Bombay High Court

Mr.Gaurishankar Govardhandas ... vs M/S.Evershine Homes Pvt. Ltd on 10 December, 2008

Bench: S.J. Vazifdar

                                      1

           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   CIVIL APPELLATE JURISDICTION




                                                                                
                 APPEAL FROM ORDER NO.1109 OF 2005




                                                        
                                    WITH

                   CIVIL APPLICATION NO.1363 OF 2005




                                                       
    Mr.Gaurishankar Govardhandas Todi
    Aged adult, occupation Business,
    resident at 202, Amar Apartment,




                                          
    Siddhi Vinayak Road, Bhayander (W),
    Tq. & Dist. Thane - 401 101
                             ig                      ....Appellant

              Versus
                           
    1. M/s.Evershine Homes Pvt. Ltd.
       A company registered under the provisions
       of the Companies Act, 1956, and having
       office at : 201, Durga Chambers, 2nd floor,
           


      40 Waterfield Road, Mumbai-400 050.
        



    2. Mr.Shyamsundar Radheshyam Agarwal
       Aged adult, occupation Business,
       residing at 3/18, Ram Mandir Road,
       Bhayander (W), Tq.& Dist. Thane               ....Respondents





    Mr.Anil Singh i/b Mr.Sameer S. Tambekar for the Appellant.





    Mr.N. V. Walawalkar, Senior Counsel i/b M/s.Vimadalal & Co. for
    Respondent No.1.

    Mr.S. D. Patil for Respondent No.2.

                        CORAM :  S.J. VAZIFDAR, J.

                          DATE    :  10TH DECEMBER, 2008.




                                                                              
     ORAL JUDGMENT  : -

1. This is an Appeal against the order and judgment passed

by the learned Joint Civil Judge (Civil Judge) Thane restraining

Defendant No.1 from creating third party interests in the suit

properties.

The Appellant is Defendant No.1. Respondent Nos.1 and 2

are the Plaintiff and Defendant No.2. I will refer to the parties as they

are arrayed in the suit.

2. In upholding the order I have given reasons of my own. The

Plaintiff has made out more than just a strong prima-facie case

requiring the parties to maintain status-quo pending the hearing and

final disposal of the suit.

3. The suit is filed for a declaration that an MOU dated

24.6.2003 is valid and subsisting ; that the termination thereof by

Defendant No.1 is illegal and for an order directing the Defendants to

in effect specifically perform the suit agreement. In the above suit, the

Plaintiff took out an application for interim reliefs in which the

impugned order was passed.

4. The Defendants contended that the said MOU dated

24.6.2003 is not an agreement but merely an agreement to enter into

an agreement and therefore not enforceable. I do not agree. In my

view, it is a concluded contract.

5. There is no dispute that the Plaintiff and Defendant

No.1/the Appellant executed the suit agreement dated 24.6.2003.

As the submission was made on the basis of each of the six

"1.

clauses, it is necessary to set them out. They read as under :-

The Owner hereby agree to grant

Development Rights in respect of the said property and ultimately transfer and convey the said property in favour of the Developer and/or their nominees including a Co-operative Housing Society as the case may be. The Owner agrees to

grant development rights with vacant structure at

the rate of Rs.300/- (Rupees Three Hundred Only) per sq. foot of Built-up-area as permitted and sanctioned by the M. B. M. C. under building plans. The total consideration shall be paid as follows :

(a) Rs.11,00,000/- (Rupees Eleven Lakhs Only) as by way of earnest money on the execution of his Memorandum of d Understanding. Rs.1,00,000/- (Rupees One Lakh Only) has

already been paid in cash and Rs.10,00,000/- (Rupees Ten Lakhs Only) to be paid by Cheque by the Developer to the Owner towards balance payment of the said sum of Rs.11,00,000/- (Rupees Eleven Lakhs Only). The Owner hereby acknowledges the receipt.

(b) Rs.1,00,00,000/- (Rupees One Crore

Only) within 7 days after the Owner at his cost making out clear and marketable title to the

property free from all encumbrances, executing Development Agreement and irrevocable General Power of Attorney in favour of the Developer or its nominees in respect of his said property.

