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Mh.L.J. 2009(2) 259
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.J. VAZIFDAR, J.
Mr.Gaurishankar Govardhandas Todi -Appellant
Versus
M/s.Evershine Homes Pvt. Ltd. -Respondents
APPEAL FROM ORDER NO.1109 OF 2005
WITH
CIVIL APPLICATION NO.1363 OF 2005
Decided on : 10TH DECEMBER, 2008.
The plaintiff has fulfilled its obligations upto this stage whereas the appellant/ defendant No. 1 has not.
The alleged agreement dated 25.2.1998 cannot be said to have merged into the agreement dated 21.7.2004. Clause 13 of the consent terms removes any doubt and makes it expressly clear that the agreement dated 25.2.1998 ceased to exist altogether.
The plaint read as a whole indicates quite clearly that the plaintiff has been and is even now ready and willing to perform all the terms and conditions of the agreement.
There is absolutely nothing that even remotely suggests that the plaintiff is not ready and willing to perform its obligations. It is important to note that the appellant has not even dared to test the same by offering to perform the contract. If it did and the plaintiff refused it would be a different matter. It is the appellant/ defendant No. 1 who has committed breaches of the agreement. Court is not inclined to accept the plaintiff’s refusal to perform its obligations in the absence of defendant No. 1 performing his obligations as a lack of readiness and willingness on the plaintiff’s part. It is settled law that the purchaser need not have money ready with him from the whole period from the date of the agreement to the date of the hearing of the suit. It is sufficient if he has the capacity to raise the funds when required. If the vendor were to perform his part of the contract, the purchaser must have the funds at the time of performance. At the interlocutory stage the test must be the satisfaction of the Court as to the purchaser’s readiness and willingness if the vendor were to honour or be made to honour his obligation. The plaintiff has satisfied this test.
1. This is an Appeal against the order and judgment passed by the learned Joint Civil Judge (Civil Judge) Thane restraining Defendant No.1 from creating third party interests in the suit properties. The Appellant is Defendant No.1. Respondent Nos.1 and 2 are the Plaintiff and Defendant No.2. I will refer to the parties as they are arrayed in the suit.
2. In upholding the order I have given reasons of my own. The Plaintiff has made out more than just a strong prima-facie case requiring the parties to maintain status-quo pending the hearing and final disposal of the suit.
3. The suit is filed for a declaration that an MOU dated 24.6.2003 is valid and subsisting ; that the termination thereof by Defendant No.1 is illegal and for an order directing the Defendants to in effect specifically perform the suit agreement. In the above suit, the Plaintiff took out an application for interim reliefs in which the impugned order was passed.
4. The Defendants contended that the said MOU dated 24.6.2003 is not an agreement but merely an agreement to enter into an agreement and therefore not enforceable. I do not agree. In my view, it is a concluded contract.
5. There is no dispute that the Plaintiff and Defendant No.1/the Appellant executed the suit agreement dated 24.6.2003. As the submission was made on the basis of each of the six clauses, it is necessary to set them out. They read as under :- “1. The Owner hereby agree to grant Development Rights in respect of the said property and ultimately transfer and convey the said property in favour of the Developer and/or their nominees including a Co-operative Housing Society as the case may be. The Owner agrees to grant development rights with vacant structure at the rate of Rs.300/- (Rupees Three Hundred Only) per sq. foot of Built-up-area as permitted and sanctioned by the M. B. M. C. under building plans. The total consideration shall be paid as follows : (a) Rs.11,00,000/- (Rupees Eleven Lakhs Only) as by way of earnest money on the execution of his Memorandum of d Understanding. Rs.1,00,000/- (Rupees One Lakh Only) has already been paid in cash and Rs.10,00,000/- (Rupees Ten Lakhs Only) to be paid by Cheque by the Developer to the Owner towards balance payment of the said sum of Rs.11,00,000/- (Rupees Eleven Lakhs Only). The Owner hereby acknowledges the receipt. (b) Rs.1,00,00,000/- (Rupees One Crore Only) within 7 days after the Owner at his cost making out clear and marketable title to the property free from all encumbrances, executing Development Agreement and irrevocable General Power of Attorney in favour of the Developer or its nominees in respect of his said property. (c ). Rs.1,00,00,000/- (Rupees One Crore Only) within 7 days from the date the Owner at his cost obtaining General N. O. C. from the U. L. C. authorities, obtaining Commencement Certificate from M. B. M. C. and N. A. approval from the Collector, Thane, Demarcation of the Boundaries on the site as per D. I. L. R.. Plan and delivering vacant possession of his property together with the Bungalow thereon to the Developer with irrevocable licence to commence and complete construction work on his property. (d) The Developer has agreed to pay the balance payment within four years in equal installments, first of these installments to be paid within one year time from the date of the above payment of Rs.1,00,00,000/- (Rupees One Crore Only) made under Clause No.1 (c ) and the remaining payment in six half yearly equal installments. 2. The Owner shall on the execution of this Memorandum and within Sixty days from the date hereof fulfill the following obligations at his cost. (a) demarcate the boundaries of the said property and to get the survey of the said property done through the Office of D. I. L. R. (b) to obtain all permissions as mentioned in the Clause 1(c)
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