It is also surprising to note that though the agreement itself
provided for the payment of quantified damages of Rs.5,00,000/- together
with a sum of Rs.5,000/-, the appellant has not even bothered to raise his
claim for the damages during the period of 20 years, knowing fully well
that the respondent has failed to perform his part of the agreement by the
end of December, 1992. Though the respondent has already constructed
not one or two but seven buildings and disposed them of, till the appellant
preferred to remain silent. Hence, at this stage after 24 years when the
appellant is coming before the Court for specific performance of such
agreement, the Trial Court has rightly come to the prima facie conclusion
of the appellant not being interested in getting the possession of the
permanent alternate accommodation. Otherwise also, even assuming that
there was no such settlement, the fact remains that the agreement itself
provides for payment of quantified damages and in such situation even if
the relief of interim injunction as claimed by the appellant is not granted, if
the appellant ultimately succeeds in the suit, he will get the quantified
damages for Rs.5,00,000/- and the amount of Rs.5,000/- which he has
paid to the respondent. Therefore, there is no question of appellant
suffering any loss or hardship if the relief of interim injunction is not
granted.
15. As to the observations made by the Trial Court at the time of
granting ad interim relief on 28.06.2016, those observations were
simplicitor, prima facie view of the matter. Only when both the parties
were heard at length, the Trial Court has considered the case on merits
and thereafter rejected the Notice of Motion. I do not find that the Trial
Court has committed any error or the impugned order of the Trial Court
suffers from any illegality.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Amk
APPEAL FROM ORDER NO. 833 OF 2016
WITH
CIVIL APPLICATION NO. 1038 OF 2016
Mr. Oveash Mohsin Kadiwala
Vs.
Mr. A. Rahim Haroon Malkani & Ors.
CORAM : DR. SHALINI PHANSALKAR-JOSHI, J.
DATE : 6thSEPTEMBER, 2016.
Citation:2016(6) ALLMR166
2. Heard learned counsel for the appellant and respondents
finally at the stage of admission itself.
3. As all these appeals involved common question of facts and
law and they are heard together, they are being decided by this common
judgment.
4. These appeals are preferred against the order dated
28.06.2016 passed by the City Civil Court, Mumbai thereby rejecting the
Notice of Motion, tendered by the appellant herein, seeking relief of interim
injunction, restraining the respondents from dealing with, disposing of,
alienating, assigning or creating third party rights or interest in respect of
certain shop premises in the proposed construction of Building No.8.
5. For the purpose of convenience, facts of Appeal No. 833 of
2016 are referred by the parties and by this Court also for deciding these
appeals.
6. The appellants herein are the shop purchasers in the suit
building under the Maharashtra Ownership Flats (Regulation of the
promotion of construction, sale, management and transfer) Act, 1963 and
the respondents are the builders and developers. By virtue of an
agreement entered into between the appellant and respondents on
27.01.1992, the respondents have agreed to allot shop premises
admeasuring 290 sq. ft. (carpet area) on ground floor of the new building,
that may be constructed on ownership basis, at the lumpsum cost of
Rs.10,000/- on or before 31.12.1992, and on failure to do so, the agreed
amount of quantified liquidated damages to the tune of Rs.5,00,000/- only.
As per clause 8 of the agreement, the amount of Rs.5,000/- was paid by
the appellant at the time of the agreement and remaining amount of
Rs.5,000/- was to be paid at the time of getting possession of the shop
premises.
7. It is the grievance of the appellant that respondent herein has
neither given him the possession of the shop premises as agreed to, nor
the quantified liquidated damages of Rs.5,00,000/- in the alternate.
Despite the two notices issued to respondent on 04.02.2012 and
22.08.2012, the respondent has failed to perform his part of the contract
and, therefore, the appellant is constrained to file the suit for specific
performance of agreement.
8. Along with suit, the appellant has filed a Notice of Motion
restraining the respondents from creating third party interest in at least one
shop premises in the proposed building, which can be reserved for the
purpose of allotment to the appellant.
