LALAN AGENCY Vs. CHANDRAKANT PURSHOTTAMDAS MEHTA

JUDGEMENT

(1.) This appeal is by the plaintiff, a registered partnership firm Shri Lalan Agency against the order dismissing notice of motion dated 4.9.1997 in Regular Civil Suit No. 2945 of 1995, pending in the Court of City Civil Judge at Ahmedabad.

(2.) The plaintiff filed the suit alleging that it is engaged in the business of constructing, organising, developing and buying and selling of and all other dealings in connection with lands, buildings and other kinds of real estate. In the month of August 1993, Shri Kamlesh Parikh, who is an authorised representative of the plaintiff firm and looking after the business of the firm on being approached by one broker Shri Ramesh M. Gadhvi entered into an oral agreement to purchase with the defendant, who is the owner of the property situated in Gulbai Tekhra, Ahmedabad bearing Plot No. 634 in Town Planning Scheme No. 3/6 situated in Kochrab area at Ahmedabad.

(3.) According to plaint assertions it was agreed between the parties that the said property comprising land admeasuring 1746 sq. mts. (2088 sq. yds) together with construction of Jyotirdip Bungalow therein be sold by the defendant to the plaintiff or its nominee at the rate of Rs. 6591/- per sq.yd. and the plaintiff firm through its authorised representative Kamleshbhai Parikh agreed to purchase the said property. In pursuance of the said agreement, Rs. 2,61,000/- were paid by cheque to the defendant on 24.9.1993 drawn on Kalupur Commercial Cooperative Bank Limited, Vikram Branch, Ahmedabad. The other terms of agreement were alleged to be that formal agreement for sale would be executed in favour of the plaintiff by the defendant upon defendant getting his title to the aforesaid property clear and marketable and on that the purchaser plaintiff firm will part with 20% of the total consideration of amount which is to be paid by the plaintiff to the defendant. It was also agreed that the said banakhat or agreement to sale was to be registered and as required under the provisions of the Income Tax Act will be filed by the parties before the concerned authorities within a period of 15 days from the registration of the aforesaid banakhat. It was also mutually agreed between the parties that the conveyance will be executed by the defendant after clearance by the Income-Tax authority under Sec. 269UC of the Income-Tax Act within six months thereof. In pursuance of this agreement the defendant entrusted the work of clearance of title in respect of the property in question to M/s. Jani and company, advocates and solicitors and through them got a public notice published inviting claims in respect of the said property in the local daily, Gujarat Samachar dated 4.10.1993. It was averred in the plaint that the communication and acceptance of the offer was very much complete on 24.9.1993 bringing in existence a binding contract between the plaintiff and defendant creating mutual obligations and reciprocal promises which both the parties were liable to honour. Defendant has not yet been able to get title clearance certificate. On 1.5.1995 the plaintiff received under a registered letter a cheque of Rs. 2,61,000/- from the defendant. The letter was addressed to Kamleshbhai Parikh with reference to which it was averred that Kamlesh Parikh, the alleged authorised representative of the plaintiff firm had no such authority whatsoever as referred in the above said letter by the defendant. Treating the return of Rs. 2,61,000/- by the defendant as refusal to go ahead with the alleged oral agreement dated 24.9.1993, the present suit for specific performance of agreement has been filed. According to the plaintiff as on the date of filing of the suit, market price of the land in question was Rs. 15,000/- per sq. mt. A notice of motion was also moved along with the plaint, and it was prayed that pending hearing and final disposal of the suit, the defendant be restrained from dealing with the suit property and from entering into any kind of transfer or alienation or parting with the possession of the suit property or any part thereof in favour of anybody else. The defendant was further required to be restrained from making any construction over the said property or encumber in any manner whatsoever. Ad-interim relief during the pendency of the notice of motion was also prayed for to the same effect. After service of notice, ad interim order directing the defendant to maintain status quo made on 29.5.1995. The learned Judge after hearing the parties was of the opinion that plaintiffs have failed to make out prima facie case in their favour of an oral agreement.