Perhaps it is unusual that in a suit such as this, an order should be made
for specific performance and, in default, for damages. This is not a matter of
the Court being unable to compel specific performance. It is, rather, a question
of a defendant or judgment debtor refusing or failing to perform his obligation
not just under a contract, but under a decree of a court of competent
jurisdiction. That would leave a hapless plaintiff to seek what might perhaps be
an ineffective further remedy. It simply cannot be where the rules of Code of
Civil Procedure, 1908 drive a plaintiff in such a situation to yet another long
drawn out round of litigation in the executing court or elsewhere. A defendant
who does not even take the trouble to enter a defence, and against whom a
exparte decree is passed, must know that these decrees are not to be taken
lightly. Certainly, they cannot be ignored. Nor should a successful plaintiff be
asked to leave the Court with nothing more than a paper decree in his hands. A conditional decree is, in my view, a permissible exercise of discretion only to ensure that the defendant against whom the decree is passed fulfills his contractual obligations to the plaintiffs. In Nirmala Anand v Advent Corporation
(P) Ltd,1 the Supreme Court held that a decree for specific performance can
always be made conditional. Usually, such a decree requires some specified
conditions to be fulfilled before the decree for specific performance is made
effective. There is, to my mind, no reason why, if the defendants are enjoined
to specifically perform an agreement and fail to do so, the plaintiffs should not
then be entitled to a decree in compensation or damages.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
SUIT NO.2170 OF 2010
Jayesh Gopaldas Sampat Vs Paresh Satyendra Vohra
CORAM : G.S.Patel, J.
DATED : Monday, 27th January 2014
Citation;2014(5) ALLMR 205
1. The suit is listed for exparte decree. The defendants were served on 21st
September 2011. No written statement has been filed. None appears for the
defendants.
2. Heard Mr. Naushad Engineer, learned Advocate for the plaintiffs.
Perused the plaint. The Plaintiffs have tendered an affidavit of documents and
a compilation, as also an affidavit in lieu of examination in chief of one Jayesh
Gopaldas Sampat, the 1st plaintiff. Mr. Sampat is personally present in Court.
He confirms the correctness of the statements made in the affidavit in lieu of
examination in chief. The documents produced by him along with his affidavit
of documents, and attested to in his affidavit in lieu of examination in chief are
taken on record and marked Exhibit “P1” collectively. Plaintiffs shall file a
compilation of photocopies of these documents within one week from today.
This compilation shall be verified by the office and the original documents
shall then be returned to the advocate for the Plaintiffs.
3. This is a suit for specific performance. The 2nd plaintiff is the 1st
plaintiff’s mother, and the 3rd plaintiff is his wife. The plaintiffs seek a specific
performance of a flat purchase agreement dated 24th September 2006.
4. Defendant Nos.1 to 4 are the owners of a immovable property at
Borivali. There stood a building called Padmalaya of ground and three floors
on this plot. The plaintiffs resided in flat No.4 on the ground floor of this
building along with the 1st plaintiff’s brother, one Sameer Sampat
(“Sameer”), and their family members. The 1st plaintiff’s father was the
original tenant of that flat. He died intestate and was survived by the 1st
plaintiff’s mother, Sameer, the 1st plaintiff (“Jayesh”) and their married
sisters.
5. Defendant Nos.1 to 4, the original owners, entered into a development
agreement with the 5th defendant, a firm of developers, of which defendants
Nos. 6 and 7 are the partners, for the demolition of “Padmalaya” and the
construction of a new building in its stead. Defendant Nos.1 to 4, the
landlords, approached Jayesh and Sameer and their family offered them
permanent alternate accommodation in the new building. An initial round of
negotiations failed. There followed certain eviction proceedings in the Small
Causes Court, and a fresh round of negotiations. During these further
negotiations, Jayesh, his mother and his married sister agreed that the tenancy
could be transmitted to Sameer’s name. Declarations were executed to that
effect.
