1 SUITS.744,745 & 746.89-.sxw mnm IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO. 744 OF 1989 Urmila Pravinchandra Shah ...Plaintiff Vs. M/s. Kumud Grinding Mills ...Defendant WITH SUIT NO. 745 OF 1989 Hiralal Kheraji Shah ...Plaintiff Vs. M/s. Usha Masala Products ...Defendant WITH SUIT NO.746 OF 1989 Hemlata Morarji Shah ...Plaintiff Vs. M/s. Usha Masala Products ...Defendant Mr. Rajesh Shah a/w. Mr. Sameer Chitnis a/w. Ms. Allena George i/b. M/s. Chitnis & Co., Mr. Hiralal Thacker, Sr. Advocate a/w. Mr. K.D. Shah for Defendant CORAM : SMT. ROSHAN DALVI, J. Date of reserving for Judgment: 22nd July, 2011 Date of pronouncing the Judgment: 28th July, 2011 JUDGMENT : 1. These suits are for declaration that the agreements in each of the suits dated 9th December 1986 are subsisting and binding on the Defendant and for specific performance of those agreements and in the alternative for damages as computed in the plaint. The Plaintiffs in the above suits are relatives. They agreed to purchase 2 SUITS.744,745 & 746.89-.sxw galas/industrial unit Nos.31, 34 and 33 in Damji Shamji Industrial Estate, Lal Bahadur Shastri Marg, Vikroli, Mumbai-400 083 from the Defendant. The Defendant had purchased the units from one Swastik Enterprises who in turn had purchased it from Damji Shamji and Company who had constructed the units. The units were to be sold to the Plaintiffs for a total consideration of Rs.3,19,000/- in each of the suits. The Plaintiffs paid earnest of Rs.1,00,000/- in each of the suits. Rs.2,19,000/- remained to be paid. The consideration clauses in the agreement provided that the Defendant, being the Transferor, shall give one month’s notice prior to the expiry of 3 months from the date of the Agreement to the transferee to take possession upon making payment of the balance consideration. Upon such payment being received the Defendant was to handover vacant possession of the units to each of the Plaintiffs. 2. The Defendant could not give notice as per the specific covenant between the parties. The Plaintiffs claim that they were ready and willing to pay the price and take possession and specifically perform their part of the contract. 3. The Defendant claims that he gave notice as covenanted to the Plaintiffs himself as also through the Broker, but the Plaintiffs failed and neglected to make payment of the balance consideration and hence possession was not handed over by the Defendant to the Plaintiffs in each of the suits. 4. The Defendant terminated the agreements by its notice of termination sent through its advocate on 19th July 1988. The 3 SUITS.744,745 & 746.89-.sxw Defendant claimed that the Plaintiffs were to make payment of the balance consideration of Rs.2.19 lakhs each within 3 months of the agreement having been entered into and despite the fact that the Plaintiffs were called upon, they failed to make the payment and hence the contract stood terminated. The Plaintiffs refuted the said claim under their Advocate’s letter dated 29th July 1988. 5. The case of the parties in the pleadings is much the same. Upon such a case the following issues came to be framed by Justice Daga, as he then was, in each of the above suits on 21st November 2007 and are answered as follows. Counsel on behalf of the Defendant sought addition of two issues which are framed and answered as follows. ISSUES FINDINGS 1. Whether the defendants prove that just because stamp duty is not paid the Plaintiff is not entitled to any relief in the suit. No 2. Whether the Plaintiff proves that she is entitled to specific performance of the agreement dated 9th December 1986. Yes 3. Whether the Plaintiff proves that she has valid and subsisting charges on the Unit being Unit No.31, Ground Floor, Danji Shaji Industrial Estate, L.B.S. Marg, Vikhroli, Mumbai-400 093 and entitled to enforce the charge. Not pressed 4. Whether the Plaintiff proves that she was always ready and willing to perform Agreement dated 9th December 1986. Yes 5. Whether the Plaintiff having failed to ask for declaration that the termination/revocation by the Defendants of Agreement dated 9th 4 SUITS.744,745 & 746.89-.sxw December 1986 by their Advocate’s letter dated 19th July 1988 is bad in law is entitled to maintain the suit for specific performance of Agreement dated 9th December 1988. Yes 6.What order and decree ? As per final order 6. The Plaintiffs have led evidence of their Constituted Attorney (CA) Morarji Kheraji Shah. The Defendant has led evidence of its Constituted Attorney (CA) Shirish Ganagtra. Aside from the case of the parties made out in the pleadings two orders of the Industrial Court, Maharashtra, Bombay in Complaint (ULP) No.794/1986 have been produced in evidence which are material. 