Specific performance of oral sale agreement decreed reversing trial court; readiness/willingness proved by averments, letters, conduct without deposit; discretion adjusts consideration for property escalation balancing equities.

JUDGEMENT :

FIRDOSH P. POONIWALLA, J.

1. The present First Appeal is filed by the heirs of the original Plaintiff challenging the Judgement dated 19^th December 2007 passed by the Bombay City Civil Court, whereby the following order was passed:

“ORDER

“Suit is partly decreed as under:

The defendants shall pay earnest amount of Rs.30,000/- along with interest at the rate of 12% p.a. since the date of suit, till realization of amount to the Plaintiffs.

The relief claimed by the Plaintiffs for specific performance is hereby rejected.

In the circumstances, no order as to costs.”

FACTS

2. The case of the original Plaintiff is as follows:-

a. The original Plaintiff resided in Flat No.14 of Mangla Goodwill Co-operative Housing Society Ltd situated at Wadala, Mumbai 400 031. The original Defendant was also a member of the said Co-operative Housing Society and owned Flat No.13 adjacent to the original Plaintiff's Flat No.14. The area of the original Plaintiff's flat is 410 sq.feet. The area of the original Defendant's flat No. 13 is 285 sq.feet or thereabouts.

b. The original Plaintiff had a daughter of marriageable age. The original Plaintiff was looking out for a suitable residential flat for his daughter’s residence.

c. Being a next door neighbour, the original Plaintiff spoke to the original Defendant about his requirement of a flat for his daughter when the original Defendant expressed his desire to sell his Flat No. 13 since the original defendant did not require the flat as he was having an independent and suitable residential flat at Ghatkopar.

d. The original Plaintiff and the original Defendant negotiated the price for the purchase of Flat No.13 as Rs.50,000/-. When the deal for the purchase of Flat No.13 was concluded on 31^st May 1978, the original Plaintiff gave to the original Defendant a sum of Rs.20,000/- by cheque and the original Defendant issued a receipt dated 31^st May 1978 for the said payment of Rs.20,000/- against purchase of Flat No.13.

e. Thus, an oral agreement was arrived at between the original Plaintiff and the original Defendant for purchase by the original Plaintiff of Flat No.13 from the original Defendant for a sum of Rs.50,000/-.

f. In further performance of the said oral agreement, the original Plaintiff paid to the original Defendant a further sum of Rs.10,000/- on 30^th September 1978. For the said payment of Rs.10,000/- also, a receipt dated 30^th September 1978 was issued by the original Defendant.

g. It is the case of the Plaintiffs that the transaction of sale of the said Flat No. 13 was confirmed by the act of the parties in the original Plaintiff making further payment and the original Defendant receiving and accepting such payment unconditionally.

h. The original Plaintiff, thereafter, on several occasions requested the original Defendant to give him possession of Flat No. 13 and the original Defendant went on promising to give possession of the said flat. However, the original Defendant inducted his brother in Flat No. 13. On making inquiries, the original Plaintiff learnt that the brother of the original Defendant had also purchased a flat at Kurla or Ghatkopar and proposed to shift there. However, when the original Defendant started making vague promises to give pos