The learned Trial Judge had clearly recorded a
finding that the plaintiff was claiming a right to purchase the suit
property on the basis of the contents of the receipt and in that
context observed that it had to see whether the parties to the
receipt had the intention to bind themselves and subsequently to
enter into a detailed agreement. The learned Trial Judge had
observed that the contents of the receipt disclosed that the
property agreed to be sold was specifically described, that the
defendants had willingly accepted the amount, that documents
were to be furnished by the defendants and the time limit for
furnishing the same was clearly specified and that the
publication of the public notice by the plaintiff in the local daily
were clear pointers to the fact that the plaintiff had intention to
buy and the defendants had intention to sell the suit property to
the plaintiff. Therefore, there is no basis in the contention of
Shri S. G. Desai, learned Senior Counsel for the appellants that
the learned trial Judge had not examined the status of the
receipt and the conduct of the parties in arriving at a finding
that there was an express intention to purchase and an express
intention to sell the property in question.
27. The learned Judge for that matter had unlike the
contention of Shri S. G. Desai, learned Senior Counsel for the
appellants clearly recorded a prima facie finding that the equity
lay in the favour of the plaintiff who would suffer irreparable loss
and injuries in case the suit property was sold or alienated and
in the circumstances therefore the balance of convenience also
lay in favour of the plaintiff. The learned Judge for that matter
also recorded a finding that the receipt prima facie established
that there was binding agreement between the parties as
regards the sale of the suit property, that the plaintiff had
proved that he was ready and willing to perform his part of the
obligation and in those set of circumstances deemed it
appropriate to secure the plaintiff with the relief of injunction.
Though the order may not have been happily worded, the fact of
the matter remains that there is no warrant for interference with
the findings recorded by the learned Trial Judge only because a
different view may be possible in the circumstances of the case.
I therefore do not find any reason to concur with the contention
of Shri S. G. Desai, learned Senior Counsel for the appellants
that the plaintiff was unduly secured with the relief of injunction
by the learned Trial Judge on the specious premise that the
plaintiff had not expressed his intention to buy the property nor
was there any indication on behalf of the defendants to sell the
same to the plaintiff.
28. Section 10 of the Specific Relief Act, 1963 sets out
the cases in which the Specific Performance of Contract is
enforceable, however within the discretion of the Court. Looking
to the tenor of the pleadings and the reasons assigned by the
learned Judge, it cannot at all be heard on behalf of Shri S. G.
Desai, learned Senior Counsel for the appellants that the plaintiff
had failed to make out a case for specific performance of the
contract. Moreover there is also no warrant for entertaining the
contention on his behalf that the relief of injunction was barred
in terms of Section 41 of the Specific Relief Act when the plaintiff
had clearly set out his apprehension that he would suffer
irreparable loss in case the defendants were not restrained by an
order of injunction from creating any third party rights in
respect of the suit property.
IN THE HIGH COURT OF BOMBAY AT GOA.
APPEAL FROM ORDER NO. 22 OF 2015.
Eastern Star Hotels &
Resorts Pvt. Ltd
V/s
Sanjeev Dhingra,
Coram :- Nutan D. Sardessai,
Pronounced on:-8th September,2016.
Citation:2016(6) MHLJ 564
3. Ms. T. Ghanekar, learned Counsel waives notice on
behalf of the respondents.
4. Shri S. G. Desai, learned Senior Counsel came to be
heard on behalf of the appellants and Shri Sudin Usgaonkar,
learned Senior Counsel came to be heard on behalf of the
respondents.
5. Shri S. G. Desai, learned Senior Counsel for the
appellants adverted to the receipt which was the sheet anchor of
the respondent's case to buttress a foundation for the
agreement regarding the purchase of the property and
submitted that by no stretch of the imagination could it be
considered. As such it was merely a preparatory document and
did not have any of the trappings of an Agreement of Sale. He
relied in Kollipara Sriramulu(dead) Vs Aswatha Narayana
[AIR 1968 SC 1028] in that regard. He next adverted to the
Deed of Sale, the Deed of Rectification, the Public Notice issued
and the reply. Besides, he contended that the respondent had
suppressed the suit filed at New Delhi which was later on
withdrawn. The learned Trial Judge in the impugned order had
not given any finding that a concluded contract existed between
the parties. There was no prima facie finding on the possession
nor any reason assigned in that regard. The relief of Section 103
of the Specific Relief Act,1963 was misplaced and the findings
were otherwise not borne out from the records. He relied in
Wander Ltd Vs. Antox India Pvt. Ltd [(1990 supp) 1 SCC
727] and submitted that the impugned order called for an
interference.
6. Shri S. M. Ugaonkar, learned Senior Counsel for the
respondent at the outset placed reliance in Wander Ltd
(supra), and submitted that there was no reason for this Court
to interfere with the impugned order unless it was shown that it
was fraught with illegality, perversity and/or arbitrariness.
Merely because a different view was possible, there was no
reason to interfere with the impugned order. The Trial Judge
had rather preserved the said property by passing the impugned
order. The parties were ad-idem on the issue and the respondent
per se had shown that it was a concluded contract which
referred to the details of the transaction in the nature of the
details of the parties, that a part consideration had been
received, referred to the property in respect of which the said
amount had been received and its area and that the balance
would be paid as per the Memorandum of Understanding to be
executed by the parties within 10 days. What all was left for the
parties was to identify the modalities of the balance staggered
payment and the execution of the formal agreement.4
7. Shri S. M. Usgaonkar, learned Senior Counsel for the
respondent adverted to the pleadings in the plaint and
submitted that there were specific pleadings on the concluded
contract. There was no necessity for the issuance of a Public
Notice when the plaintiff was substantially contemplating the
purchase. He adverted to the reply and submitted that the suit
could be filed and was maintainable in terms of order XXI Rule
34 CPC. He further submitted that the judgment in Kollipara
Sriramulu (supra), was rather supporting his case and on
adverting to the contents of the written statement submitted
that there was no basis in their defence. Besides he adverted to
para 15 of the written statement to substantiate his case that if
the defence plea was that there was no concluded contract and
the letter was only to put the plaintiff to notice, then how they
could be called upon to pay the balance amount within 15 days.
He further relied in Arun Goradia Vs Mashi Jaisukhalal
Shah, [2009(1) Mh. L. J.610] in support of his case.
8. Shri S. M. Usgaonkar, learned Senior Counsel
submitted that besides it was his contention that the plea of
suppression raised by the defendants/appellants had to be of
material and relevant facts. There was no suppression of the
material and relevant facts by the respondent and there was an
order of withdrawal of the suit simpliciter before the High Court.5
Besides they had categorically denied in their rejoinder that the
filing of the suit in the Delhi High Court was totally irrelevant for
the purpose of the present proceedings and the interim relief
sought therein. The application for an interim relief in the suit
before the Delhi High Court was not heard on merits and the suit
was withdrawn on account of the objection to the territorial
jurisdiction of the Court. He further submitted that the Trial
Judge had properly considered the material at large before it
and took a prima facie view with which the Appellate Court
would not interfere with by applying the principles in Wander
Ltd (supra), only because a different view may be possible.