(c ). Rs.1,00,00,000/- (Rupees One Crore Only) within 7 days from the date the Owner at his cost obtaining General N. O. C. from the U. L. C.

authorities, obtaining Commencement Certificate from M. B. M. C. and N. A. approval from the

Collector, Thane, Demarcation of the Boundaries on the site as per D. I. L. R.. Plan and delivering vacant possession of his property together with the

Bungalow thereon to the Developer with irrevocable licence to commence and complete construction work on his property.

(d) The Developer has agreed to pay the

balance payment within four years in equal

installments, first of these installments to be paid within one year time from the date of the above payment of Rs.1,00,00,000/- (Rupees One Crore Only) made under Clause No.1 (c ) and the

remaining payment in six half yearly equal installments.

2. The Owner shall on the execution of this Memorandum and within Sixty days from the date

hereof fulfill the following obligations at his cost.

(a) demarcate the boundaries of the said property and to get the survey of the said property done through the Office of D. I. L. R.

(b) to obtain all permissions as mentioned in the Clause 1(c) above including Commencement

Certificate from M. B. M. C. for construction of building on the property.

(c ) to obtain Collector's permission for sale or development if necessary ;

(d) If the land is in any other Zone, the same shall be converted by the Owner for "R" and Commercial Zone.

(e) The Owner shall prepare the building plans for construction of the buildings on the said

property according to the requirements of the Developer before submitting the Plans to the M. B. M. C.

3. All cost charges, expenses for obtaining permissions (statutory or otherwise) under Clause 1(c) above including payment of Scrutiny Fees, deposits and other amounts to the M. B. M. C. or

other Government authorities shall be borne and

paid by the Owner.

4. The Owner shall within seven days from the date hereof, will furnish photocopies of the

original Title Deeds, Plans and other documents in respect of the said property to the Developer's Advocates and Solicitors for verification of the title and to cause the Public Notices in the newspaper inviting any objection from the public if any.

5. The Development Agreement when executed by the parties against payment of Rs.1,00,00,000/- (Rupees One Crore Only) under Clause 1(b) shall contain above specified terms and other usual terms and conditions relating to

the development of the property including obtaining of further statutory permits if any required

including containing of further Commencement Certificate, Occupation Certificate of the buildings

and the Building Completion Certificate, delivery and possession of flats and other premises in the building upon completion of the buildings and obtention of Occupation Certificate from the M. B.

M. C.

6. The Stamp Duty and Registration Charges on the Development Agreement, the

irrevocable Power of Attorney the Declaration to be made by the Owner as to title against payment of

Rs.1,00,00,000/- (Rupees One Crore Only) under Clause 1(b) will be borne and paid by the Developer alone. Each party shall bear and pay

their own Advocates costs."

6. Mr.Singh, the learned counsel appearing on behalf of the

Appellant also submitted that clause 4 contemplates the execution of

a formal document namely a formal development agreement to be a

term of the bargain between the parties.

7. As stated above, there is no dispute that the

Plaintiff/Respondent No.1 and the Appellant/Defendant No.1

executed the suit agreement. All the essential terms have been

agreed upon. The property is identified. The suit property comprises

of land admeasuring 3,00,000 sq. ft. together with a dwelling house

standing thereon. The price, Rs. 9,00,00,000/-, has been agreed to.

The time for payment thereof is also stipulated.

8. Mr.Singh did not even suggest which essential term not

mentioned in the suit agreement was required to be agreed upon.

Considering the nature of this agreement, there is no other essential

term which was not agreed upon. It is not even the first Defendant's

case that there was any consideration other the monetary

consideration that was payable. Clause 1 expressly stipulates that in

addition to grant of development rights in respect of the suit property,

the property itself was to be transferred by Defendant No.1 in favour

of the Plaintiff and/or the Plaintiff's nominees including a co-operative

housing society. The mere reference to the execution of a formal

document does not necessarily make the execution thereof to be a

term of the bargain. There is nothing in the present case that

suggests the contrary.

9. Thus as far as the suit agreement itself is concerned, the

Plaintiff has made out more than just a strong prima-facie case that a

concluded agreement had been entered into between the parties.

