SHARIFA DOST MOHAMMED Vs. AJIT DEVELOPERS PVT. LTD.

JUDGEMENT

(1.) The present appeal has been preferred by the Original Defendants against the Judgment and Order dtd. 21/9/2024 passed by the City Civil Court at Mumbai in S. C. Suit No. 6169 of 2005, decreeing the suit by granting the relief of specific performance of agreement of sale dtd. 19/1/1995. For sake of convenience, the parties are referred to by their status before the Trial Court.

(2.) The suit came to be filed against the legal heirs of one Dost Muhammad Ata Muhammed, who was the executant of the Agreement of Sale dtd. 19/1/1995 by which the deceased Dost Muhammed had agreed to sell the suit property bearing Survey No. 42 Hissa No. 2 admeasuring about 1594 sqr. Mtrs. situated at village Vile Parle, Taluka Andheri, District Mumbai Suburban. The plaint pleaded that as per the Agreement for Sale, the agreed sale consideration was Rs.8,51,000.00 out of which a sum of Rs.65,000.00 was agreed to be paid on or before the execution of the agreement of sale, 25% of the total consideration as reduced by the amount already paid on the deceased obtaining the agreement from the tenants to provide alternate accommodation within 45 days from date of execution of the agreement, 35% of the total consideration reduced by the amounts already paid upon receipt of letter of intent, 40% of the total consideration reduced by the amount already paid on obtaining intimation of disapproval, 50% of the total consideration reduced by the amounts already paid on obtaining commencement certificate and the balance consideration in six quarterly installments. The plaint sets out various clauses of the agreement and pleads that out of total consideration of Rs.8,51,000.00, the Plaintiffs paid Rs.4,40,000.00 by cheques to the deceased which were encashed. The possession of the property was handed over by recording a letter of possession dtd. 19/1/1995. The Plaintiffs entered into agreement with 44 tenants for providing permanent alternate accommodation of 225 sqr. ft. By separate agreement dtd. 20/1/1995 styled as "Manager Agreement", the Defendant No. 1 agreed to carry out certain acts. The proposal for implementing the Slum Rehabilitation scheme was submitted to the Slum Rehabilitation authorities and in the meantime the deceased expired in the year 2001. By communication dated 22 nd August 2003, one Zuber Khan claimed interest in the properties. By letter dtd. 8/9/2003 the advocate for Defendant No. 2 disputed the rights of Zuber Khan and confirmed the execution of agreement of sale with a request to send particulars of payment made to the deceased. By communication dated 22 nd September, 2003 the Plaintiffs communicated their readiness and willingness to pay the balance amount. On 7/8/2004 when the Plaintiff's representative visited the suit property it was informed that the Defendant No. 2 was negotiating with the Tenants to vacate their structures. The Plaintiff sought interalia the relief of specific performance of the agreements dtd. 19/1/1995 and 20/1/1995.

(3.) The Defendants failed to file their written statement within the period of limitation and an Application for condonation of delay was filed which came to be rejected by the Trial Court. The order of rejection was challenged before the High Court which came to be dismissed. Resultantly, the suit proceeded without the written statement of the Defendants.