1 IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION SUIT SUIT SUIT NO.1313 OF 1979 NO.1313 OF 1979 NO.1313 OF 1979 Rekha Rekha Rekha S.Panjabi S.Panjabi S.Panjabi ...... Plaintiff Plaintiff Plaintiff vs vs vs Devkumar Devkumar Devkumar P.Jogi & ors .. P.Jogi & ors .. P.Jogi & ors .. Defendants Defendants Defendants Mr.D.D.Madan, Mr.D.D.Madan, Mr.D.D.Madan, Sr.Advocate a/w Mr.Zai Andhyarujina Sr.Advocate a/w Mr.Zai Andhyarujina Sr.Advocate a/w Mr.Zai Andhyarujina with with with Ms.Shona Malvi i.b Wadia Gandhy & Co Ms.Shona Malvi i.b Wadia Gandhy & Co Ms.Shona Malvi i.b Wadia Gandhy & Co for for for Plaintiff Plaintiff Plaintiff Mr.S.V.Oak Mr.S.V.Oak Mr.S.V.Oak for Defendants for Defendants for Defendants CORAM CORAM CORAM : A.M.KHANWILKAR, J : A.M.KHANWILKAR, J : A.M.KHANWILKAR, J DATED DATED DATED : 21st September, 2007 : 21st September, 2007 : 21st September, 2007 JUDGMENT JUDGMENT JUDGMENT 1.1.1. This suit is filed, inter alia for relief of This suit is filed, inter alia for relief of This suit is filed, inter alia for relief of declaration declaration declaration and specific performance of an and specific performance of an and specific performance of an agreement agreement agreement for for for sale in respect of property described sale in respect of property described sale in respect of property described inin in Exhibit A to the plaint except the bungalow Exhibit A to the plaint except the bungalow Exhibit A to the plaint except the bungalow occupied occupied occupied by the defendant nos.1 and 2. by the defendant nos.1 and 2. by the defendant nos.1 and 2. 2.2.2. Briefly stated, according to the plaintiff, the Briefly stated, according to the plaintiff, the Briefly stated, according to the plaintiff, the 2 plaintiff plaintiff plaintiff carries on business as a builder in the carries on business as a builder in the carries on business as a builder in the name name name and style of "R.K.Builders", as the sole and style of "R.K.Builders", as the sole and style of "R.K.Builders", as the sole proprietress proprietress proprietress thereof. The defendants are the thereof. The defendants are the thereof. The defendants are the owners owners owners of the property situated at Rajawadi chawl, of the property situated at Rajawadi chawl, of the property situated at Rajawadi chawl, Jambly Jambly Jambly galli, Borivali (West) Mumbai-400 092, galli, Borivali (West) Mumbai-400 092, galli, Borivali (West) Mumbai-400 092, admeasuring admeasuring admeasuring about 5900 sq.mtrs together with about 5900 sq.mtrs together with about 5900 sq.mtrs together with structures structures structures standing standing standing thereon. It is the case of the thereon. It is the case of the thereon. It is the case of the plaintiff plaintiff plaintiff that on or about 8th April, 1979 an oral that on or about 8th April, 1979 an oral that on or about 8th April, 1979 an oral agreement agreement agreement was was was reached between the plaintiff and the reached between the plaintiff and the reached between the plaintiff and the defendants defendants defendants in respect of the property descrbied in in respect of the property descrbied in in respect of the property descrbied in Exhibit Exhibit Exhibit A to the plaint (except the residential A to the plaint (except the residential A to the plaint (except the residential bungalow bungalow bungalow situate on the said property wherein the situate on the said property wherein the situate on the said property wherein the defendant defendant defendant nos. 1 and 2 were residing),for a lump nos. 1 and 2 were residing),for a lump nos. 1 and 2 were residing),for a lump sum sum sum consideration of Rs.7,00,000/- on terms and consideration of Rs.7,00,000/- on terms and consideration of Rs.7,00,000/- on terms and conditions conditions conditions agreed between the parties noted in agreed between the parties noted in agreed between the parties noted in paras paras paras 3 and 4 of the plaint. It was a concluded 3 and 4 of the plaint. It was a concluded 3 and 4 of the plaint. It was a concluded agreement agreement agreement between the parties. Pursuant to the between the parties. Pursuant to the between the parties. Pursuant to the said said said agreement, the plaintiff immediately paid a agreement, the plaintiff immediately paid a agreement, the plaintiff immediately paid a sum sum sum of Rs.5000/- and assured to pay balance earnest of Rs.5000/- and assured to pay balance earnest of Rs.5000/- and assured to pay balance earnest money money money deposit upon the execution of formal deposit upon the execution of formal deposit upon