Monday, 4 February 2013

Serial number of Notorisation including the number of the Register maintained by the Notary public to be disclosed in the notorised document


The defendant No.1 has contended  that the declarations
which are shown to be notorised were not indeed signed by her before
any Notary.  Defendant Nos. 3 and 4 have filed affidavits in that behalf.
It is of course not known how defendant Nos.3 and 4 would be in a
position to mention about the bonafides of the transaction between the
plaintiff and the defendant No.1.  They have produced the letter of the
Notary stating that the documents were not executed in their presence
and were not registered in the Notarial Register.  Of course the statutory
requirement under the Notories Act read along with the Government
Circular  dated  18  December  2001  mandatorily  requires  the  Serial
number of Notorisation including the number of the Register maintained
by the Notary public to be disclosed in the notorised document which is
not  shown  in  this  case.  The  absence  of  this  mandatory  particulars
themselves may rule out notorisation of the document.  The declarations
must, therefore, be  taken  not to have been notorised.  (See  Bipin
Ganatra vs. Keshavrao J. Bhosle 2009 (3) Bom. C.R. 363 and KBC
Picture vs. A.R. Murgadoss & Ors, 2009 (2) All MR 108)


IN THE HIGH COURT OF  JUDICATURE AT BOMBAY.
 ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO.1443 OF 2006
IN
SUIT NO.1166 OF 2006
Nirav Deepak Modi )


V/s.
1.Najoo Behram Bhiwandiwala )
  

CORAM: MRS. ROSHAN DALVI, J.

Judgment Pronounced on: 3
rd
 February, 2012.

JUDGMENT:
The plaintiff has filed the above  suit for specific performance of
an oral agreement stated to have been entered into by the plaintiff with
defendant No.1 in the beginning of April, 2002 pursuant to which the
defendant  No.1  made  two  declarations  on  29  August,  2002  and  21
March 2003 and for other ancillary reliefs.
2. The plaintiff has taken out the above Notice of Motion for
appointment of Court Receiver and the usual injunctions for protecting
the suit property.
3. The plaintiff is admittedly the  licensor  of the defendant
No.1.   The  license  is  created  in  the  name  of  defendant  No.2,  thegopi 3 nm-1443-2006 in suit 1166-06
Company of the plaintiff in which he is a director, The license is in
respect  of two  flats  in  the  building  known   as  “Nepean  House”  at
Malabar Hill, Mumbai showing   Defendant No.1 as the owner. 
4. It is the plaintiff’s case that consequent upon the license in
his favour, defendant No.1 and the plaintiff negotiated for purchase of
the licensed premises by the plaintiff.  The negotiations culminated in an
oral agreement under which the plaintiff was given option to purchase
the suit property licensed to him for a sum of Rs.16 crores.  The option
was  to  be  exercised  during  the  period  of  the  license  between  1
st
December,  2003  and  30  November  2008.   The  consideration  then
payable  by way of earnest was Rs.10 lakhs.  The purchase would be
under the Maharashtra Ownership Flats (Regulation of the Promotion
of  Construction,  Sale,  Management  and  Transfer)  Act,  1963
(“Apartment Ownership Act”).
5. The plaintiff claims to have paid Rs.10.00 lakhs  as earnest
to  defendant  No.1  on  21  March,  2003  by  cheque.   The  plaintiff
accordingly claims to have exercised his option.
6. It is the case of the defendant No.1 that she executed what
is stated to be her declarations under a misrepresentation  that those
declarations were under Section 2 of the Apartment Ownership Act.  She
has , therefore, refuted the option to purchase the licensed premises by
the  plaintiff.   She  claims  that  the  declarations  are  bogus  and  no
consideration is received by her.   This is upon the premise that the
declarations are inconsistent with each other and are blank in certain
material particulars.  She further claims that she has already executed a
conveyance in respect of the suit premises in favour of the defendantgopi 4 nm-1443-2006 in suit 1166-06
Nos.3 and 4  who have been inducted in the licensed premises after
possession of the licensed premises was obtained by her in a litigation
filed by her from the plaintiff in the competent forum.
