LAMARCH R C CLEMENTE Vs. RIZVI BUILDERS

JUDGEMENT

(1.) A suit for specific performance, injunction, receiver and consequential reliefs was filed by the respondent No. 1 against the present appellants, respondent No. 2 and Flavia Correia Gomes Clemente, who is said to have died prior to the filing of the suit. In this suit, respondent No. 1 sought injunction to restrain the present appellants, respondents No. 2 and the said deceased Flavia Correia Gomes Clemente, from in any way creating any third party interest or in any way transferring the suit property or conveying the suit property or parting with possession of the suit property in any way, or encumbering or dealing with, or creating any charge over the suit property. The Civil Judge vide impugned order dated 29th May, 1998, granted the said application and restrained the appellants, respondent No. 2 and the said deceased Flavia Correia Gomes Clemente, from creating any third party interest or from encumbering or creating any charge of whatsoever nature in the suit property. This order is the subject-matter of appeal.

(2.) THE main controversy centres around the question as to whether there was a concluded contract between the parties and whether in the circumstances of the case the trial Court was justified in passing the impugned order.

(3.) LEARNED Senior Counsel, Shri Usgaokar, took me through the record and urged before me that the entire transaction according to the respondent No. 1 had taken place only with the defendant No. 1/appellant No. 1 and, as such, no specific performance of such transaction could be claimed against the other defendants and specially when defendant No. 3 Flavia Correia Gomes Clemente had already expired in the year 1988, much prior to the filing of the suit and even after filing the suit her heirs were not brought on record. It was next urged that the entire correspondence on record does not reveal that there was a concluded contract and the theory of oral contract on telephone cannot, prima facie, be accepted or believed. It was pointed out that even though respondent No. 1 claims that there was concluded contract which had been finalized in the year 1988, yet no steps whatsoever were taken by respondent No. 1 till the filing of the suit in the year 1994; that in the year 1993 all the co-owners of the suit property had entered into an agreement with defendant No. 5, who had in pursuance of the said agreement developed and put up construction which had reached the stage of ground floor plus two storeys, which was completed and the work of third floor was in progress after which fourth floor ceiling slab had to be put up; that the respondent No. 1 did not seek any restraint whatsoever on the construction as a result of which the appellant have changed their positions due to which there is no equity in favour of respondent No. 1 for the grant of the impugned order. It was further pointed out that the respondent No. 1 has not paid a single pie to the owners, namely the appellants No. 1 and 2; no details of the alleged huge expenditure incurred by respondent No. 1 had been given and that the Civil Judge on the basis of mis-statement of certain facts, has granted the impugned order. I shall advert to the mis-statement of facts pointed out by learned Senior Counsel for the appellants at a little later stage, while discussing the matter of merits.