Order 2

Order Details: Copy of Judgment
Pdf Text: 1 Suit No.1575-2018
Suit lodged on: 14th June, 2018
Suit decided on: 14th February, 2020
Total duration: One year and eight months.
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
S.C.SUIT NO. 1575 OF 2018
(CNR NO.MH CCO1-007096-2018)
Asha Lakshmidas Gandhi,
Aged 61 years old, adult, of Mumbai,
Indian Inhabitant, Occ: Housewife,
residing at C-4, Anjali Apartment,
Vihashree CHSL, Plot No.40, Nath Pai
Nagar, Opp. Vidya Bhavan School,
Ghatkopar(East), Mumbai-400 077. ..Plaintiff
Versus
1. Ashok Sambhaji Kamble,
Adult, Age not know, Occ: Not
known, having address at Mehra
Plot, Kamble Master Chawl,
Chembur(West), Mumbai-400 089.
2. Vijayshree Co-operative
Housing Society Limited,
A co-operative Housing society duly
registered under the provisions of
the Maharashtra Co-operative
Housing Societies Act-1960 and
having it’s registered office at plot
no.40, ‘Anjali’ opp. Pune Vidya
Bhavan, Barrister Nathpai Nagar,
Ghatkopar(East), Mumbai-400 077
through its officials Mr.Chandrakant
D.Vanne(Chairman), Mr.T.D.Kamble
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(Secretary) and Mr.Shantabai G.Sagane
(Treaurer)
3. Heritage Enterprises
A registered partnership firm,
having its office at 18, Charisma
Centre, 19th Road, Chembur,
Mumbai 400 071 through its partners
Mr.Pradeep S.Shetty and Mr.Girish
P.Gangwani
4. Municipal Corporation of Greater Mumbai
A body corporation formed under the
provisions of MCGM Act, 1888 and having
its head office at 1, Mahapalika Marg, Fort, Mumbai
(deleted as per the order of HHJ
Shri C.V.Marathe) ..Defendants
Ld. advocate Sarosh Barucha along with Adv.Kalpesh Joshi and adv.
Nisha Shah for plaintiff.
None for defendants
CORAM : HIS HONOUR JUDGE
SHRI M.SALMAN AZMI
(C.R.NO.01)
DATE : 14th February, 2020
ORAL JUDGMENT
1. This is a suit for specific performance of the contract.
2. The subject matter of the suit is flat no.C-4, admeasuring
365 sq. feet on the second floor of the building known as ‘Anjali
Apartment’ standing on plot bearing CTS No.194 of village Ghatkopar
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Mumbai. (Hereinafter referred to as the suit premises)
3. The plaintiff agreed to purchase the suit premises from
defendant no.1 on lump sum consideration of Rs.10 lacs. Rs.2 lacs was
paid as earnest money in cash for obtaining approval from the Collector
and to prepare title deed of execution. Defendant no.1 and secretary of
defendant no.2-society insisted for the cash amount and agreed that
the balance payment will be made by cheque as and when the sale deed
is executed and registered. That point of time, the vacant possession of
the suit premises was handed over to the plaintiff in part performance
of the agreement. The defendant no.2-society vide its resolution dated
31st July 2005 awarded the work of redevelopment to defendant no.3.
Accordingly, defendant nos.2 and 3 executed a redevelopment
agreement dated 29/05/2006 and the same was confirmed by
registered deed of confirmation dated 11/11/2009. Defendant no.3
started execution of agreement with the members of defendant no.2-
society and members handed over vacant possession of their premises to
defendant no.3. Defendant no.3 started executing the documents in
favour of defendant no.2-society. The plaintiff inquired defendant no.2
about execution in respect of suit premises, however defendant no.2
society neglected possession of the plaintiff and informed her that the
owner of the suit premises will be actual beneficiary of the redeveloped
suit premises since the plaintiff is neither the owner of the suit flat nor a
member of defendant no.2 society. The Municipal Corporation of Gr.
Mumbai sent a notice dated 15th June 2009 u/s. 354 of the Mumbai
Municipal Corporation Act to vacate the building being in a dilapidated
condition. Municipal Corporation of Gr. Mumbai got the building
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surveyed by Technical Advisory Committee in the year 2015. The
plaintiff was always ready and willing to complete sale transaction by
making balance payment. Defendant no.1 never came forward to
complete the sale transaction. Hence, the plaintiff is constrained to file
the suit for specific performance of the contract.
4. The suit is proceeded exparte against the defendants.
5. On the submissions of the plaintiff, following points arise
for my determination and findings to it are recorded for the reasons
stated hereinafter:-
Sr.No. Points Findings
1. Whether there was oral contract between
plaintiff and defendant no.1 in July-2006 In the
in respect of the suit premises? Negative
2. Whether the said oral contract is valid
subsisting and concluded contract? In the
negative.
3. Whether the plaintiff was all along ready In the
ready and willing to complete her part of negative
contract?
