The Bombay High Court dismissed a suit for specific performance of a 1967 agreement to sell two shops. The court held the suit was hopelessly barred by limitation as the cause of action accrued in 1970. Additionally, the Plaintiff failed to prove readiness and willingness to pay instalments.
Suit dismissed with no order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION
S.C.SUIT NO. 284 OF 1979
Deepak Manmohandas Fadia of Bombay ) Indian Inhabitant residing at 3 Cavel Cross ) Lane, No.4 Kalbadevi Road, ) Bombay 400 002. )..Plaintiff.
v/s.
Mr.A.V.Doijode for Plaintiff.
Ms. Sindha Shreedharan for Defendant No.1.
Mr.Girish Desai, Sr. Advocate i/b. M/s. Vinod Mistry & Co. for Defendant No.2.
CORAM:- A.M.KHANWILKAR, J
DATED :- SEPTEMBER 18, 2009.
JUDGMENT:
January, 1967 executed between the Defendant No.2 and the Plaintiff and in
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the alternative for damages and refund of amount paid towards Earnest Money alongwith interest.
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to Jim Rusdin Private Limited(hereinafter referred to as the Company). The said Company by leave and license agreement dated 9th June, 1965 gave vacant possession of peace and parcel of land situated at Mouza Ambovli, admeasuring 1,41,812 square yards bearing Survey No.145 and 146 to develop the said land and construct buildings thereon. By the said agreement, the Defendant No.2 agreed to accept and take from the Company a lease together with the buildings to be constructed thereon for a period of 98 years on the monthly rent and on terms and conditions mentioned in the lease agreement. It is the case of the Plaintiff that the Defendant No.2 proposed to construct 2016 flats and shops in 48 buildings on the suit land. In furtherance of the said agreement and in anticipation that the Defendant No.2 would construct the shops in Building No.5 which was one of the building to be constructed on the said land, the Defendant No.2 executed agreement in writing in favour of the Plaintiff dated 19th January, 1967 with regard to the two shops described as Shop Nos. 1 and 2 on the ground floor of the Building No.5. It is the case of the Plaintiff that subsequently by agreement dated 30th August, 1967, the Defendant No.2 agreed to give to one M/s. H.A.Bhati and Associates sublease of plot Nos.2 to 7. According to the Plaintiff, the said M/s. H.A.Bhati and Associates entered the said agreement with the Defendant No.2 with knowledge and
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notice of the subsisting agreement in favour of the Plaintiff dated 19th January, 1967. In fact, said M/s. H.A.Bhati and Associates agreed to honour the terms and conditions of the agreement in favour of the Plaintiff dated 19th January, 1967. It is stated that subsequently Defendant No.2 terminated and cancelled the agreement of M/s. H.A.Bhati and Associates, who in turn handed over possession of plot Nos. 2 to 7 and 11 to M/s.New India Construction Company. The Defendant No.2 was one of the partner in the said New India Construction Company. The said New India Construction Company proposed to complete the incomplete structures standing on the plot. It is the case of the Plaintiff that the New India Construction Company acquired right in the said property with the knowledge and notice of the Agreement dated 19th January, 1967 made between the Plaintiff and the Defendant No.2 and the Plaintiff's right thereunder. It is stated that said M/s. New India Construction Company caused to issue public notice on 30th January, 1971 that they were completing incomplete structures and requested all the persons who had entered into agreement either with Defendant No.2 or M/s. H.A.Bhati and Associates for acquiring shops and/or flats in the building for consideration on the suit plot Nos. 2 to 7 to give particulars thereof to their advocates. In response to the said public notice, the Plaintiff sent letter dated 12th
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February, 1971 to the Advocate for the M/s. New India Construction Company stating therein that he has booked two shops for Rs.25,000/under registered agreement dated 19th January, 1967. The Plaintiff has then stated that later on by Indenture dated 16th May, 1970 was executed between original owner M/s. Jim Rusdin Private Limited as the Lessor, Defendant No.2 as the first confirming party, New India Construction company as the second confirming party and Ashish Cooperative Housing Society Ltd, as the lessee. The said M/s. Jim Rusdin demised to the said Society a portion of land which included plot on which the said building No.5 was under construction for a period of 98 years commencing from 12th May, 1965 on rent and terms and conditions mentioned in the said indenture of lease. The Plaintiff has then referred to the indenture of assignment dated 25th April, 1974 made between the above named Society, M/s. New India Construction Company, M/s. Jim Rusdin Private Ltd. And Defendant No.1 whereunder the said Society at the request of the New India Construction Company assigned the lease in favour of the Defendant No.1 and its partners together with the buildings under construction thereon for consideration and on terms and conditions mentioned therein. The Plaintiff asserts that in or about July, 1978, the Plaintiff came to know that the Defendant No.1 were now completing the construction of building No.5.
