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2018 Supreme(Bom) 480
IN THE HIGH COURT OF BOMBAY AT GOA
N.M. JAMDAR, NUTAN D. SARDESSAI, JJ.
The East India Hotels Limited & Another - Appellants
Versus
Esperence Leonita Dias & Others - Respondents
First Appeal No. 239 of 2005
Decided On : 24-02-2018
For the Appellants :Sudesh Usgaonkar, Rosette Marie Pereira, Advocates.
For the Respondents:V.A. Lawande, P. Kaur, Raunaq Rao, D.J. Pangam, P. Sawant, Advocates.
Headnote:
Companies Act - Execution of sale deed was deferred - Execute sale deed - Summons were issued - Suit filed for specific performance of agreement of sale - Plaintiffs filed a Special Civil Suit Court of Civil Judge Senior Division briefly with following contentions - An agreement of Sale was entered into between the Defendant who are owners of said property along with Defendant - Consideration was agreed at agreement was executed by Defendant on behalf of themselves and their husbands - They agreed to sell property survey to Defendant Nos -9 and 10 - Defendant Nos permitted Defendant further enter into an agreement for sale and sum of amount was paid by way of earnest money - On December another agreement was executed by Defendant to sell suit property as well as some other properties to Plaintiffs at rate per square metres - Held This need not detain Court to proceed further as even otherwise we do not find that any case is made out by Appellants-Plaintiffs for directing return of earnest amount - As regards Defendant Nos -1 to 7 owners are concerned though there is a statement by them in agreement that they have received amount in plaint and in deposition of Pw -1 case of Plaintiffs itself is that out of an amount of was paid by Defendant to Defendant - It is case of Defendant that they received only amount initially and that too from Defendant - In backdrop of such contrary pleadings it was incumbent upon Appellants-Plaintiffs to produce evidence regarding payment of this amount - Except reiterating that amount is paid nothing has been shown in what manner it has been paid - Nowhere it has been pleaded by Appellants-Plaintiffs that amount was paid by cash or cheque - Appeal and same is dismissed
N.M. Jamdar, J.
1. By this Appeal, the Appellants-Original Plaintiffs have challenged the dismissal of their suit filed for specific performance of agreement of sale.
2. The Appellants-Plaintiffs are companies incorporated under the provisions of Companies Act. According to the Plaintiffs, they were desirous of setting up a hotel complex and for that purpose, they intended to purchase the property known as “Setimo Lanco De Praias” admeasuring 3499 square metres situated in the Village of Cavelossim, Salcete, Goa and registered in the land registration office of Salcete at Margao under no.29365 and enrolled in the Talula Revenue Office at Margao under matriz no.844 and surveyed under nos.122/6 and 122/5(part). Defendant Nos.1 to 7 are the owners of the suit property. The Defendant Nos.8 to 9 were carrying out business of Real Estate in the name of 'Jercy Group'. The Defendant No.10 was a partnership firm carrying on business as dealers in Real Estate/Real Agency. Defendant Nos.8, 11 and 12 were partners of Defendant No.10 i.e. firm known as J. M. Builders Corporation.
3. The Plaintiffs filed a Special Civil Suit No.296/1993 in the Court of Civil Judge Senior Division Margao, briefly with the following contentions : An agreement of Sale was entered into between the Defendant Nos.1 to 7, who are the owners of the said property, alongwith Defendant No.11 on 22nd July 1986. The consideration was agreed at 1,00,000/-. “The agreement was executed by Defendant Nos.1, 3, 4, 5, 6 and 7 on behalf of themselves and their husbands. They agreed to sell the property survey nos.122/4 and 122/5 (part), to Defendant Nos.9 and 10. The Defendant Nos.1 to 7 permitted the Defendant Nos.9 to 10 to further enter into an agreement for sale and the sum of Rs. 10,000/- was paid by way of earnest money. On 17 December 1986, another agreement was executed by the Defendant Nos.8, 9, 10 and 12 to sell the suit property as well as some other properties to the Plaintiffs at the rate of Rs.47.75 per square metre. The Plaintiffs needed these properties to construct a hotel complex. By agreement dated 17 December 1986, the Defendant Nos.8, 10 and all other owners jointly with Defendant No.7 entered into an agreement for the purchase of the suit property. Relying upon these agreements, the Plaintiffs entered into agreements with other adjoining land owners and purchased those properties. A supplementary agreement was executed between the Plaintiffs and other Defendant Nos.1 to 7 and others wherein the Defendant Nos.1 to 7 confirmed their obligation to sell their property to the Plaintiffs. Thereupon, the Plaintiff prepared the sale deed on 29 May 1989 which was signed by Defendant Nos.1, 3, 5 and 8 to 12. The Defendant Nos.2, 4, 6 and 7 were out of Goa at that time and did not reach to finalise the sale deed and, therefore, the execution of the sale deed was deferred. The Defendants on some pretext or the other avoided to execute the sale deed and on 15 December 1992, the Defendant No.4 sent a letter to the Plaintiffs indicating that they were not willing to execute the sale deed and were not interested in selling the suit property. A notice was sent by the Plaintiffs on 29 March 1993 calling upon the Defendants to execute the sale deed. Since there was no positive response from the Defendants, the Plaintiffs had to institute the suit for specific performance. With these contentions, the Plaintiffs, by the suit prayed for a declaration that the agreements dated 22 July 1986, 17 December 1986 and 24 February 1988 are valid, subsisting and binding on the Defendants. It was also prayed that Defendant Nos.1 to 12 be ordered and decreed to specifically perform the agreements dated 22 July 1986 and 17 December 1986, in the alternative, in the event of the Court not granting specific performance, the Appellant-Plaintiff prayed for damages to the tune of Rs.2.