4. Whether the plaintiff is entitled to become
the member of defendant no.2 society? Redundant
5. Whether the plaintiff is entitled for specific
performance of the contract? In the
negative
6. Whether the plaintiff is owner of the
suit flat? In the
negative
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7. Whether the plaintiff is entitled for
the relief of declaration and permanent
injunction as prayed? Redundant
8. What order? As per final
order.
REASONS
6. The plaintiff in order to substantiate her case had entered
into the witness box and also examined her daughter as PW-2 and one
other independent witness.
7. The plaintiff has placed reliance upon the following
documents:-
Ex.10 Original Aadhar card
Ex.11 Original PAN card
Ex.12(colly) Original electricity bills
Ex.13(colly) Original Telephone bills
Ex.14 Original passbook
Ex.15 Original passbook
Ex.16 Original Area certificate dated 02/08/2018
Ex.17 Certified copy of the Deed of confirmation
Ex.18 Original Receipt dated 03/07/2019
Ex.19 Original bill dated 10/07/2019
Point Nos.1 to 3
8. The contention of the plaintiff is that plaintiff and her
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husband were in search of the premises in the vicinity of Ghatkopar.
They met with one real estate broker-Parimal in the year 2006. The said
broker introduced the plaintiff and her husband with one
Mr.T.D.Kamble who is functioning as secretary of defendant no.2 society.
The said secretary T.D.Kamble has shown the suit premises to the
plaintiff and informed that he holds the keys of suit premises on behalf
of defendant no.1. The meeting was arranged by T.D.Kamble to visit
the suit premises and negotiate upon sale consideration of the suit
premises. The plaintiff visited the suit premises and checked upon the
suit premises and amenities available in nearby area. After getting
satisfied the plaintiff and her family members inclined to purchase the
suit premises. In July 2006, meeting was arranged by T.D.Kamble
between plaintiff, her husband and defendant no.1. In the said meeting
after discussion, defendant no.1 agreed to sell the suit premises for a
total consideration of Rs.10 lacs and out of which he demanded Rs.2
lacs as an earnest money in cash to obtain approval from the office of
Collector and to prepare title deed of execution. Defendant no.1 and
T.D.Kamble insisted for cash amount and agreed that balance payment
can be made by cheque upon execution and registration of the sale
deed. Accordingly, the plaintiff relied upon the representation of the
said secretary and the said broker and paid Rs.2 lacs to defendant no.1
in cash. The possession was handed over to the plaintiff at that time.
The plaintiff in order to demonstrate her possession has placed upon
record her Aadhar card, electricity bills issued by Reliance Energy,
telephone bills and passbooks. Even, the plaintiff has pointed out area
certificate dated 02/08/2018 issued by Municipal Corporation of Gr.
Mumbai wherein the plaintiff’s name is shown as occupier. Here in this
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case, there is question of deciding whether the plaintiff is entitled for
specific performance of the contract. However, these documents have
no relevance for the claim of the plaintiff for specific performance of the
contract.
9. The plaintiff is claiming specific performance on the basis
of oral agreement. No doubt there is no bar for oral agreement but
when the case is based upon oral contract which has to be established
by cogent evidence.
10. The plaintiff claims that the alleged agreement was in July
2006. The total consideration was Rs.10 lacs and out of which Rs.2 lacs
was paid. At the time of transaction, the plaintiff, her husband, her
daughter, broker, secretary of the society and defendant no.1 were
present. The plaintiff examined herself, her daughter and friend of the
plaintiff Sandhya V. Trigunayat @ Upadhyay. The plaintiff had
transaction in July-2006 and had claimed substantial amount of Rs.2
lacs in cash was paid but did not bother to inquire from defendant no.1
for completing the transition, does not sound proper. The plaintiff
raised from slumber when the process of redevelopment of the building
move fast. The plaintiff even has not issued a single notice and what to
say the plaint is silent about any effort taken by the plaintiff pursuant to
the said oral agreement of July 2006. The plaint avernments and the
evidence speaks that after the deed of confirmation ie in the year 2009
some members of defendant no.2-society had vacated the suit premises.
At that time, the plaintiff inquired with defendant no.2 about the
document in respect of the suit premises, defendant no.2 through
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secretary neglected the possession of the plaintiff and informed that
owner of the suit premises would be actual beneficiary of redeveloped
suit premises. The pleadings and evidence of the plaintiff was silent as
to what the plaintiff did thereafter to complete the transaction. This,
itself shows the improbable conduct of the plaintiff. Even otherwise,
the secretary who was the middle man for the transaction, himself
declared the plaintiff for any right in case of redevelopment, at that
time also plaintiff kept mum which gives dent to the case of the plaintiff
that she agreed to purchase the suit premises. Even the evidence and
the pleadings of the plaintiff shows that the plaintiff has approached the
developer to execute the document to hand over the keys of the suit
premises. Defendant no.3 informed that redeveloped suit premises
would be handed over to defendant no.2 society as she is not the owner.
At that time also plaintiff did nothing. This itself is sufficient to
demolish the case of the plaintiff of oral agreement to sale.
