ARUN SUBRAO PRABHU Vs. RIZVI BUILDERS

JUDGEMENT

(1.) THE plaintiff seeks specific performance of an agreement to sell entered into with the first defendant on 6th March, 1980.

(2.) THE first defendant had agreed to purchase an immovable property Survey No. 1 / 1175 of TPS III, Mahim - with the building and structures standing thereon. On 6th march, 1980, the plaintiff, who is a doctor, entered into an agreement with the first defendant by which he agreed to purchase a residential flat, Flat No. 104, in the building which the first defendant was to construct on the property, at and for a consideration of rs. 1. 80 lakhs. Clause 4 of the agreement noted that the old structures standing on the land were tenanted and that it was necessary for the first defendant as developer to settle with the tenants. Consequently, development of the land was dependent on the co-operation of the tenants of the building, and the developer entering into a settlement with them. Subject to this, Clause 5 of the agreement provided that the plaintiff was purchasing the residential premises comprised in Flat No. 104 on the first floor. Clause 6 of the agreement stipulated that the plaintiff had paid an amount of Rs. 5,000/ prior to the execution of the agreement and that the balance would be linked to the casting of slabs by the first defendant; payment being required to be made within ten days of a notice in writing by the first defendant, under certificate of posting, which would constitute a sufficient discharge. However, Clause 28 provided that the plaintiff agreed to pay all the amounts due under the agreement when they fell due and time was of the essence. The first defendant was not bound to give a notice requiring payment and his failure to do so would not be treated as an excuse for non-payment.

(3.) NOW, it is an admitted position that between March, 1980 and October, 1987, the construction of the building in which the plaintiff had agreed to purchase a residential flat did not commence. The case of the first defendant is that the construction of the building commenced in October, 1987. The plaintiff paid, besides the initial amount of rs. 5,000/-, a further sum of Rs. 31,000-/ to the first defendant. On 3rd June, 1987, the plaintiff addressed a letter to the first defendant reiterating that the payment of the balance was due slabwise within ten days of a notice in writing calling for payment but, that the plaintiff had not received any letters from the first defendant presumably because there was no progress in the construction of the building. The plaintiff recorded that he had sought nearly twenty appointments from the first defendant during the previous two years but, that the first defendant had avoided a meeting. The plaintiff sought another meeting for discussion on 27th June, 1987. There was no reply to the letter.