TARABEN AMBALAL SHAH Vs. NAGINBHAI PRAGJI DESAI

JUDGEMENT

(1.) THIS is a suit for specific performance of contract of sale of immoveable property being flat No. 2 on the 4th floor of Parimal Co-operative Housing Society Ltd. , 22, Tilak Mandir Road, Vile Parle (East), Mumbai 400 057. The defendant agreed to sell the suit flat to the plaintiffs for consideration of Rs. 9,11,000/- and executed an agreement of sale on 1-9-1988. The transactions was to be completed before 31-12-1988. The plaintiff paid a sum of Rs. 1,50,000/- on 1-9-1988 and a further sum of Rs. 50,000/- on 3-11-1988 to the defendant. The balance sum of Rs. 7,11,000/- was agreed to be paid on or before 31-12-1988 at the time of completion of the contract by delivery of possession. However, after having received Rs. 2 lakhs the defendant expressed some difficulty to vacate the suit flat by 31-12-1988 and sought extension of time upto 31-1-1989. Defendant agreed in writing to that effect. Thereafter again defendant required some time and it was extended upto 15-3-1989 on the request of the defendant and defendants endorsement to that effect was taken on the agreement.

(2.) INSPITE of all this, defendant failed to comply with the terms of the agreement and did not execute sale deed and hand over possession as expected of him and did not perform his part of the contract. Plaintiffs therefore sent a notice through their Advocate on 11-3-1989 calling upon defendant to perform his part of the contract by executing sale deed and delivery of possession. Inspite of the notice defendant failed to perform his part of the contract and hence the suit. In the alternative plaintiff has claimed relief by way of refund of Rs. 2 lakhs with interest at 24% per annum thereon.

(3.) CONTESTING the suit, defendant filed his written statement contending inter alia therein that the flat belongs to the society and not to the defendant and he could not have agreed to sell the same. The society is a necessary party. Defendant entered into negotiations for sale of the flat with plaintiff and the terms and conditions were reduced to writing. The sale was subject to these terms and conditions. One of the condition was that the society should agree for transfer of the flat. Plaintiff agreed even to pay 50% of the transfer charges. Defendant had certain difficulties to vacate the flat. However, he was not given copy of the agreement of sale and he does not know as to what terms are incorporated therein.