There was no merit in the appeal and therefore it had to be
dismissed.
9. Shri S. G. Desai, learned Senior Counsel for the
appellants contended in reply that there was no basis in the
pleadings on behalf of the respondent that there was no
suppression. Such a plea was not tenable as no ex-parte
hearing was granted. The plaintiff had to specifically plead the
apprehension. The defendants were put to notice of the suit in
Delhi and yet the ex-parte hearing was prayed and therefore
there was suppression of the relevant and material facts by
the respondent. He further submitted that the suit filed for
specific performance was fallacious when it did not indicate any6
intention to buy the property. No specific performance could be
granted in terms of Section 10 of the Specific Relief Act, 1963
and in case the final relief was not tenable, no interim relief
could also be granted. The receipt in question was not indicative
of a binding bargain between the parties. The receipt required
documents to be furnished within 10 days but there was no
reference even till the filing of the suit that the documents had
not been furnished. The conduct of the respondent was relevant
who was silent on the reference to any access in the receipt.
There was also no reference to any defective title in the relief
and in this scenario there was no basis for the plaintiff to seek
the specific performance based on the receipt. The judgment in
Arun P. Goradia (supra) was clearly distinguishable and could
not support the case of the respondent. His concluding
arguments were that assuming without admitting that the
injunction had to be granted the plaintiff had to be put to terms
to deposit the balance amount.
10. In Kollipara Sriramulu (supra), the first question
which was to be considered in the appeal was whether any oral
agreement between the first respondent and all the partners of
the firm except the appellants for sale of their shares on
6.7.1952 and whether the respondent no.1 was entitled to the
specific performance of that oral agreement. It was the case of7
the respondent no.1 that on 6.7.1952, there was a meeting of
the male partners in the house at Desu and in that meeting
there was an agreement reached between all of them, except
the appellants and himself that they should sell to him their
shares at a particular rate and a written agreement was to be
drawn within 2 or 3 days and the mode of payment of the
purchase money was to be settled later. It was further agreed
that the sale deeds were to be executed within three months.
It was contended on behalf of the appellants that there was no
contract because the sale was conditional upon a regular
agreement being executed and no such agreement was
executed. It was well established that a mere reference to a
future formal contract would not prevent a binding bargain
between the parties.
11. In Kollipara Sriramulu (supra), the fact that the
parties referred to the preparation of an agreement by which the
terms agreed upon are to be put in a more formal shape does
not prevent the existence of a binding contract. There are
however, cases where the reference to a future contract is
made in such terms as to show that the parties did not intend to
be bound until a formal contract is signed. The question
depends upon the intention of the parties and the special
circumstances of each case. The question in the appeal was8
whether the execution of a formal agreement was intended to be
a condition of the bargain dated 6.7.1952 or whether it was a
mere expression of the desire of the parties for a formal
agreement which can be ignored. The evidence adduced on
behalf of the respondent no.1 does not show that the drawing up
of a written agreement was a pre-requisite to the coming into
effect of the oral agreement and therefore it was not possible to
accept the contention of the appellants that the oral agreement
was ineffective in law because there was no execution of any
formal written document. It was further observed that it is true
that there was no specific agreement with regard to the mode of
payment but that did not necessarily make the agreement
ineffective. The mere omission to settle the mode of payment
does not affect the completeness of the contract because the
vital terms of the contract like the price and the area of the land
and the time for completion of the sale were all fixed. This
judgment rather supports the case of the respondent unlike the
contention of Shri S. G. Desai, learned Senior Counsel that there
was no concluded contract between the parties.
12. In Arun P. Goradia (supra), the plaintiff had
essentially been sued for Specific Performance of an
Agreement/Memorandum of Understanding executed by and
between the plaintiff and the defendants on 8.5.2004. The9
defendants claimed that the said agreement had been
terminated by their notice dated 10.8.2005 and a suit followed
for a declaration that the notice of termination was without
authority of law and an injunction restraining the defendants
from creating any third party right in the suit property. The
plaintiff claimed to have been granted right, title and interest as
a developer of the suit plot and also claimed to have purchased
TDR in respect of the development pursuant to the Agreement/
Memorandum of Understanding entered into by him. He had
also claimed that he had been made a co-owner of the suit plot
which had been transferred to him upon the payment of
consideration pursuant to the Agreement/ Memorandum of
Understanding dated 8.5.2004. He had acted upon the said
agreement to develop the suit plot of land by negotiating and
entering into an registered agreement with several of the
tenants of the suit plot of land and obtained the ownership right
in respect of certain flats in the building to be constructed on
the suit plot of the land pursuant to the said
Agreement/Memorandum of Understanding. He therefore,
claimed that based upon the said Agreement he was allowed to
develop the suit plot. It was the defence case that the
Memorandum of Understanding did not settle the right of the
parties for the development of the suit plot and that the
agreement for the development was yet to be entered into10
between them. It was contended that the plaintiff was merely a
construction contractor who was to demolish the exiting
structure on the suit land and construct a new building which
agreement was not specifically enforceable.
13. In Arun P. Goradia (supra), the learned Single
Judge of this Court examined the Memorandum of
Understanding in detail and yet on a reading of the entire
Agreement/ Memorandum of Understanding as a whole it
showed that on the plot belonging to the defendant no.3 Society
and leased to the defendant nos.1 and 2, there existed an old
structure which was occupied by five tenants. The defendant
nos.4 to 8 and all the parties agreed to demolish the said
structure and develop the said plot by constructing a new
structure. The available FSI was to be used and in addition TDR
was purchased by the plaintiff, who was to demolish as well as
reconstruct and upon demolition the plaintiff was to offer
temporary accommodation and thereafter permanent alternate
accommodation to the existing tenants. The plaintiff was also to
give possession of the two flats to the defendant nos.1 and 2
and for the remainder of the construction the plaintiff was to be
the sole owner. Upon construction the plaintiff was entitled to
the extensive access to the terraces and the access to the
terrace above the entire construction. The learned Judge further11
found from the material that it was an admitted position that
the plaintiff had purchased TDR, that the purchase had been
made for `34,00,000/- (Rupees thirty four lakhs only) and
besides he had entered into a registered agreement with some
of the tenants offering them a temporary alternate
accommodation.
