HARSHAL DEVELOPERS PVT.LTD Vs. MANOHAR GOPAL BAVDEKAR

JUDGEMENT

(1.) Plaintiffs are shop purchasers. Defendant is property developers. Suit RCS No.1279 of 1992 was filed by the plaintiffs on the basis of an unregistered agreement for sale in the court of Civil Judge, Senior Division, seeking relief of specific performance and possession so also give direction to the respondent to perform all theWP10670 obligations under MOFA Act 1963 and direct the respondent to admit agreement of sale in the office of Registrar. Suit was decreed on 14.11.2006. Civil Appeal No.159 of 2009 filed by the respondent was dismissed on 15.11.2005.

(2.) The appellant is a defendant no.1 Promotor & developer who entered into an agreement of sale with respondents/plaintiffs on 31.8.1991 for sale of the shops in the building for total consideration of Rs.2,94,000/-. Out of which Rs.2,50,000/- was paid on the date of the execution. The agreement was entered into as per the provisions of the Maharashtra Ownership Flats Act 1963 (Hereinafter called as the said "Act"). The impugned agreement being unregistered, it was presented for the registration to the Joint Sub-Registrar of Assurances, Pune on 23.12.1991. The plaintiffs have also informed the appellants/defendants to come and admit the execution. However, the appellants did not turn up. Plaintiff thereafter issued a legal notice to admit the execution of the said agreement. However, the appellants did not admit and did not respond. The defendant no.1 by way of defence contended that the money was accepted as a loan and by way of security for repayment of loan, the defendant has executed the impugned agreement in favour of the plaintiff so that agreement is not binding under MOFA. Suit was filed initially before the Civil Judge, Senior Division but after 4 years suit was transferred to the court of Civil Judge, Junior Division. The trial court framed issues about the execution of the valid agreement and specific performance of the same. All the issues were decided in favour of the plaintiff and suit was decreed. Appeal was preferred by the defendant no.1 and the Manager of the firm. First appeal court formulated the points in respect of the requirement of the conditions of the specific performance and about the execution of the sale deed and all the points were determined in favour of the respondent. Hence, this Second Appeal.

(3.) At the time of hearing of the appeal at the stage of admission it was agreed by both the parties that the substantial questions of law may be framed and the appeal would be argued finally on the next date to enable parties to deliberate on the issues in detailed. The substantial questions of law on the submissions of the learned Counsel for the appellants are framed as under :-