the execution of formal agreement agreement agreement for sale. The defendant no.2 for sale. The defendant no.2 for sale. The defendant no.2 acknowledged acknowledged acknowledged the receipt of Rs.5000/. Besides, the the receipt of Rs.5000/. Besides, the the receipt of Rs.5000/. Besides, the defendant defendant defendant no.2 recorded in writing vide letter no.2 recorded in writing vide letter no.2 recorded in writing vide letter dated dated dated 8th April, 1979 about the broad terms of the 8th April, 1979 about the broad terms of the 8th April, 1979 about the broad terms of the said said said oral agreement. The said writing is Exhibit B oral agreement. The said writing is Exhibit B oral agreement. The said writing is Exhibit B toto to the plaint. the plaint. the plaint. 3 3.3.3. It is the case of the plaintiff that after 8th It is the case of the plaintiff that after 8th It is the case of the plaintiff that after 8th April, April, April, 1979 the defendants represented to the 1979 the defendants represented to the 1979 the defendants represented to the plaintiff plaintiff plaintiff that the defendant’s advocate had gone that the defendant’s advocate had gone that the defendant’s advocate had gone out out out of of of Mumbai and upon his return, sometime on 25th Mumbai and upon his return, sometime on 25th Mumbai and upon his return, sometime on 25th April, April, April, 1979, a formal agreement for sale would be 1979, a formal agreement for sale would be 1979, a formal agreement for sale would be prepared prepared prepared and executed. Instead, the plaintiff and executed. Instead, the plaintiff and executed. Instead, the plaintiff received received received a letter from the advocate of the a letter from the advocate of the a letter from the advocate of the defendants defendants defendants dated dated dated 24th April, 1979, falsely alleging 24th April, 1979, falsely alleging 24th April, 1979, falsely alleging that that that the plaintiff had pressurised the 2nd the plaintiff had pressurised the 2nd the plaintiff had pressurised the 2nd defendant defendant defendant to sell the suit property to the to sell the suit property to the to sell the suit property to the plaintiff plaintiff plaintiff for a lump sum amount of Rs.7,00,000/- for a lump sum amount of Rs.7,00,000/- for a lump sum amount of Rs.7,00,000/- and and and forced him to accept the deposit of Rs.5000/- forced him to accept the deposit of Rs.5000/- forced him to accept the deposit of Rs.5000/- and and and hastily procured signature of defendant no. 2 hastily procured signature of defendant no. 2 hastily procured signature of defendant no. 2 on on on the writing dated 8th April, 1979. The case of the writing dated 8th April, 1979. The case of the writing dated 8th April, 1979. The case of the the the defendant no.2 in the said letter,is that he defendant no.2 in the said letter,is that he defendant no.2 in the said letter,is that he had had had informed the plaintiff that no agreement would informed the plaintiff that no agreement would informed the plaintiff that no agreement would be be be executed if his mother and sister did not give executed if his mother and sister did not give executed if his mother and sister did not give consent. consent. consent. The 2nd defendant in the said The 2nd defendant in the said The 2nd defendant in the said communication communication communication further alleged that subject to further alleged that subject to further alleged that subject to consent consent consent of mother and sister, the plaintiff agreed of mother and sister, the plaintiff agreed of mother and sister, the plaintiff agreed toto to pay a sum of Rs.65,000/- being the balance of pay a sum of Rs.65,000/- being the balance of pay a sum of Rs.65,000/- being the balance of the the the earnest money of 10 % of the consideration earnest money of 10 % of the consideration earnest money of 10 % of the consideration amount amount amount on or before 23rd April, 1979 failing which on or before 23rd April, 1979 failing which on or before 23rd April, 1979 failing which the the the agreement would stand cancelled and defendants agreement would stand cancelled and defendants agreement would stand cancelled and defendants would would would forfeit the amount of Rs.5000/- paid by the forfeit the amount of Rs.5000/- paid by the forfeit the amount of Rs.5000/- paid by the plaintiff plaintiff plaintiff on 8th April, 1979. According to the on 8th April, 1979. According to the on 8th April, 1979. According to the Defendant Defendant Defendant No.2, the said terms were discussed in No.2, the said