Allowed

Rajesh B. Kadam v. Smt. Shanta J. Patel and Ors.

Bombay HC27 Aug 2009S/1720/1998

Case brief

AI extract

What is this about?

The court decreed a suit for specific performance of an agreement to sell residential premises. The plaintiff was found ready and willing to pay the balance consideration, and the defendant was ordered to execute the conveyance documents.

What did the court decide?

Suit decreed. Plaintiff to deposit balance with Prothonotary; Defendant to execute conveyance within 4 weeks, failing which Officer shall be appointed to execute it.

Rajesh B. Kadam Vs Smt. Shanta J. Patel and Ors. — Specific Performance | Bombay HC (2009)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT No.1720 of 1998

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RAJESH B. KADAM ..PLAINTIFF VS. SHANTA J. PATEL & ORS. .. DEFENDANTS

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Mr. Prakash Mahadik for the Plaintiff

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Mr. Rajiv Mane , AGP for Defendant No.6

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CORAM: DR. D.Y.CHANDRACHUD, J DATE : 27^TH AUGUST, 2009

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P.C.

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The suit is for specific performance of an Agreement in respect of certain residential premises. The Plaintiff is working as an Excise Inspector with the Central Government. Since the Plaintiff was in need of residential premises in the Vikhroli (East) area, he contacted an estate broker, who established contact with Defendant No.1. Defendant No.1 owned a tenement in a residential

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building namely Building No. 186, Group No.8B, Tagore Nagar, Vikhroli (East), admeasuring 550 sq.ft., and which was available for sale. Negotiations took place between the parties on 17^th and 21^st December 1997. Following this, an agreement to sell was executed by the Plaintiff and Defendant No.1 on 25^th December 1997. Defendant Nos.2 to 5 who are the sons of Defendant No.1, signed the agreement as witnesses. Under the terms of the agreement, Rs.5,000/- was paid by the Plaintiff as earnest money deposit as against a total sale consideration of Rs. 6.80 lacs. The balance was liable to be paid by the Plaintiff on or before 25^th February 1998 to Defendant No.1, failing which the earnest money was to stand forfeited.

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The case of the Plaintiff is that in order to secure the payment of the balance, he took a loan of Rs.50,000/from Punjab and Maharashtra Co-operative Bank Ltd., while his mother, who is employed, approached the LIC and Provident Fund Authorities for obtaining a loan

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against her investments. In the meantime, Defendant No.1 requested the Plaintiff to arrange an amount of Rs. 1,00,000/-, in order to make alternative arrangements for vacating the premises. On 2^nd January 1998, the Plaintiff paid an amount of Rs.75,000/- to Defendant No.1 against which, a receipt was signed by Defendant Nos.1 to 5 and the broker.

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On 2^nd January 1998, the Defendants are alleged to have assured the Plaintiff that, they would vacate the premises on receiving the balance. The Plaintiff’s mother submitted all the loan forms and obtained a loan of Rs.2.95 lacs from LIC, while the Plaintiff obtained a loan of Rs.50,000/from a bank. The balance was raised by obtaining a loan from private parties and by encashing certain fixed deposits and other securities. The Plaintiff states that he was in a position to complete the transaction before 25^th February 1998.

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According to the Plaintiff, since the balance was ready, the Plaintiff visited Defendant No.1 who assured that she would vacate the premises on 28^th February 1998, against payment of the balance. On 24^th and 25^th February 1998, Defendant No.1 sought an extension of a few days to vacate the premises. However, on 25^th September 1998, a meeting between the parties was held wherein the Defendants declined to vacate the premises as agreed. Since there was no response thereafter, an Advocate’s notice dated 4^th March 1998, was addressed to Defendant No.1 and sent under Registered post A.D. The letter was returned with the postal remark “unclaimed”.

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On 29^th April 1998 an ad-interim order was passed in the Notice of Motion, restraining the Defendants from creating third party rights in respect of the suit premises. MHADA which is impleaded as Defendant No.6, has been joined as a formal party to the suit, since it has the power to transfer the premises which Defendant No.1 had

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purchased under a Hire Purchase Agreement from Defendant No.6.

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The Writ of Summons has been served upon the Defendants. An Affidavit of the Bailiff of 29^th March 2007 has been filed. Defendant No.2 died and his heirs and legal representatives have been brought on record. The amended copy of the Plaint is stated to have been served. Defendant Nos. 1 to 5 have not entered appearance.

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The Plaintiff has filed an Affidavit of evidence of his constituted attorney namely, his mother, Sangeeta Kadam. The witness is personally present in Court and deposed to the correctness of what is stated in the Affidavit. A compilation of the original documents has been filed. The original documents include the Agreement for Sale, dated 25^th December 1997 and the receipt of 2^nd January 1998 as well as the Advocates notice and the postal packet. The Plaintiff has duly proved the existence of a valid, legal and

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enforceable agreement between the Plaintiff and Defendant No.1 in respect of the suit premises and the payment of Rs.80,000/- under the Agreement. The Plaintiff has established his readiness and willingness to pay the balance of Rs.6,00,000/- and to perform his obligation under the Agreement. The Plaintiff has established that the 1^st Defendant failed to perform her contractual obligations. The claim has been duly proved.

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The suit shall stand decreed in terms of prayer clause (a) subject to the Plaintiff depositing the balance of Rs. 6,00,000/- with the Prothonotary and Senior Master, within a period of two weeks from today. Defendant No.1 shall execute the Deed of Conveyance and the documents necessary for Defendant No.6, to effect the transfer of the premises in the name of the Plaintiff within a period of four weeks of the date of deposit of the balance by the Plaintiff in this Court. In the event that Defendant No.1 fails to do so, the Prothonotary and Senior Master shall

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appoint an Officer to execute the Conveyance and all other documents, for and on behalf of Defendant No.1. The Suit shall stand decreed in the aforesaid terms. The arrears of the taxes, if any, payable by Defendant No.1 to Defendant No.6 and to the Municipal Corporation, shall be deducted by the Prothonotary and Senior Master from the deposit effected by the Plaintiff and the balance shall be paid over to Defendant No.6. The Plaintiff will be entitled to the costs of the suit.

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(Dr. D.Y.Chandrachud, J)

Rajesh B. Kadam v. Smt. Shanta J. Patel and Ors.

Case brief

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Rajesh B. Kadam v. Smt. Shanta J. Patel and Ors.

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