Bombay High Court
Purnimakumari Dharmendra Jain vs M/S J. Gala Builders & Ors on 25 October, 2013
Bench: Anoop V. Mohta
1
Dond
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO.1066 OF 2013
WITH
CIVIL APPLICATION NO.1251 OF 2013
1.Purnimakumari Dharmendra Jain
Age 37 Years, Indian Inhabitant residing
At Flat No.9, A-Wing, 3rd floor, Motisha
Love Lane, Opp. Jain Temple,
Byculla (West), Mumbai 400 027.
2.Dharmendra Khetalal Jain
Age 38 Years, Indian Inhabitant residing
At Flat No.9, A-Wing, 3rd floor, Motisha
Love Lane, Opp. Jain Temple,
Byculla (West), Mumbai 400 027 ..Appellants.
(Orig. Plaintiffs)
Versus
1.M/s J. Gala Builders & Ors.
A partnership firm registered under the
provisions of the Indian Partnership Act,
1932 and having its registered office at
267/71, Narshi Natha Street, Veermani
Market, Mumbai 400 009.
2.Mr. Virji Bharmal Gala
3.Mr. Bharat Virji Gala
4.Mr. Dalpatrai Pukhraj Jain
Partners of M/s J. Gala Builders,
Defendant No.1 firm having their
Address at 267/71, Narshi Natha Street,
Veermani Market, Mumbai 400 009.
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5.Mr. Jayantilal Karamshi Maru
6.Mrs. Kusum Bharat Gala
7.Mrs. Zaver Dalpatrai Jain
All having address at Room No.36, 3rd
floor, 115, Keshavji Naik Road,
Saraswati Sadan, Mumbai 400 009. ..Respondents.
(Orig.Defendants)
---
Mr. Chetan Kapadia a/w I.J. Nankarni and Mr. Manish Gitay
i/b M/s Nankani & Associates for Appellants.
Mr. Birendra Saraf a/w Sanjaj Kadam, Ms. Apeksha Sharma
and Mr. S. Kadam i/b Kadam & Co., for Respondent Nos.1 to 4.
Mr. Mohanish Chaudhari i/b Murudkan & Co. for Respondent Nos.5 to 7.
---
CORAM : ANOOP V. MOHTA, J.
DATE : OCTOBER 25, 2013.
ORAL JUDGMENT:
1 Appeal from Order by the Appellants-original Plaintiffs, as the
learned Judge by impugned order dated 23 July 2013, dismissed the Notice
of Motion pending the Suit filed by the Appellants, whereby the
declaration is sought that agreement of sale dated 31 December 2007 in
respect of the suit property is valid, subsisting and binding and also prayed
that the termination letter dated 3.9.2010 is bad in law and be set aside. A
prayer is made therefore to perform statutory obligation under the
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Maharashtra Ownership Flats (Regulation of Promotion of Construction,
Sale Management and Transfer) Act, 1963 (MOFA Act) based upon the
agreement.
2 The Appellants filed the Suit on 1.12.2012 for interim
protection. The learned Judge, however, not granted any ad-interim relief.
By this impugned order, even the motion of the Plaintiffs is dismissed of.
There is no serious dispute with regard to the execution of the agreement
between the parties. The price, property, and the parties as required for any
agreement of such nature are also not in dispute. The termination of the
contract from year 2010 is also not in dispute. The Appellants-Plaintiffs
therefore fully aware of the effect of the termination of the contract, the
Defendant-Respondent even forwarded the amount by a cheque along with
the termination letter. The amount encashed or not is not relevant. For the
purpose of deciding the present Appeal from Order, necessary element is
the conduct of the parties apart from delay in invoking the court's
jurisdiction for an interim protection on the foundation of a prima facie
case, the balance of convenience, and an irreparable injury.
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3 Admittedly, on 18.8.2012, by a registered agreement,
Respondent No.1, sold the suit property/flat to Respondent Nos.5 to 7 for
consideration. The Deed of Confirmation was registered on 23.8.2012.
Thereafter, the Appellants issued Advocate's notice and challenged the
action of termination of the contract.
4 Both the learned Counsel appearing for the parties read and
referred the following Supreme Court's judgments revolving around the
basic principles of grant of specific performance and to pass appropriate
equitable relief in such matters. These judgments so cited are (1)
Gomathinayagam Pillai Vs. Palaniswami Nadar1, (2) Mademsetty
Satyanarayana Vs. G. Yelloji Rao2, (3) J.P. Builders Vs. A. Ramdas Rao 3 ,
(4) Wander Ltd Vs. Antox India P.Ltd4, (5) M/s Kachhi Properties Vs.