7. A large part of the evidence which does not relate to the written agreement between the parties or extends further than the written agreement stands excluded by the written agreement under Section 91 of the Indian Evidence Act and is accordingly not relevant to consider. The only material oral evidence would be the aspect that prevailed between the parties at the time of the execution of the aforesaid agreements and 3 months thereafter. The further material oral evidence would be to see if the Plaintiffs, who claim the validity of the agreement and specific performance thereof, were informed as required under the agreement and thereupon were ready and willing to perform their part of the reciprocal promise under the agreement between the parties. 8. Issue No.1 : The agreements dated 9th December 1986 marked Exhibit-P2 in evidence were initially inadequately stamped. The Plaintiffs have later got the agreements adequately stamped by paying the deficit stamp duties as also the required penalty. Once 5 SUITS.744,745 & 746.89-.sxw the Plaintiffs have complied with the provisions of the Bombay Stamp Act as aforesaid they would be entitled to sue. Hence the issue is answered in the negative. 9. Issue No .2: The agreements which are claimed to be specifically performed have admittedly being executed on 9th December 1986. The Defendant was in possession of the suit units at the relevant time. The Defendant claims that it had closed its business from about the end of 1985 and has shown actual closure in about July 1986. The Defendant had employed several workers. The workers had lodged the complaint for unfair labour practices of the Defendant before the Industrial Court, Maharashtra, Mumbai being (ULP)Complaint No.794/1986. An ad-interim order of injunction came to be passed in the said complaint restraining the Defendant herein inter alia from transferring and alienating in any manner the land, building, plant and machinery as well as assets both movable and immovable from the factory premises of the Defendant . The order of injunction, therefore, restrained the Defendant from transferring the land and the building. The Defendant sought to transfer a part of its land and building being the aforesaid 3 units under the agreements with the Plaintiffs. A certified true copy of the order has been got produced by the witness and is marked Exhibit- P-13 in evidence. The issue relating to whether or not there was breach of the order of injunction is an issue in this suit. What is material only is that at the time of the agreement the order of injunction was in force. 10.In this scenario the specific covenant between the parties relating to 6 SUITS.744,745 & 746.89-.sxw the notice and the payment of balance consideration must be appreciated. The agreements recite the earlier transactions in respect of the suit units to trace the title of the Defendant from the inception of the constructions of the units by Damji Shamji & Company in Damji Shamji Industrial Estate. The title of the Defendant is, therefore, clearly traced and shown. The agreement is simple. Since the units were already constructed, the Plaintiffs as the purchasers made payment of earnest of Rs.1,00,000/- for each of the units. The Plaintiffs could not be handed over possession of the units on the date of the agreement since the Defendant could not transfer any of the land or building or any immovable assets of the factory which would include the units to the Plaintiffs. Hence a part of the consideration was paid. Even so about 30% of the consideration was paid. The parties agreed that the balance would be paid within 3 months of the execution of the agreement against possession of the units. To that end the agreements specifically provided a covenant between the parties which is a rather unusual covenant, thus: “Provided that the Transferors shall one months prior to the expiry of such three months give a notice to the transferee she the transferee should take possession of the said unit against the payment of Rs.2,19,000/- being the balance mentioned in clause 2(b) above”. 11.The Plaintiffs, in each of the above suits, as the purchasers did not require to give any notice to the Defendant . The Defendant had to hand over possession. The Plaintiffs had to make payment of 7 SUITS.744,745 & 746.89-.sxw consideration. The Defendant covenanted to give one month’s notice within 3 months period to the Plaintiffs and the Plaintiffs were to take possession of the unit and make payment of the balance consideration. It would have to be seen as to what notice was contemplated to be given by the parties. The Defendant had not offered possession at the time of the execution of the agreement. The Plaintiffs had not taken possession. The notice that would be given by the Defendant, therefore, only was that the Defendant was ready to give vacant possession to the Plaintiffs so that the Plaintiffs could forthwith make payment of the balance consideration against the possession. It is clear that in view of the order of injunction the Defendant would have to inform the Plaintiff a specific time when the Defendant can give possession so that the Plaintiffs can give payment. The Plaintiffs were not expected to make payment before the Defendant could give actual possession to the Plaintiffs. 