Allowed

M/S.United Corporation v. Dattatray Devrao Patil and 8 Ors.

Bombay HC5 Aug 2013S/2258/2007

Case brief

AI extract

What is this about?

The High Court of Bombay disposed of an undefended suit for specific performance. The plaintiff established payment of consideration and possession under sale agreements. Finding defendants' intent not to execute sale deeds proven via notices, the court decreed the suit allowing specific performance. Leave to amend for appointment of officer was granted.

What did the court decide?

The suit is decreed in terms of prayer clauses (a), (b), (c), (d), (d-1), and (f), specifically directing execution of sale agreements or performance thereof.

M/S.United Corporation Vs Dattatray Devrao Patil and 8… — Specific Performance | Bombay HC (2013)

¶1

S2258-07corrected.doc

¶2

JP CHAVAN

¶3

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

¶4

SUIT NO. 2258 OF 2007

¶5

M/s United Corporation, ... Plaintiff A Partnership Firm 139, Sakseria Chambers, 2nd Floor Nagindas Master Road, Fort, Mumbai 400 023

¶6

Versus

¶7

1. Dattatray Devrao Patil

¶8

1. Yashwant Devrao Patil

¶9

1. Thamabai Devrao Patil

¶10

1. Harishchandra Devrao Patil

¶11

1. Suryakant Devrao Patil

¶12

1. Chandrabhaga Laxman Bhoir

¶13

1. Gulab Devram Patil

¶14

(1) to (7) R/o Navghar Gaon, Nar Datta Mandir, Village Bhayandar (East) Taluka and District Thane.

¶15

1. Shailesh D. Patil

¶16

1. Manoharlal J. Sharma ... Defendants Goddev Naaka, Village Bhayandar (East), Taluka and District Thane 401 105

¶17

Mr. Satish Shah a/w Ms. Gauri Gandhi and Mr. Amit Potnis i/by Tamhane & Co. for the plaintiff.

¶18

None for the Defendants

¶19

1 / 7

¶20

S2258-07corrected.doc

¶21

CORAM : N. M. JAMDAR, J. DATE : 5 AUGUST 2013

¶22

P.C.

¶23

By this suit, the plaintiff prays decree of specific performance in respect of agreements dated 27 September 1994 and 3 December 2012/24 December 1994. In the alternative, the plaintiffs pray for decree of damages to the tune of Rs. 7 crores together with interest @ 24% and also for injunction.

¶24

The learned counsel for the plaintiffs stated that the respondent Nos. 1, 3, 4 refused service of summons and affidavit to that effect has been filed. Defendant Nos. 2, 5, 6 and 9 have been served by way of substituted service. The defendants No. 7 is reported to be dead. No steps are taken to bring his heirs on record. The suit against defendant No. 7 is abated. By order dated 3 February 2010 the Prothonotary & Senior Master has transferred the suit to the category of undefended suit, since no written statement is filed.

¶25

The plaintiff had taken out a Notice of Motion bearing No. 3049 of 2007 in the present suit. By order dated 27 April 2007 in Notice of Motion, the Court directed the parties to maintain status quo. Thereafter, by order dated 4 May 2007, the direction that the defendants should maintain status quo as regards the suit property was continued till the disposal of the Motion.

¶26

2 / 7

¶27

S2258-07corrected.doc

¶28

Thereafter, the Notice of Motion came up for hearing on 30 September 2009. The relief of appointment of Court Receiver was not granted in view of the plaintiff's case that the plaintiff is now in possession of the suit property. The Court considered the agreements for sale and the fact that there was no affidavit in reply and accordingly, made the Notice of Motion absolute in terms of prayer clauses ( (b) and (c). As far as prayer clause (c) was concerned, it related to deposit of the agreements. The Defendant Nos. 8 and 9 were directed to deposit the same with the Prothonotary and Senior master. This order has not been complied with.

¶29

None appears for the defendants even today. The plaintiff filed affidavit of evidence and its witness is present.

¶30

Perusal of the suit shows following facts: M/s Estate Investment Co. Pvt. Ltd. was original owners of immovable property situated at village Navghar, Bhayandar, District Thane, bearing Old Survey No. 433 (part), New Survey No. 92(part). One Devram Patil was tenant in respect of the suit property and after his death, the defendant nos. 1 to 7 were brought on record as his heirs. Pursuant to the provisions of Section 32G of the Bombay Tenancy and Agricultural Lands Act, 1948, the defendants, after having paid necessary charges , became deemed purchasers of the land. The defendant nos. 1 to 7 executed two separate agreements, both dated 27 September 1994 for sale the suit property to Defendant Nos. 8

¶31

3 / 7

¶32

S2258-07corrected.doc

¶33

and 9. The defendant Nos. 8 and 9 entered into two agreements with the plaintiffs dated 3 December 1994 and 24 December 1994.

¶34

The agreement dated 3 December 2004 pertain to Old Survey No. 433 Part /New Survey No. 92 (part). The agreement was titled as 'Agreement for Development-cum-Sale'. The agreement refers a payment schedule. The other agreement dated 24 December 1994 was executed in respect of land bearing Survey No. 110 Hissa No.2 (part) and Survey No. 111 Hiss No.3. Recitals of this agreement and the agreement dated 3 December 1994 were same. Pursuant to these agreements, the defendant Nos. 8 and 9 executed irrevocable power of attorney on 2 January 1995.