6. Thereafter, an agreement dated 27th February 2005 was executed
between defendant Nos.1 to 4 and Sameer, under which Sameer was to get a
flat of about 742 square feet on the second floor of the proposed building. The
eviction proceedings were also compromised. It seems that two brothers
desired that they live as neighbours in proximity to each other. Jayesh therefore
decided to purchase a flat in the same building. Sameer entered into a
supplementary agreement with the defendants, by which, instead of a flat on
the second floor, he was now to be provided a flat on the fourth floor, viz., Flat
No.402, in the same building along with an additional car parking space and
additional carpet area. Jayesh, for his part, agreed to purchase a flat on the fifth
floor, i.e., flat No.502, directly above the flat to be purchased by Sameer.
7. It was in these circumstances that an agreement for purchase of flat
No.502 was executed between the plaintiffs and defendant No.5 on 24th
September 2006. The agreement is registered. The flat purchase agreement
requires the 5th defendant to sell to the plaintiffs flat No.502 with a carpet area
of about 1160 square feet and car parking space No.11, for a total consideration
of Rs.29,35,000/-. The consideration was payable in two installments. The
first, Rs.13,35,500/- was to be paid on execution of the agreement. Its receipt is
admitted in the agreement itself. The second instalment of Rs.15,99,500/- was
to be paid by Jayesh against his being given possession.
8. Jayesh says that he was at all times ready and willing to perform his
obligations under this agreement. He did, in fact, perform his obligations by
making payment of Rs.13,35,500/-. The time for payment of the second
instalment has not yet been reached, as the defendants have not completed
construction of the building or handed him possession. He is ready and willing
to make payment of the second instalment even now if possession is handed
over to him. In paragraph 21 of his affidavit in lieu of examination in chief, the
1st plaintiff has reaffirmed and reiterated his continuing readiness and
willingness to perform his obligations under the flat purchase agreement.
9. Under the flat purchase agreement, possession was to be given to the
plaintiffs on or before 31st December 2006. This was not done. In the
meantime, Jayesh and his family, including Jayesh’s brother, Sameer, vacated
the tenanted premises occupied by them, so that reconstruction/development
could commence. As the progress of the work was very slow, the plaintiffs,
through their advocates, addressed a letter to the defendants on 12th June
2007. The defendants’ advocates responded on 20th June 2007 requesting the
plaintiffs to bear with them. A further reply followed on 24th July 2007. At
internal page 4 of this letter, the defendants assured the plaintiffs that the
development work had been resumed and would be completed at the earliest
within a period of no more than 12 months. As no work seemed to be
progressing at site, the plaintiffs’ advocates sent a further letter/notice to the
defendants on 12th October 2007. To this, there is no response till date. The
plaintiffs therefore filed this suit on 12th July 2010, within time.
10. In his affidavit evidence, Jayesh has adduced evidence and material in
support of his claim for damages. As regards the quantification of damages, he
has candidly admitted that there is an arithmetical error in computing the
damages mentioned in prayer clause (b). The correct figure of
Rs.1,87,05,000/- is set out in paragraph 23 as the loss sought to be avoided.
11. It seems that the work on project is currently at a standstill. There is no
doubt that the defendants are bound by the terms of the agreement and must
fulfill their obligations under it. They must complete construction of the
building and deliver possession of flat No.502 and car parking space No.11 to
the plaintiffs. The plaintiffs are, therefore, entitled to a decree for specific
performance in terms of prayer (a).
12. Prayer (b) is the usual prayer for damages in the alternative, i.e., if a
decree for specific performance is not granted. Having regard to the peculiar
facts of the present case, in my view, it is necessary and in order to meet the
ends of justice that a conditional decree be made. The defendants are entirely
without justification in not completing the project in time, although the
plaintiffs vacated the tenanted premises and paid the first instalment under the
agreement in question. The plaintiffs are now being forced to live elsewhere,
even though they specifically entered into the flat purchase agreement so that
they could live near the 1st plaintiff’s brother, Sameer. Therefore, in addition
to enjoining the defendants to specifically perform the agreement dated 24th
September 2006, a conditional decree must follow against the defendants
should they fail to do so.