12.Consequently, in view of the specific agreement between the parties which is reflected from the order of the Industrial Court, both the parties had to perform their part of the contract one by one. The Defendant had to perform its reciprocal promise first. The Plaintiffs had to perform their reciprocal promise thereupon. 13.Mr. Rajesh Shah rightly drew my attention to Section 54 of the Indian Contract Act, 1872 relating to the performance of the reciprocal promise which runs thus: “54. Effect of default as to that promise which should be first performed, in contract consisting of reciprocal promises. – 8 SUITS.744,745 & 746.89-.sxw When a contract consists of reciprocal promises, such that one of them cannot be performed, or that its performance cannot be claimed till the other has been performed, and the promisor of the promise last mentioned fails to perform it, such promisor cannot claim the performance of the reciprocal promise, and must make compensation to the other party to the contract for any loss which such other party may sustain by the non-performance of the contract”. 14.It may be seen that though in usual agreements it would be for the purchaser to make the first offer of payment if all the other aspects have been settled between the parties leaving only the aspect of payment of consideration and the handing over of possession being left out, in this case in view of the position in which the Defendant was, the mode of performance of reciprocal promise could not have been in that order. 15.Mr. Thakkar argued that after the agreement was executed normally the purchaser would seek inspection of the records to check a marketable title of the seller, give public notice etc. and since the Plaintiffs did nothing of the kind, the Defendant could not give notice within the next 3 months. He argued that the Plaintiffs failed to perform their part of the contract. The agreement between the parties did not show any such acts required to be done by the Plaintiffs. In fact the evidence showing the position of the parties more specially of the Defendant that was not required to be done. The recitals in the agreements themselves show the title traced to the Defendant. Hence though the agreements were executed they had to be performed in the manner and mode specified by the parties which includes the sequence of the acts of the reciprocal promises. 9 SUITS.744,745 & 746.89-.sxw 16.In this case under the aforesaid Section 54 of the Indian Contract Act the payment of balance consideration could not be made until actual vacant possession was offered and until the units were made actually vacant. Consequently, the Defendant could not claim performance by the Plaintiffs by tender of consideration. When the Defendant, as a promisor who had to give notice to the Plaintiffs as the promisee, failed to give notice, the Defendant as such promisor could not claim performance of the reciprocal promise of the Plaintiffs as the promisee. In fact, the Defendant must make compensation for any loss which the Plaintiffs would suffer or sustain by the nonperformance of the contract. 17.The Defendant has claimed that it gave enough notices to the Plaintiffs. The letter of termination shows that the Defendant repeatedly called upon the Plaintiffs, through one Kakubhai, the Broker as also one Morajibhai, the Plaintiffs’ close relative. The letter also shows the Defendant having had direct telephonic talks with the Plaintiffs to pay up the balance amount. The Defendant claims that their representative Shirish Ganatra visited the Plaintiffs personally at their residence requesting them to make balance payment and stating that the Defendant was ready and willing to deliver possession. These various aspects in the notice of termination and the written statement were to be substantiated by the Defendant to prove the performance of the first of reciprocal promises. That has not been done. The Defendant has only examined its representative Shirish Ganatra who is stated to have visited the Plaintiffs personally. His evidence does not show where, how and when precisely he 10 SUITS.744,745 & 746.89-.sxw visited the Plaintiffs at their residence. The Broker Kakubhai is not examined. The Plaintiffs’ representative has only been cross examined to put the case. The evidence goes no further than the pleadings of the Defendant and the notice of termination itself. Consequently, the very basis of the notice of termination has remained unsubstantiated. 