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Therefore, the Plaintiff by his advocate's letter dated 2nd August, 1978 addressed to Defendant No.1 and 2 stated that he had booked two shops in building No.5 under registered Agreement dated 19th January, 1967. The Plaintiff requested the Defendant to advise him the amount which he should pay and confirm his booking of the said shops in building No.5. The Plaintiff states that the Defendant No.1 by letter dated 28th August, 1978 denied that he was aware of any agreement in favour of the Plaintiff and stated that it was not bound by any agreement executed with M/s. H.A.Bhati & Associates or Defendant No.2 in favour of the Plaintiff. Only thereafter, the Plaintiff has approached this Court by way of present suit filed on 15th January, 1979. In the original suit as filed, the Plaintiff has prayed for relief of specific performance of the agreement dated 19th January, 1967. In the alternative, for damages or compensation in the sum of Rs.1,30,000/- alongwith interest thereon at the rate of 15% per annum from the date of the suit till payment or realisation. The Plaintiff further prays for declaration that the Defendants are liable to repay sum of Rs. 2,000/- with interest at the rate of 15% per annum from the date of the suit till payment or realization and till the above amount is paid, a charge be continued on the suit property. The Plaintiff has also prayed that if the Defendants commit default in payment of the above said amount inspite of
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Court's order on or before specified date, date for repayment be fixed by the Court for the Commissioner for taking accounts to sell the flats described in Exh. C of the Plaint by public auction or private treaty so as to pay the amount to the Plaintiff out of the sale proceeds for satisfaction of the decreetal amount and in case, the sale proceeds were insufficient, liberty be given to the Plaintiff to apply for personal decree against the Defendants. The Plaintiff has also prayed for liberty to bid during the public auction of the property and to set off the purchase price against specified amount. The Plaintiff also took out Notice of Motion for Interim Relief during the pendency of the suit. However, in view of the statement made by the Counsel for the Defendant No.1 that no shops have been constructed and no shops are going to be constructed, no order was passed on the said Motion. Thereafter, the Plaintiff amended the plaint and inserted paragraphs-15A, 15B and 17A in the plaint. Besides, further reliefs have been claimed as a(1), a(2) and (b1), (e1) and (e2). In paragraph-15A, which was inserted by way of amendment, it is stated that the Defendant No.2 had got plan sanctioned from BMC for construction of 48 buildings on the said land including the building No.5 prior to executing registered agreement in favour of the Plaintiff dated 19th January, 1967. Therefore, the Defendant No.1 was bound and liable to construct the said building No.5 in accordance
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with the said plan. It is the case of Plaintiff that the said plot was provided for construction of shop on the ground floor of the said building No.5. According to the Plaintiff, the Defendant No.1 were bound to construct two shops of the aggregate area of 500 sq.ft on the ground floor of the said building and to sell the same to the Plaintiff. It is further stated that if the Defendant No.2 proposed to construct the building on the said land which are not according to the said sanctioned plan, in that case the Defendant No.