13. Perhaps it is unusual that in a suit such as this, an order should be made
for specific performance and, in default, for damages. This is not a matter of
the Court being unable to compel specific performance. It is, rather, a question
of a defendant or judgment debtor refusing or failing to perform his obligation
not just under a contract, but under a decree of a court of competent
jurisdiction. That would leave a hapless plaintiff to seek what might perhaps be
an ineffective further remedy. It simply cannot be where the rules of Code of
Civil Procedure, 1908 drive a plaintiff in such a situation to yet another long
drawn out round of litigation in the executing court or elsewhere. A defendant
who does not even take the trouble to enter a defence, and against whom a
exparte decree is passed, must know that these decrees are not to be taken
lightly. Certainly, they cannot be ignored. Nor should a successful plaintiff be
asked to leave the Court with nothing more than a paper decree in his hands. A
conditional decree is, in my view, a permissible exercise of discretion only to
ensure that the defendant against whom the decree is passed fulfills his
contractual obligations to the plaintiffs. In Nirmala Anand v Advent Corporation
(P) Ltd,1 the Supreme Court held that a decree for specific performance can
always be made conditional. Usually, such a decree requires some specified
conditions to be fulfilled before the decree for specific performance is made
effective. There is, to my mind, no reason why, if the defendants are enjoined
to specifically perform an agreement and fail to do so, the plaintiffs should not
then be entitled to a decree in compensation or damages.
14. The permanent injunction sought in terms of prayer clause (c) is much
too wide as it relates to the entire property. Mr. Engineer fairly states that the
injunction sought must be restricted to the flat and car parking space in
question.
15. Hence, there will be a decree in favour of the plaintiffs and against the
defendants in terms of prayer clause (a). The defendants shall specifically
perform the flat purchase agreement dated 24th September 2006 (copy at
Exhibit “B” to the Plaint) within twelve months from the date of this decree,
i.e., by 27th January 2015.
16. In the event of the defendants failing to specifically perform the
agreement dated 24th September 2006 in terms of the preceding clause (a) by
27th January 2015, there will be a decree jointly and severally the defendants in
the amount of Rs.1,87,05,000/- as damages and compensation with further
interest thereon at the rate of 12% per annum from the date of filing of the suit
till realization.
17. There will also be a decree against the defendants and in favour of the
plaintiffs in terms of prayer clause (c) restricted to Flat No.502 and car parking
space no.11.
1 (2002) 5 SCC 481
18. There shall also be a decree against the defendants for costs, quantified
at Rs.1.5 lakhs.
19. Drawn up decree is expedited. Sealing of decree is dispensed with.
(G.S. Patel, J.)
Print Page
for specific performance and, in default, for damages. This is not a matter of
the Court being unable to compel specific performance. It is, rather, a question
of a defendant or judgment debtor refusing or failing to perform his obligation
not just under a contract, but under a decree of a court of competent
jurisdiction. That would leave a hapless plaintiff to seek what might perhaps be
an ineffective further remedy. It simply cannot be where the rules of Code of
Civil Procedure, 1908 drive a plaintiff in such a situation to yet another long
drawn out round of litigation in the executing court or elsewhere. A defendant
who does not even take the trouble to enter a defence, and against whom a
exparte decree is passed, must know that these decrees are not to be taken
lightly. Certainly, they cannot be ignored. Nor should a successful plaintiff be
asked to leave the Court with nothing more than a paper decree in his hands. A conditional decree is, in my view, a permissible exercise of discretion only to ensure that the defendant against whom the decree is passed fulfills his contractual obligations to the plaintiffs. In Nirmala Anand v Advent Corporation
(P) Ltd,1 the Supreme Court held that a decree for specific performance can
always be made conditional. Usually, such a decree requires some specified
conditions to be fulfilled before the decree for specific performance is made
effective. There is, to my mind, no reason why, if the defendants are enjoined
to specifically perform an agreement and fail to do so, the plaintiffs should not
then be entitled to a decree in compensation or damages.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
SUIT NO.2170 OF 2010
Jayesh Gopaldas Sampat Vs Paresh Satyendra Vohra
CORAM : G.S.Patel, J.
DATED : Monday, 27th January 2014
Citation;2014(5) ALLMR 205
1. The suit is listed for exparte decree. The defendants were served on 21st
September 2011. No written statement has been filed. None appears for the
defendants.
2. Heard Mr. Naushad Engineer, learned Advocate for the plaintiffs.
Perused the plaint. The Plaintiffs have tendered an affidavit of documents and
a compilation, as also an affidavit in lieu of examination in chief of one Jayesh
Gopaldas Sampat, the 1st plaintiff. Mr. Sampat is personally present in Court.