18.In the position in which the Defendant was, the Defendant was not able to perform its reciprocal promise to deliver actual vacant possession. Since that promise could not be performed the question of the Plaintiffs making payment of consideration would not arise. There is nothing on record to show that the Defendant actually offered vacant possession. The circumstances show that the Defendant could not offer vacant possession. The evidence of the Defendant’s witness has remained uncorroborated upon the position in which the Defendant was. The uncorroborated evidence can not be accepted. 19.It appears that the Defendant paid its workers in about January 1987. The order of injunction came to be vacated by the Industrial Court on 22nd January 1987. The copy of the said order has been produced in evidence as Exhibit-B1(A). It shows the Court having found a prima facie case made out by the Defendant of closure of its units. It observes that the workmen would be entitled to the full wages and hence it concludes that the workmen did not make out a prima facie case for grant of the injunction. It further concludes that the Defendant showed the balance of convenience in its favour. The ad-interim order of injunction was vacated. It could be taken that 11 SUITS.744,745 & 746.89-.sxw the Defendant was in a position to handover vacant possession of the suit premises to the Plaintiffs in each of the above suits on or after 22nd January 1987 which was within 3 months of the execution of the suit agreements as contemplated by the parties. 20.However the evidence shows that upon that being done the workers picketed outside the Defendant’s units. Consequently, the Plaintiffs could not be given peaceful possession of the units. It must, therefore, be taken that possession could not be and was not offered. Consequently, there was no question of the Defendant terminating the contract or the Plaintiffs paying consideration and taking possession. 21.The notice of the Defendant dated 19th July 1988 marked Exhibit- P-3 in evidence is a notice of termination. It is not a notice to the Plaintiffs that they should “take possession”. The Defendant has not given any notice to take possession. It is not known why the Defendant could not have given a written notice to take possession, if it could given a written notice to terminate those agreements about 20 months after they were executed. 22.The reply of the Plaintiffs becomes material to consider. It is dated 29th July 1988 marked Exhibit-P4 in evidence admittedly received by the Defendant. It mentions about the problem the Defendant had with his employees. It mentions that in order to defeat the claim of the workers the Defendant had surreptitiously entered into an agreement with the Plaintiffs. Consequently, the employees gheraoed the premises and obstructed the Defendant from vacating 12 SUITS.744,745 & 746.89-.sxw the premises by removing the machinery therefrom. Consequently, the Defendant could not give vacant possession of the premises agreed to be sold to the Plaintiffs. Hence the Plaintiffs contend that the revocation and termination of the agreements by the Defendant is not validly done. 23.The Defendant itself was in breach. The Plaintiffs could not perform their part of the reciprocal promises. The Plaintiffs contended from the inception in the reply to the termination notice that they were ready and willing to pay the balance consideration of Rs.2.19 lakhs. The Plaintiffs reiterated that fact in the plaint and in their evidence. The cross examination of the Plaintiffs’ CA show that Kakubhai had told him that there was some problem the Defendant had with his employees and they were picketing outside the units. Of course, Kakubhai is not examined. However the evidence of the Plaintiffs’ witness further shows that he had asked the Defendant whether it would be able to give possession about 2 months after the execution of the agreements. He further deposed that the employees did not allow the Defendant to remove its machinery from the suit premises. 24.To show the ability of the Plaintiff to make payment reflecting their readiness and willingness to make payment of the balance consideration, the representative of the Plaintiffs has shown that the Plaintiffs were carrying on their business at the relevant time and had also purchased a flat. They were, therefore, in sufficient funds. Mr. Shah pointed out that the Plaintiffs’ witness has not been cross examined on the question of their capacity and ability to perform the agreement and no particulars have been sought. The statements of 13 SUITS.744,745 & 746.89-.sxw the Plaintiffs, therefore, remained uncontroverted. 