1 is obliged to provide two shops on the ground floor in the shopping complex to be constructed on the said land. Consistent with the said pleadings, the Plaintiff prayed for further reliefs.
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objections were raised in respect of certain questions which have been left open to be considered by the Court. Besides, Commissioner has marked the documents as Articles. Since no objection has been raised during the oral arguments, I would treat the documents produced by the Plaintiff as exhibited, as Exh. P-1 to P-16 . Moreover, it may not be necessary to delve upon the objections taken during the cross examination of the Plaintiff's witness. The Defendant No.2 although filed Written Statement and also affidavit in lieu of examination in chief, however, on 9th January, 2007, informed the Court that he was not interested in examining any witness. Even the witness whose affidavit in lieu of examination in chief was filed was not offered for cross-examination. In other words, no oral evidence has been produced by the Defendant No.2. Indeed, the Defendant No.2 filed list of documents. However, in absence of oral evidence to prove the same, the said documents cannot be taken on record except to mention that the Deed of Assignment dated 25th April, 1974, which is relied by the said Defendant is also relied by the Plaintiff, which is already marked as Exh. P-11 . As “no written statement” order has been passed as against the Defendant No.1, no oral or documentary evidence has been produced at its instance, the Defendant No.1 was however, allowed to cross-examine the Plaintiff's witness.
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ISSUES
FINDINGS
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| (3)Whether the Plaintiff has any cause of action against the Defendant No.2 |
?- Partly yes for claim of Damages/Refund of Earnest Money. |
|---|---|
| (4)Does the Plaintiff proves that there | |
| is lis with Defendant No.1 and that the Defendant No.1 is liable to honour the registered agreement dated 19thJanuary, 1967 ? |
- No. |
| (5)Does the Plaintiff prove that he | |
| was always ready and willing to perform his part of the contract ? |
- No. |
| (6)Whether the Plaintiff or the Defendants have committed breach of contract ? |
- Plaintiff and Defendant No.2 only. |
| (7)Is the Plaintiff entitled for relief of specific performance of agreement dated 19thJanuary, 1967 ? |
- No. |
| (8)Is the Plaintiff entitled for allotment of some other shops in one of the building constructed on the land in lieu of the two shops under suit agreement which were to be constructed in building No.5 on the same land ? |
- No. |
| (9)Is the Plaintiff entitled for relief of damages and refund of Earnest Money amount with interest ? |
- No. |
| (10)What order ? | - Suit dismissed. |
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REASONS
ISSUE NO.1
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communication received from M/s. H.A.Bhati and Associates who according to the Plaintiff acquired right in the property pursuant to agreement in their favour by the Defendant No.2. The said M/s. H.A.Bhati and Associates by their letter dated 27th May, 1970 (Exh. P-6) called upon the Plaintiff to produce original agreement in absence of which it would be difficult to entertain the claim of the Plaintiff in respect of two shops. The said letter produced by the Plaintiff has been marked as Exh. P-6 . It is noticed that an endorsement has been made at the bottom of the said letter which reads thus: “We have experienced great trouble as your (other) building number is not correctly given by the previous builders. Some time it is shown as 5 and some time it is shown as 6. It is therefore earnestly necessary to note the exact number of building in which your reservation is made.” The Plaintiff has also produced and relied on another letter received from M/s. H.A.Bhati and Associates dated 17th June, 1970, which has been marked as Exh. P-7 . In this letter it is stated that as the proper information has not been supplied nor copy of agreement has been made available. In absence thereof it is not possible to ascertain the claim of the Plaintiff and nothing can bind them to honour the agreement in favour of the Plaintiff. The letter calls upon the Plaintiff to furnish necessary information and the original registered agreement within 3 days. What is significant to note is