7. Defendant Nos.3 and 4 are in possession of the said flats.  A
Memorandum of Understanding (MoU) dated 11 April, 2007 has been
executed between defendant No.1 and defendant No.4 recital G of in
which the factum of this litigation and the dispute between the plaintiff
and  defendant  No.1  is  expressly  mentioned.   The  factum  of  the
declaration dated 21 March 2003 got executed from her without being
informed of the content, meaning and purport thereof is also mentioned.
Clause 7.1.5 of the MoU shows the earnest of Rs..10.00 lakhs  received
by her by cheque No.128276 dated 21 March 2003 from the plaintiff
sent to her by the then Advocates M/s.D.M. Harish and Co.,  and held by
them in  escrow, which was not encashed by her.
8. The plaintiff claims that this clause itself shows sufficient
notice  of  the  plaintiff’s  claim  upon  defendant  Nos.3  and  4  and
consequently defendant Nos.3 and 4 are purchasers with notice of the
plaintiff’s claim.  The plaintiff has also registered notice of lis pendens
on 3 May 2004, a fortnight after the filing of the suit and before the
execution of the MoU on 11 April 2007 between defendant No.1 and
defendant No.4.
9. For grant of the reliefs to the plaintiff, the prima facie case
of the plaintiff which is required to be seen by the Court would be
essentially  upon  reading  the  declarations  themselves  as  also
circumstantial evidence.gopi 5 nm-1443-2006 in suit 1166-06
10. There  are  four declarations  relied  upon  by  the  plaintiff.
Two declarations are of defendant No.1 dated 29 August 2002 and 21
st
March 2003 granting the plaintiff the option to purchase the property.
Two declarations are of the plaintiff exercising his option  on paying the
earnest amount for the sale to be executed in his name or in the name of
his Company.  These declarations are marked as Exhibits.
Exhibit  D-1 is executed by defendant No.1 on stamp paper
purchased  on  29  August  2002  under  No.3997  in  the  name  of  the
defendant No.1.  Clause 16 thereof mentions  the  leave and license
agreement  and  the  option  to  purchase  the  licensed  premises  on  a
consideration of Rs.16,00,00,000/-.  Rs.16,00,00,000/- are made of Rs.
15,90,00,000/-  and Rs.10,00,000/-, which  appears  to be the earnest
amount liable to be forfeited with no right of refund if the option is not
exercised.  Credit of the security deposit paid by the plaintiff  under the
license agreement initially executed on 28 August 2002 is allowed.  A
declaration under Section 2 of the Apartment Ownership Act was to be
executed  by  defendant  No.1  for  conveying  and  transferring  to  the
plaintiff, as the option holder,  the suit premises. 
The declaration Exhibit D-2 is  executed  by  the plaintiff
also on stamp paper purchased on 29 August 2002  under No.3998.  The
draft of both these declarations was annexed to the declaration dated 29
August, 2002.  A Condominium was to be formed and the administration
of the Condominium was to be as described in the declaration to be
executed  which  facts  were  also  mentioned  in  the  said  declaration.
Incidentally the draft declaration  under Section 2 of the Apartment
Ownership Act annexed to the declaration itself has been signed and
initialled   by defendant No.1. gopi 6 nm-1443-2006 in suit 1166-06
11. The declaration of the plaintiff shows an oral agreement between
the parties arrived at on 29 August 2002, the date of its execution and
the purchase of the stamp paper.  The agreement mentions about the
declaration of the same date executed by the defendant No.1 and the
acceptance of all the terms and conditions thereof by the plaintiff.  
12. Declaration at Exhibit D-3 has been executed by defendant
No.1 on  21 March  2003 and  the  declaration  at  Exhibit  D-4 by  the
plaintiff on the same date.  Both these documents are executed on stamp
paper purchased on 17 March 2003 by both the parties from the same
stamp vendor.  Declaration at Exhibit D-3 bears the stamp No.159 and
declaration at Exhibit D-4 bears the stamp No.162.  Similar recitals,
consideration and clauses are in these declarations as in the declaration
dated  29  August  2002  save  and  except  the  fact  about  the  licensed
property.  
