- 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION No. 1207 OF 2007 IN SUIT No. 872 OF 2007 Shreenarayan Agarwal ... Plaintiff Vs. M/s. Amrut Construction & Ors. ... Defendants *** Ms. K. C. Nichani i/b M/s. Mahesh Jani & Co., for the Plaintiff. Mr. D. H. Mehta i/b D. MM. Legal Assocociates, for Defendant Nos. 1 and 2. Mr. P. K. Samdani, Sr. counsel a/w Mr. Nalini M. Shah, for defendant No.4. *** CORAM : S. J. VAZIFDAR, J. DATE : SEPTEMBER 16, 2009. PC :- 1. The suit is filed for specific performance of an alleged oral agreement between the plaintiff and defendant Nos. 1 and 2 entered into on 18th October 2005. The reliefs claimed, are not in terms of the agreement, but in the following terms- “(b) that the Defendants be ordered and Decreed by this Hon’ble Court to specific performance of the said Agreement and to do all acts, deeds, matters and things necessary therein including:- - 2 - (i) for the purpose of making out a clear and marketable title in respect of the said premises to obtain full occupation/ building completion certificate and to obtain “conditions complied” report from MHADA and for that purpose to do all acts, deeds, matters and things such as surrender and/or handing over of the area as per MHADA conditions to the MHADA. (ii) to exercise sale deed signed by each of the defendants in favour of the plaintiff; (iii) to hand over quiet vacant and peaceful possession of the said premises to the plaintiff;” 2. According to the plaintiff on 18th October 2005 defendant Nos. 1 and 2 agreed to sell the suit flat for a consideration of Rs.3,01,00,000/- and that the same is evidenced by a receipt dated 20th October 2005, allegedly executed by defendant No.1. The receipt refers to the suit property as being a flat on the 7th floor, admeasuring 1950 Sq. ft. carpet area together with the furniture and fixtures lying therein, as on 18th October 2005 and “exclusive right to use terrace admeasuring 1800 Sq. ft. approx. carpet area” along with two car parking spaces in the stilt and a servants room on the ground floor admeasuring approximately 250 Sq. ft. The receipt it is alleged, was executed by defendant No.1 in consideration of the plaintiff having paid to defendant No.1 a sum of Rs.11,00,000/-. Though the execution of the receipt is denied by defendant Nos. 1 and 2, the receipt of an amount of Rs.11,00,000/- - 3 - is not denied by them. 3. For the purpose of this order it is sufficient to examine some of the averments in the plaint itself. 4. The plaint proceeds on the basis that defendant Nos. 1 and 2 had sold the terrace to the plaintiff. Although the plaint in several places refers to the words used in the receipt namely “exclusive rights to use, occupy and enjoy the terrace”, it is clear that the plaintiff in fact contended that defendant Nos. 1 and 2 had purported to sell the terrace to him. It is for this reason that there are averments in the plaint to the effect that defendant Nos. 1 and 2 misrepresented that they were entitled to “sell the terrace although they do not have any right to sell the terrace”. In paragraph 4(G) it is averred that the plaintiff had been informed by their advocates that as per the judgment of this Court it had been held that in view of the provisions of the Maharashtra Cooperative Societies Act, defendant Nos. 1 and 2 were not empowered to sell the terrace. It is further averred that the representations of defendant Nos. 1 and 2 that they had exclusive rights to sell the terrace of the building were false. Similar averments are also there in paragraph 4(H)(iv) of the plaint. 5. As noted earlier, the receipt does not refer to any purported sale of the terrace at all. 6. It is important to note that in paragraph 4(M) of the - 4 - plaint, the plaintiff has referred to his letter dated 14th March 2006 requesting the defendants to reconsider the quantum of the price of Rs.3,01,00,000/- inter-alia as it had been found that the defendants did not have any right to sell the said terrace. In paragraph 7, the plaintiff has averred that he is entitled to a rebate in the price inter- alia in view of defendant Nos. 1 and 2 not having any right in respect of the terrace. Therefore, the plaintiff has refused to perform the agreement as per the admitted terms and conditions. The plaintiff has not even given up his rights under the agreement in respect of the terrace but desires to have the terrace sold to him and at the same time expects a rebate in the price for the same. 7. The plaintiff has also alleged that there were various other misrepresentations made at the time when the alleged agreement was entered into, including as to the area of the flat, the existence of the servant’s room and as to defendant Nos. 1 and 2 having obtained various permissions from the statutory authorities, including an occupation certificate. The plaintiff also alleged that defendant Nos. 1 and 2 had not surrendered the area to the MHADA as they were required to. 8. It appears from the detailed submissions in the plaint that as a result of the alleged misrepresentation and failure on the part of defendant Nos. 1 and 2 to comply with all the legal requirements, the plaintiff in fact never intended completing the transaction as per the agreed terms. If indeed the allegations are correct, the plaintiff cannot be faulted for not going ahead with the - 5 - implementation of the agreement inter-alia by paying the balance consideration of Rs.2,90,00,000/-. However, having chosen not to implement the agreement as per its terms, the plaintiff cannot seek specific performance thereof. 9. It is also pertinent to note that the plaintiff does not quantify the rebate but seeks the appointment of valuer to quantify the rebate. The entire pleading is destructive of the plaintiff’s readiness and willingness to perform its contract as per its terms. 10. I also find considerable merit in the submissions of the learned counsel appearing on behalf of defendant Nos. 1 and 2 that no concluded contract had been entered into between the plaintiff and defendant Nos. 1 & 2. I proceed on the basis that the consideration of Rs.3,01,00,000/- had been agreed upon. I also proceed on the basis that the receipt dated 20th October 2005 had been executed by the first defendant although the same is denied. In the facts and circumstances of the present case, however that by itself would not lead to a conclusion that there was a concluded agreement. 11. In a transaction of this nature it is difficult to believe that the parties entered into a concluded agreement only orally and that too only on the deposit of a sum Rs.11,00,000/- which constitutes only about 3% of the entire consideration. The other essential terms of such an agreement are not even recorded elsewhere. - 6 - 12. The receipt itself states that possession of the flat and the furniture and fixtures therein would be given to the plaintiff upon completion of the transaction subject to marketable title, to be completed on or before 31st March 2006. It is true that if marketable title was not completed on or before 31st March 2006, the plaintiff was entitled to withdraw from the transaction. The plaintiff did not do so expressly. It is, however, apparent that in view of the various apprehensions expressed by him, he was understandably not interested in going ahead with the same. 13. In these circumstances, I am not inclined to grant an injunction which would affect the rights of defendant No.4 who has subsequently purchased the flat although for a considerably lower price. In the facts of this case that does not in itself indicate any collusion between defendant Nos. 1 and 2 and defendant No.4. This is probably due to the various difficulties and problems in respect of the property as detailed by the plaintiff himself which prompted him to seek a rebate. 14. The entire agreement between the plaintiff and defendant Nos. 1 and 2 is uncertain. The mode of implementation is riddled with uncertainties and complexities. The plaintiff must therefore, be left to a claim for damages. There was at the highest only an agreement to enter into an agreement which is not enforcible in law. - 7 - 15. In these circumstances, the Notice of Motion is dismissed. The ad-interim order dated 12th April 2007 shall continue upto a date including 9th November 2009.