Allowed

Sanjay T.Rukhssana v. Feroza M.Khan

Bombay HC10 Dec 2009S/1193/2003

Case brief

AI extract

What is this about?

This is of an undefended suit for declaration of validity of a sale agreement and specific performance. The Court, finding the agreement valid and the defendant in default, decreed specific performance subject to deposition of the balance consideration within three months.

What did the court decide?

Decree of specific performance passed subject to deposit of Rs.2,00,000/- by the plaintiff within three months; failure to deposit will lead to dismissal.

Sanjay T.Rukhssana Vs Feroza M.Khan — Contract and Commercial Disputes | Bombay HC (2009)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION

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SUIT NO.1193 OF 2003

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Sanjay Tulsidas Rukhana...Plaintiff
vs.
Feroza Mabood Khan ...Defendant

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Mr.V.M.Acharya i/b M/s.Mayur Narendra & Co.for the
plaintiff

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None for the defendant

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 CORAM :A.S.OKA,J.
 DATE : DECEMBER 10, 2009

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JUDGMENT :

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1The suit is shown under the caption �undefended

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suits for exparte decree�.

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2The suit is filed for declaration that the suit
agreement dated 20th August 1999 is valid and subsisting
and is binding on the defendant. The prayer for specific
performance has been also incorporated in the suit.
There are consequential prayers made in the suit.

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3The suit agreement relates to a flat more

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particularly described in paragraph 2 of the plaint. The
defendant executed the suit agreement dated 20th August
1999 in favour of the plaintiff by which the defendant
agreed to sale the suit flat to the plaintiff and to

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transfer the share certificate in favour of the
plaintiff. Consideration was fixed at Rs.9,50,000/-. A
sum of Rs.6,50,000/- was to be paid on or before

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execution of the suit agreement. A sum of Rs.1,00,000/-
was already paid on 16th August 1999 and balance amount
of Rs.2,00,000/- was payable on or before 1st March 2000
at the time of delivery of possession of the suit flat to
the plaintiff. Reliance is placed on various terms and
conditions of the agreement and power of attorney
executed by the defendant in favour of the plaintiff.

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4By letter dated 15th July 2000, the plaintiff had
called upon the defendant to perform his part of the
contract. However, there was no response from the
defendant and therefore, an Advocate�s notice dated 7th
September 2001 was addressed to the defendant. As the
defendant did not come forward to comply with his part of
the suit agreement, the present suit has been filed.

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5There is no written statement filed by the
defendant. The plaintiff has filed an affidavit in lieu
of the examination in chief. The plaintiff is relying
upon the suit agreement dated 20th August 1999 which was
lodged for registration on 25th August 1999. Affidavit

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in lieu of evidence shows that the plaintiff had paid a
total sum of Rs.7,50,000/- to the defendant. The

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averments made in the plaint have gone unchallenged. The
averments made in the plaint have been proved by the
plaintiff and the documents including the suit Agreement
have been proved. There is already an injunction

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operating in favour of the plaintiff restraining the
defendant from creating third party interests and from
parting with possession in respect of the suit flat.

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6In the circumstances, a case is made out for passing
a decree in favour of the plaintiff in terms of prayer
clauses (a) to (c) subject to the plaintiff depositing
the balance consideration of Rs.2,00,000/- in this Court
within three months from today.

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7Hence, I pass the following order :

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i)There will be decree in terms of prayer clauses (a)

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to (c) subject to the condition of the plaintiff
depositing with this court a sum of Rs.2,00,000/-
within three months from today. The plaintiffs will
be entitled to receive costs of the suit from the
defendant.

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ii)In the event the plaintiff fails to deposit a sum
of Rs.2,00,000/- with this Court within a period of
three months from today, the suit will stand
dismissed.

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iii)The plaintiff will be entitled to refund of court
fees as per the rules.

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 JUDGE

Sanjay T.Rukhssana v. Feroza M.Khan

Case brief

What is this about?

What did the court decide?

Sanjay T.Rukhssana v. Feroza M.Khan

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Coram

Case details

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