Exhibit D-3, the declaration of 21 March 2003 of defendant
No.1, shows the consideration of Rs.10,00,000/- required to be paid on
that day which is paid by cheque and acknowledged by a signed receipt.
The particulars of the cheque are not mentioned in the declaration. A
receipt is separately shown by the plaintiff setting out the description of
the property to be purchased, but without the particulars of the cheque.
The Xerox copy  of the Account Payee cheque No.129276 dated 21
March  2003  in  the  name  of  defendant  No.1  for  Rs.10,00,000/-  is
produced by the plaintiff.  Though the receipt of Rs.10,00,000/- is orally
denied on behalf of defendant No.1, the plaintiff’s Counsel has shown
the same cheque bearing the same number mentioned in Clause 7.1.5 of
the MoU between the defendant No.1 and defendant Nos. 3 and 4 datedgopi 7 nm-1443-2006 in suit 1166-06
11 April 2007.  The earnest amount, therefore, is shown to have been
paid by the plaintiff.  Of course it is not credited by the defendant No.1.
That is  at her volition. 
13. The  declarations   bear  the  docket  of  the  plaintiff’s
Attorneys.   However, the plaintiff has shown that both the parties were
represented and advised by their respective Solicitors.  Defendant No.1
was  represented  by  two  Solicitors  of  two  different  firms,  Mr.  Anil
Harish of M/s. D.M. Harish & Co.,  and Mr. Adil Kajiji of Gagrat & Co.
14. The two declarations do not show anything amiss  except
for  the  fact  that  the  declaration  under  Section  2  of  the  Apartment
Ownership Act annexed to the declaration of defendant No.1 dated 29
August 2002 has been signed by defendant No.1, though it is in the form
of a draft annexed to that declaration.
15. Since the purport of the declaration is not accepted and
admitted by the parties, the circumstantial evidence about its execution
and the state of defendant No.1 at or before the time of its execution
would  be  required  to  be  seen  from  other  contemporaneous
circumstantial evidence.  The plaintiff has sought to show this by certain
correspondence between the Attorneys and the parties aside from the
aforesaid payment of the cheque admittedly received by the defendant
No.1 and made known to defendant Nos. 3 and 4.
16. The correspondence would, therefore, have to be seen.  The
first letter is dated 26 August 2004 written about one and half years after
the declarations were executed by the parties requiring the defendant
No.1 to execute further declaration under Section 2 of the Apartmentgopi 8 nm-1443-2006 in suit 1166-06
Ownership Act and the ultimate sale in favour of the plaintiff.
17. The letter dated 26 August 2004 written by Mr. Adil Kajiji
on the letterhead of M/s.Gagrat & Co.,  to the plaintiff shows  two
Supplementary Agreements, the draft of which were enclosed with that
letter.  These are immaterial for our consideration. Page 2 of the letter
mentions about the declaration dated 21 March 2003.  It specifies that
the rights of the plaintiff would relate only to the premises covered
under the Agreements executed between the parties on 28 August 2002
and 21 March 2003 for the incorporation of the Condominium and the
rest of the property known as Nepean House would remain vested in
defendant No.1.  This letter shows that the plaintiff would not have the
rights  of  a  co-owner  in  the  entire  property.  It  reflects  the  intent  of
defendant No.1 to form a Condominium so that the ownership rights of
the plaintiff would be contained within the premises licensed to the
plaintiff and occupied by the plaintiff alone.  These licenses were under
the Agreement dated 28 August 2002, a day prior to the first declaration
of defendant No.1 and 21 March 2003 the date of the 2
nd
 declaration of
defendant No.1. It was, therefore,  present to the defendant No.1 that
there would be a purchase of the property by the plaintiff, but that would
be only the licensed premises and not of  the  other part of the property.
