refusal was received under a letter dated 14th January 2008 that the Plaintiffs came to institute a suit for specific performance. 4 An affidavit in reply has been filed on behalf of the Defendants in which it has been stated that the Second Plaintiff has been a Corporator in the Municipal Corporation. The suit has been instituted on the basis of an agreement dated 26th June 1990, neither the original, nor a copy of which is forthcoming. The Defendants have stated that though the Plaintiffs were called upon by a letter dated 14th January 2008 to produce a copy of the agreement none is forthcoming. The Defendants have denied the receipt of any consideration by their predecessor in interest in pursuance of the alleged agreement; and it is the case of the Defendants that as a matter of fact it is they who have paid the property taxes to the Municipal Corporation. In so far as the rent receipts are concerned, it has been averred that the tenants of the property paid rent initially to the grand father of the Second Defendant and thereafter, to his father and since 1993 to the First Defendant. Rent receipts were stated to be issued accordingly. In the affidavit in reply, it has been stated that the affidavit which was filed by Dr. Ceasar Fernandes in Miscellaneous Petition 19 of 1995 was drawn and prepared by the Advocate for the Second Plaintiff. According to the Defendants, while negotiations did take place in 2007, no concluded 5 agreement was arrived at. The principal document upon which the Plaintiffs rely is an affidavit filed by Dr. Fernandes on 30th August 1995 in a notice of motion taken out in the Petition for the revocation of the probate (Notice of Motion 1836 of 1995 in Misc. Petition 19 of 1995). In the course of his affidavit, Dr. Fernandes has referred to the agreement to sell dated 26th June 1990 with the Plaintiffs and to the circumstance that the property was in a ruinous condition. The affidavit states that the 1st and 2nd floors were demolished by the Plaintiffs on a notice issued by the Municipal Corporation and that the arrears of the Municipal taxes were paid by the Plaintiffs. The issue before the Court is whether on the basis of the material before the Court, a case for the grant of an injunction during the pendency of the suit has been made out. Certain salient aspects of the matter have emerged on the basis of the material on the record, and the submissions of Counsel. The first circumstance which must be noted is that though the suit is for specific performance of an agreement 6 dated 26th June 1990, no copy of the agreement is forthcoming. The case of the Plaintiffs is that since Dr. Fernandes and the Plaintiffs “were good family friends”, the agreement continued to remain in the possession of the deceased. The absence of even a copy of the agreement with the Plaintiffs is a circumstance which must weigh prima-facie against the grant of relief because it is only the agreement - the case of the Plaintiffs being that there was a written agreement - that would establish the terms, if any, governing the transaction. The Second Plaintiff is a Municipal Corporator and the plea that he has not retained even a copy of the agreement must be considered in the background of this fact. Secondly, there is no averment in the plaint of the payment of the purchase consideration of Rs.1,75,000/- in pursuance of the alleged agreement dated 26th June 1990. This is not merely a case where no particulars of payment have been disclosed but a case where there is not even a statement to the effect that consideration was paid. This would prima facie have an important bearing on the readiness and willingness of the Plaintiff to perform the agreement. Thirdly, while Dr. Fernandes had filed an affidavit on 31st August 1995 stating that there was an agreement to sell with the 7 Plaintiff of 26th June 1990, what happened between 1995 and 2008 is relevant to the question as to whether the Plaintiffs have established a readiness and willingness to perform their part to the contract. Here is a purchaser who has not pleaded the payment of consideration. There was no offer of payment during the eighteen years that elapsed since the date of the alleged agreement. The alleged agreement being of 26th June 1990, the material before the Court would show that right from the date of the execution of the alleged agreement until 18th December 2007, there is not a single communication calling upon the predecessor in interest of the Defendants to complete the transaction of sale. Readiness and willingness is therefore prima facie absent. The total silence for over 18 years must in my view weigh against the grant of an interlocutory order of injunction. Fourthly, though the Plaintiffs have relied upon a letter dated 16th June 2007 (Exhibit 'D'), the Defendants have in their reply stated that there were in fact negotiations between the parties in 2007 which did not result in any concluded agreement. This prima facie appears to be so from the fact that an E-mail was addressed on 9th April 2007 to the Second Defendant containing a draft of a possible agreement. Those negotiations however, have not 8 resulted in any concluded agreement. Fifthly, Counsel appearing on behalf of the Defendants has produced before the Court the rent bills which prima facie show that the Defendants have issued receipts and collected rents at least until July 2006. In these circumstances, the Plaintiffs have not established the ingredients necessary prima-facie to sustain the cause of action in a suit for specific performance. The grant of interlocutory relief is in aid of the final decree that may be passed in the suit. The Plaintiffs have not made out a prima-facie case for grant of an injunction. The Notice of Motion is accordingly dismissed. ------