1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.355/2009 IN SUIT NO.95/2009 Murtuza Shaikh Kayamali Pardawala and others. ..Plaintiffs -VERSUS- Esufali Gulamhusein Bandukwala Wakf and others. ..Defendants ............... Mr.Rajendra Desai a/w Mr.Kunal Bhanage, Advocates for the Plaintiffs. Kevie Setalvad a/w S.Srivastava & H.Rehman i/b D.H.Law Associates, Advocates for the Defendants. ............... CORAM: A.P.DESHPANDE, J. Dated 10th July, 2009. PC:- 1 By consent of the parties this Notice of Motion is taken up for final hearing and disposal. 2 The present Plaintiffs entered into an agreement for purchase of two plots of land from the Defendants. The agreement for sale was reduced into writing and is dated 26.07.2006. The total consideration agreed is Rs.77 Lac, out of which, Rs.7 Lac were paid on the date on which the agreement for sale was entered into. In regard to the balance payment of Rs.70 Lac and reciprocal promise, the following recital in the agreement is crucial:- “The balance consideration amount of Rs.70,00,000/- 2 (Rs.Seventy Lakhs only) shall be paid by the Purchasers to the Vendors within period of 90 days from the date of 24th July, 2006 and within such period the Vendors have agreed to make out clear and marketable title in the said property and without encumbrances and they shall give the original title deeds to the Purchasers. Time for payment of the balance consideration amount shall be essence of the agreement.” 3 It is the case of the Plaintiffs that within 90 days from the date of entering into an agreement the Defendants were under an obligation to make out clear and marketable title to the property and hand over the original title deeds to the Plaintiffs, which obligation the Defendants have not discharged. No title deeds are handed over. The Plaintiffs issued a public notice on 09.08.2006 inviting objections if any from those who are claiming interest in the property. It is the case of the Plaintiffs that they received five objections from the persons claiming interest in the property. Hence, the Plaintiffs were persuading the Defendants to deliver necessary papers and the title deeds so that the claims of objectors could be properly examined. According to the Plaintiffs, the Defendants slept over the matter and did nothing on their part. There is no communication from the Defendants till filing of the suit refusing to perform their part of contract or repudiating the contract. Though the Plaintiffs issued the notice to the Defendants, they have chosen not to reply. Since the date of entering into an agreement till filing of the suit there has been no reply or any communication from the Defendants touching the agreement. Hence, the Plaintiffs were constrained to file the present suit. It has been averred that the Plaintiffs were and are ready & willing to perform their part of 3 contract. With a view to substantiate their readiness and willingness the Plaintiffs have sought permission of the Court and deposited half amount viz. Rs.35 Lac which roughly denotes consideration of one of the plots. It is relevant to note that the said agreement pertains to two plots of land. The Defendants came out with the reply that one of the plot was already sold by the time suit came to be filed. Hence, it appears that the Plaintiffs have restricted their claim to the remaining plot which is not sold and this is how the Plaintiffs have chosen to deposit a sum of Rs.35 Lac. 4 The Defendants have shown a certified copy of the sale deed where under one of the plot has been sold. The registered sale deed is dated 06.09.2008. Despite the directions given by this Court to reveal the particulars and details in regard to one of the plots which has been sold, the same have not been complied with and no details are furnished. However, at the time of hearing of the matter the learned counsel for the Defendants has produced for perusal of the Court a xerox copy of the sale deed. I take it as substantial compliance of the order. So far as the case of the Defendants is concerned, the same is to the effect that the agreement has lapsed as the Plaintiffs failed to pay balance consideration of Rs.70 Lac within the stipulated period of 90 days. It is also the case of the Defendants that the Defendants have repaid the amount which they have received from the Plaintiffs at the time of execution of the agreement for sale i.e. Rs.7 Lac. The Defendants further claimed that they have returned the amount in cash without obtaining any acknowledgment from the Plaintiffs. This claim of the Defendants to say the least is wholly unbelievable, firstly, for the reason that the 4 Plaintiffs had paid the amount by cheque and secondly, for the reason that the Defendant is the Trust and the Trustees would not in ordinary course make the payment of Rs.7 Lac that too in cash without obtaining acknowledgment in writing. Prima facie it appears that the Defendants are not acting justly and fairly. 5 The learned counsel for the Defendants has heavily relied on the judgment of the Division Bench of the Culcutta High Court in Manik Chandra Bhowmik v/s Abhoy Charan Gope, AIR 1917 Calcutta 283. The said judgment holds that the party who is seeking specific performance must make out a case of its readiness and willingness to perform the contract right since the point of time the agreement is entered into till the decree for specific performance is passed. In the said case there were no corresponding obligations to be performed by both the parties. The only question was whether the amount of consideration was paid before a particular date or otherwise. In that context the Court held that it was obligatory on the part of the Plaintiff to have paid the amount before it could seek specific performance of the agreement. The said judgment lays down the settled position in law that the party seeking specific performance must perform all obligations. The proposition cannot be doubted. 6 Thus, in my opinion the Plaintiffs have made out a prima facie case for grant of temporary injunction in regard to one of the plots which has not been disposed of by the Defendants and in regard to which a sum of Rs.35 Lac have been deposited in the Court. Prima facie it appears that the Plaintiffs were interested in buying the property forming the subject matter of the agreement 5 and were ready and willing to perform their part of agreement. It also appears prima facie that on account of non furnishing of the title deeds and not providing the marketable title, the Plaintiffs did not pay the balance amount of Rs.70 Lac within the stipulated period. If and in case an interim relief is not granted the Plaintiffs will suffer irreparable loss. Balance of convenience is also in favour of the Plaintiffs. 7 Having regard to totality of the facts and circumstances and having regard to the conduct of the parties, I allow the Notice of Motion and restrain the Defendants from selling, alienating, transferring and/or creating any third party interest or parting with possession of one of the suit properties described as ‘secondly’ in the schedule at Exhibit-A. The Notice of Motion is partly allowed and disposed of accordingly. JUDGE kps