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the next communication received from M/s. H.A.Bhati and Associates dated 14th July, 1970, which is marked as Exh.P-8 . The said letter by M/s. H.A. Bhati and Associates in no uncertain terms informed the Plaintiff that they will not be able to honour the agreement entered between the Plaintiff and the Defendant No.2 for sale of shops; as no shops have been sanctioned and constructed in the building, for which they cannot be held responsible. It is not in dispute that this communication is received by the Plaintiff. The Plaintiff relies on this document. It is clear refusal to perform agreement in favour of the Plaintiff. However, the Plaintiff has chosen to file present suit in the year 1979 only, which is hopelessly barred by limitation. Indeed, the Plaintiff has relied on other communications. However, the same are not in the nature of reviving the period of limitation. The period of limitation would start running from the date of first refusal made known to the Plaintiff, which was communicated in most uncertain terms to the Plaintiff by M/s. H.A.Bhati and Associates vide letter dated 14th July, 1970 (Exh. P-8). The Plaintiff has relied on the public notice dated 30th January, 1971 (Exh. P-9) issued by Advocates M/s. Jamshedji Rustomji Devidas and Jani & Merchant for or on behalf of New India Construction Company in whose favour right was created by the Defendants as confirming parties. By this public notice, all interested persons were called
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upon to submit their claim. The Plaintiff accordingly, registered his claim by sending letter dated 12th February, 1971 (Exh. P-10) recording that he has booked two shops on the ground floor in building No.5 by registered Agreement dated 19th January, 1967 and to confirm that position. However, there is nothing on record to show that the Plaintiff received any favourable response to the said communication or acknowledgment of any of the Defendants or the advocates for New India Construction Company about the Plaintiff’s claim of two shops in building No.5. Therefore, this communication cannot revive the period of limitation. The Plaintiff has then relied on communications sent to Defendants herein and M/s. H.A.Bhati and Associates dated 2nd August, 1978 ( Exh. P-12, P-13 and P-14) , whereby the Plaintiff called upon the noticee to advise him as to what amount he should pay and to confirm his booking of two shops in building No.5. The Plaintiff has relied on the communication received from the Defendant No.1 dated 28th August, 1978, which is marked as Exh. P-15 . However, there is nothing in this communication so as to revive the period of limitation. On the other hand, this letter clearly records that the sender was not aware of any agreement mentioned by the Plaintiff and to note that it was not bound by any agreement executed in his favour by M/s. H.A.Bhati and Associates and M/s. Dalipsing and Associates. The Plaintiff
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has then relied on the advocate’s letter dated 7th September, 1978 sent to Defendant No.1, which is marked as Exh.P-16 , calling upon the Defendant No.1 to give inspection of the documents. Suffice it to observe that none of the communications pressed into service by the Plaintiff would even remotely suggest that any of the Defendants or their predecessors have acknowledged their liability to fulfill the suit agreement after clear intimation by M/s. H.A.Bhati and Associates vide letter dated 14th July, 1970 (Exh.P-8) , disowning its liability to fulfill the suit agreement and expressing inability to do so, as no shop was sanctioned or to be constructed in building No.5. Thus understood, the cause of action for filing suit for specific performance accrued to the Plaintiff on receipt of the letter dated 14th July, 1970 (Exh.P-8) from M/s. H.A.Bhati and Associates. Even during the cross-examination, the Plaintiff has not been able to state as to when he realised that no construction was being carried out in terms of the Agreement and within what time, the possession was to be given as per the agreement. Moreover, from reading of plaint as a whole, it is noticed that the Plaintiff was aware of the fact that the Defendant No.2 had transferred his rights in favour of M/s.H.A.Bhati and Associates after execution of the suit agreement and later on in favour of New India Construction Company and eventually in favour of the Society Ashish
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Cooperative Housing Society. The Plaintiff having failed to pursue his remedy in right earnest is not entitled for any relief in the present suit as the Suit will have to be held to be hopelessly barred by limitation, having been filed only in January, 1979.