Ganpatrao Shankaro Kadam5All those judgments so cited are on the
foundation of challenge to the final decree for specific performance passed
by the court, after taking note of evidence led by the respective parties. The
basic principles of readiness, willingness and ability, apart from filing of
1 (1967) 1 SCR 227:AIR 1967 SC868
2 (1965) 2 SCR 221:AIR 1965 SC 1405
3 (2011) 1 SCC 429
4 1990 (Supp) SCC 727
5 2010 (5) ALL MR 366
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such suit for specific performance within limitation, are again a matter of
trial. Both the learned counsel appearing for the parties read and referred
even the clauses of the agreement and correspondence so entered into by
and between the parties.
5 The delayed payment since inception and/or late payment
and/or no progress/development of the property and further the conduct by
permitting even the Appellants-Plaintiffs to apply for loan and for that
forwarded signed document, in my view, are again a matter of trial. The
issue, at this stage, therefore is only with regard to grant and/or not to grant
the injunction/interim relief so prayed in the Notice of Motion as not
granted. The scope and the power of the Appellate Court to interfere and/or
to grant, for the first time in this Appeal is quite limited.
6 Admittedly, the third person party to whom the rights have
been created by registered document of August 2012 are not joined. The
effect of non-joining and/or passing of final decree at final stage in such
situation, is also required to be considered by the Court while passing the
interim relief/ protection, basically when it comes to the question of prima
facie case and/or balance of convenience and/or equity.
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7 Admittedly, in spite of termination notice, no steps whatsoever
taken by the Appellants-Plaintiffs referring to the rights so created based
upon the agreement of the year 2007. There was no stay and/or injunction
whatsoever nature against the Respondents. Having once terminated the
contract and if there is no stay/injunction whatsoever, the creation of third
party right by entering into registered document just cannot be stated to be
contrary to the law at this stage of the proceedings, unless Plaintiffs-
Appellants get their decree and/or declared as prayed in the Suit. The effect
of the termination of the contract and execution of further registered
document for the same property, in my view, is relevant factor which
required to be considered at this stage of the proceedings while considering
the rival submissions of the parties revolving around the agreement as well
as the law so read and referred.
8 Mere filing of the suit for specific performance of such
situation though the Appellants-Plaintiffs has knowledge, as the
Respondents failed to perform the respective obligations at the relevant
time, therefore the conduct just cannot be accepted; also for the reason that
the same allegations are made by the Respondents against the Plaintiffs for
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the respective defaults earlier also. The clauses of such agreement and its
effect just cannot be interpreted without considering the facts and
circumstances of the case, to accept the submission so made by the learned
counsel appearing for the Appellants. This is again, in my view, is a matter
of trial.
9 The Respondent-Developer once terminates the contract,
required to proceed with the development of the property and therefore if
enters into a registered contract, I see there is no reason at this stage to
overlook this facets to grant the injunction as prayed by the Appellants.
There is also no dispute with regard to the possession of the property
which admittedly was never with the Appellants at any point of time and
now it is with the new purchaser Respondent Nos 5 to 7. The Appellants if
able to prove the case on the foundation/principles so raised and referred in
the judgments so relief, the Court will pass appropriate order after
considering the basic principles of grant of specific performance in such
matter. The statutory obligation based upon the agreement as contended
even if any just cannot be read in isolation without referring to the basic
intention as well as the prayers so made, which is nothing less than the
prayer for grant of specific performance of the agreement. The principle of
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delay, latches, equity, balance of convenience play important role, may not
for granting final relief as prayed if the Suit is within limitation, but
certainly relevant for granting and/or refusing the interim protection/relief
as prayed in the present case.
10 Therefore, considering the reasons so given by the learned
Trial Judge and for the facts so referred above, at this stage, no case is
made out to grant relief so prayed by the Appellants. However, it is made
clear that in the interest of justice and to avoid further complication, the
Respondent Nos.5 to 7 will not create further right or interest without
giving notice to the Appellants as the case is the contesting builder has
already transferred the property in favour of close relatives (Respodent
Nos.5 to 7.)
11 It is also made clear that, this in no way takes away the
protection if available of law about the transfer of property pending the
Suit and/or the lis pendens.
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12 Appeal from Order stands dismissed, so also Civil
Application.
(ANOOP V. MOHTA, J.)
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