11. The evidence of PW-2 is more or less similar to the plaintiff.
But in addition she deposed that their relative Mrs.Sandhya Upadhyay
helped her parents to find any local broker. The pleadings and evidence
of the plaintiff is silent about the role of Mrs.Sandhya Upadhyay helping
her help to fetch local broker Mr.Parimal. Even in the evidence of PW-3
(Sandhya Upadhyay) who claims to be the friend of plaintiff, her
evidence is restricted to the extent of introducing the broker-Parimal but
her evidence does not give clear picture about her presence at the time
of transaction. This witness claims to be the friend of the plaintiff. As
per story of the plaintiff and evidence adduced by her besides her
daughter, agent-Parimal and secretary of defendant no.2 were present.
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This witness is material independent witness to throw light on the
actual transaction if any transacted between plaintiff and defendant
no.1. The plaintiff has not given any reason for not examining this
witnesses who are material witnesses. This creates doubt about the
story of plaintiff that the transaction was transacted and those persons
were instrumental at the time of transaction.
12. The plaintiff has not given the details of the transaction
save and except the consideration of Rs.10 lacs and payment of Rs.2
lacs towards the earnest money. The pleadings and evidence is silent for
the period in which the transaction was to be completed. The necessity
for obtaining permission from Collector and other rights and liability to
the extent of the plaintiff. In the absence of any rights to the
transaction, it can be safe to say that the plaintiff has not established
that there was a valid, subsisting and concluded contract between him
and defendant no.1.
13. The plaintiff although claimed that she was all along ready
and willing to pay balance consideration of Rs.8 lacs. As discussed
above, the plaintiff has not established that there was a concluded
contract and therefore there is no question of readiness and willing of
the plaintiff to complete her part of the contract. Even otherwise mere
statement of the plaintiff that she was all along ready and willing to
complete her part of the contract would not suffice the purpose. There
is no evidence that since the date of transaction till filing of the suit
what effort the plaintiff has made to complete the transaction by paying
alleged balance consideration to defendant no.1, therefore it cannot be
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said that plaintiff was all along ready and willing to perform her part of
the transaction. Hence, I answer point nos.1 to 3 in the negative.
Point no.4
14. The stand of the plaintiff that she has been requesting
defendant no.2 society to induct her as member of the society but the
society refused to admit plaintiff as it member and rejected her
application to become a member with a reason that plaintiff is not a co-
owner of the suit premises. As per the contention, the plaintiff has not
rendered any application to become member of the society. The
defendant no.2-society has to follow the statutory obligations of
inducting any person as member of the society. When the plaintiff has
not made any application and there is not express order turning down
the request of the plaintiff to induct her as member, the issue at this
juncture has no relevance. Hence, this point become redundant.
Point no.5
15. As discussed above, the plaintiff failed to prove the oral
contact and therefore the plaintiff is not entitled for specific
performance of the contract.
16. Even the evidence of the plaintiff suggest that the plaintiff
vacated the suit premises. The building had gone under redevelopment.
There is nothing coming on record that the building has been
demolished or in existence. In the absence of any material that the
subject matter is in existence or the building has been redeveloped and
in lieu of suit premises which flat has been allotted is not coming
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forward. Therefore in the absence of existence of subject matter which
is immovable property. The claim for Specific Performance is also not
maintainable. Hence, I answer point no.5 in the negative.
Point no.6
17. The plaintiff is claiming ownership on the basis of oral
agreement. The market value of suit premises at the time of agreement
was Rs.10 lacs. The ownership was with defendant no.1. The
ownership passes by virtue of registered instrument. Admittedly there is
no registered document in favour of plaintiff to pass right, title to the
plaintiff and therefore plaintiff is not entitled for the declaration of
ownership. Hence, I answer point no.6 in the negative.
Point no.7
18. The plaintiff is claiming relief of declaration of her
ownership on the basis of oral agreement and to protect her possession
by way of permanent injunction. As the plaintiff failed to prove her oral
contract, therefore the relief of declaration of the agreement does not
stand. No title is passed by way of registered instrument in favour of
the plaintiff and therefore the prayer of declaration of ownership does
not stand. The plaintiff herself in the evidence stated that she has
vacated the suit premises. As such on the day of filing of, the plaintiff
was not in possession of suit premises. Therefore the relief of injunction
becomes. Hence Point no.7 is redundant.
Point no.8
19. In view of the above discussion, and findings to point nos.1
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to 7, suit fails. Hence, it is expedient to pass following order:-
ORDER
1. Suit is dismissed.
2. Plaintiff to bear her own cost.
3. Decree be drawn accordingly.
4. Dictated and pronounced in Open Court.
14/2/2020 (M.SALMAN AZMI)
Judge, City Civil Court,
Gr.Bombay.
Dictated on : 14/02/2020
Transcribed on : 03/03/2020
Signed on : 07/09/2020
'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
07/09/20 at 11.45 am.
Mrs.Tanushree C.Kamble
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of
judgment/order
14/02/2020
Judgment and order signed by P.O. 07/09/2020
Judgment/order uploaded on 07/09/2020
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