ISSUE NO.2:
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finally acquired certain rights as specified therein, for which reason, it was not necessary to join M/s. New India Construction Company or Ashish Cooperative Housing Society as party Defendants. According to the Plaintiff, the relief claimed in the present suit can be and will have to be eventually enforced only against the Defendant No.2 who has executed registered agreement in favour of the Plaintiff to sell two shops in building No.5 and the Defendant No.1 who has been eventually assigned the right to develop and sell the constructed flats/shops in the suit property. There is force in this submission. Thus understood, the suit need not be dismissed on the ground that the same suffers from non-joinder of necessary parties.
ISSUE NOS. 3 AND 4.
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to honour the agreement entered in his favour by the Defendant No.2 as no shop was available for sale in building No.5. Indeed, the Plaintiff may
be justified to the extent that although the property changed hands, his claim in respect of the two shops under the suit agreement dated 19th January, 1967 remained unaffected. At the same time, the Plaintiff concedes that the Defendant No.2 created right in favour of New India Construction Company and subsequently in favour of the Ashish Co-operative Housing Society and then assigned the lease in favour of the Defendant No.1. There is no direct agreement between the Plaintiff and Defendant No.1, as such. The Plaintiff although has deposed and also produced indenture of Assignment dated 25th April, 1974 which is marked as Exh. P-11 on which document even the Defendant No.2 has placed reliance, however, the Plaintiff has not been able to establish atleast two facts. Firstly, that the Defendant No.1 was liable to honour the agreement executed by Defendant No.2 in terms of the said Assignment Deed. No provision in the Deed of Assignment to this effect has been pointed out either during recording of evidence or oral argument canvassed across the bar. The fact that existence of Deed of Assignment is indisputable does not necessarily mean that the Defendant No.1 who has acquired right under the said document is obliged to fulfill the agreement between the Plaintiff and Defendant No.2. Merely
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because the Defendant No.2 is one of the confirming party, does not mean that the obligation to be discharged by the Defendant No.2 automatically is shifted on the defendant No.1. Moreover, the second fact which remained to be established by the Plaintiff is that the two shops which are referred to in the Suit Agreement to be constructed on the ground floor in the building No.5 have in fact been constructed by any of the Defendants and that the same are in existence. The Plaintiff in his evidence has admitted that he was not in a position to make good the same. In the cross-examination by Defendant No.1, the Plaintiff was asked as to on what basis he has asserted in the Plaint that shop Nos.6(a) and 6(b) are the same as mentioned in the Agreement dated 19th January, 1967. He replied that M/s. Dalipsing and Associates must have changed shop Nos. 1 and 2 referred to in the Agreement to shop Nos. 6(a) and 6(b) as is mentioned in their letter dated 17th January, 1968 (Exh.P-5) . The Plaintiff has however, admitted that no rectification deed or supplementary agreement was later on executed. He has also stated that there is a plan for ground floor appended to the Agreement dated 19th January, 1967, but had to concede that no shop number is mentioned in the said plan. He has stated that only typical plan is mentioned in the Agreement and there are no numbers. He has admitted that he has not sent any communication to BMC with regard to the change
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of plan after execution of Agreement dated 17th January, 1967. He has failed to produce the sanctioned plan which according to him existed when the suit agreement was executed, which would indicate the existence of two shops in building No.5 on the basis of which the suit Agreement was executed. In other words, the fact that construction of the said two shops was duly sanctioned by the Corporation before the suit Agreement was executed has not been established by the Plaintiff. The fact that the two shops similar to shops described in the suit agreement are in existence in building No.5, has also not been established by the Plaintiff. On the other hand, it has come on record and even the Plaintiff has accepted the fact that the construction of the building was completed on the basis of the subsequent sanctioned plan. The claim of the Plaintiff has been rejected by the successors of Defendant No.2 on the ground that no shop was sanctioned in building No.5 and has been constructed as on the date of filing of the suit. The Plaintiff has conceded that the construction put up on the land was not consistent with the suit agreement. The fact remains that the suit agreement was executed by Defendant No.2. The Defendant No.1 has claimed to have completed construction on the basis of sanctioned plan which does not show existence of two shops similar to one described in the suit Agreement. The Defendant No.2 having parted with his right in favour