10. There is no dispute that the Plaintiff paid the initial amount

of Rs.11,00,000/-. The time to make payment of the further amounts

has admittedly not arrived. There is nothing to indicate that the

Appellant fulfilled all the terms and conditions of the suit agreement

including those stipulated in clause 2. It is not even the case of

Defendant No.1 that he has made out a clear and marketable title to

the property free from all encumbrances or that the development

agreement and irrecoverable power of attorney in favour of the

Plaintiff have been executed. Thus, the Plaintiff has fulfilled as its

obligations upto this stage whereas the Appellant/Defendant No.1 has

not.

11. This brings me to the involvement of Defendant

No.2/Respondent No.2 in the matter and the purported termination of

the suit agreement.

It is the Defendants' case that prior to the agreement

between the Plaintiff and Defendant No.1, an agreement dated

25.2.1998 was entered into between Defendant No.1 and Defendant

No.2 by which Defendant No.1 agreed to sell the suit property to

Defendant No.2.

12. As I will now demonstrate, this agreement can by no

stretch of imagination affect the suit agreement dated 24.6.2003 for

more than one reason. The subsequent facts establish how ultimately

the Defendants i.e. The Appellant and Respondent no.2 have

colluded in an endeavour to defeat the Plaintiffs agreement.

13(A). In November, 2003, DefendantNo.2 filed being Suit No.490

of 2003 for specific performance of the alleged agreement dated

25.2.1998. I use the work "alleged" in respect of the agreement

deliberately. The Plaintiff was not a party to the suit.

(B).

Upon the execution of the suit agreement and prior to the

filing of the said Suit No.490 of 2003, the Plaintiff's advocates had

caused to be published public notices all dated 25.9.2003 in three

newspapers stating that Defendant No.1 had agreed to grant in

favour of the Plaintiff development rights in respect of the suit property

and invited claims in respect thereof within 14 days. It appears that

Defendant No.2 raised objections. What the Appellant/Defendant

No.1 averred in paragraphs 9 and 23 of the written statement dated

30.1.2004 filed in Suit No.490 of 2003 is important and reads as

under:-

"9. It is not true that by an Agreement for sale, dated 25th February 1998, the Defendant (Defendant no.1 in the present suit) had agreed to sell the suit properties to the plaintiff (Defendant

no.2 in the present suit) for a total consideration of Rs.40,00,000/- and on the terms and conditions

stipulated therein. As there was no agreement in respect of the suit properties between the plaintiff

& the defendant there is no question of any term & condition between them. Hence all the terms & conditions as stated by the plaintiff in his plaint in para no.2 are imaginary & are based on cock &

bull story.

23. Therefore this defendant was dumb founded when the plaintiff objected the paper

notice issued by Misquita & Co. dated 25.9.2003 in daily Navaskati in respect of the suit properties,

who had issued the said notice on behalf of their client M/s.Evershine Shelters Pvt. Ltd. (Respondent no.1/Plaintiff in the present suit) &

had entered into an agreement to purchase the rest of the suit properties from this defendant for Rs.90,00,00,00/- vide M. O. U. dated 24.6.2003. To the said notice except the plaintiff no body has objected. The plaintiff objected the notice stating

that he has already entered into an agreement

dated 25.2.1998 with the defendant in respect of the suit properties. The defendant strongly denied the same & asked for the proof from the plaintiff. That is how the plaintiff put forward the alleged

agreement dated 25.2.1998. That was a forged document. The different type of the letters speak for themselves. Moreover the alleged power of attorney dated 25.2.1998 in respect of the suit properties is in fact totally false document. The

power of attorney shows that on 25.2.1998 it was notaries by the notary Mrs.Ethel d'mello & was identified by Advocate Sunil Garodia. In fact on that day the defendant never went to the said notary & the signature does not belong to him. Therefore understanding the gravity of the

offences to which extent the plaintiff may go in achieving his ulterior motive this defendant

decided to file his complaint in the economic wing of crime branch Mumbai, within whose jurisdiction

the plaintiff is residing & where the crime must have been perpetuated. The crime branch after investigation has come to a conclusion that the said agreement & power of attorney in respect at

the suit properties are fake. The crime branch called Notary D'mello with relevant registers but she has failed to produce the same & adv. Sunil Garodia has given statement before the crime

branch that he has not identified the deft. on 25.2.1998."

14.