The plaintif would, therefore, be a member of the Condominium and but
not a co-owner with defendant No.1 and would have no right in the
other part of the property of defendant No.1.  This letter, therefore,
shows specifically the option to purchase the licensed premises, if not
more.
18.  The copy of the letter is not marked to the defendant No.1
and is accordingly refuted by the defendant No.1. The plaintiff wasgopi 9 nm-1443-2006 in suit 1166-06
called upon to produce the original letter for inspection. It is stated that
the plaintiff has not produced that letter.  The Court called upon the
plaintiff to produce the letter.  The plaintiff has produced the original
letter in the Court.  The original letter is as per the photocopy annexed to
the plaint.  Prima facie it appears to have been written by Mr. Adil
Kajiji.  Mr. Adil Kajiji has since expired.  
19. The next letter also written by Mr. Adil Kajiji is the letter
dated 25 October 2005, more than a year after the first letter.  The copy
of the letter is not marked to the defendant No.1 and is refuted by the
defendant No.1.  It is addressed to the other Attorney of defendant No.1
Mr. Anil Harish.  It is not known how the plaintiff obtained the copy of
the letter. It is, of course, for the plaintiff to prove  the truth of the
contents of these letters received by the plaintiff at the time of trial.  
20. The letter dated 25 October 2005 relates to the conversion
of Nepean House property under the Apartment Ownership Act and
drafting of relevant documents.  It also relates to transfer of premises in
Nepean  House  and  drafting  of  relevant  documents.   It  refers  to  a
meeting  held  on  7  October  2005  when  the  four  documents  were
discussed.   These  four  documents  are   an  agreement  recording  the
exercise of purchase option, declaration under the Act (Section 2 of the
Apartment Ownership Act), Bye-laws and Rules and Regulations of the
Condominium and the date of sale of apartment.  It shows that there
were certain drafts prepared before this letter.  These drafts were read
and revised by the author of the letter.  They were engrossed for the
approval of the other Attorney and also defendant No.1. If approved
they were to be sent to the plaintiff for approval.gopi 10 nm-1443-2006 in suit 1166-06
Two subject matters are unmistakenly shown; not only the
formation of condominium, but the transfer of the premises.  The only
occupants of the entire Nepean House consisting of a building of ground
plus  four upper floors    are  defendant No.1 and the plaintiff.   The
transfer of the premises, therefore, could only be from defendant No.1 to
the plaintiff.  The documents which were to be drafted were for the
conversion  of  the  property  and  the  transfer  of  the  premises.    The
conversion  would be from ownership to condominium.  The transfer
would be from defendant No.1 to the plaintiff. The condominium would
be in respect of the entire property.  The transfer would be in respect of
the licensed premises.
The  four  documents  show  that  the  draft  agreement  for
recording the exercise of purchase option was made out.  It, therefore,
shows  the negotiations to that end as is the plaintiff’s case.   The
declarations  under  the  Act  mentioned  in  the  letter  is  indeed  the
declaration under Section 2 of the Act, a draft of which was annexed to
the aforesaid two declarations of the defendant No.1 herself.  These
drafts  were  to  be  finalised.   The  bye-laws,  and  the  Rules  and
Regulations show the specific intent to form a condominium.  The only
outsider in the condominium was the plaintiff. Hence without his option
to purchase the condominium could not have been formed.  The last of
the document is a Deed of Sale of the apartment which follows as a
corollary  to the other documents.  
   
21. If  defendant  No.2  had  executed  the  declarations  on  29
August 2002 and 21 March 2003 there would not have been any use or
necessity to draft the four documents  mentioned in this  letter.  The
declarations can go  only as far as that.  It grants the option to purchasegopi 11 nm-1443-2006 in suit 1166-06
to the plaintiff. Upon such agreement recording such purchase a Deed of
Sale would be executed.  To specify that the sale was only for flats and
occupation  of  the  plaintiff,  the  declaration  under  Section  2  of  the
Apartment Ownership Act would have to be made upon the formation of
the condominium and for which the bye-laws, Rules and Regulations
would have to be drafted.   Once approved by the defendant No.1, it
would have to be sent for approval to the plaintiff.  The letter, therefore,
shows the acts done by the defendant No.1 through her Attorneys upon
the option to purchase given to the plaintiff which came to be exercised
by the plaintiff on the dates of the declarations made by defendant No.1.
