Bombay High Court
Mrs. Sarika Paresh Mehta vs Era Realtors Private Limited on 12 November, 2013
Bench: Anoop V. Mohta
1 AO.1176-2013
Dond
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO.1176 OF 2013
WITH
CIVIL APPLICATION NO.1396 OF 2013
1) Mrs. Sarika Paresh Mehta
2) Mr. Paresh Ratlal Mehta
Adult of Bombay Indian Inhabitant
Occ: Business.
Both residing at 702, Vibhako Building,
Arihant Galaxy CHS,
Mamlatdar Wadi, Malad (W).
Mumbai-400084. ..Appellants.
(Org. Plaintiffs)
Vs.
Era Realtors Private Limited
A company incorporated under the
Companies Act, 1956, having its registered
Office at Omkar House, Eastern Express
Highway, Opp. Sion Chunnabhatti Signal,
Sion (E), Mumbai-400 022. ..Respondents
(Org. Defendants)
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Mr. J.S. Kini h/f Mr.Suresh Dubey, for Appellants.
Mr. Chirag Balsara a/w Ms. Asha Nair i/b M/s Divya Shah Associates for
Respondent.
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2 AO.1176-2013
CORAM : ANOOP V. MOHTA, J.
DATE : 12 NOVEMBER 2013.
ORAL JUDGMENT:
1 Rule made returnable forthwith. Heard finally by consent of the
learned Counsel appearing for the parties.
2 Appeal from Order filed by the Appellants-Original Plaintiffs being
aggrieved by order dated 19.10.2013 passed by the learned Judge, City Civil
Court, Dindoshi, Mumbai pending Motion as well as Suit whereby refused to
grant any ad-interim relief.
3 Appeal against Order was filed in this Court on 28.10.2013. As
liberty was granted, the Appellants moved the matter and the learned Vacation
Judge has passed the following Order on 31.10.2013:
"1. The fact that Civil Suit for specific performance of contract is
pending, claims and counter-claims made before me at this stage
cannot be considered when trial court is hearing the suit finally on
13 November 2013.
2. As this stage, respondent would not create third party interest in
respect of the suit flat.
3. S.O. to 11 November 2013."
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3 AO.1176-2013
4 The matter is listed before the Regular Court today. The learned
Counsel appearing for the Appellants submitted that the interim order so passed
in Vacation to continue pending disposal of the motion at least, as the same is
fixed tomorrow i.e. 13.11.2013. The learned Counsel appearing for the
Respondent contended that this interim order passed in vacation amounts to
granting final relief so far as the motion is concerned, as the learned Judge has
directed the Respondent not to create third party interest in the suit property by
observing that the hearing itself is fixed on 13.11.2013. Admittedly, the Notice of
Motion is fixed on 13.11.2013 and not the suit itself.
5 The present Appeal from Order filed against the ad-interim order.
As the motion itself is fixed on 13.11.2013, normally there is no reason to disturb
the order already passed in vacation. Considering the effect and the order so
passed though at ad-interim stage on 31.10.2013, it would amount to granting
final relief so far as the motion is concerned. The Trial Judge refused to grant ad-
interim relief. The learned Vacation Judge has granted the relief as recorded
above. Therefore, the issue is that in such circumstances at the final stage of the
hearing of the Appeal in question whether the Appellate Court can consider
and/or reconsider the rival submissions so made by the parties. Admittedly, the
suit as well as motion are pending for hearing.
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4 AO.1176-2013
6 It is difficult to overlook that the learned Judge of the Trial Court in
this background would be in a dilemma and/or difficulty to pass final order on
the pending motion. Therefore, at this stage itself I am inclined to consider the
basic case which is relevant for the purpose of deciding the ad-interim relief
and/or injunction in a suit for specific performance, as prayed in the facts and
circumstances of the case. Though detail events are not necessary, but admittedly
the suit is filed for specific performance of the contract, basically revolving
around the provisions of the Maharashtra Ownership of Flats (Regulation of the
Promotion of Construction, Sale, Management and Transfer) Act, 1963 (for short
"MOFA Act') and the specific performance of the contract. Therefore, the
prayers are made for injunction/interim protection, as contemplated under Order
39 Rules 1 and 2 of Code of Civil Procedure (CPC).
7 The basic requirement of any contract/agreement as contemplated
under MOFA Act and/or any other Contract Act, is clearly description of the
property/flat in question. The property description, the party and the price are
normally the basic ingredients of such agreement and also necessary for granting
such relief. However, at the same time it is relevant to note that the grant of
specific performance and all related provisions are depends upon the facts and
circumstances of the case and specially at the end of the trial and/or at
appropriate time of passing of decree. The learned Judge to exercise its
discretion accordingly.
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5 AO.1176-2013
8 The Court, therefore, at this stage in a given facts and
circumstances requires to consider whether the case is made out for grant of
injunction in such a matter, based upon the agreement between the parties. In the
present case, it is very clear that there is dispute with regard to the description of
the property in question. Whatever may be the effect of such dispute, but this in
my view goes to the root of the matter. If there is a dispute with regard to the
actual area of the contract/agreement, the Plaintiffs themselves after discussion
and correspondences elected/asked the Respondent-Builder to refund the
amount. The existence of specific performance of contract is a matter of detail
trial. The demanded amount was also refunded by deducting amount on the basis
of terms of the agreement between the parties. Whether the deduction was right
or wrong is again a matter of trial, but the effect in totality, at this stage is that
the agreement itself is subject to the trial and evidence, required to be considered
by the Court while granting discretionary relief of specific performance.
9 Both the parties are not willing to accept the basic terms and
conditions of the contract in view of admitted correspondence referring to the
refund of the amount and the related dispute. The Court still needs to consider
the case of the Plaintiffs, in view of the provisions of MOFA Act. Mere
agreement itself is not sufficient unless the description of the property is clearly
mentioned and all other ingredients are also available. The property description,
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6 AO.1176-2013
if not clear, merely because such agreement falls within the ambit of MOFA Act
and more than 20% of the amount was deposited, that itself is not sufficient.
10 In this background, therefore, I see no case is made out by the
Appellants for grant of ad-interim relief. These observations are made only to
give an opportunity to both the parties as on 31.10.2013 the learned vacation
Judge has passed order whereby directed not to create third party interest in the
suit flat pending motion as well as suit. Now as the Notice of Motion is fixed on
13.11.2013 for hearing, I am inclined to observe that the learned Trial Judge to
pass an order in accordance with law and record, uninfluenced by the order
passed by the Vacation Judge and the observations made in this order. The
interim order passed on 31.10.2013 stands vacated for the reasons recorded in
above paragraphs.
11 Appeal from Order as well as Civil Application are disposed of. No
costs. The Notice of Motion be heard and decided, preferably within four weeks.
12 At this stage, the learned Counsel appearing for the Appellants
seeks stay of this order. Considering the observations made above, I see no case
is made out for stay of this order. The request is therefore rejected.
(ANOOP V. MOHTA, J.)
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