Jamnadas Mathradas vs 4 Laxmi Builders
2011 Latest Caselaw 222 Bom

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    dgm




                                                                                     
               IN THE  HIGH COURT OF JUDICATURE AT BOMBAY




                                                             
                    ORDINARY ORIGINAL CIVIL JURISDICTION

                               APPEAL NO. 211  OF 2009
                                          IN




                                                            
                                SUIT NO. 3353 OF 1986




                                               
    Jamnadas Mathradas                                             ....   Appellant
                                ig                           (Orig. Plaintiff)
         vs
    1 M/s.Baf Hira Builders Private Limited
                              
    2 N. L. Hiranandani

    3 S. M. Bafna
        


    4 Laxmi Builders                                         ....    Respondents
                                                             (Orig. Defendants)
     



    Mr. Amar Talreja for the Appellant.

    Mr.   Gaurav   Joshi   i/by   M/s.   Vivek   Kantawala   &   Co.   for   the 





    respondents. 

                                               CORAM: D.K. DESHMUKH  &
                                                              ANOOP V. MOHTA, JJ.

    JUDGMENT RESERVED ON             : November 14,  2011

    JUDGMENT PRONOUNCED ON       : December 13, 2011

    JUDGMENT: (Per Anoop V. Mohta, J.)

The Appellant (the Plaintiff) has challenged the judgment and

decree dated 24 October, 2008 whereby his Suit for specific

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performance against all the Respondents has been dismissed in toto.

2 The Appellant attracted by Respondents 1 to 3's advertisement

dated 1 July 1979 alleged to have booked a two room kitchen flat

bearing Flat No.20-A, on the 4th floor of Building No.5 at Baf-Hira

Nagar, Marve Road, Malad (West), Mumbai and paid the earnest

money by a cheque on 2 July 1979 of Rs.5,500/- in favour of

Respondent No.1 and paid cash to one M/s.Laxmi Housing Agency,

alleged sole agent. The same were duly acknowledged.

3 On 3 November 1979 the Appellant enquired about the

agreement and the commencement of construction date. That was

followed by a communication of another letter dated 17 November

1981. On a communication from M/s. Laxmi Agency, the Plaintiff

visited the office also on 19 February 1981. As alleged an assurance

was again given by Respondents 1 to 3 that building's construction

would commence by 15 April 1981 and the work would be completed

in 18 to 20 months. The Appellant communicated on 23 August 1981

to the Respondents that they were bound by the original contract

terms and conditions, therefor not willing to modify the terms and

conditions of payment and consideration as informed in the meeting

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dated 14 August 1981 by Respondents 1 to 3. The construction work

never commenced as stated by the Respondents. Advocate's notice

dated 18 October 1982 was sent by the Plaintiff to execute the

agreement. The Plaintiff thereafter also relied upon oral assurances as

contented, till July 1986. Respondents 1 to 3 had conveyed by an

agreement the property in favour of Respondent no.4 who had

commenced the construction on the site.

4 As noted Respondent no.4 was carrying out construction of the

building on the said plot, the Plaintiff, therefore, called upon

Respondent no.2 by notice dated 8 August 1986 to execute the

agreement. Respondent no.4 by Advocate's reply dated 4 September

1986 denied the knowledge of their agreement.

5 The Plaintiff insisted and claimed the right, based upon the offer

brochures by notice dated 15 September 1986 and ultimately filed the

Suit on 19 November 1986. There was no ad-interim order and/or

any protection and/or during the pendency of the Suit till its decision.

By the reasoned judgment and order, the learned Single Judge on

24.10.2008, after considering all the 14 issues together, dismissed

the Suit with costs and has held as under :

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           (a)     The   Plaintiff   failed   to   prove   that   Defendant   no.1   has 

advertised to sell the flats at BAF-HIRA Nagar, Marve Road, Malad

(West), Mumbai 400 064 on 1.7.1979; (b) The Plaintiff failed to

prove that he had agreed to purchase one flat bearing No.75/A/20,

two room kitchen area about 450 sq.ft on 4th floor, building No.5, "A"

Wing at Bafna Nagar, Malad (West), Mumbai or any other such

number as per the advertisement given by defendant No.1; and is

ready and willing to pay the balance amount of price fixed for the flat

by defendant Nos. 1 to 3; (c)The Plaintiff failed to prove that in

pursuance to the contract to sell the flat as per advertisement, the

defendant no.1 accepted part of the sale price of Rs.5,500/- from the

plaintiff on 3.7.1979; (d) The plaintiff is not entitled to decree for

possession of the flat and for specific performance of the contract /

agreement of sale to him by defendants 1 to 3; (e) The Plaintiff is not

entitled to in lieu of decree for specific performance as loss and

damages for the breach of agreement committed by the defendants 1

to 3 for sale in favour of Plaintiff; (f) Defendant no.4 proved that

he was a bonafide purchaser of the building which was sold by

Defendant no.1 and (g)The Plaintiff failed to prove that the Suit is

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within limitation and is bad for non-joinder of necessary parties.