14. In Arun Goradia (supra), the learned Judge found
on a reading of the entire Agreement that the plaintiff was not a
mere contractor and that there was an agreement between the
parties that the plaintiff would develop the suit plot of land as a
developer, he would have interest in the new construction as
also the corresponding interest in the plot of land as a co-owner
with the defendant nos.1 and 2 as a member of the defendant
no.3 Society upon its construction. It was contended on behalf
of the defendant nos.1 and 2 that because the Development
Agreement was still to be signed and registered by the parties
the Memorandum of Understanding was not specifically
enforceable which the learned Judge found was completely
misconceived. If a Memorandum of Understanding was entered
into between the parties merely agreeing to enter into a
Development Agreement for developing the suit plot of land
upon terms not agreed by the parties, the Memorandum of
Understanding, which does not set out a full agreement between12
the parties, would not be enforceable. If, however, the
Memorandum of Understanding sets out the entire agreement
between the parties for the development of the entire plot of the
land as per the sanctioned plan to the extent of the FSI as also
the additionally purchased TDR and sets out the extent of the
rights and entitlements of the parties being the owner as well as
the Developer in the new construction to be put up by the
developer at his own cost, the agreement between the parties is
complete and such Memorandum of Understanding is itself
specifically enforceable, whether or not, a formal Development
Agreement was to be further entered into by them.
15. In Arun Goradia (supra), the learned Judge further
held that the agreement had to be read as a whole, the intent of
the parties had to be ascertained from the agreement and if the
agreement showed the full extent of the intent of the parties for
complete development of the property, the agreement was
nothing but a development Agreement, howsoever drafted or
titled. The parties were seen to have acted upon the said
Memorandum of Understanding and the defendants were seen
to have allowed the plaintiff to further act upon it. The notice
of termination was of little effect. In the circumstances
therefore, the learned Judge held that the plaintiff had made out
a prima facie title for the grant of the relief of injunction against13
creating of further third party right and made the notice of
motion absolute.
16. At the outset there is no basis in the contention of
Shri S. G. Desai, learned Senior Counsel that the plaintiff had
indulged in suppression by withholding the information about
the suit earlier filed by him in the Delhi High Court and later on
withdrawn. There was nothing material or relevant in that
regard which was necessary to be incorporated in the pleadings
regarding its institution when the appellants/defendants had
notice of the suit and had raised objection to its territorial
jurisdiction on account of which it came to be withdrawn and
filed before the Civil Court at Mapusa in Goa pressing for the
necessary reliefs. The plaintiff therefore could not be denied the
equitable relief of injunction on the specious premise that the
plaintiff had indulged in suppression.
17. The plaintiff had particularly carved out in his
pleadings that after the considerable talks between the parties,
the terms were agreed and finalised between them and pursuant
to which it was agreed that the plaintiff would make a part
payment of `15,00,000/- (Rupees fifteen lakhs only) from the
total sale consideration of `4,58,16,000/- and the defendants
agreed to issue a receipt stating therein that the detailed14
Memorandum of Understanding would be executed within a
period of 10 days from the receipt of the documents numbering
10. From the tenor of the receipt and as earlier observed, it
was apparent that there existed a concluded contract between
the plaintiff and the defendants whereby the defendants had
agreed to sell the suit property for the total consideration as
agreed upon and in respect of which an earnest money of
`15,00,000/- was paid to them. From the tenor of the receipt it
is apparent that only a formal Agreement to Sale had to be
executed delineating the mode of the payment of the balance
amount. It was not particularly in dispute that the sale was
executed between the appellants and their predecessor in title
and followed by a Deed of Rectification dated 17.1.2014.
18. The respondent/plaintiff had categorically pleaded
that in the course of the meeting between them, it was finally
agreed that the plaintiff would purchase the suit property for the
total consideration of ₹4,58,16,000/-. The defendants had
agreed to issue a receipt wherein they had categorically stated
that the detailed Memorandum of Understanding/Agreement to
sell would be executed within 10 days from the receipt of the
documents numbering 10 which had to be furnished by the
defendants to the plaintiff and the balance payment would be
made as per the terms that would be agreed in the said15
Memorandum of Understanding. In other words from the tenor
of the pleadings it is apparent that there was a concluded
contract between the plaintiff and the defendants whereby the
defendants had agreed to sell to the plaintiff the suit property
for the consideration of ₹4,58,16,000/- out of which the plaintiff
had paid an earnest amount of ₹15,00,000/- to the defendants.
It also flows from the tenor of the receipt which can be
considered as a concluded agreement between the parties that
what all remained to be done was the execution of the
Memorandum of Understanding/Agreement to chalk out the
modalities of the payment of the balance outstanding on the
payment of the earnest money.
19. It was also borne out from the plaint i.e. the case of
the plaintiff that the plaintiff had been requesting the defendants
to immediately provide the documents which they had assured
to furnish and that they were always ready and willing to pay
the balance consideration and purchase the suit property but the
defendants had neither furnished the documents and quite on
the contrary their predecessor-in-title had raised an objection
with regard to the right, title and interest over the only approach
road of the landlocked suit property.
20. The defendants who are the appellants in the16
present appeal had taken a specific plea that there was no valid
and subsisting right disclosed by the plaintiff and therefore, no
relief or that claimed could be granted in his favour. The suit
was also barred under Section 41 of the Specific Relief Act, 1963
and considering the nature and import of the receipt dated
22.8.2013, there could be no specific performance of the
receipt. The suit as filed seeking the enforcement of mere
receipt was not maintainable and the reliefs sought too were not
sustainable. There was no concluded contract between the
parties and the plaintiff could not seek the specific performance
of the receipt. Rather, the admission that the terms of the sale
had not been finalised and that the balance payment would be
made as per the terms that would be agreed in the
Memorandum of Understanding by itself proved that there was
no concluded contract between the parties. The suit as such
would liable for dismissal apart from the fact that there was
suppression of material facts and documents from the Court.
They had by their letter dated 31.3.2014 through their advocate
informed the plaintiff's advocate that they had clear and
absolute title over the suit property and only token money was
received from the plaintiff. The plaintiff was specifically put to
notice that the balance payment should be made by him within
15 days thereof and on failure to effect the balance payment
within stipulated time else the receipt would stand cancelled and17
the token money would be refunded to the plaintiff. The plaintiff
had no right of whatsoever nature to seek the relief on the
basis of the said receipt and therefore, the suit and the
application for injunction were not tenable.
21. The plaintiff had reiterated his case and denied that
of the defendants that there was no concluded contract between
them. The payment of the earnest money clearly reflected the
intention of the plaintiff to purchase the property and it was not
an act to confirm his intention to purchase the property as was
the case set up by the defendants. The receipt was not in the
nature of any preliminary negotiations but there was a
concluded contract between the parties.
22. A cursory perusal of the receipt clearly indicates that
the defendants through its director had received from the
plaintiff a sum of ₹15,00,000/- as a part consideration with
respect to the sale of property alongwith the two houses
situated therein admeasuring 1660 sq. mts bearing the distinct
Survey Number and location and the balance consideration of
₹4,43,16000/- would be paid as per the the terms of the
Memorandum of Understanding/Agreement of Sale to be
executed within a period of 10 days from the receipt of the
documents numbering 10. From this receipt it is apparent that18
all the details of the transactions were reflected therein and
what was all left for the parties to do was to identify the
modalities of the balance staggered payment by the execution of
a formal agreement. Therefore there is much force in the
contention of Shri S. M. Usgaonkar, learned Senior Counsel for
the respondent that the receipt had all the trappings of the
contract coupled with the pleadings in the plaint.