9. This Notice of Motion came to be resisted by the respondents
vide affidavit-in-reply contending, inter alia, that the appellant has failed to
aver and prove that he has performed or has always been ready and
willing to perform the essential terms of the contract. It is submitted that
the plaintiff-appellant has never shown his readiness to hand over the
possession of temporary alternate accommodation, against the
possession of the suit shop. It is submitted that the appellant has received
the possession of temporary alternate accommodation, which he seems to
have disposed of. Moreover, the appellant has not paid the balance
amount of Rs.5,000/- which he has mischievously attempted to pay for the
first time in the year 2012 i.e. after the lapse of more than 20 years. In
such situation, there is no question of appellant being entitled even for the
specific performance of the agreement, his suit itself being barred by
limitation. According to the respondent, the very fact, that the appellant
has never demanded the specific performance of the agreement for last
21 years and has remained silent, makes it clear that the appellant must
have entered into the oral settlement with the predecessor-in-title of the
respondent, Mr. Haroon Ali Malkani in the year 1993-94 and as a result of
the said settlement, the appellant has given up claim for permanent
alternate accommodation or quantified compensation, against the
allotment of temporary alternate accommodation, on permanent basis. In
sum and substance, it was contended that the appellant has absolutely no
prima facie case and hence, his Notice of Motion for interim relief of
injunction needs to be dismissed.
10. The appellant filed his affidavit-in-rejoinder and disputed the
contention of the respondent that he has entered into any oral settlement
with Mr. Haroon Ali Malkani and in pursuance of the said oral settlement,
he has disposed of the temporary alternate accommodation. As per the
appellant, since beginning, he is ready and willing to perform his part of
the contract. He has also issued notices to the respondent. Only with an
ulterior motive, the respondent has denied his claim. It was submitted that
if such a relief of interim injunction is not granted, the appellant will face
hardship in getting the suit shop allotted to him as per the agreement. As
the respondent has already disposed of the flats in 7 buildings, now, it is
the last building No.8, which pertains to the sale component and in the
said building, it is necessary to reserve one shop for the appellant as per
the agreement.
11. The Trial Court, after hearing the learned counsel for the
parties, was pleased to hold that the appellant has failed to make out a
prima facie case, especially considering the fact that the appellant
remained silent about his alleged claim in newly constructed building since
the year 1998 till the filing of the suit. Therefore, the Trial Court held that
there is possibility of appellant entering into oral settlement with Mr.
Haroon Ali Malkani and disposing of the alternate accommodation allotted
to him. In view thereof, the Trial Court rejected the Notice of Motion.
Hence, the instant appeal.
12. I have heard the submissions advanced by the learned
counsel for the appellant and respondents, from which certain facts
emerged as undisputed on record, to the effect that the agreement
between appellant and respondent was executed way back in the year
1992. Paragraph 7 of the agreement makes it clear that time was the
essence of the contract and the respondent was to allot the appellant
permanent alternate accommodation on or before 31.12.1992. Otherwise,
the respondent was liable to pay the quantified damages of Rs.5,00,000/-
together with repayment of Rs.5,000/- which the appellant has paid to the
respondent towards the costs of the purchase of the shop premises.
13. As rightly observed by the Trial Court therefore, there is
inordinate delay of more than 22 years on the part of the appellant in filing
the present suit. Even assuming that in the year 2012, the appellant had
issued the notices, even then there is delay of 20 years. One fails to
understand as to why the appellant remained conspicuously silent for such
a long period of 20 years, if the possession of alternate accommodation,
like the shop, was to be given to him by the end of December, 1992 itself.
When the agreement itself was making it clear that time was the essence
of the contract, then there is absolutely no explanation on the part of the
appellant as to why he kept silent for such a long period of 20 years
without taking any steps for execution of the specific performance of the
said agreement. The first notice is issued in the year 2011, which makes it
clear that the appellant has either not been ready to perform his part of the
agreement or in the alternate he was no more interested in getting the
possession of the permanent alternate accommodation.
