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2018 Supreme(Bom) 476

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.C. GUPTE, J.
Jayant Maniklal Lunawat - Appellant
Versus
Kamal Arjan Hingorani & Another - Respondents
First Appeal No. 381 of 2012 in S.C. Suit No. 1322 of 2006 with Civil Application No. 853 of 2012
Decided On : 20-02-2018

Advocates Appeared:
For the Appellant :Rajni Iyer, Senior Advocate, a/w. Gulnar Mistry, Nidhi Singh, Chaitrika Patki, i/b. Vidhii Partners, Advocates.
For the Respondents:Sharan Jagtiani, a/w. Astad Randeria, M.K. Khan, R.K. Satpalkar, P. Shah, M. Avasai, i/b. M/s. Mulla & Mulla & Craigie Blunt & Caroe, Chetan Kapadia, a/w. Karl Tamboly, Nandini Joshi, i/b. Harish Joshi & Co., Advocates.

Headnote:

Specific Relief Act - Section 20 - Execution of second - Agreement for sale is terminated - Whether Plaintiffs suit for specific performance is liable to be dismissed on account of his failure to seek a declaration challenging termination of suit contract by Defendants - Respondent Nos. 1 and 2 herein are lesses in respect of a plot of land bearing Plot at Village together with structure constructed thereon Co-Operative Housing Society Ltd. (“Society”) is owner of the suit property - It has executed a lease deed May in favor of Defendants - By a Memorandum of Understanding (“first MOU”) executed between Appellant (“Plaintiff”) and Defendant No -1 latter agreed to sell suit property to Plaintiff - A sum of amount lakhs was paid by Plaintiff towards this sale - In pursuance of first MOU a power of attorney was also executed authorizing Plaintiff to do various acts in respect of suit property on behalf of vendors - In first week of June Plaintiff was allowed to carry out certain work in suit property which included clearing of plot for development – On June Defendant No.1 revoked power of attorney granted in favor of Plaintiff - Held, On these facts this Court is of view that in interest of justice most appropriate relief to be granted in this suit would be to grant specific performance of suit MOU and as a condition (i) direct Plaintiff to pay to Respondents on behalf of Defendants a sum of crores less lakhs already paid) with interest at rate of (presumably as an average of highest of maximum rates at which interest is paid on deposits by scheduled banks from May and till payment or realization; (ii) direct Defendants to pay a sum lakhs with interest on sum of amount from June till payment or realization and on sum of amount lakhs at from May and till payment or realization to Respondents towards full and final return of consideration paid by latter to former and (iii) direct Defendants to pay to Plaintiff a sum equivalent to interest at rate of sum of amount - Civil application and same is disposed of

JUDGMENT :

1. The present first appeal arises out of a decree of dismissal passed in a specific performance suit by Joint Civil Judge, Senior Division, Pune.

2. The short facts of the case may be stated as follows :

Respondent Nos. 1 and 2 herein (“Defendants”) are lesses in respect of a plot of land, bearing Plot No.265 at Village Aundh, Pune7, together with the structure constructed thereon (“suit property”). Sindh Co-Operative Housing Society Ltd. (“Society”) is the owner of the suit property. It has executed a lease deed dated 17 May 1999 in favour of the Defendants. By a Memorandum of Understanding dated 25 May 2005 (“first MOU”), executed between the Appellant (“Plaintiff”) and Defendant No.1, the latter agreed to sell the suit property to the Plaintiff. A sum of Rs. 5 lakhs was paid by the Plaintiff towards this sale. In pursuance of the first MOU, a power of attorney was also executed authorising the Plaintiff to do various acts in respect of the suit property on behalf of the vendors. In the first week of June 2005, the Plaintiff was allowed to carry out certain work in the suit property, which included clearing of the plot for development. On 30 June 2005, Defendant No.1 revoked the power of attorney granted in favour of the Plaintiff. It appears that, thereafter, there were fresh negotiations between the parties and finally, on 22 June 2005, a second MOU was executed between the Defendants and the Plaintiff. By this MOU (“second MOU”), the Defendants agreed to sell the suit property to the Plaintiff for a lumpsum consideration of Rs.1.61 crores. The second MOU records that the sum of Rs. 5 lakhs, originally paid by the Plaintiff to the Defendants under the first MOU, shall be adjusted towards the sale price and the balance consideration shall be paid by the Plaintiff within a period of ten months from the date of execution of the second MOU, i.e. on or before 21 May 2006, and at the time of delivery of possession of the suit property to the Plaintiff or his nominee. On 7 November 2005, further payment of Rs. 15 lakhs was made by the Plaintiff to the Defendants by way of part payment of the consideration by cheques of Rs.5 lakhs and Rs.10 lakhs. Between November 2005 and May 2006, there was correspondence between the parties, including the Society, concerning various aspects bearing on the transaction such as demarcation of the property, reactivation of a well contained therein and the Society's permission for transfer of the suit property by the Defendants in favour of the Plaintiff. The last of such documents was dated 18 May 2006. This was an undertaking given by the Plaintiff to the Society that a bungalow would be constructed within 24 months and that the well in the property would not be filled up. By this date the Defendants had in all received from the Plaintiff a sum of Rs.42 lakhs towards the sale of the suit property, leaving a balance of Rs.1.19 crores. On 26 May 2006, the Defendants cancelled the second MOU on the ground of nonpayment of the balance consideration. Simultaneously, the Defendants withdrew their application to the Society for its NOC for transfer of the suit property to the Plaintiff. On 12 June 2006, the Defendants executed an agreement for sale in favour of one Jyotin Gandhi and Payal Gandhi, who are arraigned as Respondent Nos. 3 and 4 (“Respondents”) to the present appeal. The Respondents claim to have paid a sum of Rs.29.50 lakhs to the Defendants in pursuance of this agreement. After execution of this agreement, the Defendants attempted to refund the amount of Rs.42 lakhs received by them from the Plaintiff towards the sale of the suit property, requesting for a copy of duly cancelled MOU along with all originals. The Plaintiff refused to accept the refund. On 28 July 2006, the Plaintiff filed the present suit, Special Civil Suit No.1322 of 2006, in the Court of Civil Judge, Senior Division, Pune, for specific performance of the second MOU. On 1 December 2006, an interim injunction was g





























































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