23. The notice issued to the defendants dated 21.2.2014
also makes a clear reference to the fact that the defendants had
taken a token/advance amount of ₹15,00,000/- towards the
purchase of the property from the plaintiff bearing the distinct
name, with specific area alongwith the houses situated therein
and calling upon the defendants to clear the title in view of the
litigation in the title between the defendants and their
predecessor-in-title. The reply on behalf of the defendants
addressed to the Advocate for the plaintiff would make it
abundantly clear that the defendants still had intention to
conclude the transaction inasmuch as the defendants had called
upon the plaintiff to make the balance payment within 15 days
of the receipt of the notice and to do the transaction. In other
words it is apparent that the defendants had conveyed their
intention to perform their part of the agreement which was
styled as a receipt. Such reply on behalf of the defendants19
belies their claim that there was no concluded contract and
even as late as March, 2014 for that matter the plaintiff through
his Advocate by his letter dated 22.4.2014 had once again
reiterated his willingness to buy the suit property and that the
delay was on account of the defendants on one ground or the
other.
24. Though Shri S. G. Desai, learned Senior Counsel for
the defendants adverted to the notice dated 4.4.2014 issued on
behalf of their predecessor-in-title, it cannot be read in isolation
and had to be read in the context of the other correspondence
exchanged between the parties particularly the reply on behalf
of the plaintiff whereby it was clearly made known to the
defendants that they had authorised the plaintiff to put a notice
on the news papers calling for objections, if any, from any
person/persons/individuals/banks/financial institution having
any claim, right, title, interest relating to the said property in
any manner whatsoever. He contented that there was no
finding by the learned Trial Judge that there was a concluded
contract existing between the parties nor had the learned Trial
Judge recorded a finding on the possession of the plaintiff
entitling him to the relief of injunction.
25. However, the contention of Shri Desai does not stand20
the test of scrutiny on a perusal of the impugned order
inasmuch as the learned trial Judge had taken due note of such
a contention on behalf of the appellants and also considered the
case of the plaintiff that the receipt disclosed a concluded
contract pursuant to which the defendants had agreed to sell the
suit property for the consideration of ₹4,58,16,000/- of which he
had paid an amount of ₹15,00,000/- to the defendants. The
learned Trial Judge for that matter had recorded though not
specifically as contended by Shri Desai, learned Senior Counsel
that the plaintiff could not go ahead with the execution of the
detailed agreement in view of the breach committed by the
defendants by non-furnishing of the documents as agreed to and
specified in the receipt. The learned Judge for that matter was
equally seized of the fact that the plaintiff had issued a public
notice disclosing his intention to purchase the suit property and
inviting objections from the people at large who would be
affected by such sale transaction. For that matter the learned
Judge had also recorded a finding that the original owners had
lodged their claim in the house existing in the suit property and
the access leading to the suit property though it must be said
that there was no specific finding that there was a concluded
contract between the plaintiffs and the defendants.
26. The learned Trial Judge had clearly recorded a
finding that the plaintiff was claiming a right to purchase the suit
property on the basis of the contents of the receipt and in that
context observed that it had to see whether the parties to the
receipt had the intention to bind themselves and subsequently to
enter into a detailed agreement. The learned Trial Judge had
observed that the contents of the receipt disclosed that the
property agreed to be sold was specifically described, that the
defendants had willingly accepted the amount, that documents
were to be furnished by the defendants and the time limit for
furnishing the same was clearly specified and that the
publication of the public notice by the plaintiff in the local daily
were clear pointers to the fact that the plaintiff had intention to
buy and the defendants had intention to sell the suit property to
the plaintiff. Therefore, there is no basis in the contention of
Shri S. G. Desai, learned Senior Counsel for the appellants that
the learned trial Judge had not examined the status of the
receipt and the conduct of the parties in arriving at a finding
that there was an express intention to purchase and an express
intention to sell the property in question.
27. The learned Judge for that matter had unlike the
contention of Shri S. G. Desai, learned Senior Counsel for the
appellants clearly recorded a prima facie finding that the equity
lay in the favour of the plaintiff who would suffer irreparable loss
and injuries in case the suit property was sold or alienated and
in the circumstances therefore the balance of convenience also
lay in favour of the plaintiff. The learned Judge for that matter
also recorded a finding that the receipt prima facie established
that there was binding agreement between the parties as
regards the sale of the suit property, that the plaintiff had
proved that he was ready and willing to perform his part of the
obligation and in those set of circumstances deemed it
appropriate to secure the plaintiff with the relief of injunction.
Though the order may not have been happily worded, the fact of
the matter remains that there is no warrant for interference with
the findings recorded by the learned Trial Judge only because a
different view may be possible in the circumstances of the case.
i therefore do not find any reason to concur with the contention
of Shri S. G. Desai, learned Senior Counsel for the appellants
that the plaintiff was unduly secured with the relief of injunction
by the learned Trial Judge on the specious premise that the
plaintiff had not expressed his intention to buy the property nor
was there any indication on behalf of the defendants to sell the
same to the plaintiff.
28. Section 10 of the Specific Relief Act, 1963 sets out
the cases in which the Specific Performance of Contract is
enforceable, however within the discretion of the Court. Looking
to the tenor of the pleadings and the reasons assigned by the
learned Judge, it cannot at all be heard on behalf of Shri S. G.
Desai, learned Senior Counsel for the appellants that the plaintiff
had failed to make out a case for specific performance of the
contract. Moreover there is also no warrant for entertaining the
contention on his behalf that the relief of injunction was barred
in terms of Section 41 of the Specific Relief Act when the plaintiff
had clearly set out his apprehension that he would suffer
irreparable loss in case the defendants were not restrained by an
order of injunction from creating any third party rights in
respect of the suit property.
29. In the circumstances therefore there is no reason to
interfere with the findings recorded by the learned Trial Judge. It
goes without saying therefore, the appeal is not tenable and
therefore i pass the following:-
O R D E R
The appeal is dismissed and the impugned order securing
the plaintiff with the relief of injunction is confirmed. However, i
find myself in agreement with the contention of Shri Shivan
Desai, learned Advocate for the appellants that the plaintiff had
to be put to the terms considering the fact that a substantial
part of the consideration had yet to be paid to the appellants
and that he was secured by an order of injunction to restrain the24
defendants from creating any third party right or interest
therein. To that extent the plaintiff is put to terms to deposit the
balance amount before the Trial Judge which he shall do within
6 weeks from today.
