Mr. Vinod Manohar Deshpande ... vs Mr. Satish Eknath Chuahan
2023 Latest Caselaw 593 Bom

                                                     908 SA 50.23, ia 457.23.doc


Dusane

     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
            CIVIL APPELLATE JURISDICTION

                  SECOND APPEAL NO.50 OF 2023
                             WITH
               INTERIM APPLICATION NO.457 OF 2023



Mr. Vinod Manohar Deshpande ...Appellants
(since deceased) through LRs.
Smt. Geetanjali Vinod Deshpande
& Ors.

        V/s.
Mr. Satish Eknath Chauhan               ...Respondent


Mr. Shailendra         S.    Kanetkar     for   Appellants/
Applicants
                            CORAM: MADHAV J. JAMDAR, J.

DATE: 17th JANUARY, 2023

P.C.:

1. Heard Mr. Kanetkar, learned Counsel appearing for the

Appellants. He submitted that following three substantial

questions of law are involved in the present Second Appeal:

(i) Whether the findings of both the Courts that the

Plaintiff has proved his readiness and willingness is in

accordance with the evidence on record ?

(ii) Whether the suit filed by the Respondent is within

limitation?

908 SA 50.23, ia 457.23.doc

(iii) Whether the Civil Court has jurisdiction to deal with

the Suit?

2. Before considering the substantial questions of law as

submitted by Mr. Kanetkar, it is relevant to note few factual

aspects.

3. Admittedly, the Appellants are the landlords of the

Respondent. As the suit building has become dilapidated, the

Appellants executed Agreement of Sale dated 22 nd October 2001

with the Respondent. The said agreement was executed by the

Appellant in his capacity as owner-developer and the

Respondent in his capacity as purchaser. By the said agreement,

the Respondent agreed to purchase from the Appellant flat

bearing No. C-1 on the 2nd Floor admeasuring about 650 sq.ft.

for total consideration of Rs.4,35,910/-. The said flat is agreed

to be purchased on the ownership basis. Out of the said

consideration, an amount of Rs.65,386/- i.e. 15% of the

consideration was paid by cash and cheque on the date of

execution of the said agreement and balance amount of

Rs.3,70,524/- was to be paid in instalments as set out in Clause-

(2) of the agreement. The said instalments are set out

hereinbelow for ready reference :

908 SA 50.23, ia 457.23.doc

1. 15% at the time of executing this Rs.65,386/-

Agreement

2. Completion of Plinth Rs.94,447/-

3.    22% on 1st Slab                         Rs.94,447/-
4.    22% on 2nd Slab                         Rs.94,447/-
5.    20% at the time of completion of        Rs.87,183/-
      P.M.C.
                  TOTAL Rs.:                  4,35,910/-

4. Clause Nos. 3, 4 and 5 of the said agreement are also

relevant. The said clauses read as under:

"3. The party of the first part hereby agrees to hand over the possession of the flat agreed to be sold/ allotted to the party of second part, on or before 31st May 2003. The party of first part shall complete the construction of the said flat as agreed to herein within a period of 18 months from the date of this agreement and shall hand over the possession thereof to the party of second part after completing all flat amenities and civil work. If the owner developer fails to complete the construction and hand over vacant and peaceful possession within the stipulated time i.e. within 18 months from executing this agreement the owner developer shall pay Rs.5,000/- per month to the purchaser for delayed period. The purchaser shall have right to adjust the said amount in the instalments payable by the party of the second part.

4. The purchaser admit that the grant of completion certificate by the Pune Municipal Corporation in respect of the said flat shall be conclusive proof as to the completion of construction thereof.

5. The party of first part shall communicate to the party of second part on the completion of the said flat and purchaser shall pay the remaining balance out of the outstanding cost to the owner subject to clause No. 4 above and shall shift into the newly completed flat, more particularly described in Schedule 'B'."

(Emphasis added)

908 SA 50.23, ia 457.23.doc

5. The suit notice was issued on 9 th April 2008 and the suit

was filed on 21st August 2008 inter alia seeking specific

performance of agreement of sale dated 22nd October, 2001.

