RUKMANI PARKASH ASNANI Vs. BALDEV SOBHASINGH LULLA

JUDGEMENT

(1.) THIS Notice of Motion is taken out by the Plaintiff. The Plaintiff has filed this suit claiming a decree in the amount of Rs.1,36,00,000/- together with interest. The Plaintiff has filed this suit as a summary suit. In this suit, the Plaintiff has taken out this Notice of Motion claiming an order for attachment before judgment.

(2.) THE learned counsel for the defendant, however, raised an objection to the maintainability of the suit as a summary suit. The learned counsel submits that the suit is based on memorandum of understanding dated 30th May, 1998. The learned Counsel submits that, according that agreement the Plaintiff agreed to transfer 35% of her share of Khedekar Hotels Pvt. Ltd. to the plaintiff on payment of price, which was agreed. However, as per the terms of the agreement till the Plaintiff pays the entire price, the share will be kept with the advocate Mr.Laxman Kanal and the property in the share was to transfer to the defendant only on the payment of balance amount of consideration. The learned Counsel, therefore, submits that as the property in the shares does not stand transferred to the defendant by the agreement, the suit for recovery of money i e. price of the shares would be tenable as a summary suit. The real nature of the suit is that it seeks a decree of specific performance of the agreement to transfer the said shares. According to the learned Counsel such suit is not tenable as a summary suit.

(3.) NOW , if in the light of these rival submissions. the record of the case is perused, it becomes clear that as per the agreement dated 30th May,1998 the property in the shares was to transfer to Defendant only on payment of balance amount. He was to get delivered all the share certificates with the transfer forms, only after payment of balance amount of the consideration. It is clear from the provisions of sub-section (1) of Section 55 that a suit for recovery of the price of the goods is tenable only after the property in the goods has transferred to the buyer. In the present case, the property in the shares has not passed to the Defendant, therefore, suit for recovery of the price of the goods is clearly not tenable. In order that the provisions of Sub-section (2) of Section 55 of the Sale of Goods Act are attracted, the contract should not be dependent on the delivery of the goods. In the present case, according to the terms of the contract, the defendant becomes entitled to delivery of the share certificate only after completing the payment. Therefore, in the present case the contract is not a contract where the sale price is payable on certain day irrespective of delivery. In the present case, the purchase price is payable on an appointed day and on that day delivery is to be made. Therefore, prima facie, it appears that the suit pursuant to the agreement dated 30th May, 1998 may not be maintainable as a summary suit. It appears, prima facie, that the Plaintiff has chosen to club two claims, one of which prima facie appears not to be tenable as a summary suit and therefore, unless and until the Plaintiff segregates these two claims and places his plaint in order, in my opinion, it would not be appropriate to grant any interim relief in favour of the Plaintiff. Notice of motion is, therefore, disposed of.