NUTAN D. SARDESSAI, J.
vn*
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finding that the plaintiff was claiming a right to purchase the suit
property on the basis of the contents of the receipt and in that
context observed that it had to see whether the parties to the
receipt had the intention to bind themselves and subsequently to
enter into a detailed agreement. The learned Trial Judge had
observed that the contents of the receipt disclosed that the
property agreed to be sold was specifically described, that the
defendants had willingly accepted the amount, that documents
were to be furnished by the defendants and the time limit for
furnishing the same was clearly specified and that the
publication of the public notice by the plaintiff in the local daily
were clear pointers to the fact that the plaintiff had intention to
buy and the defendants had intention to sell the suit property to
the plaintiff. Therefore, there is no basis in the contention of
Shri S. G. Desai, learned Senior Counsel for the appellants that
the learned trial Judge had not examined the status of the
receipt and the conduct of the parties in arriving at a finding
that there was an express intention to purchase and an express
intention to sell the property in question.
27. The learned Judge for that matter had unlike the
contention of Shri S. G. Desai, learned Senior Counsel for the
appellants clearly recorded a prima facie finding that the equity
lay in the favour of the plaintiff who would suffer irreparable loss
and injuries in case the suit property was sold or alienated and
in the circumstances therefore the balance of convenience also
lay in favour of the plaintiff. The learned Judge for that matter
also recorded a finding that the receipt prima facie established
that there was binding agreement between the parties as
regards the sale of the suit property, that the plaintiff had
proved that he was ready and willing to perform his part of the
obligation and in those set of circumstances deemed it
appropriate to secure the plaintiff with the relief of injunction.
Though the order may not have been happily worded, the fact of
the matter remains that there is no warrant for interference with
the findings recorded by the learned Trial Judge only because a
different view may be possible in the circumstances of the case.
I therefore do not find any reason to concur with the contention
of Shri S. G. Desai, learned Senior Counsel for the appellants
that the plaintiff was unduly secured with the relief of injunction
by the learned Trial Judge on the specious premise that the
plaintiff had not expressed his intention to buy the property nor
was there any indication on behalf of the defendants to sell the
same to the plaintiff.
28. Section 10 of the Specific Relief Act, 1963 sets out
the cases in which the Specific Performance of Contract is
enforceable, however within the discretion of the Court. Looking
to the tenor of the pleadings and the reasons assigned by the
learned Judge, it cannot at all be heard on behalf of Shri S. G.
Desai, learned Senior Counsel for the appellants that the plaintiff
had failed to make out a case for specific performance of the
contract. Moreover there is also no warrant for entertaining the
contention on his behalf that the relief of injunction was barred
in terms of Section 41 of the Specific Relief Act when the plaintiff
had clearly set out his apprehension that he would suffer
irreparable loss in case the defendants were not restrained by an
order of injunction from creating any third party rights in
respect of the suit property.
IN THE HIGH COURT OF BOMBAY AT GOA.
APPEAL FROM ORDER NO. 22 OF 2015.
Eastern Star Hotels &
Resorts Pvt. Ltd
V/s
Sanjeev Dhingra,
Coram :- Nutan D. Sardessai,
Pronounced on:-8th September,2016.
Citation:2016(6) MHLJ 564
3. Ms. T. Ghanekar, learned Counsel waives notice on
behalf of the respondents.
4. Shri S. G. Desai, learned Senior Counsel came to be
heard on behalf of the appellants and Shri Sudin Usgaonkar,
learned Senior Counsel came to be heard on behalf of the
respondents.
5. Shri S. G. Desai, learned Senior Counsel for the
appellants adverted to the receipt which was the sheet anchor of
the respondent's case to buttress a foundation for the
agreement regarding the purchase of the property and
submitted that by no stretch of the imagination could it be
considered. As such it was merely a preparatory document and
did not have any of the trappings of an Agreement of Sale. He
relied in Kollipara Sriramulu(dead) Vs Aswatha Narayana
[AIR 1968 SC 1028] in that regard. He next adverted to the
Deed of Sale, the Deed of Rectification, the Public Notice issued
and the reply. Besides, he contended that the respondent had
suppressed the suit filed at New Delhi which was later on
withdrawn. The learned Trial Judge in the impugned order had
not given any finding that a concluded contract existed between
the parties. There was no prima facie finding on the possession
nor any reason assigned in that regard. The relief of Section 103
of the Specific Relief Act,1963 was misplaced and the findings
were otherwise not borne out from the records. He relied in
Wander Ltd Vs. Antox India Pvt. Ltd [(1990 supp) 1 SCC
727] and submitted that the impugned order called for an
interference.
6. Shri S. M. Ugaonkar, learned Senior Counsel for the
respondent at the outset placed reliance in Wander Ltd
(supra), and submitted that there was no reason for this Court
to interfere with the impugned order unless it was shown that it
was fraught with illegality, perversity and/or arbitrariness.
Merely because a different view was possible, there was no
reason to interfere with the impugned order. The Trial Judge
had rather preserved the said property by passing the impugned
order. The parties were ad-idem on the issue and the respondent
per se had shown that it was a concluded contract which
referred to the details of the transaction in the nature of the
details of the parties, that a part consideration had been
received, referred to the property in respect of which the said
amount had been received and its area and that the balance
would be paid as per the Memorandum of Understanding to be
executed by the parties within 10 days. What all was left for the
parties was to identify the modalities of the balance staggered
payment and the execution of the formal agreement.4
7. Shri S. M. Usgaonkar, learned Senior Counsel for the
respondent adverted to the pleadings in the plaint and
submitted that there were specific pleadings on the concluded
contract. There was no necessity for the issuance of a Public
Notice when the plaintiff was substantially contemplating the
purchase. He adverted to the reply and submitted that the suit
could be filed and was maintainable in terms of order XXI Rule
34 CPC. He further submitted that the judgment in Kollipara
Sriramulu (supra), was rather supporting his case and on
adverting to the contents of the written statement submitted
that there was no basis in their defence. Besides he adverted to
para 15 of the written statement to substantiate his case that if
the defence plea was that there was no concluded contract and
the letter was only to put the plaintiff to notice, then how they
could be called upon to pay the balance amount within 15 days.
He further relied in Arun Goradia Vs Mashi Jaisukhalal
Shah, [2009(1) Mh. L. J.610] in support of his case.
8. Shri S. M. Usgaonkar, learned Senior Counsel
submitted that besides it was his contention that the plea of
suppression raised by the defendants/appellants had to be of
material and relevant facts. There was no suppression of the
material and relevant facts by the respondent and there was an
order of withdrawal of the suit simpliciter before the High Court.5
Besides they had categorically denied in their rejoinder that the
filing of the suit in the Delhi High Court was totally irrelevant for
the purpose of the present proceedings and the interim relief
sought therein. The application for an interim relief in the suit
before the Delhi High Court was not heard on merits and the suit
was withdrawn on account of the objection to the territorial
jurisdiction of the Court. He further submitted that the Trial
Judge had properly considered the material at large before it
and took a prima facie view with which the Appellate Court
would not interfere with by applying the principles in Wander
Ltd (supra), only because a different view may be possible.