14. It is also surprising to note that though the agreement itself
provided for the payment of quantified damages of Rs.5,00,000/- together
with a sum of Rs.5,000/-, the appellant has not even bothered to raise his
claim for the damages during the period of 20 years, knowing fully well
that the respondent has failed to perform his part of the agreement by the
end of December, 1992. Though the respondent has already constructed
not one or two but seven buildings and disposed them of, till the appellant
preferred to remain silent. Hence, at this stage after 24 years when the
appellant is coming before the Court for specific performance of such
agreement, the Trial Court has rightly come to the prima facie conclusion
of the appellant not being interested in getting the possession of the
permanent alternate accommodation. Otherwise also, even assuming that
there was no such settlement, the fact remains that the agreement itself
provides for payment of quantified damages and in such situation even if
the relief of interim injunction as claimed by the appellant is not granted, if
the appellant ultimately succeeds in the suit, he will get the quantified
damages for Rs.5,00,000/- and the amount of Rs.5,000/- which he has
paid to the respondent. Therefore, there is no question of appellant
suffering any loss or hardship if the relief of interim injunction is not
granted.
15. As to the observations made by the Trial Court at the time of
granting ad interim relief on 28.06.2016, those observations were
simplicitor, prima facie view of the matter. Only when both the parties
were heard at length, the Trial Court has considered the case on merits
and thereafter rejected the Notice of Motion. I do not find that the Trial
Court has committed any error or the impugned order of the Trial Court
suffers from any illegality.
16. Having regard to the conspectus of the facts and
circumstances of the case, the agreement itself takes care of the interest
of the appellant, if ultimately he succeeds in the suit. Hence, on failure of
the appellant to make out the prima facie case, balance of convenience or
irreparable loss, the impugned order of the Trial Court rejecting the Notice
of Motion does not call for any interference at the hands of this Court.
After all it was a discretionary relief claimed by the appellant and the Trial
Court has rightly exercised the said discretion.
17. Hence, the appeals, therefore, hold no merits and stand
dismissed. All the Civil Applications pending in the appeals having
become infructuous, stand dismissed.
[DR. SHALINI PHANSALKAR-JOSHI, J.]
Print Page
provided for the payment of quantified damages of Rs.5,00,000/- together
with a sum of Rs.5,000/-, the appellant has not even bothered to raise his
claim for the damages during the period of 20 years, knowing fully well
that the respondent has failed to perform his part of the agreement by the
end of December, 1992. Though the respondent has already constructed
not one or two but seven buildings and disposed them of, till the appellant
preferred to remain silent. Hence, at this stage after 24 years when the
appellant is coming before the Court for specific performance of such
agreement, the Trial Court has rightly come to the prima facie conclusion
of the appellant not being interested in getting the possession of the
permanent alternate accommodation. Otherwise also, even assuming that
there was no such settlement, the fact remains that the agreement itself
provides for payment of quantified damages and in such situation even if
the relief of interim injunction as claimed by the appellant is not granted, if
the appellant ultimately succeeds in the suit, he will get the quantified
damages for Rs.5,00,000/- and the amount of Rs.5,000/- which he has
paid to the respondent. Therefore, there is no question of appellant
suffering any loss or hardship if the relief of interim injunction is not
granted.
15. As to the observations made by the Trial Court at the time of
granting ad interim relief on 28.06.2016, those observations were
simplicitor, prima facie view of the matter. Only when both the parties
were heard at length, the Trial Court has considered the case on merits
and thereafter rejected the Notice of Motion. I do not find that the Trial
Court has committed any error or the impugned order of the Trial Court
suffers from any illegality.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Amk
APPEAL FROM ORDER NO. 833 OF 2016
WITH
CIVIL APPLICATION NO. 1038 OF 2016
Mr. Oveash Mohsin Kadiwala
Vs.
Mr. A. Rahim Haroon Malkani & Ors.
CORAM : DR. SHALINI PHANSALKAR-JOSHI, J.
DATE : 6thSEPTEMBER, 2016.
Citation:2016(6) ALLMR166
2. Heard learned counsel for the appellant and respondents
finally at the stage of admission itself.