Thus, upto this stage, Defendant No.1 not only confirmed

the agreement in the present suit but denied the said agreement

dated 25.2.1998 of which specific performance was sought in the said

Suit No.490 of 2003 by Defendant no.2/Respondent no.2.

15. Thereafter the Appellant and Respondent no.2 colluded to

defeat the agreement in favour of the Plaintiff/Respondent no.1. A

fresh agreement dated 21.7.2004 was entered into between

Defendant No.1 and Defendant No.2 in respect of the suit property.

16. In order to seek priority of this fresh agreement dated

21.7.2004 over the suit agreement dated 24.6.2003, Mr.Singh

contended that the alleged agreement dated 25.2.1998 stood merged

in the fresh agreement dated 21.7.2004. The argument requires

merely to be stated to be rejected.

17. Firstly, as stated above, Defendant No.1 had denied even

the existence of the agreement dated 25.2.1998 and had termed the

same as fabricated. Secondly, it is important to note clause 5 of the

agreement dated 21.7.2004, which reads as under :-

"5. It is represented by the Vendor/Owner that one MOU has been executed on 24.6.2003 by

him in favour of M/s.Evershine Homes Pvt. Ltd. And against the said MOU he has received

Rs.10,00,000/- (Rupees Ten Lakhs only) from said M/s.Evershine Homes Pvt.Ltd., the Vendor/Owner has undertaken to cancel that MOU and shall

submit such Deed of Cancellation or any such other document to satisfy the Purchaser/Developer. In case, the Vendor/Owner will not be in a position to get the said MOU cancelled there will be option for the

purchaser/Developer to do the needful to cancel

the said MOU on behalf of the Vendor/Owner and the amount that will be required to pay to M/s.Evershine Homes Pvt.Ltd. shall be deducted from the balance amount of consideration.

However, such amount shall not be exceeded the interest @ Rs.18% p.a. On the said amount of Rs.10,00,000/- (Rupees Ten Lakhs only).

" (emphasis supplied)

Thirdly it is interesting to note that consent terms had been

entered into between the Defendants in the suit Suit No.490 of 2003

though, it is stated that they were not ultimately filed in the Court.

Clause 13 of the said consent terms reads thus :-

"(13). The Plaintiff (Appellant herein and Defendant No.1 to the present suit) and Defendant No.1 (Respondent No.2 herein and Defendant No.2 to the present suit) have agreed that they will

not act upon the agreement the power of attorney dated 25.2.1998 and the same stands null, void

and ineffective." (emphasis supplied)

It is thus clear that the agreement dated 21.7.2004 was not

a mere variation of the alleged agreement dated 25.2.1998. The

agreement dated 21.7.2004 was a separate and independent

agreement.

18. Thus the alleged agreement dated 25.2.1998 cannot be

said to have merged into the agreement dated 21.7.2004. Clause 13

of the consent terms removes any doubt and makes it expressly clear

that the agreement dated 25.2.1998 ceased to exist altogether.

19. By no stretch of imagination can it be said that the

agreement dated 21.7.2004 ought to be considered as a mere

variation of the alleged agreement dated 25.2.1998 and therefore, it

be deemed to have priority over the suit agreement dated 24.6.2003.

20. By a letter dated 12.8.2004, Defendant No.1 purported to

terminate the suit agreement. It is of vital importance to note that the

only reason for terminating the agreement was that it was not

possible for Defendant No.1 to complete the transaction due to

"various legal complications". It was also alleged that the Plaintiff had

not taken any steps to compete the transaction as agreed. However,

no particulars in this respect were furnished. The Plaintiff offered to

return the said amount of Rs.11,00,000/-. There is no indication of

any breach on the Plaintiff's part. It is also important to note that the

letter is silent as to the fresh agreement dated 21.7.2004 entered into

between Defendant No.1 and Defendant No.2.

21. The termination is unfounded and without any basis

whatsoever. It indicates no breaches on the Plaintiffs part. It does not

even purport to make time of the essence of the agreement. It does

not indicate what the alleged legal complications are. It does not

disclose the relevant facts about the subsequent agreement with

Defendant No.2. The termination is therefore illegal and of no

consequence.

It is important to note that the Plaintiff made an application

dated 25.8.2004 for being impleaded in the said Suit No.490 of 2003.