¶35

It is the case of the plaintiff that the plaintiff paid almost entire consideration to the defendants. The learned counsel for the plaintiff submitted that the details of the payments is annexed to the compilation of the document, which shows that Defendant no.1- Dattatray Devrao Patil was paid Rs.1,10,000/-, Defendant No.2- Yashwant Devrao Patil Rs.4,60,000/-, Defendant No. 3- Thamabai Devrao Patil Rs.1,00,000/-, Defendant No. 4- Harischandra Devrao Patil Rs.1,10,000/-, Defendant No.5- Suryakant Devrao Patil- Rs.4,05,000/-, Manoj Mhatre- Rs. 2,65,000/-(Defendant No.6- Chandrabhaga Laxman Bhoir), Defendant No. 7- Gulab Devram Patil- Rs.1,00,000/Defendant No.8- Shailesh D. Patil Rs.26,28,770 and Defendant

¶36

4 / 7

¶37

S2258-07corrected.doc

¶38

No. 9- Manoharlal J. Sharma- Rs.33,57,645/-.

¶39

Learned counsel for the plaintiff submitted that the consideration under the agreement for sale was accordingly paid to the defendants. It is the case of the plaintiff that the defendants have, thereupon put the plaintiff in possession of the property and till today, the plaintiff is in possession of the property. According to the plaintiff, in spite of receipt of substantial consideration and in spite of putting the plaintiff in possession of the property, the defendants did not execute sale deed in favour of the plaintiff. Thereafter the plaintiff came across two different notices issued by defendant nos. 1 and 6 and others through different advocates on 5 December 2006,expressing intention to sell the property. The petitioner replied to the said notices by Advocate's letter dated 22nd December 2006. Since it became clear to the plaintiff that the defendants were not going to execute the sale deed in its favour, the suit for specific performance was filed.

¶40

None appears for the defendants. No written statement is filed. averments made in the plaint have gone uncontroverted.

¶41

The learned counsel for the plaintiff submitted that the defendants have executed two agreements for sale as well as irrevocable power of attorney and had put the plaintiff in possession of the property. The learned counsel submits that the defendants have been duly served. However, they have not bothered to contest the suit. Even though the interim orders

¶42

5 / 7

¶43

S2258-07corrected.doc

¶44

are passed in the suit against them, thereafter also defendants have not chosen to file their appearance. The learned counsel submitted that the entire amount, except Rs.42,000/- has been paid to the defendants by way of cheques and the said transactions are reflected in the Bank accounts which are produced on record. The learned counsel submitted that in the circumstances, the suit be decreed.

¶45

I have gone through the plaint, affidavit of evidence as well as compilation of documents. Two agreements for sale have been placed on record. The Bank statement along with summary of payment has been placed on record. The public notice issued on 5 December 2006 clearly shows the intention of the defendants not to honour the agreements for sale. Pursuant to the agreements for sale, the plaintiff has paid entire consideration, except Rs.42,000/-

¶46

As stated earlier, the averments made in the plaint have gone uncontroverted. it is clear that after receipt of the entire consideration, the defendants have not shown any inclination to execute the sale deed in favour of the plaintiff and therefore plaintiff had to resort to the remedy of the filing of the suit. After execution of the agreement for sale, the plaintiff has applied for Non Agriculture Permissions. Non agricultural Permissions have been granted on 5 May 2003 and the application for renewal of the N. A. permission was made on 22 April 2004. The Plaintiff has also lodged police complaint with the Kashimira

¶47

6 / 7

¶48

S2258-07corrected.doc

¶49

Police Station on 22 March 2007, in view of the attempt of the defendants to dispose of the property. The plaintiff has made out a case for specific performance. In the circumstances, the plaintiff is entitled to decree.

¶50

The learned counsel for the plaintiff submitted that if the defendants do not execute agreement as ordered, then the same should be executed through the officer appointed by this Court. The learned counsel submits that such prayer has not been made in the plaint. Leave to amend for that purpose is granted. Amendment to be carried out forthwith. Leave to add prayer clause (d-1) for that purpose is granted.

¶51

The learned counsel for the plaintiff states that in the compilation of documents, plans annexed at Exh.B are not original plans. The plaintiff undertakes to substitute the photocopies of these plans with the originals and only upon substitution of these documents, that the plaintiff will apply for certified copy of the judgment. This statement is accepted.

¶52

Accordingly the suit is decreed in terms of prayer clauses (a), (b), (c), (d), ( d-1) and (f). No costs.

¶53

Refund of court fees as per rules.

¶54

Original documents to be returned after necessary procedural compliance.

¶55

(N. M. JAMDAR, J.)

¶56

7 / 7

M/S.United Corporation v. Dattatray Devrao Patil and 8 Ors.

Case brief

What is this about?

What did the court decide?

M/S.United Corporation v. Dattatray Devrao Patil and 8 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Ankit Real Estate Pvt.Ltd. Vs ---

Krishna Land Developers Private Limited Vs ---

Ekta Multitrade Pvt.Ltd. Vs ---

Prabodh K. Mehta Vs Charuben K. Mehta

Prabodh K. Mehta Vs Charuben K. Mehta

Cahru Kishor Mehta Vs Prabodh Kirtila Mehta