First Appeal No. 795 of 2016 alongwith Civil Application No. 2212 of 2014 alongwith Civil Application No. 2364 of 2015. Case: Sham Pundlalik Dhumatkar and Anr. Vs Smt. Pushpa Mohanlal Talreja (Deceased) and Ors.. High Court of Bombay (India)

Case NumberFirst Appeal No. 795 of 2016 alongwith Civil Application No. 2212 of 2014 alongwith Civil Application No. 2364 of 2015
CounselFor Appellant: Mr. Krishna Kore, Adv. and For Respondents: Mr. Sanjay Jain i/by Mr. Ramesh Jain, Advs., Mr. Rakesh Singh i/by M. V. Kini & Co.
JudgesR.M. Savant, J.
IssueRegistration Act - Section 49; Transfer of Property Act, 1882; Bombay Stamp Act - Section 36
Judgement DateAugust 09, 2016
CourtHigh Court of Bombay (India)


1 Admit. Having regard to the challenge involved heard forthwith.

2 The above First Appeal takes exception to the judgment and order dated 06.05.2014 passed by the Learned Judge of the City Civil Court, Greater Mumbai, by which order, the suit in question being SC Suit No.7748 of 1998 (High Court Suit No.940 of 1998) came to be decreed. Consequently, the Defendant Nos.1 and 2 are directed to specifically perform the Agreement i.e. the Memorandum of Understanding dated 18.09.1997 within two months subject to the Plaintiffs depositing the balance consideration of Rs.1,50,000/within a period of four weeks from the date of the judgment with the Court Receiver. It is further provided that if the Defendant Nos.1 and 2 failed to carry out the directions as contained in clause (1) then the Court Receiver shall execute the sale deed in favour of the Plaintiffs and hand over possession of the suit premises to the Plaintiff and do such acts as may be necessary.

3 The Appellants herein are the original Defendant Nos.1 and 2 and the Respondent Respondent Nos.1 and 2 are the original Plaintiffs and the Respondent No.3 is the original Defendant. It appears that the original Plaintiff No.1 Smt. Pushpa Mohanlal Talreja expired during the pendency of the proceedings and her heirs who are shown as Respondent Nos.1a to 1d were brought on record in the Trial Court.

4 The facts giving rise to the filing of the above First Appeal in brief can be stated thus:

It is the case of the Plaintiffs that the Defendant Nos.1 and 2 who were the owners of the suit premises being office block No.501, situated on the 5th floor of the building known as A. N. House on 31st Road, off Linking Road, Bandra (W), Mumbai50 had agreed to sell, transfer the same under the Memorandum of Understanding (For short the "MOU") dated 18.09.1997 for a consideration of Rs.11,00,000/. The terms of payment and the other details have been mentioned in the said MOU. The Plaintiffs paid an amount of Rs.1,00,000/as the earnest amount. It is the case of the Plaintiffs that though the balance payment was to be made to the Defendants on compliance of the terms and conditions, the Plaintiffs paid an amount of Rs.8,50,000/on account of the financial difficulty faced by the Defendants. It is the case of the Plaintiff that they were always ready and willing to complete the transaction. However, the Defendants avoided to complete the transaction despite having received Rs.9,50,000/out of the total consideration of Rs.11,00,000/. In view of the reluctance of the Defendant Nos.1 and 2 to complete the transaction though the Plaintiffs were ready and willing for the same, it is the case of the Plaintiffs that the same aroused a suspicion about the intent of the Defendants and therefore the Plaintiffs filed the instant suit for specific performance.

5 In the said suit, the Plaintiffs filed a Notice of Motion for interim reliefs whilst the suit was pending in this Court. By an order passed by a Learned Single Judge of this Court, the Defendants were restrained from dealing with the property in question. However, since the Defendants acted in violation of the said interim order, the defence of the Defendants was struck of by order dated 15.12.2008 and the Court Receiver was directed to take possession of the property. The said order of striking of the defence was not taken exception to by the Defendants and therefore the said order became final and binding. Since the defence of the Defendants was struck of, the Trial Court proceeded to frame the following issues:

" 1. Whether the agreement dated 18th September, 1997 is valid and Binding?

2. Whether the plaintiffs have at all material times been and continue to be ready and willing to perform the agreement?"

The Trial Court on the basis of the material on record answered both the...

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