There was no merit in the appeal and therefore it had to be
dismissed.
9. Shri S. G. Desai, learned Senior Counsel for the
appellants contended in reply that there was no basis in the
pleadings on behalf of the respondent that there was no
suppression. Such a plea was not tenable as no ex-parte
hearing was granted. The plaintiff had to specifically plead the
apprehension. The defendants were put to notice of the suit in
Delhi and yet the ex-parte hearing was prayed and therefore
there was suppression of the relevant and material facts by
the respondent. He further submitted that the suit filed for
specific performance was fallacious when it did not indicate any6
intention to buy the property. No specific performance could be
granted in terms of Section 10 of the Specific Relief Act, 1963
and in case the final relief was not tenable, no interim relief
could also be granted. The receipt in question was not indicative
of a binding bargain between the parties. The receipt required
documents to be furnished within 10 days but there was no
reference even till the filing of the suit that the documents had
not been furnished. The conduct of the respondent was relevant
who was silent on the reference to any access in the receipt.
There was also no reference to any defective title in the relief
and in this scenario there was no basis for the plaintiff to seek
the specific performance based on the receipt. The judgment in
Arun P. Goradia (supra) was clearly distinguishable and could
not support the case of the respondent. His concluding
arguments were that assuming without admitting that the
injunction had to be granted the plaintiff had to be put to terms
to deposit the balance amount.
10. In Kollipara Sriramulu (supra), the first question
which was to be considered in the appeal was whether any oral
agreement between the first respondent and all the partners of
the firm except the appellants for sale of their shares on
6.7.1952 and whether the respondent no.1 was entitled to the
specific performance of that oral agreement. It was the case of7
the respondent no.1 that on 6.7.1952, there was a meeting of
the male partners in the house at Desu and in that meeting
there was an agreement reached between all of them, except
the appellants and himself that they should sell to him their
shares at a particular rate and a written agreement was to be
drawn within 2 or 3 days and the mode of payment of the
purchase money was to be settled later. It was further agreed
that the sale deeds were to be executed within three months.
It was contended on behalf of the appellants that there was no
contract because the sale was conditional upon a regular
agreement being executed and no such agreement was
executed. It was well established that a mere reference to a
future formal contract would not prevent a binding bargain
between the parties.
11. In Kollipara Sriramulu (supra), the fact that the
parties referred to the preparation of an agreement by which the
terms agreed upon are to be put in a more formal shape does
not prevent the existence of a binding contract. There are
however, cases where the reference to a future contract is
made in such terms as to show that the parties did not intend to
be bound until a formal contract is signed. The question
depends upon the intention of the parties and the special
circumstances of each case. The question in the appeal was8
whether the execution of a formal agreement was intended to be
a condition of the bargain dated 6.7.1952 or whether it was a
mere expression of the desire of the parties for a formal
agreement which can be ignored. The evidence adduced on
behalf of the respondent no.1 does not show that the drawing up
of a written agreement was a pre-requisite to the coming into
effect of the oral agreement and therefore it was not possible to
accept the contention of the appellants that the oral agreement
was ineffective in law because there was no execution of any
formal written document. It was further observed that it is true
that there was no specific agreement with regard to the mode of
payment but that did not necessarily make the agreement
ineffective. The mere omission to settle the mode of payment
does not affect the completeness of the contract because the
vital terms of the contract like the price and the area of the land
and the time for completion of the sale were all fixed. This
judgment rather supports the case of the respondent unlike the
contention of Shri S. G. Desai, learned Senior Counsel that there
was no concluded contract between the parties.
12. In Arun P. Goradia (supra), the plaintiff had
essentially been sued for Specific Performance of an
Agreement/Memorandum of Understanding executed by and
between the plaintiff and the defendants on 8.5.2004. The9
defendants claimed that the said agreement had been
terminated by their notice dated 10.8.2005 and a suit followed
for a declaration that the notice of termination was without
authority of law and an injunction restraining the defendants
from creating any third party right in the suit property. The
plaintiff claimed to have been granted right, title and interest as
a developer of the suit plot and also claimed to have purchased
TDR in respect of the development pursuant to the Agreement/
Memorandum of Understanding entered into by him. He had
also claimed that he had been made a co-owner of the suit plot
which had been transferred to him upon the payment of
consideration pursuant to the Agreement/ Memorandum of
Understanding dated 8.5.2004. He had acted upon the said
agreement to develop the suit plot of land by negotiating and
entering into an registered agreement with several of the
tenants of the suit plot of land and obtained the ownership right
in respect of certain flats in the building to be constructed on
the suit plot of the land pursuant to the said
Agreement/Memorandum of Understanding. He therefore,
claimed that based upon the said Agreement he was allowed to
develop the suit plot. It was the defence case that the
Memorandum of Understanding did not settle the right of the
parties for the development of the suit plot and that the
agreement for the development was yet to be entered into10
between them. It was contended that the plaintiff was merely a
construction contractor who was to demolish the exiting
structure on the suit land and construct a new building which
agreement was not specifically enforceable.
13. In Arun P. Goradia (supra), the learned Single
Judge of this Court examined the Memorandum of
Understanding in detail and yet on a reading of the entire
Agreement/ Memorandum of Understanding as a whole it
showed that on the plot belonging to the defendant no.3 Society
and leased to the defendant nos.1 and 2, there existed an old
structure which was occupied by five tenants. The defendant
nos.4 to 8 and all the parties agreed to demolish the said
structure and develop the said plot by constructing a new
structure. The available FSI was to be used and in addition TDR
was purchased by the plaintiff, who was to demolish as well as
reconstruct and upon demolition the plaintiff was to offer
temporary accommodation and thereafter permanent alternate
accommodation to the existing tenants. The plaintiff was also to
give possession of the two flats to the defendant nos.1 and 2
and for the remainder of the construction the plaintiff was to be
the sole owner. Upon construction the plaintiff was entitled to
the extensive access to the terraces and the access to the
terrace above the entire construction. The learned Judge further11
found from the material that it was an admitted position that
the plaintiff had purchased TDR, that the purchase had been
made for `34,00,000/- (Rupees thirty four lakhs only) and
besides he had entered into a registered agreement with some
of the tenants offering them a temporary alternate
accommodation.
