Application seeking specific performance of an agreement was dismissed. The court held that the plaintiff's conduct suggested the agreement was merely security for a loan, as he paid the balance consideration after entering the deal and did not seek prior performance.
Notice of motion dismissed; no order as to costs.
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vai
IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO.520 OF 2011
IN SUIT NO.395 OF 2011
Balwinder Singh Gujral V/s. Nabila Mohiddin Sayyed & Anr.
....Plaintiff
....Defendants
Mr.J.G. Shukla ib G.H. Shukla & Co. for the Plaintiff.
Mr.Anil Kumar Patil for Defendant No.1.
CORAM : S.J. VAZIFDAR, J. DATE : 7TH FEBRUARY, 2012.
P.C. :-
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1 however, contends that the agreement was entered into only as a security for a repayment of a loan of Rs.3,75,000/- granted by the plaintiff to defendant No.1. Defendant No.1 has made out a strong prima-facie case in this regard. In addition to the reasons already furnished by Justice A.S. Oka in the said order dated 25.1.2011 is the fact that the payment of Rs.20.00 lacs was allegedly made between 19.4.2010 and June, 2010. The entire consideration was therefore, allegedly paid. The parties were not known to each other. There was no special connection or relationship between them which would explain the plaintiff’s conduct in not having sought performance of the agreement before the entire consideration was paid. In the normal course, I would expect the plaintiff to secure the execution of the agreement and possession of the premises before paying any amounts more than the usual earnest money. The plaintiff admittedly did not do so. This conduct is consistent with the case of defendant No.1.
This suit was filed in December, 2010 only after defendant No.1 filed a police complaint in October, 2010 alleging harassment by the plaintiff. It is also pertinent to note that the plaintiff did not even address a notice to defendant No.1 calling upon her to perform the alleged agreement.
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purchase another property and restrict his claim against defendant No. 1 to one for damages. On the other hand, if the injunction is granted, defendant No.1 would not be able to enjoy all the benefits of ownership of the property during the pendency of the suit.
No order as to costs.
2 issues framed by the court
Whether the suit for specific performance should be allowed or dismissed given the plaintiff's conduct and lack of privity.
Whether the balance of convenience favours the plaintiff or the defendant in this context.
Balwinder Singh Gujral
Nabila Mohiddin Sayyed
S.J. Vazifdar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