6 After hearing both the parties and going through the documents

and considering the rival submissions so made and even after re-

visiting the issues so raised, we have to see whether case is made out

by the Appellant to interfere with the reasoned judgment and order

passed by the learned Single Judge by exercising the judicial

discretion, while dismissing the Suit for specific performance of the

contract.

7 First and foremost issue is about the limitation in view of Article

54 of The Limitation Act, 1963. Admittedly, the alleged

acknowledgment/agreement was entered into on 2 July 1979. The

amount of Rs.5,500/- was paid by a cheque to Respondent no.1

towards the earnest money through M/s. Laxmi Housing Agency,

alleged to be the sole agent. There was no details and description of

the flat as there was no constructed building. There was no specific

agreement entered into at any point of time. The building

construction was never commenced and/or completed by Respondent

no.1. After 3 November 1979 another letter was addressed by the

Appellant/Plaintiff on 17 January 1981 and a copy was also sent to

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M/s. Laxmi Housing Agency referring to several telephonic

conversations. From January 1981 upto 14 August 1981 various

meetings, took place as alleged. By referring to letter dated 14

August 1981 and the meeting, the Appellant by telegram dated 23

August 1981, refused to accept the modification of the terms with

regard to cost and consideration of the flat and insisted for original

terms and conditions only. The Respondents 1 to 3 and M/s.Laxmi

Housing Agency never accepted and/or agreed to proceed on the

original terms and conditions at any point of time. The Appellant by a

by a notice dated 18 October 1982 again requested to execute the

agreement as per the original offer. Admittedly, no legal proceedings

were initiated by the Appellant except filing of the Suit on 19

November 1986, after exchanges of the legal notices between the

parties. If the Appellant agreed for the terms and conditions which

provide that the possession would be given within two years and later

on refused to accept the modified terms and conditions as admittedly

opposed by the communication/telegram and still waited for more

than three years and filed the Suit in the year 1986, in our view, is not

entitled for any relief in such Suit merely on the basis of alleged oral

assurances and communications. Once the agreement is in writing,

oral communication and/or modification, even if any, needs to be

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substantiated by the parties one who wants to rely upon such oral

communication/agreement. The Appellant failed to prove the same.

The contention that the time was not fixed for performance and there

was no notice of refusal from the Respondents side, is unacceptable in

the facts and circumstances of the case specifically when there was no

specific agreement executed between the parties except the

payment/acknowledgment of earnest money based upon the offer.

The legal notice dated 18 October 1982 was sent by the Appellant to

the Respondents. Therefore even the last notice of 8 August 1986

could not save the limitation. The Suit as filed and as observed by

the learned Single Judge was time barred. The learned Judge by

giving detailed reasons rightly relied upon the material on record

including the telegram whereby the Appellant/plaintiff has insisted to

execute the agreement, based upon the original offer and even

threatened to take action for damages. The contents of the said

telegram are not in dispute. The Appellant had knowledge about the

intention of the Respondents, if any, not to perform their part of the

contract based upon offer conditions. There is no force in the

contention that the Suit as filed within a year from the last notice

dated 8 August 1986 on the basis of Motilal Jain vs. Ramdasi Devi,1

1 2000 (4) Civil L.J. 524 (SC): (2000) 6 SCC 420

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is maintainable. The facts are totally different and distinct and

distinguishable. Merely because the Appellant had chosen to issue

notice asking the Respondents to execute the sale deed in the year

1986, in our view no way save the Suit as filed on 19 November 1986.

8 Importantly, the specific performance can be granted of

immovable property based upon the clear terms and conditions along

with the description of the property. In the present case, there was no

specific agreement between the parties except the alleged

acknowledgment of receipt of the earnest money. There was no

specific agreement executed at any point of time. There is sufficient

material on record to show that the Respondent never commenced the

construction immediately. Therefore, there was no occasion to fix

further price of flat and/or its instalment, if any. Therefore, there

was no final agreement for consideration of the flat. The construction

never took place within a span of two years. As noted, the Appellant

even failed to agree for modified terms and conditions including the

payment so proposed. The building no.5 was never constructed at

any point of time. As noted, the acknowledgment refers to flat in

building no.5. In view of this matter, as there is clear lacking of terms

and conditions as well as description of the property and as there

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exists no such building no.5, apart from delay, and as there was no

interim order or protection operating in favour of the Appellant, at

any point of time and Respondent no.4 being subsequent purchaser,

completed the construction and third party rights have already been

created and there exists no such flat no.20 in building no.5, "A" Wing

as claimed and if the specific performance as claimed, even if any just

cannot be granted and as the leaned Judge has exercised the

discretion, we also see no reason to interfere with the judgment and

order so passed.

