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2014 Supreme(Bom) 1099
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.J. KATHAWALLA, J.
Shaila S. Pathak – Plaintiff
Versus
Oberoi Constructions Ltd. and others – Defendants
Notice of Motion No. 668 of 2012 in Suit No. 641 of 2012
Decided On : 4.6.2014
Ms. Shaila S. Pathak, Plaintiff in person.
Dr. Birendra Saraf, along with Mr. Rohan Savant, Mr. Rupesh Geete, Ms. Kalyani Shukla, Ms. Bhagwati Raghani and Mr. Satyendra Kumar, instructed by M/s. IC Legal, for Defendant No.1.
Mr. O.R. Tiwari for Defendant No.2.
Mr. Gaurav Joshi, Senior Advocate, instructed by Mr. Yogesh Adhia, for Defendant No.3.
Mr. Naushad Engineer, along with Mr. Dinesh Pednekar & Mr. Malcolm Siganporia, instructed by M/s. Hariani & Company, for Defendant Nos. 4 and 5.
Headnote:Specific Relief Act, 1963 - Section 16(3) Suit for specific performance of contract. Since in absence of readiness and willingness on part of plaintiff to perform contract, cancellation of letters of allotment of flat was justified hence plaintiff not entitled to relief of specific performance of contract. The conduct of the plaintiff exposes a complete lack of readiness and willingness to perform her obligations under the LOA. The plaintiff defaulted in making periodic payments of her instalments, failed to execute the Tripartite Agreement and raised completely extraneous issues with the intent to cover her lapses. The conduct of the plaintiff was far from being blameless.
The statements recorded in the letters of the plaintiff dated 16th February, 2009 and 10th June, 2009, that her housing loan is ready and she is ready with the funds for making payments is belied by the letter dated 19th January, 2011 addressed to her by the State Bank of India wherein it is recorded that the Bank has agreed to sanction a loan of Rs. 45 lakhs and has called upon the plaintiff to provide the tripartite registered agreement for sale and the NOC for disbursement of the loan. Interestingly, the plaintiff has not produced any material before the Court in support of her contention that on 10th June, 2009, her housing loan was sanctioned or that she was ready with the funds to make payments to defendant No. 1. The statements made in the letters dated 16th February, 2009 and 10th June, 2009 were therefore false on the plaintiff’s own showing. The plaintiff has therefore to conceal her inability to pay the balance consideration to defendant No. 1, has sought to raise completely false and frivolous contentions. The plaintiff has therefore sought to contend that the housing loan sanctioned on 19th January, 2011 had no connection with the housing loan referred to by her in her letters dated 16th February, 2010 and 10th June, 2009 and that a purported fresh application for housing loan was made by the plaintiff in view of the complaint filed by defendant No. 2 being closed. The plaintiff has not set out any facts as to how the plaintiff had made arrangement to pay the balance consideration. Even the aspect of a second application for housing loan does not find mention in the plaint and neither has the plaintiff provided any details of the first or second application for housing loan.
S.J. KATHAWALLA, J.
1. The Plaintiff has in the present Suit inter alia sought the following declarations:
(i) That the Agreement for allotment of flat premises i.e. Flat No. 803 on the 8th Floor, ‘A’ Wing of the building known as Oberoi Splendor, Andheri (East), Mumbai (“the suit flat”) contained in the letters of allotment dated 20th September, 2006 and 8th May, 2007 (the said LOA's) addressed by Defendant No.1 to Defendant No.2 and to the Plaintiff respectively is valid and subsisting and Defendant No.1 is bound and liable to perform the same;
(ii) That the termination of the allotment of the suit flat by Defendant No. 1 vide its letter dated 8th November, 2011, is wrong, illegal, invalid, void and not binding on the Plaintiff; and (iii) That the Agreement dated 25th November, 2011, entered into between Defendant No.1 and Defendant No.3 and the Agreement for Transfer dated 12th July, 2012, entered into between Defendant No. 3 and Defendant Nos. 4 and 5 are illegal, void, wrongful, collusive, fraudulent and liable to be cancelled.
2. In the above Notice of Motion the Plaintiff has inter alia prayed for appointment of Receiver in respect of the suit flat and also for an injunction restraining the Defendants from disposing of, alienating, encumbering or creating any third party rights in or from parting with possession of the suit flat or in the alternative in respect of another flat of equal dimension not less than 987 sq.ft. built up area preferably in the Oberoi Splendor project.
3. The Plaintiff, Mrs. Shaila S. Pathak, is a practicing Advocate who claims to have purchased the suit flat which was originally purchased by Defendant No.2 – Chandrika Gupta, which flat has been constructed by Defendant No.1 – Oberoi Constructions Ltd. The husband of the Plaintiff – Santosh Pathak is an estate agent/broker and admittedly is also a Financier. Defendant No.3 claims to have purchased the flat from Defendant No.1 after Defendant No.1 terminated the allotment made in favour of Defendant No.2 and thereafter to the Plaintiff. Defendant Nos. 4 and 5 claim to have subsequently purchased the suit flat from Defendant No.3. The sister of Ms. Chandrika Gupta i.e. Ms. Saraswati Gupta is Defendant No.2 in Suit No. 403 of 2012 and is the original allottee of the another flat in the same project which is the subject matter of Suit No. 403 of 2012.
4. Although the first Defendant in this Suit is the same as the first Defendant in Suit No. 403 of 2012 and the nature of the transaction between the Plaintiff and Defendant Nos. 1 and 2 in both the suits are similar, the material facts in the two suits are different. In view thereof, this Court has first taken up the above Notice of Motion in the above Suit for final hearing and has disposed of the same by the present order.
5. The facts in the present Suit are as set out hereunder:
5.1 In August, 2006, Defendant No.2 herein and her sister Saraswati Gupta along with Mr. Santosh Pathak (Estate Agent and husband of the Plaintiff) approached Defendant No.1 builder for the purpose of booking flats in a project of Defendant No.1 called ‘Oberoi Splendor’. Thereafter Defendant No.2 expressed her desire to book the suit flat for a consideration of Rs. 77,62,505/.
5.2 On 13th August, 2006, Defendant No.2 booked the suit flat for Rs. 77,62,505/ and paid a token amount of Rs. 7,76,251/by cheque dated 13th August, 2006. On 1st October, 2006, Defendant No.2 paid Rs. 13,00,000/and Rs. 2,52,501/respectively by two cheques of even date. On 30th October, 2006, an allotment letter was issued by Defendant No.1 in favour of Defendant No.2 in respect of the suit flat. Clauses 5 and 7 of the allotment letter are reproduced hereunder:
“Clause 5 – It has been agreed that the time for payment of each instalment is of essence of contract. You have further confirmed to us that an intimation forwarded by us to you that a particular stage of construction is commenced or completed shall be sufficient proof that a particular stage
