2 Mr. Paresh Ratilal Mehta vs Era Realtors Private Limited
2013 Latest Caselaw 324 Bom

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    dgm




                                                                                 
               IN THE  HIGH COURT OF JUDICATURE AT BOMBAY




                                                         
                         CIVIL APPELLATE JURISDICTION

                    APPEAL FROM ORDER NO. 1301  OF 2013
                                  WITH




                                                        
                              CAA/1550/2013


    1  Mrs. Sarika Paresh Mehta




                                            
    2  Mr. Paresh Ratilal Mehta                          ....   Appellants 
                              ig                   (original Plaintiffs)
          vs

    ERA Realtors Private Limited                         ....    Respondent
                            
                                                   (original Defendants)
          


    Mr. J. S. Kini i/by Mr. Sursh Dubey  for the Appellants / Applicants.
       



    Mr. Chirag Balsara with Mr. Aftab Diamondwala, Mrs. Asha Nair & Mr. 
    Sachin   Mahagavkar   i/by   M/s.   Divya   Shah   Associates   for   the 
    respondents. 





                                      CORAM:  ANOOP V. MOHTA, J.

DATE : December 11, 2013

ORAL JUDGMENT:

Heard finally by consent of the parties.

2 The Appellants/original Plaintiffs challenged order dated

15 November 2013 passed by the learned Judge, City Civil Court,

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Dindoshi, Mumbai, whereby Appellants' Notice of Motion is dismissed,

wherein the prayer was pending the Suit restrain the Defendant from

selling transferring, alienating or creating third party rights in suit flat

No. 506 on 5th Floor in building "Omkar Alta Monte", Malad (East),

Mumbai, total area admeasuring 3098 sq.ft. An ad-interim relief was

also sought of similar nature. The learned Judge refused to grant any

ad-interim relief. Therefore, Appeal from Order No.1176/2013 was

filed. This Court after hearing both the sides, by a reasoned order,

on 12 November 2013, directed the learned trial Judge to dispose of

the Notice of Motion expeditiously. The impugned order is the result

of that.

3 There is no dispute with regard to the agreement and so

also the receipt of amount of Rs.1,00,43,603 by the Respondent. The

dispute is with regard to the actual carpet area-1549.94 sq.ft or

3097.69 sq.ft. The case of Plaintiff as alleged is that pursuant to the

representation made, they agreed to purchase flat having 3097.69

sq.ft carpet area. The payment was accordingly made. The

Respondent, however, denying the same in every aspect by saying that

there was no such representation made with regard to the carpet area

as claimed. The total area as per the agreement certainly 3098 sq.ft,

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but that was divided into two parts, covering carpet area (1549 sq.

ft.) and other area like Niche, Duct and Slabs; Flower beds,

elevational features, AHU as per the sanctioned plan, about 1547.75

sq.ft, for beneficial use of the flat. Admittedly, no further agreement

as contemplated under the Maharashtra Ownership of Flats

(Regulation of the Promotion of Construction, Sale, Management and

Transfer) Act, 1963 (for short, 'MOFA Act"), entered into. The

Plaintiff ultimately therefore filed the Suit in October 2013, by

invoking the said provisions and sought direction/decree against the

Defendants as recorded above. The Suit is, therefore, basically for

specific performance of the agreement read with the reliefs as per the

provisions of MOFA Act for the flat/property in question.

4 The provisions of MOFA Act, in my view, contemplates

clear description of immovable property, price and the parties, so

also is the requirement for any Suit for specific performance of

property. The facts and circumstances, as referred above, itself require

the Court to consider these elements before granting a final and/or

an interlocutory injunction/order as prayed.

    5             There are correspondences on record to show apart from 




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the averments so made in the plaint as well as in supporting affidavit

to the Notice of Motion, the dispute/difference with regard to the

actual carpet area arose. Both parties, therefore, have exchanged

various letters to clarify their respective position. The

Appellant/Plaintiff never accepted at any point of time that the carpet

area agreed is only 1549.94 sq. ft. The case is that as promised it

should be 3097.69. Such reduction of carpet area, though the

agreement is same and so also the price, requires reconsideration,

firstly from parties point of view and also from Court's point of view

while passing the final order. Even if the Appellant/plaintiff able to

demonstrate, which the Defendant definitely opposing, that there

was certain representation and/or promises made and that it is a case

of cheating, still the issue of granting specific performance of contract,

on the basis of alleged contract is a difficult situation even for the

Court in such Suit. The statutory provisions as sought to be

contended though invoked in the background, the difficulty will be

same for want of the clear description of property and the price, in

view of above undisputed position on record. It will be difficult for

the Court to grant any order against the developer to execute the

alleged agreement when the terms and conditions itself are in dispute

since beginning.