25.Since the agreement remained to be performed, since the Defendant failed to perform its first reciprocal promises and since the Plaintiffs could not, despite their readiness and willingness, perform their part they sued for specific performance of the suit contract on 24th February 1989. The Plaintiffs have not been at fault. It is not shown that they were not ready and willing as they have averred and deposed. The Plaintiffs are, therefore, entitled to specific performance of the 3 agreements dated 9th December 1986 in each of the above suits. Consequently, issue No.2 is answered in the affirmative. 26.Issue No.3 : The agreements do not provide for a charge created being the units agreed to be sold. The Plaintiffs have not claimed such charge in the plaint. Plaintiffs have not pressed that relief. Issue No.3, therefore, need not be answered. 27.Issue No.4 : The Plaintiffs claim that they were ready and willing to perform their part of the contract at all material times and have continued in such readiness and willingness. The averment of the Plaintiffs is denied in the written statement. The deposition of the Plaintiffs’ witness has been denied and a case to the contrary has been put. 28.The Plaintiffs’ witness has specifically deposed that the Plaintiffs were in transport industry. They wanted galas to store their goods. They would undertake industrial activities, if they got possession of 14 SUITS.744,745 & 746.89-.sxw their galas. They had entered into agreements for business purpose. In fact in paragraph 6 of the affidavit of examination-in-chief the Plaintiffs’ witness has deposed that the Plaintiffs were carrying on business in partnership business in the name of Minakshi Transport Carriers. They were paying income tax and wealth tax. They had invested in a residential flat in Kandivli and which was sold in 1990. Their family member was carrying on business in the name of Manish Transport Agency. Other family members were also partners. That business was stopped in 2001. 29.The Plaintiffs have not only averred readiness and willingness. They have sought to show their readiness and willingness by their various businesses which they already had and which they contemplated having in the units which were sought to be purchased as godowns for the goods to be transported by their firms. The Plaintiffs have not only shown their business. They have shown the purchase of a flat as well as the stoppage of the business in 2001. The purchase of flat would show the Plaintiffs’ financial position. The business was continued more than a decade after the agreement. The Plaintiffs have averred their readiness and willingness all through. The amount under suit the contracts could be paid even by sale of the flat or the proceeds of the business which was closed. 30.Mr. Shah relied upon the judgment in the case of Nathulal Vs. Phoolchand AIR 1970 SC 546 to show that actual tender of money is not required to show readiness and willingness. The party must show the necessary arrangement made for paying the amount due under the agreement. The evidence of the Plaintiffs shows that that 15 SUITS.744,745 & 746.89-.sxw would be their financial capacity. Of course the Plaintiffs have not themselves produced their title deed of the flat purchased by them, or their income tax and wealth tax returns. But the Defendant has not called upon them to produce them also. Mere putting up the case that they were not ready and willing is not sufficient. 31.The Plaintiffs have complied with the statutory mandate under Section 16(c) of the Specific Relief Act 1963 in averring and proving the readiness and willingness required by them. The Plaintiffs have further shown that they have been prevented from actually performing their part of the contract by the Defendant’s own circumstances which were informed to them by Kakubhai, the Broker. Consequently, issue No.4 is answered in the affirmative. 32.Issue No.5 : It is contended by Mr. Thakker that the Plaintiffs were required to sue for declaration that the termination of the contract was bad in law to be able to maintain the suit. The Plaintiffs have sued for a declaration that the agreement between the parties dated 9th December 1996 is valid and binding. The proof by the Plaintiffs of the validity of the agreement would, as a matter of corollary, show that the notice of termination is invalid and bad. The relief need not be in that specific form once the declaratory relief with regard to the contract between the parties is sought. Hence, the suit would be maintainable upon such declaratory relief and hence issue No.5 is answered in the affirmative. 33.Issue No.6 : Mr. Thakkar on behalf of the Defendant contended that the specific performance is a discretionary relief and discretion need 16 SUITS.744,745 & 746.89-.sxw not be exercised in this case. Mr. Thakkar relied upon the case of Inderchand Jain (D) through L.Rs. Vs. Motilal (D) through L.Rs. 2009(7)SCJ 827 in this regard. The Plaintiffs have not been at fault. The Plaintiffs have been ready and willing to perform their part of contract. They could not do so in view