22. The third communication is an email dated 14 November 2005
following upon the letter sent a fortnight earlier.  It is sent by Mr. Kajiji
to  the  plaintiff  attaching  the  agreement  recording  the  exercise  of
purchase  option,  the  bye-laws,  Rules  and  Regulations  of  the
condominium, the declaration under the Act and the Deed of Sale of
Apartment,  precisely the documents  which were in draft form sent
under the letter dated 25 October, 2005.  The subject matter of the said
email is identical to the subject matter in the letter dated 25 October,
2005.  The drafts of the said four documents were sent to the plaintiff.
Consequently the defendant No.1 acted upon the drafts and brought
them  fruition. 
23. By  his letter dated 27 December 2005 the partner of the
Attorney’s firm of the plaintiff confirmed the option to purchase, the
specific  premises  in  the  occupation  of  the  plaintiff  upon  the
consideration as mentioned in the initial declarations of the defendant
No.1. However, the Attorneys required Rs.6,00,00,000/- being paid as
security  deposit  under  the  license  agreements  of  the  plaintiff  to  begopi 12 nm-1443-2006 in suit 1166-06
adjusted as part consideration by defendant No.1.  The Attorneys wanted
the convenient dates for the completion of the transaction.
24. Instead  of  completing  the  transaction,  appropriating  the
security deposit and admitting the receipt of the earnest shown to have
been received by the defendant No.1 and completing the transaction, the
defendant No.1 failed to comply with the letter.  There is, however, no
denial of the receipt of that letter.
25. Another  letter  was  addressed  by  the  partner  of  the
plaintiff’s Attorneys firm to the defendant No.1 on 25 January 2006
recording the exercise of the option and the consideration payable and
making time the essence of the contract.
26. Defendant No.1 refuted the transaction and repudiated the
option  by  her  Attorneys  letter  dated  21  February  2006.  The  earlier
supplementary agreement, breaches of the agreements, etc., have been
recited in the said letter with which the suit is not concerned.  The
defendant No.1 appropriated Rs.1.5 crores from the security deposit of
Rs.6,00,00,000/-, terminated the license agreement and sought to return
to the plaintiff Rs.4.5 crores.  With regard to the suit transaction and the
obligation of defendant No.1 therein she contended that she was given
to understand that the documents which she signed were declarations
under Section 2 of the Apartment Ownership Act.  She did not have the
originals.  She stated about certain irregularities therein being that they
were  registered  and  that  she  did not  recollect  the  execution  of two
separate declarations for the same purpose.  She specifically refuted
Clause 18 of the declaration dated 21 March 2003 (which is analogous
to Clause 16 of the declaration dated 29 August 2002).  She contendedgopi 13 nm-1443-2006 in suit 1166-06
that  it  was  “jarringly  thrown  in”.  The  said  clause  shows   the
consideration  under  the  contract  as  also  the  credit  for  the  security
deposit  amount  claimed  in  the  plaintiff’s  Attorneys’ notice  and  the
consequent conveyance and transfer of the premises to the plaintiff and
the formation and administration of the condominium as required by the
defendant No.1.  The clause in fact fits in with the cheque for the earnest
amount issued by the plaintiff and admitted by the defendant No.1 in the
MoU executed with defendant Nos.2 and 4 as also the 4 documents
mentioned in Mr.Adil Kajiji’s letter and email dated 25 October 2005
and 14 November 2005 respectively, being the subject matter of the two
communications and the documents in that behalf.  The receipt of the
earnest amount is for no other transaction. 