terms were discussed in No.2, the said terms were discussed in 4 the the the presence of three witnesses, who were present presence of three witnesses, who were present presence of three witnesses, who were present atatat the instance of the plaintiff. The defendants the instance of the plaintiff. The defendants the instance of the plaintiff. The defendants assert assert assert that during the dictation for typing the that during the dictation for typing the that during the dictation for typing the writing writing writing dated 8th April, 1979,the plaintiff had dated 8th April, 1979,the plaintiff had dated 8th April, 1979,the plaintiff had agreed agreed agreed about the abovesaid mode of cancellation of about the abovesaid mode of cancellation of about the abovesaid mode of cancellation of the the the writing - on that understanding the Defendant writing - on that understanding the Defendant writing - on that understanding the Defendant no. no. no. 2 signed the said writing. In substance, the 2 signed the said writing. In substance, the 2 signed the said writing. In substance, the case case case of Defendant No.2 is that the writing stood of Defendant No.2 is that the writing stood of Defendant No.2 is that the writing stood cancelled cancelled cancelled due to non-payment of balance earnest due to non-payment of balance earnest due to non-payment of balance earnest money money money of Rs.65,000/- before 23rd April, 1979. The of Rs.65,000/- before 23rd April, 1979. The of Rs.65,000/- before 23rd April, 1979. The plaintiff plaintiff plaintiff replied to the said notice through replied to the said notice through replied to the said notice through advocate advocate advocate vide letter dated 15th May, 1979 and vide letter dated 15th May, 1979 and vide letter dated 15th May, 1979 and denied denied denied the allegations contained therein the allegations contained therein the allegations contained therein. 4.4.4. The plaintiff then asserts that the 2nd The plaintiff then asserts that the 2nd The plaintiff then asserts that the 2nd defendant’s defendant’s defendant’s advocate sent another letter dated 9th advocate sent another letter dated 9th advocate sent another letter dated 9th July, July, July, 1979, denying that the oral terms and 1979, denying that the oral terms and 1979, denying that the oral terms and conditions conditions conditions have been concluded on 8th April, 1979. have been concluded on 8th April, 1979. have been concluded on 8th April, 1979. Instead, Instead, Instead, returned the amount of Rs.5000/- along returned the amount of Rs.5000/- along returned the amount of Rs.5000/- along with with with the said communication. At the same time the said communication. At the same time the said communication. At the same time, called called called upon the plaintiff to complete the upon the plaintiff to complete the upon the plaintiff to complete the transaction transaction transaction of of of sale within 45 days from the date of sale within 45 days from the date of sale within 45 days from the date of the the the said letter if she so desired. The plaintiff said letter if she so desired. The plaintiff said letter if she so desired. The plaintiff on on on the other hand, apprehended that the defendants the other hand, apprehended that the defendants the other hand, apprehended that the defendants were were were likely to create third party rights in the likely to create third party rights in the likely to create third party rights in the suit suit suit property property property inspite of the concluded agreement in inspite of the concluded agreement in inspite of the concluded agreement in her her her favour, therefore, filed the present suit. In favour, therefore, filed the present suit. In favour, therefore, filed the present suit. In 5 the the the present suit, the plaintiff has reiterated the present suit, the plaintiff has reiterated the present suit, the plaintiff has reiterated the position position position stated by her in the communications sent stated by her in the communications sent stated by her in the communications sent toto to the the the defendants that she was ready and willing to defendants that she was ready and willing to defendants that she was ready and willing to perform perform perform her part of the contract and defendants her part of the contract and defendants her part of the contract and defendants were were were bound and liable to perform their part of the bound and liable to perform their part of the bound and liable to perform their part of the contract contract contract to transfer the suit property in