He confirms the correctness of the statements made in the affidavit in lieu of
examination in chief. The documents produced by him along with his affidavit
of documents, and attested to in his affidavit in lieu of examination in chief are
taken on record and marked Exhibit “P1” collectively. Plaintiffs shall file a
compilation of photocopies of these documents within one week from today.
This compilation shall be verified by the office and the original documents
shall then be returned to the advocate for the Plaintiffs.
3. This is a suit for specific performance. The 2nd plaintiff is the 1st
plaintiff’s mother, and the 3rd plaintiff is his wife. The plaintiffs seek a specific
performance of a flat purchase agreement dated 24th September 2006.
4. Defendant Nos.1 to 4 are the owners of a immovable property at
Borivali. There stood a building called Padmalaya of ground and three floors
on this plot. The plaintiffs resided in flat No.4 on the ground floor of this
building along with the 1st plaintiff’s brother, one Sameer Sampat
(“Sameer”), and their family members. The 1st plaintiff’s father was the
original tenant of that flat. He died intestate and was survived by the 1st
plaintiff’s mother, Sameer, the 1st plaintiff (“Jayesh”) and their married
sisters.
5. Defendant Nos.1 to 4, the original owners, entered into a development
agreement with the 5th defendant, a firm of developers, of which defendants
Nos. 6 and 7 are the partners, for the demolition of “Padmalaya” and the
construction of a new building in its stead. Defendant Nos.1 to 4, the
landlords, approached Jayesh and Sameer and their family offered them
permanent alternate accommodation in the new building. An initial round of
negotiations failed. There followed certain eviction proceedings in the Small
Causes Court, and a fresh round of negotiations. During these further
negotiations, Jayesh, his mother and his married sister agreed that the tenancy
could be transmitted to Sameer’s name. Declarations were executed to that
effect.
6. Thereafter, an agreement dated 27th February 2005 was executed
between defendant Nos.1 to 4 and Sameer, under which Sameer was to get a
flat of about 742 square feet on the second floor of the proposed building. The
eviction proceedings were also compromised. It seems that two brothers
desired that they live as neighbours in proximity to each other. Jayesh therefore
decided to purchase a flat in the same building. Sameer entered into a
supplementary agreement with the defendants, by which, instead of a flat on
the second floor, he was now to be provided a flat on the fourth floor, viz., Flat
No.402, in the same building along with an additional car parking space and
additional carpet area. Jayesh, for his part, agreed to purchase a flat on the fifth
floor, i.e., flat No.502, directly above the flat to be purchased by Sameer.
7. It was in these circumstances that an agreement for purchase of flat
No.502 was executed between the plaintiffs and defendant No.5 on 24th
September 2006. The agreement is registered. The flat purchase agreement
requires the 5th defendant to sell to the plaintiffs flat No.502 with a carpet area
of about 1160 square feet and car parking space No.11, for a total consideration
of Rs.29,35,000/-. The consideration was payable in two installments. The
first, Rs.13,35,500/- was to be paid on execution of the agreement. Its receipt is
admitted in the agreement itself. The second instalment of Rs.15,99,500/- was
to be paid by Jayesh against his being given possession.
8. Jayesh says that he was at all times ready and willing to perform his
obligations under this agreement. He did, in fact, perform his obligations by
making payment of Rs.13,35,500/-. The time for payment of the second
instalment has not yet been reached, as the defendants have not completed
construction of the building or handed him possession. He is ready and willing
to make payment of the second instalment even now if possession is handed
over to him. In paragraph 21 of his affidavit in lieu of examination in chief, the
1st plaintiff has reaffirmed and reiterated his continuing readiness and
willingness to perform his obligations under the flat purchase agreement.
9. Under the flat purchase agreement, possession was to be given to the
plaintiffs on or before 31st December 2006. This was not done. In the
meantime, Jayesh and his family, including Jayesh’s brother, Sameer, vacated
the tenanted premises occupied by them, so that reconstruction/development
could commence. As the progress of the work was very slow, the plaintiffs,
through their advocates, addressed a letter to the defendants on 12th June
2007. The defendants’ advocates responded on 20th June 2007 requesting the
plaintiffs to bear with them. A further reply followed on 24th July 2007. At
internal page 4 of this letter, the defendants assured the plaintiffs that the
development work had been resumed and would be completed at the earliest
within a period of no more than 12 months. As no work seemed to be
progressing at site, the plaintiffs’ advocates sent a further letter/notice to the
defendants on 12th October 2007. To this, there is no response till date. The
plaintiffs therefore filed this suit on 12th July 2010, within time.