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    6           The MOFA Act contemplates clear position with regard to 




                                                        

the description of immovable property and the prices and if other

party refused to enter into the agreement and/or fail to perform part

of the contract, in spite of willingness and readiness of the purchaser

of the property, the Court may direct and/or compel the builder to

execute the agreement, but not otherwise. This dispute, in my view,

goes to the root of the matter, even for passing the ad-interim and/or

interim order as prayed by the Appellant in the present matter.

7 The conduct is also relevant factor while passing such

interim protection and/or interim relief. The correspondences/letters

exchanged by and between the parties immediately after receipt of the

amount as referred above shows that the parties were never agreed to

go ahead with the same terms and conditions and/or to execute the

final agreement as contemplated and/or as promised. The Appellants

expressed willingness to purchase the property at the proportionate

cost of the reduced area and request was made accordingly to finalise

the agreement. The resistance was to make the payment of the full

agreed amount i.e. Rs.4,87,44,000/- as that was as per the Appellant

for the total carpet area of 3097.69 sq.ft. The discussion was on prior

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to February 2013 itself. Therefore, on 9 March 2013 a request was

also made to refund the amount of Rs.1,00,43,692/- with 18% interest

thereon. This itself shows that the Appellant in fact expressly elected

not to proceed with the alleged agreement further. The Respondent

also communicated immediately and indicated to refund the amount

by deducting 10% amount i.e. 48,74,400/- and thereby specifically

communicated in writing that the Appellant ceased to have any right

or interest in the said flat and/or any part thereof and, therefore, they

were entitled to sell the flat to other person. The deduction was

opposed by letter dated 2.9.2013 and insisted for refund of full

amount with 18% interest and also prayed for Rs.50 lacs damages.

The request was also made to give flat on available rate by reducing

the price as per the carpet area now available. This itself means the

Appellant unable to express readiness and willingness to perform his

part of the contract, based upon the original agreement between the

parties.

8 If both party agreed to reduce and/or accept respective

modified terms and conditions, it is difficult for the Court to deny the

same and/or the Court may pass appropriate order even by invoking

the provisions of MOFA Act, but if there is a dispute in every aspect

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and basically carpet area itself, the Court, therefore, at this stage, just

cannot overlook the conduct of the parties as well as the modified

terms and conditions so sought to be placed and/or imposed upon by

the Appellant. The changed terms and conditions, if are not agreeable

to the parties, the submission and/or the relief based upon the

original agreement, in the background, therefore, difficult for the

Court to consider as a foundation to grant interim protection/relief as

prayed.

9 The interpretation of draft allotment letter and/or draft

agreement for sale and specially clauses 1(c), 4(d), 14(f) and 15 and

other provisions and also the submission so made based upon the

alleged promise, in view of above undisputed position and

correspondences between the parties are also of no assistance to the

Appellant to insist for interim protection. The election/option having

once made of demanding the total amount with interest, the

submission even if made to change the terms and conditions and the

demand to make the payment on the basis of alleged reduced carpet

area, this itself, in my view, disentitle the Appellant any interim relief

of this nature, whereby prayer is to restrain the Defendants from

creating third party right or interest in flat No.506, the carpet area of

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which itself is in dispute.

10 The learned trial Judge, therefore, considered the facts

and circumstances and the documents so placed on record and right in

coming to the conclusion that there is no concluded contract between

the parties, the exact area of subject matter of transaction is in dispute

and the Appellant/plaintiff was never ready and willingness to

purchase the flat as agreed and in fact requested for fresh agreement

and the reduction in the price of the flat in question.

11 The case of treating and/or non-compliance of statutory

provisions in the background, apart from discretionary relief which

the Court may pass for and/or against the Appellant in such Suit

which may, in a given case, if the Appellant able to prove, can be a

case of compensation and/or damages. The Appellant, therefore, has

not made out a case of balance of convenience and/or equity and/or

irreparable loss or injury.

12 Therefore, considering the scope and power of Appellate

Court to interfere with the interlocutory order passed by the trial

Court, for the reasons so recorded above, apart from the reason

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already recorded by the learned Judge while dismissing the Notice of

Motion, no case made out for grant of injunction as prayed. There is

no perversity and/or illegality apart from no prima facie case made

out by the Appellant.

13 However, considering the above facts itself, the Suit is

expedited and to be disposed of within nine months.

14 The Appeal from Order is accordingly dismissed so also

Civil Application No.1550/2013. There shall be no order as to costs.

(ANOOP V. MOHTA, J.)