This application was opposed by the Defendants. The application

was rejected by the learned Judge on 25.10.2004 who disposed of

the said Suit No.490 of 2003 by permitting the Plaintiff herein i.e.

Defendant No.2/Respondent No.2 herein to withdraw the suit.

22. The present suit was filed in these circumstances in

September, 2005. The impugned order was passed on 28.10.2005.

23. A technical plea was raised to the effect that the application

for injunction does not contain a prayer restraining Defendant No.1

from creating any third party interests in the suit property which is the

relief that has been granted by the impugned order. The application is

for the following prayers :-

"a). That pending the hearing and final disposal of the suit, the Defendant No.1 be restrained by an Order and Injunction of this Hon'ble Court from :

(i). making any application to the

concerned Local authorities, Revenue authorities, U. L. C. authorities for change

of user and/or for the purpose of development of the suit properties;

(ii). From handing over possession of the suit property to the Defendant No.2, his agents and/or servants and/or any

other person ;

(iii). From initiating any steps for the purposes of development of the suit

properties without the consent of the Plaintiff.

b).

Ad-interim and interim relief in terms of prayer clause (a) above."

24. The argument is purely technical. In fact the reliefs sought,

as set out earlier were wider. I cannot fault the learned Judge for

having moulded the relief and in fact having granted a lesser relief.

Indeed, the basis for rejecting the reliefs in terms of prayers (a-i) and

(a-ii) is, with respect to the learned Judge, misconceived. Prayers

(a-iii) has not been rejected. Considering the relief granted, it was

not necessary to grant prayer (a-iii).

25. It was further submitted that the pleading of readiness and

willingness is not adequate. It was contended that the Plaintiff merely

pleaded that it is ready and willing to make payment to the

Defendants towards the agreed price. Mr.Singh contended that the

pleading ought to have been that the Plaintiff always was and is even

now ready and willing to perform all the terms and conditions of the

agreement correctly construed.

26. Firstly, it is clear that all that remained to be done by the

Plaintiff in respect of the suit agreement was to make payment of the

balance purchase price. The time for the same has not even arrived.

There was nothing of any real substance other than that for the

Plaintiff to do. In any event, the plaint read as a whole indicates quite

clearly that the Plaintiff has been and is even now ready and willing to

perform all the terms and conditions of the agreement. The lapse, if

any, can easily be cured by the simple expedient of an amendment.

27. It was further submitted by Mr.Singh that the Plaintiff had

not challenged the agreement between Defendant No.1 and

Defendant No.2. It is not necessary for the Plaintiff to do so. The

Plaintiff's agreement is prior in time. It is expressly admitted by the

Defendants. Thus even assuming that the agreement dated

21.7.2004 is valid, it cannot affect the Plaintiff's agreement.

28. Lastly, it was submitted that the Plaintiff/Respondent No.1

ought to be directed to deposit the balance consideration. I do not

agree.

29. The Plaintiff has done what it was required to do under the

agreement. Every attempt has been made by both the Defendants to

deprive the Plaintiff of its rights under the suit agreement. The

Plaintiff has received absolutely no benefit under the suit agreement.

The Plaintiff's rights under the agreement are being denied even

today. The Plaintiff is not in possession of the suit property and the

Plaintiff can by no means whatsoever enjoy the same presently. In

these circumstances, it would be a travesty of justice to compel the

Plaintiff to deposit the balance consideration as a condition for grant

of an injunction.

30. In the case of Sanjay Agarwal v. Beekalane Fabrics (P) Ltd.

and another, 2007(9) L.J. Soft (URC) 1, I held as under :-

16. Finally, it was submitted that any order in favour of the Plaintiff must as a matter of law, also require the Plaintiff to deposit the balance consideration. I am unable to agree.

17. In a suit for specific performance, the Plaintiff is essentially required to establish that there is a valid and subsisting contract and that the Plaintiff is and always was ready and willing to perform all the essential terms and conditions of

the contract as per its true construction. There is neither any precedent nor principle which

mandates or even warrants that an interlocutory order in a specific performance suit must require

the Plaintiff to deposit the balance consideration. Indeed, such an absolute proposition would be grossly unfair and would cause great injustice to a Plaintiff in a suit for specific performance who has

a good case on merits.

