Order 1

Order Details: Notice of Motion
Pdf Text: :1: NM-1883.18 Suit.1375.18
CNR NO. MHCC010061482018
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
NOTICE OF MOTION NO.1883 OF 2018
IN
S.C. SUIT NO.1375 OF 2018
1. Mahesh Shankaralal Chhatriwala ]
2. Smt. Varsha Mahesh Chhatriwala,. ] .. Plaintiffs.
Versus
Smt. Shanta @ Sharda Rajan. ] .. Defendant.
CORAM: HER HONOUR JUDGE
BHARTI KALE
(C.R. No. 7).
DATE: 12th September, 2018.
Adv. Harsha Shah for plaintiff.
Adv. M/s. Harish Joshi and Co. for defendant.
ORDER
The plaintiffs have taken out this notice of motion for
restraining the defendants from selling, disposing and or creating third
party rights in the suit garage No.1B.
2. The plaintiffs case in brief is that the plaintiffs and
defendant are residing in the same building. The defendant is owner of
two garages i.e. 1A and 1B, situated on the ground floor of the society.
She agreed to sell garage No.1B to the plaintiffs for consideration of
Rs.27,50,000/. The plaintiffs and defendant accordingly made joint
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application to the society on 14/02/2013 for no objection. The
plaintiffs paid Rs.2,50,000/ in cash and Rs.5,00,000/ by cheque in
furtherance of the said transaction. The plaintiffs again paid
Rs.8,00,000/ on 10/03/2015. The relations between the plaintiffs and
defendant were cordial. The defendant was frequently visiting USA and
therefore the necessary formalities for executing agreement for transfer
and handing over the possession of the suit garage No.1B could not be
completed. The defendant has agreed to put wall between the Garage
No.1A and 1B. The plaintiffs were always ready and willing to
execute the documents. But, due to the absence of the defendants, the
same could not be executed. The defendant was regularly intimating
the plaintiff No.1 about her going and coming back from USA. The
plaintiff No.1 received a message that the defendant will be refunding
the amount paid by the plaintiff on 15/04/2016. Thereafter, she met
defendant, but did not get satisfactory answer. The plaintiffs were
always ready and willing to perform their part of contract and therefore
the instant suit is filed.
3. The defendant filed reply submitting therein that the MOU
was entered into between the plaintiffs and defendant on 14/02/2013.
It is stated that the plaintiff delayed the execution of documents, which
was to be prepared by them. The defendant had always informed the
plaintiffs when she was in Mumbai. She has submitted that in
pursuance of the MOU, she had made joint application to the society for
no objection. She has stated that for long period she was in Mumbai
and numerous time asked the plaintiffs to complete the transaction, but
they failed to do so and instead of making full payment, in September,
2014 plaintiffs handed over cheque of Rs.8,00,000/. She had always
informed the plaintiff when she was returning to Mumbai in advance. Her
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son is also residing in India and he could have also completed the
transaction. Therefore, delay is not because of the defendant. She has
stated that she has performed all the acts, but the plaintiffs avoided
paying balance money and preparing the documents. Therefore, she
has after discussion with the plaintiffs agreed to return the amount and
accordingly messages were sent. It is submitted that the due to delay
she has suffered loss.
4. The plaintiffs filed rejoinder submitting therein that
recently plaintiffs learnt that no application is made by the defendant
for no objection for sell of suit garage. All the visits are denied by the
plaintiffs. It is submitted that through oversight it is averred in plaint
that joint application was made to the society.
5. The defendant filed rejoinder and denied all the
contentions made by the plaintiffs. It is specifically denied that the
defendant was to construct the wall.
6. Heard Advocate for the plaintiffs and defendant. Perused
the authorities cited by both the parties.
7. Following points arise for my determination and I have
recorded my findings thereon for the reasons to follow:
POINTS FINDINGS
i) Whether the plaintiffs have made out a
case for restraining the defendants from
disposing of the suit garage ? : No.
ii) What order ? : As per final order.