27. The repudiation  by the defendant No.1 is, therefore, seen to
be without cause.  This would constitute a breach of the Agreement
between  the  parties  as  reflected  in  the  two  declarations  and  the
consequent correspondence.  The case of oral agreement of the plaintiff
is prima facie substantiated by this corroborative  evidence. 
28. After  this  the  defendant  No.1  sought  to  terminate  the
license of the plaintiff and recover possession of the licensed premises
from the plaintiff.   She put the defendant Nos. 2 and 4  in possession of
the premises under the MoU executed by her dated 11 April 2007.  She
however,  put them to notice  of the plaintiff’s claim.   The plaintiff’s
claim is for specific performance of the oral agreement including two
declarations dated 29 August 2002 and 21 March 2003.
29. It  is  argued  on  behalf  of  the  defendant  No.1  that  the
consideration mentioned in the declarations which defendant No.1 wasgopi 14 nm-1443-2006 in suit 1166-06
made to  sign under a misrepresentation that it was the declaration under
Section 2 of the Apartment Ownership Act  was much lower than the
market  value of the premises  on  the date  of the  declarations.   The
plaintiff has  produced the extract of the Ready Recknor  of that area of
2002 which shows the same market value prevailing in the area.  It,
therefore, shows that the consideration for the option to purchase was
not only an approximate market value, but was rather accurate.  If there
was no option to purchase, the condominium of the defendant No.1 and
her daughter alone would have served the purpose. The draft agreements
mentioned in the correspondence of Mr.Adil Kajiji  relate also to such
transfer and demonstrate the option to purchase without which such
transfer would not have been effectuated.  The fact that the documents
were emailed to the plaintiff shows the status is that the plaintiff would
reside in the condominium which was intended to be formed.
30. This  evidence  makes  out  the  prima  facie  case  of  the
plaintiff of the oral agreement claimed to have been entered into by and
between the plaintiff and defendant No.1.
31. The plaintiff has produced an affidavit of the broker of the
parties showing the brokerage received for the license created and the
brokerage receivable for the purchase to be effected.  The email of the
broker addressed to the plaintiff dated 8 April 2002 make a reference to
the  exercise  of  the  option  of  purchasing  the  property  for
Rs.16,00,00,0000/- as the agreed price.   The letter of the broker to the
Attorney of defendant No.1, Mr. Anil Harish dated 11 April 2002 makes
a reference to the right of refusal to be exercised by the plaintiff in the
event  of  sale  of any other part of the family house.  This shows the
pre-emptive right that the plaintiff claimed in the property.  The furthergopi 15 nm-1443-2006 in suit 1166-06
letters of the broker set out the brokerage received and receivable.  The
broker has, however, not shown his bank account statement showing the
amount of brokerage credited to his account.  Consequently the receipts
stated by him are not otherwise substantiated by documentary evidence.
The evidence of the broker would be required to prove the letters and
emails  stated  to  have  been  written  by  him.   This  would  be  only
corroborative evidence and may not be taken into account for seeing the
prima facie case of the plaintiff which is demonstrated even without
such evidence.
32. The defendant No.1 has contended  that the declarations
which are shown to be notorised were not indeed signed by her before
any Notary.  Defendant Nos. 3 and 4 have filed affidavits in that behalf.
It is of course not known how defendant Nos.3 and 4 would be in a
position to mention about the bonafides of the transaction between the
plaintiff and the defendant No.1.  They have produced the letter of the
Notary stating that the documents were not executed in their presence
and were not registered in the Notarial Register.  Of course the statutory
requirement under the Notories Act read along with the Government
Circular  dated  18  December  2001  mandatorily  requires  the  Serial
number of Notorisation including the number of the Register maintained
by the Notary public to be disclosed in the notorised document which is
not  shown  in  this  case.  The  absence  of  this  mandatory  particulars
themselves may rule out notorisation of the document.  The declarations
must, therefore, be  taken  not to have been notorised.  (See  Bipin
Ganatra vs. Keshavrao J. Bhosle 2009 (3) Bom. C.R. 363 and KBC
Picture vs. A.R. Murgadoss & Ors, 2009 (2) All MR 108).  