her to transfer the suit property in her to transfer the suit property in her favour. favour. favour. The plaint was amended from time to time The plaint was amended from time to time The plaint was amended from time to time and and and amended prayer clauses in the suit reads as amended prayer clauses in the suit reads as amended prayer clauses in the suit reads as follows follows follows : : : (a) (a) (a) for a declaration that there is a valid, for a declaration that there is a valid, for a declaration that there is a valid, binding binding binding and subsisting Agreement for Sale of and subsisting Agreement for Sale of and subsisting Agreement for Sale of the the the said property described inExhibit A to said property described inExhibit A to said property described inExhibit A to the the the Plaint except the bungalow occupied by Plaint except the bungalow occupied by Plaint except the bungalow occupied by the the the defendant nos. 1 and 2 by the defendant nos. 1 and 2 by the defendant nos. 1 and 2 by the defendants defendants defendants to the plaintiff on the terms and to the plaintiff on the terms and to the plaintiff on the terms and conditions conditions conditions set out in paragraphs 3 and 4 of set out in paragraphs 3 and 4 of set out in paragraphs 3 and 4 of the the the Plaint and the said writing dated 8th Plaint and the said writing dated 8th Plaint and the said writing dated 8th April, April, April, 1979 (Exhibit B to the Plaint; 1979 (Exhibit B to the Plaint; 1979 (Exhibit B to the Plaint; (b) (b) (b) that the Defendants be ordered and that the Defendants be ordered and that the Defendants be ordered and decreed decreed decreed to specifically perform the said to specifically perform the said to specifically perform the said Agreement Agreement Agreement set out in paragraphs 3 and 4 of set out in paragraphs 3 and 4 of set out in paragraphs 3 and 4 of the the the Plaint together with the said writing Plaint together with the said writing Plaint together with the said writing dated dated dated 8th Apri 1979 (Exhibit B to the 8th Apri 1979 (Exhibit B to the 8th Apri 1979 (Exhibit B to the Plaint) Plaint) Plaint) and to do all things necessary and and to do all things necessary and and to do all things necessary and toto to execute all necessary conveyance, execute all necessary conveyance, execute all necessary conveyance, documents, documents, documents, deeds and things to effectuate deeds and things to effectuate deeds and things to effectuate the the the transfer of the said property in favour transfer of the said property in favour transfer of the said property in favour of of of the the the Plaintiff; Plaintiff; Plaintiff; (c) (c) (c) That in the alternative to prayers (a) That in the alternative to prayers (a) That in the alternative to prayers (a) and and and (b) above: (b) above: (b) above: (i) (i) (i) the the the defendants be ordered and decreed to defendants be ordered and decreed to defendants be ordered and decreed to pay pay pay to the plaintiff a sum of Rs.2,00,000/- to the plaintiff a sum of Rs.2,00,000/- to the plaintiff a sum of Rs.2,00,000/- (Rupees (Rupees (Rupees Two lacs only) or such other sum as Two lacs only) or such other sum as Two lacs only) or such other sum as may may may be determined by this Hon’ble Court be determined by this Hon’ble Court be determined by this Hon’ble Court together together together with interest thereon at the rate with interest thereon at the rate with interest thereon at the rate of of of 15 % per annum from the date of the suit 15 % per annum from the date of the suit 15 % per annum from the date of the suit till till till payment or realisation as per payment or realisation as per payment or realisation as per particulars particulars particulars of of of claim Exhibit G to the plaint claim Exhibit G to the plaint claim Exhibit G to the plaint as as as damages in lieu of specific performance ; damages in lieu of specific performance ; damages in lieu of specific performance ; 6 (ii) (ii) (ii) that the defendants be ordered and that the defendants be ordered and that the defendants be ordered and decreed decreed decreed to pay to the plaintiffs the said to pay to the plaintiffs the said to pay to the plaintiffs the said sum sum sum of Rs.5000/- together with interest of Rs.5000/- together with interest of Rs.5000/- together with interest thereon thereon thereon at the rate of 15 % per annum from at the rate of 15 % per annum from at the rate of 15 % per annum from the the the date hereof till payment or realisation date hereof till payment or realisation date hereof till