10. In his affidavit evidence, Jayesh has adduced evidence and material in
support of his claim for damages. As regards the quantification of damages, he
has candidly admitted that there is an arithmetical error in computing the
damages mentioned in prayer clause (b). The correct figure of
Rs.1,87,05,000/- is set out in paragraph 23 as the loss sought to be avoided.
11. It seems that the work on project is currently at a standstill. There is no
doubt that the defendants are bound by the terms of the agreement and must
fulfill their obligations under it. They must complete construction of the
building and deliver possession of flat No.502 and car parking space No.11 to
the plaintiffs. The plaintiffs are, therefore, entitled to a decree for specific
performance in terms of prayer (a).
12. Prayer (b) is the usual prayer for damages in the alternative, i.e., if a
decree for specific performance is not granted. Having regard to the peculiar
facts of the present case, in my view, it is necessary and in order to meet the
ends of justice that a conditional decree be made. The defendants are entirely
without justification in not completing the project in time, although the
plaintiffs vacated the tenanted premises and paid the first instalment under the
agreement in question. The plaintiffs are now being forced to live elsewhere,
even though they specifically entered into the flat purchase agreement so that
they could live near the 1st plaintiff’s brother, Sameer. Therefore, in addition
to enjoining the defendants to specifically perform the agreement dated 24th
September 2006, a conditional decree must follow against the defendants
should they fail to do so.
13. Perhaps it is unusual that in a suit such as this, an order should be made
for specific performance and, in default, for damages. This is not a matter of
the Court being unable to compel specific performance. It is, rather, a question
of a defendant or judgment debtor refusing or failing to perform his obligation
not just under a contract, but under a decree of a court of competent
jurisdiction. That would leave a hapless plaintiff to seek what might perhaps be
an ineffective further remedy. It simply cannot be where the rules of Code of
Civil Procedure, 1908 drive a plaintiff in such a situation to yet another long
drawn out round of litigation in the executing court or elsewhere. A defendant
who does not even take the trouble to enter a defence, and against whom a
exparte decree is passed, must know that these decrees are not to be taken
lightly. Certainly, they cannot be ignored. Nor should a successful plaintiff be
asked to leave the Court with nothing more than a paper decree in his hands. A
conditional decree is, in my view, a permissible exercise of discretion only to
ensure that the defendant against whom the decree is passed fulfills his
contractual obligations to the plaintiffs. In Nirmala Anand v Advent Corporation
(P) Ltd,1 the Supreme Court held that a decree for specific performance can
always be made conditional. Usually, such a decree requires some specified
conditions to be fulfilled before the decree for specific performance is made
effective. There is, to my mind, no reason why, if the defendants are enjoined
to specifically perform an agreement and fail to do so, the plaintiffs should not
then be entitled to a decree in compensation or damages.
14. The permanent injunction sought in terms of prayer clause (c) is much
too wide as it relates to the entire property. Mr. Engineer fairly states that the
injunction sought must be restricted to the flat and car parking space in
question.
15. Hence, there will be a decree in favour of the plaintiffs and against the
defendants in terms of prayer clause (a). The defendants shall specifically
perform the flat purchase agreement dated 24th September 2006 (copy at
Exhibit “B” to the Plaint) within twelve months from the date of this decree,
i.e., by 27th January 2015.
16. In the event of the defendants failing to specifically perform the
agreement dated 24th September 2006 in terms of the preceding clause (a) by
27th January 2015, there will be a decree jointly and severally the defendants in
the amount of Rs.1,87,05,000/- as damages and compensation with further
interest thereon at the rate of 12% per annum from the date of filing of the suit
till realization.
17. There will also be a decree against the defendants and in favour of the
plaintiffs in terms of prayer clause (c) restricted to Flat No.502 and car parking
space no.11.
1 (2002) 5 SCC 481
18. There shall also be a decree against the defendants for costs, quantified
at Rs.1.5 lakhs.
19. Drawn up decree is expedited. Sealing of decree is dispensed with.
(G.S. Patel, J.)
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