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REASONS
Point No.1 :
8. At the outset the Advocate for the plaintiffs submitted that
admittedly there is memorandum of understanding executed between
the plaintiffs and defendant dated 14/02/2013 and there is no dispute
about the same. Further, the plaintiffs in furtherance of the said
agreement made payment of more than 50% amount, even though the
plaintiffs were not required to pay the said amount. The agreement
could not be completed as the defendant was visiting USA frequently
and she was not in India. The defendant was required to make an
application to the society and also was required to construct a wall.
Due to the said defaults and because of cordial relations the plaintiffs
were unable to proceed with the transactions. The plaintiffs have
shown their readiness and willingness to pay the amount and that they
were always ready to perform their part of the contract, but the
defendant failed. If the said garage is sold then definitely plaintiffs will
suffer irreparable loss.
9. Per contra, the Advocate for the defendant has vehemently
submitted that the defendant is 75 years old lady. The plaintiffs and
defendant were required to make joint application to the society for
grant of no objection. The said application was admittedly made by the
defendant and the plaintiffs have pleaded about the same. There is no
mention about the construction of wall in the MOU and at no point of
time it was decided that the defendant was to construct the wall. The
plaintiffs have slept over the agreement for about 6 years. The suit is
also not within limitation. The plaintiffs were required to execute all
the documents i.e. sale deed and pay the balance amount, but they have
not done so. Hence, they are not entitled for any equitable relief.
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10. In the present case, there is MOU entered into between the
plaintiffs and defendant. As per the said MOU the defendant was
required to make an application to the society for transfer of the suit
garage. As per the Clause5 of the said MOU the vendor and purchaser
both being the members of the society were required to obtain consent
for the transfer of the garage. As per the agreement, only that act was to
be performed by the defendant. The plaintiffs have pleaded that the
plaintiffs and defendant have made joint application to the society on
14/02/2013 for no objection certificate for transfer of suit garage in the
name of the plaintiffs. The plaintiffs have also annexed the copy of said
application alongwith the plaint at ExhibitB. The said document is
signed by the defendants and also by the plaintiffs, as consenting to the
same. The plaintiffs have tried to change their version in rejoinder by
submitting that on recent enquiry with the society they came to know
that no such application was made by the defendants. Now, such
contention of the plaintiffs appears to be an after though. As per the
MOU both the parties were required to make an application. The
plaintiffs have stated that recently they have come to know that no such
application is made. However, the plaintiffs were required to prepare
the documents i.e. sale deed and as per them the defendant was not in
India for long period, then definitely it was for them to verify with the
society. Society office is in the same building where the plaintiffs are
residing. Hence, I primafacie find that it were the plaintiffs, who have
not taken any steps. This goes to show that they were not acting
diligently in furtherance of the MOU. The plaintiffs have denied that no
such application was made by the defendant, but they themselves have
produced the signed application. Therefore, the said contention of the
plaintiffs does not appear to be truthful.
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11. The plaintiffs have stated that the defendant was required
to construct a wall between two garages i.e. 1A and 1B as they
belonged to the defendant and they were joint. The plaintiffs have not
produced any primafacie material on record to show that in the first
place demarcation was required to be done by constructing the wall.
For the reason that in the MOU nowhere it is mentioned that the wall
was to be constructed and that too by the defendant. It appears that for
the first time, plaintiffs have made a statement about the construction
of wall when there is no reference of the same in the MOU or there is
no communication to show that the defendant was required to construct
the wall and plaintiffs have asked her to do so. The defendant has
categorically denied that she was required to construct the wall and she
has stated that plaintiffs have agreed to purchase the garage on as is
where basis. Further, there is no document to show that for execution
of the sale deed, construction of the wall was mandatory
12. The plaintiffs have stated that the relations between the
plaintiffs and defendant were cordial, as they are neighours. It is
further pleaded that the defendant being the Senior Citizen used to go
out of country frequently and at one of the time she had intimated that
she intends to take US Citizenship. It is further pleaded that the
defendant was not residing in Bombay for longer duration. Now, there
are no pleadings of the plaintiff that after execution of the agreement
the defendant was never present in Bombay. It is only stated that she
was not there for longer duration. It needs to be seen that the plaintiffs
have stated in the plaint that the defendants regularly used to intimate
the plaintiff No.1 that when she is going to USA and coming back from
USA and that plaintiff No.1 and defendant have been in regular contact.