9 The Court cannot pass a judgment or decree which is un-

executable specially in a Suit for specific performance. Therefore,

whether there was valid and/or binding contract as the Appellant

based upon the offer/brochures made the payment through the

exclusive agent, which is also not proved, is also looses its importance

in the present facts and circumstances of the case. The readiness and

willingness which is also basic element of such Suit for specific

performance, as rightly observed by the leaned Single Judge, by giving

reason and we also confirm, after going through the material and

documents on record that the Appellant failed to prove that he was

ready and willing continuously before filing of the Suit and even

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thereafter. The leaned Judge has rightly relied on N. P. Thirugnanam

vs. Dr. R. Jagan Mohan Rao, (1995) 5 SCC 115. The issue with

regard to readiness and willingness is always on the foundation of

valid and clear executable agreement. If there is no clear terms

agreed with regard to description of the property and also of

consideration, the submission with regard to the willingness and

readiness is also unacceptable.

10 Admittedly the construction was commenced by Respondent no.

4 with whom there was no agreement of the Appellant of any kind.

By agreement dated 24 August 1984, Respondent no.4 purchased the

property from Respondents 1 to 3. The third party rights have been

created even thereafter. The Suit was filed in the year 1986. The

Appellant's claim, therefore to grant a decree as prayed of specific

performance declaring the agreement/acknowledgment of the year

1979 valid and binding, in our view also cannot be granted.

11 Respondents 1 to 3, in view of above, was not in a position to

execute and/or give the possession of the alleged flat as the premises

itself was sold to Respondent no.4. There was no agreement and/or

challenged raised within limitation and no interim relief sought at the

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appropriate stage, Respondent no.4 was also not in a position to give

possession of the flat as there was no specific agreement executed

between the Appellant and Respondent no.4, specially when

Respondent no.4, as noted above, was a bonafide purchaser of the

building. In totality, therefore, the dismissal of the Suit by the

learned Judge cannot be faulted with.

Once it is held that the Appellant/plaintiff is not entitled to

decree for possession of the flat and for specific performance of the

agreement of sale, the learned Judge, as the Appellant/plaintiff failed

to prove, by placing the material evidence in support of his alleged

loss and damages for the breach of the agreement by Defendants 1 to

3 and thereby rightly dismissed the claim of damages also.

13 Having once observed above that the Appellant/plaintiff failed

to prove his case and as not entitled for any decree for possession on

the basis of the agreement, and as the Suit itself is barred by the

limitation, there was no question of granting any compensation for the

breach as alleged, except refund of earnest money. There is no

question of any direction by invoking Section 151 of Code of Civil

Procedure (CPC) to provide any flat based upon the agreement

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between the parties. The Appellant's readiness and willingness, as

relied, as was not continued at the relevant time, the same cannot be

accepted now at this appellate stage of the proceedings basically when

the Suit of specific performance as filed itself is dismissed by the

learned Judge with reasoned order.

14 Having once observed above, in our view also, based upon the

Ready Reckoner, the claimed compensation cannot be awarded. Here,

there is no question of denial of right to the Appellant on the basis of

alleged mere price rise, but in view of above reasoning itself. The

Appellant failed to prove the agreement dated 24 August 1984 was

bogus or sham document to defraud his claim and/or it was created

with malafide intention. The Appellant/plaintiff did not examine any

other witness in support of his allegations except his own testimony.

The Appellant also failed to prove that the Respondents have no better

title of the property. The Appellant was not entitled for specific

performance based upon vague, unclear agreement, specifically with

regard to the description of the property. Respondent no.4's reply

with whom never executed any agreement by the Appellant, the

denial, even if any, cannot bring the Suit within limitation based upon

the agreement of the year 1979 executed between the Appellant and

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Respondents 1 to 3.

15 In view of above reasoning and as facts and circumstances are

distinct and distinguishable, the other citation so relied upon by the

Appellant, in our view also no way assist the Appellant to set aside the

judgment and decree passed by the learned Judge.

However, the learned counsel for Respondents, on instructions,

without prejudice to their rights and contentions expressed their

willingness to pay a lump sum amount of Rs.1,67,500/- towards

damages as prayed in prayer (e) and further ready to pay an interest

on the said amount from the date of the order, if any. The statement is

also made to make the payment of earnest amount of Rs.5,500/- as

prayed in prayer clause (d) with 10% interest per annum from 3 July

1979. The Appellant denied this offer. In our opinion, however, in

view of the statement, made on behalf of the Defendants-Respondents,

reliefs in terms of prayer clauses (d) and (e) of the plaint can be

granted to the Appellant. The appeal is dismissed. However, in view

of the statement made on behalf of the Defendants-Respondents, the

Defendants are directed to pay an amount of Rs.1,67,500/- with

interest at the rate of 10% per annum from the date of this order till

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realisation. The Defendants-Respondents are also directed to pay Rs.

5,500/- with interest at the rate of 10% per annum from 3.7.1979 till

the date of payment. The payment be made within a period of four

weeks from today.

17 The Appeal is disposed of in the above terms. There shall be no

order as to costs.

               (ANOOP V. MOHTA, J.)              (D. K. DESHMUKH,J.)