SEBASTIANA ESCOLASTICA BEATRIZ Vs. RAVALNATH BUILDERS

JUDGEMENT

(1.) This appeal questions judgment of the learned Additional Senior Civil Judge, Panaji dismissing the appellant's/plaintiff's Special Civil Suit No.20/2005 for declaration and specific performance of agreement dated 18/09/1995 and payment of about Rs.35 lacs. The plaintiff had also sought various injunctive reliefs.

(2.) The appellant is now a 95 years old lady, who exclusively owned property bearing Survey No.2/1 and 292/1. In respect of these properties, she entered into the agreement with the respondent/defendant, a builder, on 18/09/1995 for development of the property. The defendant was to pay a sum of Rs.35,35,000/- towards consideration in addition to providing a 100 square metres three bedroom flat with a garage on plot no.2/1. Since the defendant paid some amounts to the plaintiff but did not pay the balance of amount from time to time and also did not place the plaintiff in possession of the flat, the plaintiff sent a notice to the defendant on 9/09/2003 pointing out that till then only a sum of Rs.7 lacs had been paid to the plaintiff. This notice was replied on 13/10/2003 whereby the defendant claimed to have paid a sum of Rs.10 lacs. In the reply, details of cheques issued were given and two of those cheques were issued in the name of plaintiff's son Mario. It was also stated that the possession of the flat and garage was delivered on 31/01/2002 itself. The defendant had also claimed to have renovated the plaintiff's house at a substantial cost of Rs.25,66,355/-. After receiving this reply, the plaintiff filed the said suit.

(3.) In the written statement filed on behalf of the defendant, the defendant took same pleas which had been taken in the notice namely that possession of the flat as well as garage had been already delivered on 31/01/2002 and that the balance of consideration was adjusted towards renovation of the plaintiff's old house. In the written statement, it was claimed that a sum of Rs.30,22,990.87 had been spent on the renovation of the plaintiff's old house. It was also stated that there was a subsequent agreement dated 20/03/1996 whereby the earlier agreement dated 18/09/1995 was modified. Under the new agreement the plaintiff was to get a 150 square metres flat in place of a 100 square metres flat. The agreement also recorded that the plaintiff had authorised the defendant to appropriate balance of consideration towards repairs and renovation and reconstruction of plaintiff's residential house. The defendant, therefore, prayed for dismissal of the suit.