ANANDRAO KRISHNA NIGADE Vs. SUNIL BUILDERS

JUDGEMENT

(1.) THE learned counsel for the parties by this notice of motion taken out by the plaintiff appointment of the Court Receiver in respect of the undeveloped portion of the lands being City Survey Nos. 446, 375, 380 and 381 and also the suit flat i.e. flat no.202 in D-1 building, both situated at Dhobi Ghat, Vakola Radhagram Complex, Santacruz (East), Bombay is prayed. The plaintiff also prays for temporary injunction pending the hearing and final disposal of the suit by restraining the defendants from selling, transferring, encumbering or in any manner creating third party interest in the undeveloped portion of the aforesaid lands. The plaintiff has also prayed for interim compensation at the rate of Rs.2 lacs and future interim compensation at the rate of Rs.3000/- per month. The aforesaid interim prayers are made in the suit filed by the plaintiff seeking specific performance of the agreement dated 2.2.1987 whereby according to the plaintiff the defendant nos.1 and 2 agreed to sell flat no. 202 in D-1 Building, Radhagram Complex, Vakola, Santacruz (East), Bombay. In the suit the plaintiff has also prayed that the so called anterior agreement of sale dated 15.6.1985 allegedly made by the defendants nos. 1 and 2 as the sellers with defendant no. 3 and/or 4 as the purchasers of the suit flat be declared null and void and of no legal consequence. Other consequential reliefs are also sought in the suit filed by the plaintiffs. The case of the plaintiff is that he was a protected tenant in respect of the tenanted accommodation being room no. 3, Divekar Chawl, Dhobighat, Vakola, Santacruz (East), Bombay since 1979. The defendant nos.1 and 2 acquired the development rights of the said chawl and the appurtenant lands including the tenanted premises and desired to develop the property in the year 1982. For the purpose of development the defendant nos. 1 and 2 requested the plaintiff to surrender the tenanted premises to them. The negotiations took place between the parties and ultimately according to the plaintiff defendant nos.1 and 2 promised the plaintiff as follows :

(2.) IT is the case of the plaintiff that in terms of the aforesaid arrangement two agreements were executed between the parties, one in respect of surrender of the tenanted premises and the other for the sale of new ownership flat being flat no.202 in D-1 building, Radhagram, Santacruz (East). Both the agreements were executed on 2.2.1987. The plaintiffs acted pursuant to the said agreements and surrendered the tenanted premises and at the instance of the defendant nos.1 and 2 shifted to room no.43 in D-3 building in the vicinity the accommodation provided by defendant nos.1 and 2 to the plaintiffs as the temporary alternative accommodation. The defendant nos.1 and 2, according to the plaintiff, did not abide to sale the new ownership flat being flat no.202 in D-1 building. The correspondence ensued between the parties and, thereafter the plaintiff filed a suit being Suit No. 4229 of 1990 in the City Court, Bombay, in the month of June 1990. The prayer made in the suit was for permanent injunction against the defendant nos.1 and 2. In the said suit the defendant nos.1 and 2 disclosed that by an agreement of sale dated 15.6.1985 the suit flat was agreed to be sold to defendant nos.3 and 4. The present defendant nos.5 and 6 claim to have come in possession of the same from defendant nos. 3 and 4 who sold the said flat to defendant no. 5 and 6. The plaintiffs case is that the defendant nos.3 and 4 are not bonafide purchasers and the agreement for sale dated 15.6.1985 has been set up to defeat the rights of the plaintiffs and therefore pending the hearing and final disposal of the suit the Court Receiver be appointed and defendants be restrained from developing the remaining portion of the disputed land. In support of the notice of motion an affidavit has been filed reiterating the aforesaid facts stated in the plaint.

(3.) THE aforesaid facts indicate that the plaintiff was in possession of one room namely, room no.3, Divekar Chawl, Dhobighat, Vakola, Mumbai and surrendered the said room to defendant nos.1 and 2 in accordance with the surrender agreement dated 2.2.1987. The plaintiff was provided accommodation in room no. 43 in D-3 building by the defendant nos.1 and 2. The agreement for sale of flat no. 202 in building No. D-1 also was executed between the plaintiff and defendant nos.1 and 2, However, according to the defendant nos.1 and 2 the said agreement was by inadvertence. Even if this part of the statement made by defendant nos. 1 and 2 is disbelieved, the fact remains that pursuant to the agreement for sale dated 2.2.1987 between the plaintiff and the defendant nos. 1 and 2 the plaintiff (purchaser) was required to make payment in accordance with the schedule mentioned in the agreement. According to the schedule mentioned in the agreement the plaintiff was required to pay an earnest money of Rs. 5000/- on or before the execution of the agreement, Rs.16,100/- on casting of the 5th slab, Rs.16,100/- on the casting of the 6th slab and Rs.15,000/- at the time of possession. The plaintiff has not produced any material to show prima facie that he has made the said payment on the time they became due or thereafter. As a matter of fact in the plaint also it is not stated that the payment in accordance with the said agreement was made by the plaintiff to the defendant no.1 and 2 when they fell due namely on casting of the fifth slab and on casting of the 6th slab. Therefore, the plaintiff's averments made in the plaint that he was ready and willing to pay the said price prima facie cannot be believed. Moreover, it would be seen that the present suit for specific performance has been filed in the year 1994 when the building was completed way back in the year 1989-90 and in the year 1990 itself the defendant nos. 5 and 6 were put in actual physical possession by the defendant nos.3 and 4 who claim to have entered into an agreement for sale with the defendant nos. 1 and 2 vide agreement dated 15.6.1985 i.e. much earlier to the agreement between the plaintiff and the defendant no.1 and 2. The suit filed earlier for injunction simplicitor before City Civil Court cannot be of any help to the plaintiffs. The delay in filing the present suit for specific performance prima facie disentitles him from any interim relief during the pendency of the suit. All these facts clearly indicate that the plaintiff has not been able to make out prima facie case for grant of the interim relief pending the hearing and disposal of the suit.