- 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION No. 1016 OF 2007 IN SUIT No. 543 OF 2007 Ameya Pratap Khandge ... Plaintiff Vs. Anik Development Corporation ... Defendant *** Mr. Y. V. Divekar i/b Prasanna Sarpotdar, for the Plaintiff. Mr. Sindha Shreedharan a/w Ms. Sudha Shreedharan, for the Defendant. *** CORAM : S. J. VAZIFDAR, J. DATE : OCTOBER 5, 2009. PC :- 1. The suit is for specific performance of an agreement for sale in respect of a flat admeasuring 545 Sq. ft. (built up area), by the defendants to the plaintiff. 2. The Notice of Motion seeks the usual reliefs for the appointment of a Court Receiver and for injunction in such a suit. 3. There is no dispute that a writing dated 20th February 2005 was signed by the parties. The writing is in the form of an application form. The same however, contains particulars of the flat - 2 - including the building/the plot on which the construction was to be carried out and the particulars of such construction. The application form also stipulates the rate per sq. ft. at Rs.3,000/- per sq. ft. and the aggregate amount payable by the plaintiff to the defendant at Rs.18,53,000/-. The application form further states the terms and conditions stated overleaf were acceptable to the plaintiff. A copy of the terms and conditions was furnished. 4. The first term stipulates that acceptance/rejection of this application was subject to the developer’s confirming the agreement. It was submitted that on the basis of this clause the defendant was entitled to terminate the agreement unilaterally at any stage. The submission is not well founded. 5. Term No.1 merely entitles the defendant to accept or reject the application form. There is no dispute that the application was accepted. Having accepted the same, it was not open to the defendant to subsequently terminate the agreement constituted thereby unilaterally. 6. Relying upon Clause 4 of the terms and conditions it was submitted that the agreement was contrary to the representation to that effect. Term No.4 states that no other application is made for the said scheme in the name of the applicant i.e. the plaintiff or any other other family member. It was submitted that in fact the plaintiff’s family members at some stage owned a flat in the said scheme. - 3 - 7. There is no pleading to this effect. This is a pure question of fact. Any contention based on Clause 4 ought to have been pleaded to enable the plaintiff to deal with the same. It is not open therefore, for the defendant to raise this contention without a pleading. 8. The clause at the highest is a purely a contractual stipulation between the parties. It is not based on any statutory bar. Assuming that the plaintiff or any member of his family had made an application for a flat in the said scheme, it was always open to the parties to waive the condition. There is nothing to suggest that when the application was made the defendants were unaware of either the plaintiff or any member of his family having made an application for a flat in the said scheme. Had the point been taken on affidavit, the plaintiff would have been able to deal with the same. In these circumstances, to permit the defendants to urge this point across the bar would deprive the plaintiff a right to deal with the same. 9. It is also admitted that the plaintiff had paid an amount of Rs.25,000/- and that the same was accepted by the defendants. 10. Correspondence thereafter ensued between the parties. By a letter dated 6th June 2005 the defendants called upon the plaintiff to make the payment of various amounts, aggregating to Rs.6,78,000/- stating that the same had been agreed to be paid. The agreement in fact did not contain any such condition. The plaintiff stated that he had obtained a loan from ICICI Bank. The plaintiff - 4 - further recorded that he had been promised by the defendant at every juncture that the agreement would be ready shortly but despite repeated follow up, there was no progress on this account. The plaintiff informed the defendants that the bank would disburse the amount only upon an agreement to sell being executed. The plaintiff therefore, once again requested the defendant to execute the agreement. 11. The defendants did not execute the agreement. Instead, by a letter dated 19th November 2005 the defendant called upon the plaintiff to make the payment of said amount of Rs.6,78,000/-. The defendant had said nothing about the execution of the agreement. 12. By a letter dated 8th December 1995 the defendant furnished an explanation for the delay in the delivery schedule and stated that the tentative date of completion would be December 2007. The defendant further informed the plaintiff that due to the delay if he wanted to reconsider the booking he could contact the defendant. Thus, the defendant expressly kept the agreement pending and valid. 13. By a letter dated 3rd April 2006 the defendant abruptly canceled the agreement stating that the plaintiff had failed to make payment in time and offered to return the amounts paid by the plaintiff. 14. Thereafter further correspondence ensued between the parties in the course of which they reiterated their respective cases. - 5 - Prima-facie at least there is no breach of the agreement by non payment. The plaintiff never refused to make payment. All that the plaintiff desired was the execution of the agreement. This was a minimum requirement by any bona-fide purchaser. It is difficult to understand why the defendant refused to execute the agreement. Even today the plaintiff is ready and wiling to pay the entire amount provided the defendants fulfill all their obligations. The defendants are not interested in doing so. Further the agreement itself did not require the plaintiff to make payment as demanded by the defendant. As stated earlier, by the letter dated 8th December 2005, the defendant had in fact accepted the agreement to be valid and subsisting. In fact as requested by the defendant the plaintiff executed a statement dated 22nd March 2006 accepting the possession date to be June 2008 and confirmed the booking. Even assuming that the time was of the essence of the contract, it therefore, ceased to be of the essence of the contract. The termination of 3rd April 2006 without making the time essence of the contract was therefore, ex-facie invalid. 15. In the circumstances, the Notice of Motion is made absolute absolute in terms of prayer Clause (a) except the words bracketed in red, namely “dealing with”. 16. Upon the occupation certificate being obtained, the defendant shall forthwith inform the plaintiff’s advocate of the same. Liberty to the plaintiff to apply for reliefs in terms of prayer Clause (d) for the appoint of the Court Receiver thereafter.