KAMLA PRIBHDAS NEBHNANI Vs. HAREN KRISHNAKUMAR MEHTA

JUDGEMENT

(1.) By this Appeal, the Appellant, who is the original Defendant, challenges the judgment and decree dated 11th October, 2000 passed by the learned single Judge of this court.

(2.) The facts that are material and relevant are that the Respondent filed Civil Suit No.1097 of 1978 in this court claiming a decree of declaration that the agreement dated 1st April, 1978 is valid and subsisting. He also prayed for a decree of specific performance of that agreement. He also prayed for certain incidental reliefs. The agreement dated 1st April, 1978 was an agreement to sell flat No.30, Merryland Co.operative Housing Society Ltd., Worli, Mumbai. According to the Plaintiff, the Defendant had entered into an agreement to sell the suit flat along with the fixtures and furniture for Rs.1,65,000/-. An amount of Rs.10,000/- was paid as earnest money. The balance amount was to be paid at the time of execution of the conveyance and handing over of possession.. By the agreement, it was agreed that the possession will be handed over on or before 30th April, 1978. It was also recited in the agreement that the Defendant will secure a letter from the Housing Society giving permission to the Defendant to transfer the flat to the Plaintiff. According to averments in the plaint, in the month of April, 1978 the Defendant made an application to the society for permission to transfer the flat to the Plaintiff. According to plaint allegations, the society by letter dated 12th May, 1978 required the Plaintiff to submit an undertaking in the manner stated in the letter. According to the Plaintiff, undertaking was forwarded by the Plaintiff to the society and an amount of Rs.1,174.54 was also paid as transfer fees. The Plaintiff also informed the society by letter dated 23rd May, 1978 not to transfer the flat in the name of any other person. According to the Plaintiff, the Defendant by her advocate;s letter dated 23/25th May, 1978 purported to return the amount of Rs.10,000/- and cancel the agreement. According to the Plaintiff, the Plaintiff received a letter from the society dated 2nd June, 1978 informing him that the society has no objection to the Defendant transferring the flat in favour of the Plaintiff. The Plaintiff contended that the Plaintiff was ready and willing to perform his part of the contract. The Plaintiff, therefore, filed the suit seeking aforesaid reliefs.

(3.) The Defendant resisted the suit by filing a written statement. According to Defendant, in terms of the agreement dated 1st April, 1978 an application was made to the society for its permission for transfer of the flat in the name of the Plaintiff on 28-4-1978, the society pursuant to that application interviewed the Plaintiff and the society declined to give permission to the Defendant to transfer the flat in favour of the Plaintiff by letter dated 7-5-1978. According to the Defendant, the letter dated 7-5-1978 was a crucial and relevant letter which has been suppressed by the Plaintiff. According to the Defendant, immediately, after receiving the letter dated 7-5-1978 the Defendant offered to refund the amount of Rs.10,000/- to the Plaintiff. She also proposed that she is willing to give possession of the flat to the Plaintiff on his paying her the entire consideration. It was submitted by the Defendant that as despite making an application to the society to reconsider its decision not to grant permission to transfer the flat, the society was not taking any decision. The Defendant wrote a letter dated 20-5-1978 to the society asking the society to return her application. According to the Defendant, that application was returned by the society on 21-5-1978 and she by letter dated 23-5-1978 terminated the agreement and returned the amount of earnest money. According to the Defendant, the letter dated 2-6-1978 from the society is not relevant, firstly, because that letter has been written after cancellation of the agreement and secondly the letter is conditional. The Defendant also claimed that time is essence of the contract. The Defendant also produced documents in support of her case.