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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
K.K. Tated, Sarang V. Kotwal, JJ.
Shree Chaitanya Constructions - Appellant
Versus
Shri Poonamchand Dalichand Parakh - Respondent
First Appeal No. 295 of 2013
Decided On : 14-02-2018
Evidence Act, 1872 - Section 115 - Specific Relief Act, 1963 - Section 20 - Code of Civil Procedure, 1908 - Rules 23, 24, 25 of Order XLI - Maharashtra Stamp Act, 1958 - Section 35 - Stamp Act, 1899 - Sections 33 and 34 - Purchase of Property - Sale Deed - Transferring Suit Property - Suit for Specific Performance - Plaintiff entered into Memorandum of Understanding with the defendants for purchase of property - As per Memorandum of Understanding, defendant Nos. 1 to 5 are owners of suit property and defendant Nos. 6 to 8 as confirming parties to Memorandum of Understanding - As per said Memorandum of Understanding, plaintiff agreed to purchase said property "As is Where Is Basis" for a total consideration - It was agreed by and between parties that said agreed consideration amount shall be paid by purchaser to owner - Payment of amounts, as upon these presents has been done upon direction and express request of Owners and payment of balance amounts, as narrated hereinafter, shall be strictly apportioned by and between Owners and Confirming Party - As per said Memorandum of Understanding, plaintiff paid substantial amount to defendants - When plaintiff called upon defendants to execute said deed, defendant No. 5 refused to do so on ground that he had already filed Special Civil Suit – Held, In present proceeding, defendants inspite of injunction executed Memorandum of Understanding with plaintiff for transferring suit property - Not only that they accepted c said deed onsideration - Apart from that, they executed receipt cum undertaking by which plaintiff cleared defendants liability towards financial institution - Even financial institution in their letter admitted fact that plaintiff cleared defendants liability - This itself shows that defendants agreed to execute sale deed in favour of plaintiff in respect of suit property - Apart from that, except defendant No. 5 other defendants filed application in earlier Special Civil Suit No. 1298 of 1999 for deleting the suit property from that litigation so that they can execute the document in favour of plaintiff - It is to be noted that Trial Court mainly dismissed the plaintiffs Suit for specific performance only on ground that injunction order was passed by High Court in pending Appeal from Order - That Appeal from Order as well as Suit itself was disposed of - Therefore, even that hurdle is not for conveyance in respect of suit property in favour of plaintiff - Considering all these facts, point Nos. 1 and 2 is answered in affirmative and point No. 3 in negative - Considering these facts and authorities cited by parties, Court is of opinion that plaintiff has made out a case for interfering in judgment and Decree passed by Trial Court and also for specific performance of Memorandum of Understanding - Defendants are directed to execute sale deed of suit property described in paragraph 1 of Plaint, and Defendants interalia including Defendant Nos. 6 to 8 be directed to deliver actual physical, vacant and peaceful possession of suit property to Plaintiff, against receipt of balance consideration from plaintiff with interest @ 6% from date of judgment and decree passed by Trial Court - At this stage, learned counsel for respondent No. 5 seeks stay of this order - It is to be noted that defendants have to execute sale deed in favour of plaintiff within one month from receipt of certified copy of this order - Considering these facts, Court do not find any reason to grant stay of this order - Hence, oral request made by learned counsel for respondent No. 5 is rejected - Appeal allowed.
JUDGMENT
K. K. Tated, J. - Heard the learned counsel for the parties.
2. By this First Appeal, plaintiff is challenging the the judgment and decree dated 7. 11. 2012 passed by Civil Judge, Senior Division, Pune in Special Civil Suit No. 2080 of 2010 rejecting plaintiff''s claim for specific performance of Memorandum of Understanding dated 23. 9. 2007 and handing over possession of suit land to them.
3. For the sake of convenience, the nomenclature of the parties as is stated in the plaint will be referred to hereinafter with the appellant as original plaintiff and respondents as original defendants.
4. The plaintiff entered into Memorandum of Understanding dated 23. 9. 2007 with the defendants for purchase of the property as described in Schedule to the said Memorandum of Understanding which reads thus :
"THE SCHEDULE I ABOVE REFERRED TO :
All that piece and parcel of land or ground admeasuring 130000 sq. fts. Bearing Gat No. 678 situate, lying and being at Village Velu within the Registration Sub-District of Taluka Bhor, District Pune and within the limits of the Gram Panchayat of Village Velu and falling in the "Industrial" Zone.
THE SCHEDULE II OF THE SAID BUNGALOW ABOVE REFERRED TO:
All that Piece and Parcel of the Bungalow having a built up area admeasuring 1000 sq. fts. constructed on a portion of land out of the said land as mentioned in the Schedule I referred to above.
THE SCHEDULE III OF THE FACTORY PREMISE I ABOVE REFERRED TO:
All that Piece and Parcel of the factory premise having a built up area admeasuring 12,000 sq. fts. constructed on a portion of land out of the said land as mentioned in the Schedule I referred to above.
THE SCHEDULE IV OF THE FACTORY PREMISE II ABOVE REFERRED TO:
All that Piece and Parcel of the factory premise having a built up area admeasuring 2,300. 00 sq. fts. constructed on a portion of land out of the said land as mentioned in the Schedule I referred to above.
5. As per the Memorandum of Understanding, defendant Nos. 1 to 5 are owners of the suit property and defendant Nos. 6 to 8 as confirming parties to the Memorandum of Understanding. As per the said Memorandum of Understanding, plaintiff agreed to purchase the said property "As is Where Is Basis" for a total consideration of Rs. 2,81,00,000/. It was agreed by and between the parties that the said agreed consideration amount shall be paid by the purchaser to the owner and confirming parties in following manner:
"a)(i) Rs. 1,60,000/- (Rupees one lakh sixty thousand only) to the Owner No. (1) vide a cheque bearing No. 587776 dated 23rd September, 2007 drawn on Syndicate Bank, Shivaji Nagar branch, Pune, on execution of these presents - the payment and receipt whereof the Owner No. (1) hereby admits and acknowledges.
(ii) Rs. 1,60,000/- (Rupees one lakh Sixty Thousand only) to the Owner No. (2) vide a cheque bearing No. 587777 dated 23rd September, 2007 drawn on Syndicate Bank, Shivaji Nagar branch, Pune, on execution of these presents - the payment and receipt whereof the Owner No. (2) hereby admits and acknowledges.
(iii) Rs. 1,71,000/- (Rupees one lakh seventy one thousand only) to the Owner No. (3) vide a cheque bearing No. 587786 dated 23rd September, 2007 drawn on Syndicate Bank, Shivaji Nagar branch, Pune, on execution of these presents - the payment and receipt whereof the Owner No. (3) hereby admits and acknowledges.
(iv) Rs. 1,60,000/- (Rupees one lakhsSixty Thousand only) to the Owner No. (4) vide a cheque bearing No. 587779 dated 23rd September, 2007 drawn on Syndicate Bank, Shivaji Nagar branch, Pune, on execution of these presents - the payment and receipt whereof the Owner No. (4) hereby admits and acknowledges.
(v) Rs. 1,60,000/- (Rupees one lakh sixty Thousand only) to the Owner No. (5) vide a cheque bearing No. 587780 dated 23rd September, 2007 drawn on Syndicate Bank, Shivaji Nagar branch, Pune, on execution of the
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