Take for instance the present case where I have come to a prima-facie conclusion in

the Plaintiff's favour on merits. He is required to pay the balance consideration only on or before the

registration of the document and possession being handed over. Thus upon payment the Plaintiff would be entitled to enjoy the benefit of the

property as per the agreement. If I were to require him to deposit the balance consideration today without putting him in possession or ordering the documents to be executed by the Defendants and registered. I would in effect be compelling him to

fulfill his part of the contract without giving him the

benefit of the performance thereof by the other party, the Defendants. If such a view were to be upheld, the Plaintiff would in effect be required to perform all his obligations without being given the

benefit of the agreement. It would penalize an honest Plaintiff and put a premium on the dishonesty of the Defendant. The law does not mandate such an order. Logic far from supports it.

18. It is in the discretion of the court, depending on the facts and circumstances of the case, whether or not to require a Plaintiff to deposit the consideration as a condition of grant of an injunction in a suit for specific performance. As a rule such an order of deposit ought not to be

passed where the Court is satisfied with the merits of the Plaintiff's case and sees no reason to test

the bona-fides of the Plaintiff.

For instance such a course could be resorted to in cases where the Plaintiff is put in possession of and granted the full benefit of the agreement of which specific performance is sought

at the interim stage. Even in such a case such an order would not follow as a matter of course, as an inflexible rule.

19. Mr. Parekh relied on an order of a learned Single Judge of this Court dated 6.11.2006

in Appeal from Order No.1109 of 2005 (Shri Gaurishankar Govardhandas Todi vs. M/s. Evershine Homes Pvt. Ltd. & Anr.) and in particular

to the following observations in paragraph 4 thereof :-

"In order to get an injunction, the respondent No.1 must plead and show that requirements of section

16(c) of the Specific Relief Act) are complied i.e. he

is and always was ready and willing to perform his part of the contract i.e. to pay Rs. 9 crores. Learned counsel for the respondent No.1 was unable to point out specific averment made in the

plaint about his readiness and willingness to perform his part of the agreement. He however submitted that in the application for interim injunction the respondent no.1 has made an averment of his readiness and willingness and if

necessary such an averment would be made in the plaint by an amendment. In order to show his readiness and willingness, respondent no.1 should be required to deposit in this court the entire amount of the consideration. That is also necessary to protect the interest of the appellant

against any loss arising out of any fall in the price of the property as well as loss of interest. In my

view, the injunction should have been conditional upon such deposit of the amount in the court."

I do not read the judgment as laying down any general proposition as contended on behalf of the Defendants. The order was passed in the facts and

circumstances of that case. It is pertinent to note that in that case readiness and willingness, the pleading and proof whereof is a mandatory requirement under Section 16(c) of the Specific

Relief Act, was not even pleaded in the plaint.

20. Mr. Parekh then relied upon the judgment of another learned Single Judge dated 1.8.2007 in the case of (Aditya Munim vs. Kavita

Sanghi & Ors.). Notice of Motion No.2494 of 2007 in Suit No.1870 of 2007. It is true that in this case the learned Judge did come to the conclusion that the Plaintiff had made out a strong prima-facie case and despite the same ordered as under :-

"To ascertain the bona fide of the Plaintiffs while granting ad-interim relief to the Plaintiff so as to preserve the property till the hearing of the Motion, the Plaintiff can be called upon to deposit the entire

sale consideration in this Court including the amounts referred to in Clause (ii) and (iii) of paragraph 3.5 of the Plaint. This course can be adopted in terms of the exposition in decision in Appeal from Order No.1109 of 2005 dated 6th

November, 2006, which decision has been approved by the Apex Court in SLP No.2049 of 2006 decided on 15th December, 2006."

The learned Judge has by no means held that in every case for specific performance

where interlocutory reliefs are granted, the court is bound to order the Plaintiff to deposit the entire

consideration as a condition precedent. In fact the learned Judge has stated that in such a case the

Plaintiff can be called upon to deposit the entire sale consideration. The learned Judge obviously did so "To ascertain the bona-fides of the Plaintiff" therein. In the facts of this case I see no reason to

test the bona-fides of the Plaintiff.