3. As all these appeals involved common question of facts and
law and they are heard together, they are being decided by this common
judgment.
4. These appeals are preferred against the order dated
28.06.2016 passed by the City Civil Court, Mumbai thereby rejecting the
Notice of Motion, tendered by the appellant herein, seeking relief of interim
injunction, restraining the respondents from dealing with, disposing of,
alienating, assigning or creating third party rights or interest in respect of
certain shop premises in the proposed construction of Building No.8.
5. For the purpose of convenience, facts of Appeal No. 833 of
2016 are referred by the parties and by this Court also for deciding these
appeals.
6. The appellants herein are the shop purchasers in the suit
building under the Maharashtra Ownership Flats (Regulation of the
promotion of construction, sale, management and transfer) Act, 1963 and
the respondents are the builders and developers. By virtue of an
agreement entered into between the appellant and respondents on
27.01.1992, the respondents have agreed to allot shop premises
admeasuring 290 sq. ft. (carpet area) on ground floor of the new building,
that may be constructed on ownership basis, at the lumpsum cost of
Rs.10,000/- on or before 31.12.1992, and on failure to do so, the agreed
amount of quantified liquidated damages to the tune of Rs.5,00,000/- only.
As per clause 8 of the agreement, the amount of Rs.5,000/- was paid by
the appellant at the time of the agreement and remaining amount of
Rs.5,000/- was to be paid at the time of getting possession of the shop
premises.
7. It is the grievance of the appellant that respondent herein has
neither given him the possession of the shop premises as agreed to, nor
the quantified liquidated damages of Rs.5,00,000/- in the alternate.
Despite the two notices issued to respondent on 04.02.2012 and
22.08.2012, the respondent has failed to perform his part of the contract
and, therefore, the appellant is constrained to file the suit for specific
performance of agreement.
8. Along with suit, the appellant has filed a Notice of Motion
restraining the respondents from creating third party interest in at least one
shop premises in the proposed building, which can be reserved for the
purpose of allotment to the appellant.
9. This Notice of Motion came to be resisted by the respondents
vide affidavit-in-reply contending, inter alia, that the appellant has failed to
aver and prove that he has performed or has always been ready and
willing to perform the essential terms of the contract. It is submitted that
the plaintiff-appellant has never shown his readiness to hand over the
possession of temporary alternate accommodation, against the
possession of the suit shop. It is submitted that the appellant has received
the possession of temporary alternate accommodation, which he seems to
have disposed of. Moreover, the appellant has not paid the balance
amount of Rs.5,000/- which he has mischievously attempted to pay for the
first time in the year 2012 i.e. after the lapse of more than 20 years. In
such situation, there is no question of appellant being entitled even for the
specific performance of the agreement, his suit itself being barred by
limitation. According to the respondent, the very fact, that the appellant
has never demanded the specific performance of the agreement for last
21 years and has remained silent, makes it clear that the appellant must
have entered into the oral settlement with the predecessor-in-title of the
respondent, Mr. Haroon Ali Malkani in the year 1993-94 and as a result of
the said settlement, the appellant has given up claim for permanent
alternate accommodation or quantified compensation, against the
allotment of temporary alternate accommodation, on permanent basis. In
sum and substance, it was contended that the appellant has absolutely no
prima facie case and hence, his Notice of Motion for interim relief of
injunction needs to be dismissed.
10. The appellant filed his affidavit-in-rejoinder and disputed the
contention of the respondent that he has entered into any oral settlement
with Mr. Haroon Ali Malkani and in pursuance of the said oral settlement,
he has disposed of the temporary alternate accommodation. As per the
appellant, since beginning, he is ready and willing to perform his part of
the contract. He has also issued notices to the respondent. Only with an
ulterior motive, the respondent has denied his claim. It was submitted that
if such a relief of interim injunction is not granted, the appellant will face
hardship in getting the suit shop allotted to him as per the agreement. As
the respondent has already disposed of the flats in 7 buildings, now, it is
the last building No.8, which pertains to the sale component and in the
said building, it is necessary to reserve one shop for the appellant as per
the agreement.