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of other person and which fact was within the knowledge of the Plaintiff, the question of pursuing remedy of specific performance against the Defendant No.2 does not arise. The Plaintiff at best would be entitled to pursue remedy of damages and/or refund of earnest money against the Defendant No.2. Suffice it to observe that the Plaintiff cannot succeed against the Defendant No.1 or claim any relief against Defendant No.1 having failed to establish as to how the Defendant No.1 would be liable to honour the commitment made by the Defendant No.2 vide registered Agreement dated 19th January, 1967. The Plaintiff in the cross-examination has admitted that the assignment in favour of the Defendant No.1 is in respect of whole plot, however, was not able to point out any condition in the assignment deed which would oblige the Defendant No.1 to fulfill the commitment made by the Defendant No.2 under the suit agreement. In any case, the property which is referred to in the suit agreement is not in existence and has not come into existence at all. Even for that reason, the Plaintiff cannot pursue remedy of specific performance either against the Defendant No.2 or for that matter, the Defendant No.1.
ISSUE NO.5 :
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perform his part of the contract can be answered on the basis of the case made out in the plaint itself. No doubt the Plaintiff has asserted that he was always ready and willing to perform his part of the contract. However, from the facts which have come on record, it is noticed that the Plaintiff was liable to pay 10% of the consideration amount as earnest money. In other words, at the time of execution of the suit Agreement, the Plaintiff ought to have paid Rs.2,500/- towards earnest money as per clause 3 of the Agreement. However, admittedly, the Plaintiff paid only Rs.2,000/- to Defendant No.2. The case of the Plaintiff is that at the request of the Defendant No.2, the Plaintiff paid further sum of Rs.500/- to M/s. Bawa Enterprises as brokerage which was to be treated as earnest money. Except the bare words of the Plaintiff, there is no contemporaneous or documentary evidence to support this position. On the other hand, the agreement (Exh.P-1) makes no reference to the fact that the amount of Rs. 500/- to be paid towards brokerage charges will be treated as earnest money. The Plaintiff has relied on receipt dated 1st December, 1966 (Exh.P-2) . The receipt mentions payment of Rs.500/- by the Plaintiff towards 2% brokerage for shop Nos. 1 and 2 on building No.5 in ‘Shree Guru Nagar’. It does not even remotely suggest that this amount of Rs.500/- will have to be treated as earnest money or that the amount paid is deemed to have been
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paid by the Plaintiff to the defendant No.2. The Plaintiff has then relied on the receipt dated 1st December, 1966 (Exh.P-2) , which acknowledges the payment made by the Plaintiff in the sum of Rs.2,000/- towards construction cost to M/s. Dalipsing and Associates. Even this receipt does not mention, so as to recognise the payment made towards brokerage as earnest money. The Plaintiff has not substantiated the fact that the earnest money amount of Rs. 2,500/- in terms of clause-3 has been fully paid to the Defendant No.2. There is no material on record to even remotely suggest that the Plaintiff ever made any effort to offer the said amount or any further amount of consideration either to the Defendant No.2 or to the successors of the Defendant No.2 who were continuing with the construction of the building. The fact that the Plaintiff is residing in the same vicinity where the construction work was in full swing is not in dispute. It is not the case of the Plaintiff that he did not see or notice that the construction was in progress and was completed. As per Clause 3 of the Agreement the Plaintiff was liable to pay 10% of the consideration amount after erection of each slab from 1st to 7th floor. No such amount was paid muchless offered. The Plaintiff however, claims that the liability to pay the further installment of consideration amount would have arisen only after receipt of intimation from the Defendant No.2 on completion of each slab. No such intimation
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was received by the Plaintiff. This plea will have to be stated to be rejected.