31. It was submitted that in the present case by the order dated

6.11.2006, which is referred to by me in the above judgment, while

admitting the Appeal, the learned single Judge had granted a stay

subject to the Plaintiff/Respondent No.1 depositing the balance

consideration of Rs. 9.00 crores. It is true that the learned Judge

observed that in order to show its readiness and willingness,

Respondent No.1 should deposit the said amount. The learned Judge

also observed that the present value of the property was about Rs. 30

crores.

Respondent No.1 filed Petition for Special Leave (Civil)

No.20498 of 2006 against the said order in so far as it was directed to

deposit a sum of Rs. 9.00 crores. The Supreme Court ordered as

under:-

"The impugned order is an interim order made while admitting the appeal. We are not inclined to

interfere in exercise of powers under Article 136 of the Constitution of India. The learned counsel for

the petitioner, however, points out to Paragraph (15) of the plaint in support of the contention that

the averment as to the plaintiff being ready and willing to perform its part of the contract as required by Section 16 of the Specific Relief Act has been made in the plaint. We are not

concerned about it at this stage. The special leave petition is, accordingly, dismissed. However, the High Court is requested to expeditiously decide the appeal from Order No.1109 of 2005, preferably

within a period of four months. The petitioner would be at liberty to extension of time to make the

32.

deposit before the High Court."

I do not agree with the submission that the order passed

by the learned single Judge at the stage of admission is binding at the

final hearing of this Appeal. There is nothing in the order of the

Supreme Court either which indicates the same.

33. The view taken by me finds support from the judgment of

the Division Bench of this Court in the case of Yusuf Mohamed

Lakdawala v. Sudhakar Kashinath Bokade, 2008(5) LJ Soft 152 =

2008(2) Mah.L. J. 682, where it was held as under :-

"8. In the appeal filed by the Plaintiff it has been submitted that the Learned Single Judge was in error in granting an injunction subject to the condition that the Plaintiff deposits the entire balance of the consideration of Rs.9.21 Crores. On behalf of the Plaintiff it has been submitted that the

Learned Single Judge arrived at a conclusion that it was the Defendant who had committed prima

facie a breach of the agreement of the Memorandum of Understanding dated 3rd April,

2006. In the circumstances, it would be wholly inequitable to direct the Plaintiff to deposit the entire balance of the consideration of Rs.9.21 Crores at the ad interim stage while not enforcing

the obligations cast upon the Defendant firstly, to obtain a deed of reconveyance of the property which was mortgaged, secondly, to put the Plaintiff in possession with a right to construct and develop

and thirdly, to complete the entire transaction against the payment of the balance consideration.

We are of the view that there is merit in the submission urged on behalf of the Plaintiff and to that extent the Appeal of the Plaintiff would have to

be allowed. As we have already noted, Clause 4(b) of the agreement provided that the payment of the second installment of Rs.3.75 Crores was to be made subject to the Defendant fulfilling his obligations viz. of obtaining a deed of

reconveyance from the mortgagee; and placing the

Plaintiff in possession of the property with a right to develop and construct thereon. At the ad interim stage, it would in our view be inappropriate to direct the Plaintiff to deposit the entire balance of

the consideration amount of Rs.9.21 Crores without the Defendant being required to fulfill his part of the remaining obligations. The question of deposit, if any, should, in our view, be more appropriately considered at the hearing of the

Notice of Motion. The order of the Learned Single Judge to the extent to which the grant of an ad interim injunction was made conditional on a deposit of Rs.9.21 Crores would to the extent of the condition imposed have to be quashed and set aside."

34. Upon a consideration of the matter finally I am satisfied

that the Plaintiff has always been and remains ready and willing to

perform all its obligations. There is absolutely nothing that even

remotely suggests that the Plaintiff is not ready and willing to perform

its obligations. It is important to note that the Appellant has not even

dared to test the same by offering to perform the contract. If it did

and the Plaintiff refused it would be a different matter. It is the

Appellant/Defendant No.1 who has committed breaches of the

agreement. I am not inclined to accept the Plaintiff's refusal to

perform its obligations in the absence of Defendant No.1 performing

his obligations as a lack of readiness and willingness on the Plaintiff's

part. It is settled law that the purchaser need not have money ready