payment or realisation (iii) (iii) (iii) that it may be declared that the said that it may be declared that the said that it may be declared that the said property property property described in Exhibnit A to the described in Exhibnit A to the described in Exhibnit A to the plaint plaint plaint except the bungalow occupied by the except the bungalow occupied by the except the bungalow occupied by the defendant defendant defendant nos. 1 and 2 is charged with the nos. 1 and 2 is charged with the nos. 1 and 2 is charged with the payment payment payment by the defendants to the plaintiff by the defendants to the plaintiff by the defendants to the plaintiff of of of the said sum of Rs.5000/- and interest the said sum of Rs.5000/- and interest the said sum of Rs.5000/- and interest thereon thereon thereon as set out in prayers (c) (ii) above as set out in prayers (c) (ii) above as set out in prayers (c) (ii) above (iv) (iv) (iv) that the said property described in that the said property described in that the said property described in Exhibit Exhibit Exhibit A A A to the plaint (except the bungalow to the plaint (except the bungalow to the plaint (except the bungalow occupied occupied occupied by the defendant nos. 1 and 2) be by the defendant nos. 1 and 2) be by the defendant nos. 1 and 2) be sold sold sold by and under the directions of this by and under the directions of this by and under the directions of this Hon’ble Hon’ble Hon’ble Court Court Court in the event of the defendants in the event of the defendants in the event of the defendants failure failure failure to to to pay the said sum of Rs.5000/- and pay the said sum of Rs.5000/- and pay the said sum of Rs.5000/- and the the the net sale proceeds thereof be applied in net sale proceeds thereof be applied in net sale proceeds thereof be applied in or or or towards the satisfaction of the towards the satisfaction of the towards the satisfaction of the plaintiff’s plaintiff’s plaintiff’s dues under prayer (c) (ii) above dues under prayer (c) (ii) above dues under prayer (c) (ii) above ; (d) (d) (d) that pending the hearing and final that pending the hearing and final that pending the hearing and final disposal disposal disposal of the suit the Court Receiver or of the suit the Court Receiver or of the suit the Court Receiver or some some some other fit and proper person be other fit and proper person be other fit and proper person be appointed appointed appointed a receiver of the said property a receiver of the said property a receiver of the said property described described described in Exhibit A to the plaint, except in Exhibit A to the plaint, except in Exhibit A to the plaint, except the the the bungalow occupied by the defendants nos. bungalow occupied by the defendants nos. bungalow occupied by the defendants nos. 1 and 2 with all powers under Order XL, Rule and 2 with all powers under Order XL, Rule and 2 with all powers under Order XL, Rule 1 of the Code of Civil Procedure 1908 ; of the Code of Civil Procedure 1908 ; of the Code of Civil Procedure 1908 ; (e) (e) (e) that pending the hearing and final that pending the hearing and final that pending the hearing and final disposal disposal disposal of the suit the defendants their of the suit the defendants their of the suit the defendants their servants servants servants and agents be restrained by an and agents be restrained by an and agents be restrained by an interim interim interim order and injunction of this Hon’ble order and injunction of this Hon’ble order and injunction of this Hon’ble Court Court Court from in any manner disposing of, from in any manner disposing of, from in any manner disposing of, alienating, alienating, alienating, encumbering, transferring, encumbering, transferring, encumbering, transferring, inducting inducting inducting any person into, parting with the any person into, parting with the any person into, parting with the possession possession possession of or creating any rights in to of or creating any rights in to of or creating any rights in to or or or upon the said property described in upon the said property described in upon the said property described in Exhibit Exhibit Exhibit A hereto or any part thereof except A hereto or any part thereof except A hereto or any part thereof except the the the bungalow occupied by the defendant nos. bungalow occupied by the defendant nos. bungalow occupied by the defendant nos. 1 and 2. and 2. and 2. (f) (f) (f) for ad interim reliefs in terms of for ad interim reliefs in terms of for ad interim reliefs in terms of prayers prayers prayers (d) (d) (d) and (e)