Appeal From Order No.1066 of 2013,Civil Application No.1251 of 2013

25th October, 2013

Petitioner Counsel: Mr. CHETAN KAPADIA, I.J. NANKARNI, Mr. MANISH GITAY, NANKANI
Respondent Counsel: Mr. BIRENDRA SARAF, SANJAJ KADAM, Ms. APEKSHA SHARMA, Mr. S. KADAM, Mr. MOHANISH CHAUDHARI

Cases Cited:
Gomathinayagam Pillai Vs. Palaniswami Nadar, (1967) 1 SCR 227 : AIR 1967 SC 868 [Para 4]
Mademsetty Satyanarayana Vs. G. Yelloji Rao, (1965) 2 SCR 221 : AIR 1965 SC 1405 [Para 4]
J.P. Builders Vs. A. Ramdas Rao, 2011(5) ALL MR 899 (S.C.)=(2011) 1 SCC 429 [Para 4]
Wander Ltd Vs. Antox India P.Ltd., 1990 (Supp) SCC 727 [Para 4]
M/s Kachhi Properties Vs. Ganpatrao Shankaro Kadam, 2010(5) ALL MR 366 [Para 4]

JUDGMENT

JUDGMENT :- Appeal from Order by the Appellants-original Plaintiffs, as the learned Judge by impugned order dated 23 July 2013, dismissed the Notice of Motion pending the Suit filed by the Appellants, whereby the declaration is sought that agreement of sale dated 31 December 2007 in respect of the suit property is valid, subsisting and binding and also prayed that the termination letter dated 3.9.2010 is bad in law and be set aside. A prayer is made therefore to perform statutory obligation under the Maharashtra Ownership Flats (Regulation of Promotion of Construction, Sale Management and Transfer) Act, 1963 (MOFA Act) based upon the agreement.

2. The Appellants filed the Suit on 1.12.2012 for interim protection. The learned Judge, however, not granted any ad-interim relief. By this impugned order, even the motion of the Plaintiffs is dismissed of. There is no serious dispute with regard to the execution of the agreement between the parties. The price, property, and the parties as required for any agreement of such nature are also not in dispute. The termination of the contract from year 2010 is also not in dispute. The Appellants-Plaintiffs therefore fully aware of the effect of the termination of the contract, the Defendant-Respondent even forwarded the amount by a cheque along with the termination letter. The amount encashed or not is not relevant. For the purpose of deciding the present Appeal from Order, necessary element is the conduct of the parties apart from delay in invoking the court's jurisdiction for an interim protection on the foundation of a prima facie case, the balance of convenience, and an irreparable injury.

3. Admittedly, on 18.8.2012, by a registered agreement, Respondent No.1, sold the suit property/flat to Respondent Nos.5 to 7 for consideration. The Deed of Confirmation was registered on 23.8.2012. Thereafter, the Appellants issued Advocate's notice and challenged the action of termination of the contract.

4. Both the learned Counsel appearing for the parties read and referred the following Supreme Court's judgments revolving around the basic principles of grant of specific performance and to pass appropriate equitable relief in such matters. These judgments so cited are (1) Gomathinayagam Pillai Vs. Palaniswami Nadar (1967) 1 SCR 227 : AIR 1967 SC 868, (2) Mademsetty Satyanarayana Vs. G. Yelloji Rao (1965) 2 SCR 221 : AIR 1965 SC 1405, (3) J.P. Builders Vs. A. Ramdas Rao (2011) 1 SCC 429 : [2011(5) ALL MR 899 (S.C.)], (4) Wander Ltd Vs. Antox India P.Ltd 1990 (Supp) SCC 727, (5) M/s Kachhi Properties Vs. Ganpatrao Shankaro Kadam 2010(5) ALL MR 366. All those judgments so cited are on the foundation of challenge to the final decree for specific performance passed by the court, after taking note of evidence led by the respective parties. The basic principles of readiness, willingness and ability, apart from filing of such suit for specific performance within limitation, are again a matter of trial. Both the learned counsel appearing for the parties read and referred even the clauses of the agreement and correspondence so entered into by and between the parties.

5. The delayed payment since inception and/or late payment and/or no progress/development of the property and further the conduct by permitting even the Appellants-Plaintiffs to apply for loan and for that forwarded signed document, in my view, are again a matter of trial. The issue, at this stage, therefore is only with regard to grant and/or not to grant the injunction/interim relief so prayed in the Notice of Motion as not granted. The scope and the power of the Appellate Court to interfere and/or to grant, for the first time in this Appeal is quite limited.

6. Admittedly, the third person party to whom the rights have been created by registered document of August 2012 are not joined. The effect of non-joining and/or passing of final decree at final stage in such situation, is also required to be considered by the Court while passing the interim relief/ protection, basically when it comes to the question of prima facie case and/or balance of convenience and/or equity.

7. Admittedly, in spite of termination notice, no steps whatsoever taken by the Appellants-Plaintiffs referring to the rights so created based upon the agreement of the year 2007. There was no stay and/or injunction whatsoever nature against the Respondents. Having once terminated the contract and if there is no stay/injunction whatsoever, the creation of third party right by entering into registered document just cannot be stated to be contrary to the law at this stage of the proceedings, unless Plaintiffs-Appellants get their decree and/or declared as prayed in the Suit. The effect of the termination of the contract and execution of further registered document for the same property, in my view, is relevant factor which required to be considered at this stage of the proceedings while considering the rival submissions of the parties revolving around the agreement as well as the law so read and referred.

8. Mere filing of the suit for specific performance of such situation though the Appellants-Plaintiffs has knowledge, as the Respondents failed to perform the respective obligations at the relevant time, therefore the conduct just cannot be accepted; also for the reason that the same allegations are made by the Respondents against the Plaintiffs for the respective defaults earlier also. The clauses of such agreement and its effect just cannot be interpreted without considering the facts and circumstances of the case, to accept the submission so made by the learned counsel appearing for the Appellants. This is again, in my view, is a matter of trial.

9. The Respondent-Developer once terminates the contract, required to proceed with the development of the property and therefore if enters into a registered contract, I see there is no reason at this stage to overlook this facets to grant the injunction as prayed by the Appellants. There is also no dispute with regard to the possession of the property which admittedly was never with the Appellants at any point of time and now it is with the new purchaser Respondent Nos 5 to 7. The Appellants if able to prove the case on the foundation/principles so raised and referred in the judgments so relief, the Court will pass appropriate order after considering the basic principles of grant of specific performance in such matter. The statutory obligation based upon the agreement as contended even if any just cannot be read in isolation without referring to the basic intention as well as the prayers so made, which is nothing less than the prayer for grant of specific performance of the agreement. The principle of delay, latches, equity, balance of convenience play important role, may not for granting final relief as prayed if the Suit is within limitation, but certainly relevant for granting and/or refusing the interim protection/relief as prayed in the present case.

10. Therefore, considering the reasons so given by the learned Trial Judge and for the facts so referred above, at this stage, no case is made out to grant relief so prayed by the Appellants. However, it is made clear that in the interest of justice and to avoid further complication, the Respondent Nos.5 to 7 will not create further right or interest without giving notice to the Appellants as the case is the contesting builder has already transferred the property in favour of close relatives (Respodent Nos.5 to 7.)

11. It is also made clear that, this in no way takes away the protection if available of law about the transfer of property pending the Suit and/or the lis pendens.

12. Appeal from Order stands dismissed, so also Civil Application.

Ordered accordingly.