The defendant in her reply has stated that she was in India from
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16/10/2013 to 30/03/2014. So, the said fact establishes that the
defendant was in India for considerable time. The plaintiffs in their
rejoinder have contended that defendant never informed them about
her visit to India. However, in the plaint, the plaintiffs themselves have
stated that defendant was in regular contact with plaintiff No.1 and
further plaintiffs and defendant are neighbours. If the MOU is perused
then the only act required to be performed by the defendant was to
make application to the society. ExhibitB shows that such signed
application was there since 14/02/2013. There is no reference about
the construction of wall in the memorandum. But, even if such wall
was to be constructed it will would hardly have taken 15 to 20 days.
Therefore, whatever acts were to be performed in furtherance of the
memorandum, hardly required 15 to 20 days. Thereafter, it was upon
the plaintiff to prepare the sale deed and make the payment of balance
consideration. Hence, on this factual aspect it cannot be said that there
was any avoidance or delay on the part of the defendant. It cannot be
said that only for the reason that the defendant used to visit USA, MOU
could not be acted upon. It is categorically stated by the defendant that
her son was present in India. Therefore, plaintiffs could have very well
got the things done in compliance of the MOU. But, on perusal of the
pleadings, it does not appear that the plaintiffs have in fact taken any
steps in furtherance of MOU.
13. Both the parties have relied upon may authorities about
when the specific performance of contract, can be granted and manner
of proof about the readiness and willingness. All the authorities cited
by the defendant, lays down the principle that apart from making
averments about the readiness and willingness, plaintiffs are required to
show that they have acted accordingly. But, in case in hand, the
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plaintiffs have primafacie failed to shown the acts.
14. MOU was entered in 2013. The defendant therefore
submitted that there is enormous delay and suit is also barred by
limitation. The Advocate for the plaintiffs has vehemently submitted
that delay cannot be a ground for refusing the adinterim relief. She
has also placed reliance on the decisions of N.V.Namazi Versus Central
Chinmaya Mission Trust [AIR 1988 MADRAS 84] and
S.V.Sankarlinga Nadar Versus P.T.S. Nadar and others [AIR 1952
MADRAS 389]. The decisions in the said cases, will not apply to the
facts of the present case because in said cases the delay was due to
some supervening circumstances. However, in the present case the acts
required to be performed, hardly required one month. Agreement was
executed in 2013 and the plaintiffs have come out with the case in
2018. So, definitely this delay weighs in favour of the defendant.
Advocate for the plaintiffs has further relied upon the decision in case of
Pichai Moideen Rowther Veruss Chathubuja Das & Sons [AIR 1933
Madras 736] to submit that imaginary hardship could not be
considered. I find that in the present case the defendant has been able
to show the hardship, because she has done all the things required.
But, unnecessarily she is kept waiting for such a long period. The
defendant is admittedly 75 years old lady and if interim relief is
granted, then definitely it will cause hardship to the defendant.
15. The Advocate for the plaintiffs has relied upon the decision
in case of Gujarat Bottling Co, Ltd and Others Coca Cola Co. and
others [(1995) 5 Supreme Court Cases 545], to submit that while
granting an injunction, an equitable relief, the court has to see the
balance of convenience and the conduct of the party seeking injunction
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is to be seen. Further, undertaking can be obtained from the party in
whose favour injunction is granted. The Advocate for the plaintiffs have
submitted that if the injunction is not granted then definitely
irreparable loss would be caused to the plaintiffs. The Advocate for the
defendant has submitted that the defendant is ready and willing to
refund the amount to the plaintiffs and the conduct of the plaintiffs is
not proper. Considering the facts of this case I find that in fact, the
conduct of the plaintiffs does not appear to be just and proper, as they
have not taken any steps for such a long period. If the injunction is
granted then definitely it will be the defendant who will suffer loss, as
for such a longer time i.e. for 6 years the transaction has not
materialized without any fault on her part. Therefore, the said ratio
will not help the case of the plaintiffs.
