Allowed

Louis Pereira v. Darisa Builders and Ors.

Bombay HC1 Sept 2009S/2709/1997

Case brief

AI extract

What is this about?

In an action for specific performance and damages for non-performance of a 1993 agreement to sell a flat, the court awarded damages as premises were not constructed. The plaintiff proved readiness and the breach, leading to an assessment of damages based on market value at the time of breach.

What did the court decide?

Suit decreed with damages of Rs. 12,69,000 plus interest at 12% per annum from the date of the suit.

Louis Pereira Vs Darisa Builders 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.2709 of 1997

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Louis Pereira ..PLAINTIFF VS. Darisa Builders & Ors. .. DEFENDANTS

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Mr. N.J. D.Monte for the Plaintiff

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None for the Defendants

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CORAM: DR. D.Y.CHANDRACHUD, J DATE : 1^st SEPTEMBER, 2009 P.C.

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The suit has been instituted for specific performance and, in the alternative, for damages in lieu thereof. On 12^th June 1993, an Agreement was entered into between the Plaintiff and the Defendants by which, the Defendants agreed to sell to the Plaintiff a residential flat admeasuring 470 sq.ft. at and for a consideration of Rs.3,25,000/-. According to the Plaintiff, however, an amount of Rs.9,50,000/- was paid to the Defendants comprising of Rs.8,30,000/-, for which

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receipts were issued and an amount of Rs.1,20,000/- which was paid in cash. The Plaintiff also incurred Stamp Duty expenses of Rs.35,180/- and Rs.1000/- under the Amnesty Scheme. The Defendants failed to construct the building and committed breach of their obligations. The Owner of the property as a matter of fact, is alleged to have instituted a Suit (5803 of 1999) against the Defendants as developers.

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The suit has been instituted for specific performance of the Agreement, with an alternate claim for damages. At the hearing of the suit, the claim has been confined to the claim for damages since the premises have not been constructed.

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The Defendants have been served with the Writ of Summons. The suit has been transferred to the list of undefended suit on 24^th February 2005, since the Defendants failed to enter appearance and have not filed their written Statement.

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The Plaintiff has filed an Affidavit in lieu of examination-inchief. The Plaintiff is present and verifies the correctness of what is stated therein. A Compilation of the original documents has been filed. In the absence of contest, the Plaintiff has duly established, that a lawful and binding agreement between the Plaintiff and the Defendants was entered into on 12^th June 1993. Under the agreement, the Defendants agreed to allot to the Plaintiff premises described as Unit No.1 for a consideration of Rs.3.25 lacs. The Plaintiff has duly established that an amount of Rs.8.30 lacs was paid to the Defendants, for which, receipts were issued and that an additional sum of Rs.35,180/- was expended towards Stamp Duty. The Plaintiff has established his readiness and willingness to perform the contract. The claim for specific performance has not been pressed, since the premises have not been constructed. In support of the claim for damages, the Plaintiff has relied upon the contents of paragraph 17 of the Affidavit of evidence. On the basis of the Ready Reckoner for 1994, the rate per square foot of a residential flat at

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Chappel Road, Bandra is estimated at Rs.2700/- per square foot on the date of the breach. On this basis, on the date of the breach, the value of the residential flat is estimated at Rs12.69 lacs. The claim for damages is proved.

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The suit shall stand decreed in the amount of Rs.12.69 lacs, upon which the Plaintiff will be entitled to interest @ 12% p.a., from the date of the suit until payment or realization. The Plaintiff will be entitled to the costs of the suit.

Louis Pereira v. Darisa Builders and Ors.

Case brief

What is this about?

What did the court decide?

Louis Pereira v. Darisa Builders and Ors.

Case brief

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What did the court decide?

What the court decided

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