6. The substantial questions of law raised by Mr. Kanetkar,

learned Counsel appearing for the Appellants are required to be

examined in the light of factual position and the evidence on

record.

7. As far as the first substantial question of law that the

Plaintiff has proved his readiness and willingness is concerned, it

is the contention of Mr. Kanetkar that the Plaintiff has failed to

pay as per the instalments agreed in the agreement. Both the

Courts have concurrently found that the Defendant has not

informed the Plaintiff after completion of each stage of

construction and the Defendant has not issued any notice to the

Plaintiff to pay any instalment and therefore, the Plaintiff cannot

be faulted for non-payment of said instalments. In fact, both

the Courts have concurrently held that the Defendant has denied

the execution of agreement of sale itself and therefore noted the

said conduct of the Defendants.

8. The learned Courts have also taken into consideration the

aspect that the Plaintiff has deposited entire balance amount in

the Court after filing of the suit. Both the Courts have

concurrently found that the Plaintiff has proved his readiness

908 SA 50.23, ia 457.23.doc

and willingness.

9. It is also important to note that as per Clauses 3 to 5 of

the agreement, if on or before 31st May 2003, the Appellant fails

to hand over possession of the flat in question with completion

certificate of the Pune Municipal Corporation then the Developer

was under obligation to pay Rs.5,000/- per month to the

Respondent and the Respondent is entitled to adjust the said

amount in the instalments payable by the Appellant to the

Respondent. Admittedly, even till filing of Suit i.e. till August

2008, the flat was not ready. Therefore, the said amount of

compensation towards delay is more than Rs.3,00,000/-. The

Respondent has deposited entire balance payment in the learned

Trial Court after filing of Suit.

10. Mr. Kanetkar has failed to point out that the said finding

regarding readiness and willingness is contrary to the evidence

on record. Therefore, there is no substance in the first

substantial question of law raised by Mr. Kanetkar.

11. As far as second substantial question of law regarding

limitation, Clause 3 provides that the Defendant will handover

possession of the flat to the Plaintiff on or before 31 st May 2003.

It further records that the Defendant shall complete the

construction of the said flat within a period of 18 months. It is

further provided that if owner-developer fails to complete the

908 SA 50.23, ia 457.23.doc

construction and handover vacant and peaceful possession

within the stipulated time i.e. within 18 months from execution

of the agreement, the owner-developer shall pay Rs.5,000/- per

month to the purchaser for delayed period. It is further provided

that the purchaser shall have right to adjust the said amount in

the instalments payable by the party of the second part. Clause

4 provides that the grant of completion certificate of the Pune

Municipal Corporation in respect of the said flat shall be

conclusive proof as to the completion of construction thereof.

Clause 5 provides that the party of the first part shall

communicate to the party of the second part about the

completion of the said flat. It is the admitted position that the

Defendant has never communicated to the Plaintiff about

completion of the said flat and completion certificate as

contemplated under Clause 4 was not issued by the Pune

Municipal Corporation till filing of the suit.

12. Article 54 of the Limitation Act, 1963 specifies three years

as a period for filing suit for specific performance of a contract.

The said period begins to run from the date fixed for the

performance, or, if no such date is fixed, when the Plaintiff has

notice that performance is refused. Although in the agreement,

it is stated that the possession of the flat shall be handed over

on or before 31st May 2003, the agreement further contemplates

908 SA 50.23, ia 457.23.doc

that the owner-developer shall pay Rs.5,000/- per month to the

purchaser for delay in handing over possession. Agreement

further specifies grant of completion certificate by the Pune

Municipal Corporation, as conclusive proof as to the completion

of the construction. The agreement further contemplates that

the Defendant to communicate to the Plaintiff about the

completion of the said flat. Therefore, it cannot be said that the

date mentioned as 31st May 2003 is the last date fixed for

performance.

13. Article 54 further contemplates that if no such date is fixed

for performance then, when the Plaintiff has noticed that

performance is refused, it is the starting point of the limitation.