14. In Arun Goradia (supra), the learned Judge found
on a reading of the entire Agreement that the plaintiff was not a
mere contractor and that there was an agreement between the
parties that the plaintiff would develop the suit plot of land as a
developer, he would have interest in the new construction as
also the corresponding interest in the plot of land as a co-owner
with the defendant nos.1 and 2 as a member of the defendant
no.3 Society upon its construction. It was contended on behalf
of the defendant nos.1 and 2 that because the Development
Agreement was still to be signed and registered by the parties
the Memorandum of Understanding was not specifically
enforceable which the learned Judge found was completely
misconceived. If a Memorandum of Understanding was entered
into between the parties merely agreeing to enter into a
Development Agreement for developing the suit plot of land
upon terms not agreed by the parties, the Memorandum of
Understanding, which does not set out a full agreement between12
the parties, would not be enforceable. If, however, the
Memorandum of Understanding sets out the entire agreement
between the parties for the development of the entire plot of the
land as per the sanctioned plan to the extent of the FSI as also
the additionally purchased TDR and sets out the extent of the
rights and entitlements of the parties being the owner as well as
the Developer in the new construction to be put up by the
developer at his own cost, the agreement between the parties is
complete and such Memorandum of Understanding is itself
specifically enforceable, whether or not, a formal Development
Agreement was to be further entered into by them.
15. In Arun Goradia (supra), the learned Judge further
held that the agreement had to be read as a whole, the intent of
the parties had to be ascertained from the agreement and if the
agreement showed the full extent of the intent of the parties for
complete development of the property, the agreement was
nothing but a development Agreement, howsoever drafted or
titled. The parties were seen to have acted upon the said
Memorandum of Understanding and the defendants were seen
to have allowed the plaintiff to further act upon it. The notice
of termination was of little effect. In the circumstances
therefore, the learned Judge held that the plaintiff had made out
a prima facie title for the grant of the relief of injunction against13
creating of further third party right and made the notice of
motion absolute.
16. At the outset there is no basis in the contention of
Shri S. G. Desai, learned Senior Counsel that the plaintiff had
indulged in suppression by withholding the information about
the suit earlier filed by him in the Delhi High Court and later on
withdrawn. There was nothing material or relevant in that
regard which was necessary to be incorporated in the pleadings
regarding its institution when the appellants/defendants had
notice of the suit and had raised objection to its territorial
jurisdiction on account of which it came to be withdrawn and
filed before the Civil Court at Mapusa in Goa pressing for the
necessary reliefs. The plaintiff therefore could not be denied the
equitable relief of injunction on the specious premise that the
plaintiff had indulged in suppression.
17. The plaintiff had particularly carved out in his
pleadings that after the considerable talks between the parties,
the terms were agreed and finalised between them and pursuant
to which it was agreed that the plaintiff would make a part
payment of `15,00,000/- (Rupees fifteen lakhs only) from the
total sale consideration of `4,58,16,000/- and the defendants
agreed to issue a receipt stating therein that the detailed14
Memorandum of Understanding would be executed within a
period of 10 days from the receipt of the documents numbering
10. From the tenor of the receipt and as earlier observed, it
was apparent that there existed a concluded contract between
the plaintiff and the defendants whereby the defendants had
agreed to sell the suit property for the total consideration as
agreed upon and in respect of which an earnest money of
`15,00,000/- was paid to them. From the tenor of the receipt it
is apparent that only a formal Agreement to Sale had to be
executed delineating the mode of the payment of the balance
amount. It was not particularly in dispute that the sale was
executed between the appellants and their predecessor in title
and followed by a Deed of Rectification dated 17.1.2014.
18. The respondent/plaintiff had categorically pleaded
that in the course of the meeting between them, it was finally
agreed that the plaintiff would purchase the suit property for the
total consideration of ₹4,58,16,000/-. The defendants had
agreed to issue a receipt wherein they had categorically stated
that the detailed Memorandum of Understanding/Agreement to
sell would be executed within 10 days from the receipt of the
documents numbering 10 which had to be furnished by the
defendants to the plaintiff and the balance payment would be
made as per the terms that would be agreed in the said15
Memorandum of Understanding. In other words from the tenor
of the pleadings it is apparent that there was a concluded
contract between the plaintiff and the defendants whereby the
defendants had agreed to sell to the plaintiff the suit property
for the consideration of ₹4,58,16,000/- out of which the plaintiff
had paid an earnest amount of ₹15,00,000/- to the defendants.
It also flows from the tenor of the receipt which can be
considered as a concluded agreement between the parties that
what all remained to be done was the execution of the
Memorandum of Understanding/Agreement to chalk out the
modalities of the payment of the balance outstanding on the
payment of the earnest money.
19. It was also borne out from the plaint i.e. the case of
the plaintiff that the plaintiff had been requesting the defendants
to immediately provide the documents which they had assured
to furnish and that they were always ready and willing to pay
the balance consideration and purchase the suit property but the
defendants had neither furnished the documents and quite on
the contrary their predecessor-in-title had raised an objection
with regard to the right, title and interest over the only approach
road of the landlocked suit property.
20. The defendants who are the appellants in the16
present appeal had taken a specific plea that there was no valid
and subsisting right disclosed by the plaintiff and therefore, no
relief or that claimed could be granted in his favour. The suit
was also barred under Section 41 of the Specific Relief Act, 1963
and considering the nature and import of the receipt dated
22.8.2013, there could be no specific performance of the
receipt. The suit as filed seeking the enforcement of mere
receipt was not maintainable and the reliefs sought too were not
sustainable. There was no concluded contract between the
parties and the plaintiff could not seek the specific performance
of the receipt. Rather, the admission that the terms of the sale
had not been finalised and that the balance payment would be
made as per the terms that would be agreed in the
Memorandum of Understanding by itself proved that there was
no concluded contract between the parties. The suit as such
would liable for dismissal apart from the fact that there was
suppression of material facts and documents from the Court.
They had by their letter dated 31.3.2014 through their advocate
informed the plaintiff's advocate that they had clear and
absolute title over the suit property and only token money was
received from the plaintiff. The plaintiff was specifically put to
notice that the balance payment should be made by him within
15 days thereof and on failure to effect the balance payment
within stipulated time else the receipt would stand cancelled and17
the token money would be refunded to the plaintiff. The plaintiff
had no right of whatsoever nature to seek the relief on the
basis of the said receipt and therefore, the suit and the
application for injunction were not tenable.
21. The plaintiff had reiterated his case and denied that
of the defendants that there was no concluded contract between
them. The payment of the earnest money clearly reflected the
intention of the plaintiff to purchase the property and it was not
an act to confirm his intention to purchase the property as was
the case set up by the defendants. The receipt was not in the
nature of any preliminary negotiations but there was a
concluded contract between the parties.
22. A cursory perusal of the receipt clearly indicates that
the defendants through its director had received from the
plaintiff a sum of ₹15,00,000/- as a part consideration with
respect to the sale of property alongwith the two houses
situated therein admeasuring 1660 sq. mts bearing the distinct
Survey Number and location and the balance consideration of
₹4,43,16000/- would be paid as per the the terms of the
Memorandum of Understanding/Agreement of Sale to be
executed within a period of 10 days from the receipt of the
documents numbering 10. From this receipt it is apparent that18
all the details of the transactions were reflected therein and
what was all left for the parties to do was to identify the
modalities of the balance staggered payment by the execution of
a formal agreement. Therefore there is much force in the
contention of Shri S. M. Usgaonkar, learned Senior Counsel for
the respondent that the receipt had all the trappings of the
contract coupled with the pleadings in the plaint.