11. The Trial Court, after hearing the learned counsel for the
parties, was pleased to hold that the appellant has failed to make out a
prima facie case, especially considering the fact that the appellant
remained silent about his alleged claim in newly constructed building since
the year 1998 till the filing of the suit. Therefore, the Trial Court held that
there is possibility of appellant entering into oral settlement with Mr.
Haroon Ali Malkani and disposing of the alternate accommodation allotted
to him. In view thereof, the Trial Court rejected the Notice of Motion.
Hence, the instant appeal.
12. I have heard the submissions advanced by the learned
counsel for the appellant and respondents, from which certain facts
emerged as undisputed on record, to the effect that the agreement
between appellant and respondent was executed way back in the year
1992. Paragraph 7 of the agreement makes it clear that time was the
essence of the contract and the respondent was to allot the appellant
permanent alternate accommodation on or before 31.12.1992. Otherwise,
the respondent was liable to pay the quantified damages of Rs.5,00,000/-
together with repayment of Rs.5,000/- which the appellant has paid to the
respondent towards the costs of the purchase of the shop premises.
13. As rightly observed by the Trial Court therefore, there is
inordinate delay of more than 22 years on the part of the appellant in filing
the present suit. Even assuming that in the year 2012, the appellant had
issued the notices, even then there is delay of 20 years. One fails to
understand as to why the appellant remained conspicuously silent for such
a long period of 20 years, if the possession of alternate accommodation,
like the shop, was to be given to him by the end of December, 1992 itself.
When the agreement itself was making it clear that time was the essence
of the contract, then there is absolutely no explanation on the part of the
appellant as to why he kept silent for such a long period of 20 years
without taking any steps for execution of the specific performance of the
said agreement. The first notice is issued in the year 2011, which makes it
clear that the appellant has either not been ready to perform his part of the
agreement or in the alternate he was no more interested in getting the
possession of the permanent alternate accommodation.
14. It is also surprising to note that though the agreement itself
provided for the payment of quantified damages of Rs.5,00,000/- together
with a sum of Rs.5,000/-, the appellant has not even bothered to raise his
claim for the damages during the period of 20 years, knowing fully well
that the respondent has failed to perform his part of the agreement by the
end of December, 1992. Though the respondent has already constructed
not one or two but seven buildings and disposed them of, till the appellant
preferred to remain silent. Hence, at this stage after 24 years when the
appellant is coming before the Court for specific performance of such
agreement, the Trial Court has rightly come to the prima facie conclusion
of the appellant not being interested in getting the possession of the
permanent alternate accommodation. Otherwise also, even assuming that
there was no such settlement, the fact remains that the agreement itself
provides for payment of quantified damages and in such situation even if
the relief of interim injunction as claimed by the appellant is not granted, if
the appellant ultimately succeeds in the suit, he will get the quantified
damages for Rs.5,00,000/- and the amount of Rs.5,000/- which he has
paid to the respondent. Therefore, there is no question of appellant
suffering any loss or hardship if the relief of interim injunction is not
granted.
15. As to the observations made by the Trial Court at the time of
granting ad interim relief on 28.06.2016, those observations were
simplicitor, prima facie view of the matter. Only when both the parties
were heard at length, the Trial Court has considered the case on merits
and thereafter rejected the Notice of Motion. I do not find that the Trial
Court has committed any error or the impugned order of the Trial Court
suffers from any illegality.
16. Having regard to the conspectus of the facts and
circumstances of the case, the agreement itself takes care of the interest
of the appellant, if ultimately he succeeds in the suit. Hence, on failure of
the appellant to make out the prima facie case, balance of convenience or
irreparable loss, the impugned order of the Trial Court rejecting the Notice
of Motion does not call for any interference at the hands of this Court.
After all it was a discretionary relief claimed by the appellant and the Trial
Court has rightly exercised the said discretion.
17. Hence, the appeals, therefore, hold no merits and stand
dismissed. All the Civil Applications pending in the appeals having
become infructuous, stand dismissed.
[DR. SHALINI PHANSALKAR-JOSHI, J.]
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