The Plaintiff has not been able to show that even initial earnest money of 10% (i.e. Rs.2500/-) was fully paid. The fact that the construction was in progress and in fact was virtually completed, by the time the suit was filed, is not in dispute. The Plaintiff cannot be heard to sit back and wait for intimation from the Defendant no.2 to offer the amount. Even after the communication received from M/s. H.A.Bhati and Associates and later from M/s. Mala Enterprises, the Plaintiff did not think it necessary to discharge his obligation of paying the outstanding construction cost of the two shops, as was payable under the Agreement. On analysis of the pleadings and oral and documentary evidence on record, I have no hesitation in taking the view that the Plaintiff has failed to discharge the burden to establish that he was always ready and willing to perform his part of the contract by paying consideration amount as specified in clause 3 of the agreement.
ISSUE NO.6
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the contract. At the same time, in the peculiar facts of the present case, it will have to be noticed that even the Defendant No.2 has committed breach of the contract. The Defendant No.2 entered into agreement to sell two shops in building No.5, however, transferred his right to develop and sell the property in favour of other person successively without protecting the right of the Plaintiff. The Assignment Deed, which is last in point of time dated 25th April, 1974, is in favour of the defendant No.1. There is nothing in the said Assignment Deed which would oblige the Defendant No.1 to honour the commitment made by the Defendant No.2 to the Plaintiff. In that sense, the Defendant No.2 has also failed to perform his part of the contract. As is clear from the above discussion, the Defendant No.1 is not party to the contract between the Plaintiff and Defendant No.2. For the reasons already recorded, failure of Defendant No. 1 to perform the contract does not arise.
ISSUE NO.7
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against the Defendant No.2 for the simple reason that the Defendant No.2 has already created third party rights and transferred his rights in favour of his successors and eventually in favour of the Defendant No.1 in terms of the Assignment Deed dated 25th April, 1974. Going by the Agreement ( Exh.P-1), the Agreement is between the Defendant No.2 and the Plaintiff. The description of the Defendant No.2 as vendor is mentioned as unless it be repugnant to the context or meaning thereof be deemed to include his heirs, executors and administrators. The Agreement does not specifically refer to the successors or the assignees of Defendant No.2. Moreover, the Plaintiff has not been able to establish that the two shops referred to in the said Agreement have in fact been constructed in building No.5. Construction as put up in the form of building No.5 does not provide for two shops which would match with the shops described in the suit Agreement that can be given to the Plaintiff. Besides, the Plaintiff has not been able to establish the fact that he was always ready and willing to perform his part of the contract. Taking any view of the matter, therefore, the question of granting any relief of specific performance of the suit agreement does not arise.
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ISSUE NO.8
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in the property in question in lieu of two shops under the suit Agreement
cannot be countenanced.
ISSUE NO.9
30
for refund of Rs. 2,000/- paid by the Plaintiff to the Defendant No.2 at the time of execution of the Agreement. The fact that the said payment was received by the Defendant No.2 is not disputed at all. That fact is admitted by the Defendant No.2. Ordinarily, I would have been disposed to consider directing the Defendant No.2 to atleast refund the amount of Rs.2,000/- to the Plaintiff which was paid towards earnest money alongwith interest thereon as claimed. However, the Plaintiff is not entitled even to this relief
as the Suit instituted by the Plaintiff is hopelessly barred by limitation.
ISSUE NO.10
ORDER
The suit is dismissed with no order as to costs. Parties to bear their
own costs.
(A.M.KHANWILKAR, J)
3 issues framed by the court
Whether the suit for specific performance is barred by limitation.
Whether the Plaintiff was ready and willing to perform his part of the contract.
Whether the Plaintiff is entitled to relief of specific performance or damages.
Deepak Manmohandas Fadia
M/s. Mala Enterprises
Dilipsingh Harditsingh
A.M. Khanwilkar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