In the present case, admittedly no completion certificate was

issued by the Pune Municipal Corporation and in any case, the

Plaintiff has never communicated to the Plaintiff about the

completion of the said flat. Admittedly till filing of the Suit, the

flat was not completed. Both the Courts have concurrently held

that the suit is filed within limitation. The said finding is arrived

at on the basis of evidence on record. Mr. Kanetkar, learned

Counsel appearing for the Appellant failed to point out any

perversity in the finding recorded by the Court. Therefore, there

is no substance in the second substantial question of law raised

by Mr. Kanetkar.

908 SA 50.23, ia 457.23.doc

14. As far as third substantial question of law regarding

jurisdiction, Mr. Kanetkar submitted that the suit filed is between

the landlord and tenant and therefore the Civil Court has no

jurisdiction to deal with the said case.

15. Mr. Kanetkar fairly admits that the point regarding

jurisdiction is not raised in the written statement. However,

relying on the judgment of the Supreme Court in the case of

Sushil Kumar Mehta V. Gobind Ram Bohra (Dead) through

His LRs1, he submits that a decree passed by a Court without

jurisdiction over the subject matter or on other grounds which

goes to the roof of its exercise or jurisdiction, lacks inherent

jurisdiction. It is a coram non judice. A decree passed by such a

court is a nullity and is non est. Its invalidity can be set up

whenever it is sought to be enforced or is acted upon as a

foundation for a right, even at the stage of execution or in

collateral proceedings. Therefore, he submits that point of

jurisdiction can be raised even at the stage of Second Appeal.

16. Perusal of the written statement filed by the Appellant

shows that the point of jurisdiction is not at all raised. However,

it is very important to note that the Defendant has come up with

a case that the Defendant was in need of money to execute the

proposal regarding development of the said property and

1 (1990) 1 SCC 193

908 SA 50.23, ia 457.23.doc

therefore the Defendant was collecting funds from available

sources. It is further contended that as the Plaintiff offered to

provide finance of Rs.50,000/- subject to execution of an

agreement of sale of flat showing receipt of Rs.65,386/-, the

agreement was executed. The said contention raised can be

specifically seen from the paragraph 2 of the written statement,

which reads as under:

"2. It is true that this defendant is owner of CTS No. 543A, 543B and 545 Shivaji Nagar, Pune 05. It is also true that the defendant intended to develop above property. This defendant was in need of money to execute the proposal regarding development of above property. He was collecting funds from available sources. The Plaintiff is acquainted with the defendant. The Plaintiff offered to provide finance to the defendant of Rs.50,000/- (Rupees Fifty Thousand only) subject to execution of agreement of sale of flat showing receipt of Rs.65,386/- (Rupees Sixty Five thousand three hundred eighty six only). The agreement had to state price of flat of Rs.4,35,910/- (Rupees Four Lakhs thirty five thousand nine hundred ten only). However, the agreement was to be for security and on return of the advance it was to stand, cancelled. The Plaintiff did not agree to include this condition in the agreement asking the defendant to trust his word. The Defendant was in need of money and therefore executed suit agreement dated 22.10.2001. However, the agreement was not meant for specific performance."

(Emphasis added)

It is further pertinent to note that the Defendant has not entered

into witness box and has not lead any evidence.

908 SA 50.23, ia 457.23.doc

17. The agreement of sale describes the Defendant as owner-

developer and Plaintiff as purchaser. Thus the Suit has been filed

by the Plaintiff in his capacity of the flat purchaser. It is the

contention of the Defendant that the said agreement was

executed as security for the loan advanced by the Defendant.

Thus none of the parties have come up with the case that the

suit is between the Plaintiff and the Defendant in their capacity

as the landlord and tenants. Therefore, there is no substance in

the third substantial question of law raised by Mr. Kanetkar.

18. For the above reasons, the Second Appeal is dismissed

with no order as to costs.

19. In view of dismissal of the Second Appeal, nothing survives

in the Interim Application and the same is also disposed of.

BHALCHANDRA GOPAL DUSANE (MADHAV J. JAMDAR, J.) Digitally signed by BHALCHANDRA GOPAL DUSANE Date: 2023.01.19 18:22:09 +0530