33. It is also contended that the declarations are not registered.gopi 16 nm-1443-2006 in suit 1166-06
However,  the  suit  for  specific  performance  can  be  filed  upon
unregistered documents under the proviso to Section 49 of the Indian
Registration Act.  In fact a specific performance suit can be filed, as in
this case, also upon an oral agreement.  It is the agreement that the
plaintiff  essentially  seeks  to  have  specifically  enforced  as  per  the
declaration  executed  by  the  parties.   Consequently,  the  lack  of
notorisation or registration cannot dis-entitle the plaintiff  to the relief at
least prima facie  for protection of the premises agreed to be purchased
by the plaintiff.  
34. The  plaintiff  would  be  entitled  to  interim  reliefs  in  the
Notice of Motion as also final relief in the suit only upon the plaintiff
showing  his  readiness  and  willingness  to  perform  his  part  of  the
contract.  The plaintiff is a purchaser of two flats.  The only part of the
contract required to be performed by the plaintiff  is the payment of the
agreed consideration.  The agreed consideration is Rs.16,00,00,000/-.
The adjustment of Rs.6,00,00,000/- for security deposit claim by the
plaintiff is not an admitted position.  The licensed premises has been
recovered from the plaintiff.  Certain damages to the suit property are
claimed  by  the  defendant  No.1.   Certain  damages  incurred  by  the
defendant No.1 are, therefore, claimed to have been recovered by the
defendant No.1 in a sum of Rs.1.5 crores.  The defendant No.1 has
deposited the amount less than the security deposit of Rs.6,00,00,000/-
in  the  Rent  Court  upon  obtaining  possession.   It  would  not  be
appropriate to enter into arithmetics of the security lying to the credit of
the plaintiff which could be adjusted by defendant No.1 or by the Court
in   view  of the dispute  between  the  parties.   The   plaintiff  would,
therefore, have to deposit the entire consideration under the option to
purchase as reflected in the two declarations of defendant No.1.gopi 17 nm-1443-2006 in suit 1166-06
35. Under  these  circumstances  the  relief  of  injunction  for
protecting the suit property is required to be granted, but only upon the
plaintiff  performing  his  part  of  the  contract,  which  the  plaintiff  is
required  to  be   ready  and  willing  to  perform  at  all  material  times
including at the time of filing  the suit.  This would be only upon
payment of the entire consideration by the plaintiff which is the only
obligation that the plaintiff is required to perform.  
Since the defendant Nos. 3 and 4 are in possession, the
further  transfer  by  the  defendant  Nos.  3  and  4  would  have  to  be
restrained for protection of the suit premises pending the suit upon the
consideration under the suit transaction being paid by the plaintiff.  
A case for appointment of Court Receiver is not made out.  
The alienation of the premises by defendant Nos. 1, 3 and 4
is required to be restrained as also the demolition of the suit property
being the two flats agreed to be purchased by the plaintif pending the
suit.  
36. Hence the following order:-
(i) The plaintiff shall deposit in the Court Rs.16,00,00,000/-
(Rupees  Sixteen  Crores  Only)   within  two  weeks  from
today.   If  the  plaintiff  deposits  the  said  amount  the
defendant Nos. 1, 3 and 4 shall not sell, alienate, dispose of,
encumber, create any third party rights or otherwise induct
any  third  party  in  the  suit  premises  pending  the  suit.
Defendant Nos. 1, 3 and 4 shall also not demolish the suitgopi 18 nm-1443-2006 in suit 1166-06
property or carry out any development activity in the suit
premises.
(ii) If the plaintiff fails to deposit the aforesaid consideration of
Rs.16,00,00,000/- (Rupees Sixteen Crores Only) within two
weeks from today there shall be no interim relief in favour
of the plaintiff.
(iii) Notice of Motion is disposed of accordingly.
      (MRS. ROSHAN DALVI, J.)

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