16. The Advocate for the plaintiffs have placed reliance upon
the decision in case of Raghuveer Agencies Pvt. Ltd. and others
Versus Santosh s/o. Anantrao Jagtap and others [2017(3) Mh.L.J.
636], to submit that for granting injunction, the court has to see three
factors i.e. existence of primafacie case, balance of convenience and
irreparable. The relief of temporary or interlocutory injunction is
discretionary in nature and its main purpose is to protect plaintiff
against any injury by violation of his rights, for which, he cannot
adequately be compensated in damages recoverable in the action.
Nodoubt, the court has to see the three principles governing grant of
temporary injunction. However, as discussed earlier, the plaintiffs have
failed to prove primafaice case in their favour by showing any acts
being performed, in respect of their readiness and willingness. The
plaintiffs have submitted that the they are not having any parking space
in the building and definitely they will suffer irreparable loss. I am not
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ready to accept the said contention. Firstly, for the reason that there is
no pleading to that effect and if really the plaintiffs were suffering
without such garage then definitely they would have acted very fast as
per the MOU. Therefore, it is plaintiffs who failed to establish that they
are entitled for the temporary injunction.
17. The plaintiffs have relied upon the decision in case of
Baijnath Versus Kshetrahari Sarkar and other [AUR 1955 Calcutta
210] to submit that the defendant has entered into transaction with the
plaintiffs knowing fully well the consequences and therefore now the
claim of the plaintiffs cannot be rejected on the ground of hardship.
Nodoubt, the defendant was aware that she has to sell the suit garage to
the plaintiffs. But, said agreement cannot be said to be without time
limit and therefore it cannot be said that defendant could have been
aware about the time period. Hence, it cannot be said that the hardship
is not in favour of the defendant.
18. The plaintiffs have relied upon the decision in case of
Kuldip Gandotra Versus Shailendra Nath Endlay and Anr [AIR 2007
Delhi 1] to submit that plaintiffs made payment and they were
available and were ready and willing to perform their part and
therefore plaintiffs had been able to establish their primafacie case. In
the present case, at this stage there is nothing to show that the plaintiffs
had sufficient funds to pay to the defendant. Further, there was
nothing to show that plaintiffs have acted upon the MOU. In these
circumstances, the said decision will not help the case of the plaintiffs.
19. Considering the entire material on record and authorities
cited by the plaintiffs and the defendants. I find that the MOU which
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was entered into on 14/02/2013 took a very long time to materialize.
The plaintiffs ground that the defendant was out of India does not
appear to be just and proper. The defendant is 75 years old lady and
she has already waited for such a long time. If she is again kept on
waiting, then definitely great loss and prejudice would be caused to her.
The law will help the persons who are just and vigilant about their
rights. But, in this case plaintiffs have unnecessarily delayed the
transaction and I find that in such circumstances they are not entitled
for the equitable relief. There is no averment in the plaint that the
defendant had any intention to avoid MOU. Hence, no malafides can be
attributed to the defendant. When the defendant is not at fault and her
property is kept at stake for such a long time, then definitely the
defendant will suffer irreparable loss. I find that in the present case,
the balance of convenience is in favour of the defendant. In the
circumstances, I answer Point No.1 in negative and proceed to pass the
following order.
ORDER
i) The Notice of Motion No.1883 of 2018 is dismissed.
ii) Accordingly, notice of motion is disposed of.
(BHARTI KALE )
Judge
City Civil Court, Gr. Bombay.
Date : 12/09/2018
Dictated on: 12/09/2018
Transcribed on: 14/09/2018
Signed on: 15/09/2018
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER
17/09/2018 at 3.25 p.m
UPLOADED DATE AND TIME (DASTAGIR B. MULLA)
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.
H.H.J. BHARTI KALE (Court
Room No.7)
Date of Pronouncement of
Judgment/Order
12/09/2018
Judgment/Order signed by P.O.on 15/09/2018
Judgment/Order uploaded on 17/09/2018
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