23. The notice issued to the defendants dated 21.2.2014
also makes a clear reference to the fact that the defendants had
taken a token/advance amount of ₹15,00,000/- towards the
purchase of the property from the plaintiff bearing the distinct
name, with specific area alongwith the houses situated therein
and calling upon the defendants to clear the title in view of the
litigation in the title between the defendants and their
predecessor-in-title. The reply on behalf of the defendants
addressed to the Advocate for the plaintiff would make it
abundantly clear that the defendants still had intention to
conclude the transaction inasmuch as the defendants had called
upon the plaintiff to make the balance payment within 15 days
of the receipt of the notice and to do the transaction. In other
words it is apparent that the defendants had conveyed their
intention to perform their part of the agreement which was
styled as a receipt. Such reply on behalf of the defendants19
belies their claim that there was no concluded contract and
even as late as March, 2014 for that matter the plaintiff through
his Advocate by his letter dated 22.4.2014 had once again
reiterated his willingness to buy the suit property and that the
delay was on account of the defendants on one ground or the
other.
24. Though Shri S. G. Desai, learned Senior Counsel for
the defendants adverted to the notice dated 4.4.2014 issued on
behalf of their predecessor-in-title, it cannot be read in isolation
and had to be read in the context of the other correspondence
exchanged between the parties particularly the reply on behalf
of the plaintiff whereby it was clearly made known to the
defendants that they had authorised the plaintiff to put a notice
on the news papers calling for objections, if any, from any
person/persons/individuals/banks/financial institution having
any claim, right, title, interest relating to the said property in
any manner whatsoever. He contented that there was no
finding by the learned Trial Judge that there was a concluded
contract existing between the parties nor had the learned Trial
Judge recorded a finding on the possession of the plaintiff
entitling him to the relief of injunction.
25. However, the contention of Shri Desai does not stand20
the test of scrutiny on a perusal of the impugned order
inasmuch as the learned trial Judge had taken due note of such
a contention on behalf of the appellants and also considered the
case of the plaintiff that the receipt disclosed a concluded
contract pursuant to which the defendants had agreed to sell the
suit property for the consideration of ₹4,58,16,000/- of which he
had paid an amount of ₹15,00,000/- to the defendants. The
learned Trial Judge for that matter had recorded though not
specifically as contended by Shri Desai, learned Senior Counsel
that the plaintiff could not go ahead with the execution of the
detailed agreement in view of the breach committed by the
defendants by non-furnishing of the documents as agreed to and
specified in the receipt. The learned Judge for that matter was
equally seized of the fact that the plaintiff had issued a public
notice disclosing his intention to purchase the suit property and
inviting objections from the people at large who would be
affected by such sale transaction. For that matter the learned
Judge had also recorded a finding that the original owners had
lodged their claim in the house existing in the suit property and
the access leading to the suit property though it must be said
that there was no specific finding that there was a concluded
contract between the plaintiffs and the defendants.
26. The learned Trial Judge had clearly recorded a
finding that the plaintiff was claiming a right to purchase the suit
property on the basis of the contents of the receipt and in that
context observed that it had to see whether the parties to the
receipt had the intention to bind themselves and subsequently to
enter into a detailed agreement. The learned Trial Judge had
observed that the contents of the receipt disclosed that the
property agreed to be sold was specifically described, that the
defendants had willingly accepted the amount, that documents
were to be furnished by the defendants and the time limit for
furnishing the same was clearly specified and that the
publication of the public notice by the plaintiff in the local daily
were clear pointers to the fact that the plaintiff had intention to
buy and the defendants had intention to sell the suit property to
the plaintiff. Therefore, there is no basis in the contention of
Shri S. G. Desai, learned Senior Counsel for the appellants that
the learned trial Judge had not examined the status of the
receipt and the conduct of the parties in arriving at a finding
that there was an express intention to purchase and an express
intention to sell the property in question.
27. The learned Judge for that matter had unlike the
contention of Shri S. G. Desai, learned Senior Counsel for the
appellants clearly recorded a prima facie finding that the equity
lay in the favour of the plaintiff who would suffer irreparable loss
and injuries in case the suit property was sold or alienated and
in the circumstances therefore the balance of convenience also
lay in favour of the plaintiff. The learned Judge for that matter
also recorded a finding that the receipt prima facie established
that there was binding agreement between the parties as
regards the sale of the suit property, that the plaintiff had
proved that he was ready and willing to perform his part of the
obligation and in those set of circumstances deemed it
appropriate to secure the plaintiff with the relief of injunction.
Though the order may not have been happily worded, the fact of
the matter remains that there is no warrant for interference with
the findings recorded by the learned Trial Judge only because a
different view may be possible in the circumstances of the case.
i therefore do not find any reason to concur with the contention
of Shri S. G. Desai, learned Senior Counsel for the appellants
that the plaintiff was unduly secured with the relief of injunction
by the learned Trial Judge on the specious premise that the
plaintiff had not expressed his intention to buy the property nor
was there any indication on behalf of the defendants to sell the
same to the plaintiff.
28. Section 10 of the Specific Relief Act, 1963 sets out
the cases in which the Specific Performance of Contract is
enforceable, however within the discretion of the Court. Looking
to the tenor of the pleadings and the reasons assigned by the
learned Judge, it cannot at all be heard on behalf of Shri S. G.
Desai, learned Senior Counsel for the appellants that the plaintiff
had failed to make out a case for specific performance of the
contract. Moreover there is also no warrant for entertaining the
contention on his behalf that the relief of injunction was barred
in terms of Section 41 of the Specific Relief Act when the plaintiff
had clearly set out his apprehension that he would suffer
irreparable loss in case the defendants were not restrained by an
order of injunction from creating any third party rights in
respect of the suit property.
29. In the circumstances therefore there is no reason to
interfere with the findings recorded by the learned Trial Judge. It
goes without saying therefore, the appeal is not tenable and
therefore i pass the following:-
O R D E R
The appeal is dismissed and the impugned order securing
the plaintiff with the relief of injunction is confirmed. However, i
find myself in agreement with the contention of Shri Shivan
Desai, learned Advocate for the appellants that the plaintiff had
to be put to the terms considering the fact that a substantial
part of the consideration had yet to be paid to the appellants
and that he was secured by an order of injunction to restrain the24
defendants from creating any third party right or interest
therein. To that extent the plaintiff is put to terms to deposit the
balance amount before the Trial Judge which he shall do within
6 weeks from today.
NUTAN D. SARDESSAI, J.
vn*
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