JUDGMENT
S.M. Jhunjhunuwala, J.
1. This Notice of Motion has been taken out in a suit for specific performance of an agreement to sell the flat bearing No. 601 on the 6th floor along with the car parking space No. 6, in the building known as Shivala situated at the junction of Sobhani and Khatan Road, Colaba, Bombay 400 005.
2. Under an agreement dated 26th June, 1991 the defendants, who are described therein as the owners of the said flat and the car parking space, agreed to sell the same to the plaintiffs on the terms and conditions mentioned therein. The total price agreed to be paid by the plaintiffs has been Rs. 51,50,000/- out of which as sum of Rs. 50,000/- was agreed to be paid on or before the execution of the said agreement and the balance amount of Rs. 51 lakhs on obtaining no objection certificate from the Appropriate Authority as required under Chapter XX-C of the Income-tax Act, 1961.
3. It is the case of the plaintiffs that in respect of the sum of Rs. 50,000/- required to be paid on or before the execution of the said agreement, the plaintiffs had already handed over to the defendants a cheque bearing No. 504998 dated 24th June, 1991 for Rs. 50,000/- prior to the execution of the said agreement. The fact that the said cheque was handed over by the plaintiffs to the defendants is not in dispute. However, according to the defendants, the said cheque was not put in the bank as per the instructions of the plaintiffs, which fact has been denied by the plaintiffs. It is the case of the defendants that since the plaintiffs did not have sufficient funds in the bank account, the request was made by the plaintiffs for not presenting the said cheque of Rs. 50,000/- for encashment and accordingly the said cheque was not presented for encashment. I have perused the bank statement of the account of the 3rd plaintiff. I find from the said statement that at the material time sufficient amount was lying to the credit of the 3rd plaintiff in the said account and accordingly it is not possible to accept the allegations of the defendants that the said cheque for Rs. 50,000/- was not presented to the bank for realisation as per the alleged understanding arrived between the parties.
4. The requisite no objection certificate from the Appropriate Authority under the Income tax Act, 1961 has been obtained on 26th September, 1991. It was obtained pursuant to the application made as agreed between the parties under the terms of the said agreement. This establishes that the said agreement was not only entered into between the parties but was even acted upon. According to the defendants, since the balance amount of Rs. 51 lakhs was required to be paid by the plaintiffs on receipt of the said no objection certificate from the Appropriate Authority, which amount the plaintiffs did not pay to the defendants, the defendants became entitled to terminate the said agreement which the defendants did by their Advocates’ letter dated 18th December, 1991. It is the case of the defendants that the plaintiffs were not ready and willing to carry out their obligations under the said agreement, as a result whereof the defendants became entitled to terminate the same and did terminate the same. It is correct that the requisite NOC was received from the Appropriate Authority under the Income-tax Act, 1961 on 26th September, 1991. However, since NOC from the Society was also required for transfer of the said flat and the car parking space in the name of the plaintiffs, the plaintiffs justifiably desired to have such NOC from the Society before making payment of the said sum of Rs. 51 lakhs. The defendants did make an application to the society for issuance of the requisite NOC. However, it does appear that since the defendants had a second thought over this transaction, the defendants got rejection of the application from the Society. In this connection the minutes of the meeting of the Managing Committee of the Society held on 23rd September, 1991 are material. At the said meeting, the 1st defendant was present. He was selected as one of the office bearers of the Society for the years 1991-92 to 1993-94. The 1st defendant being the applicant himself appears to have taken part in the proceedings of the meeting held on 23rd September, 1991 and for the reasons best known to the defendants, got the application for grant of NOC from the Society rejected. The said rejection was, as aforesaid, in the meeting of the Managing Committee of the Society held on 23rd September, 1991 whereas the NOC from the Appropriate Authority under the provisions of the Income-tax Act, 1961 was on 26th September, 1991. Accordingly, it cannot be said that the plaintiffs were not ready and willing to make payment of the balance amount of Rs. 51 lakhs as on the date when the NOC from the Appropriate Authority was received. Moreover, the plaintiffs had approached Khatau Leasing & Finance Co. Pvt. Ltd., for necessary funds to perform their obligations under the said agreement. By the letter dated 1st July, 1991, the said Khatau Leasing & Finance Co. Pvt. Ltd., had shown their inclination to advance the requisite amount to the plaintiffs as and by way of bridge finance for a short period on the terms mentioned therein. This by itself shows that the plaintiffs have always been ready and willing to perform their obligations under the said agreement.
5. There is one more factor which requires consideration at this stage and that is to the effect that the defendants have purported to terminate the said agreement without making time as essence of the contract. Prima facie the termination of the said agreement by the defendants does not appear to be valid.
6. In the circumstances, in my opinion, prima facie case has been made out by the plaintiffs for grant of interim injunction. However on 21st April 1992, Dhanuka, J., had directed the plaintiffs to deposit the entire consideration amount of Rs. 51,50,000/- with the Prothonotary & Senior Master of this Court which amount the plaintiffs deposited by 22nd April, 1992. At that time an application was made on behalf of the plaintiffs for appointment of the Receiver of the said flat. On behalf of the plaintiffs it was submitted before Dhanuka, J., that the plaintiffs had no objection to the defendants withdrawing the said amount deposited in this Court. In his order dated 22nd April, 1992. Dhanuka, J., has also observed that in the circumstances of the case it was not believable that the suit agreement never became operative as contended by the defendants. He has further observed that he was more impressed by the plaintiffs’ case than the case of the defendants. In view of the fact that the 1st defendant is residing in the said flat, it is not possible to appoint Receiver thereof and permit the plaintiffs to occupy the same as the agents of the Receiver. This will amount to dispossessing the 1st defendant from the suit flat at this interlocutory stage which I am not inclined to do.
7. Although the plaintiffs have deposited in this Court the entire consideration of Rs. 51,50,000/- as per the order passed by Dhanuka, J., on 21st April, 1992, since the plaintiffs are not being put in possession of the suit flat at this stage, in my opinion, it is not proper to retain the said sum of Rs. 51,50,000/- in this Court till the hearing and final disposal of the suit. Accordingly adjusting the equities between the parties to the suit, I personally feel that out of the said sum of Rs. 51,50,000/- deposited by the plaintiffs, the plaintiffs should be permitted to withdraw sum of Rs. 51 lakhs retaining the amount of Rs. 50,000/- which the plaintiffs were required to pay to the defendants as earnest money under the said agreement.
8. In the circumstances, I pass the following order :
1. Pending the hearing and final disposal of the suit, the defendants by themselves, their servants and agents are restrained by an order and injunction of this Court from selling, transferring, alienating, encumbering, parting with possession of or creating third party rights in any manner whatsoever in the said Flat bearing No. 601 and the said car parking space No. 6 as also from creating any leave and licence in respect of the said Flat or the said car parking space or any part thereof. The defendants by themselves, their servants and agents are also restrained during the pendency of the suit from selling, transferring, alienating or otherwise encumbering the shares bearing distinctive Nos. 71 to 75 issued by Acapulo Co-operative Housing Society Ltd., in favour of the 1st defendant.
2. Liberty to the plaintiffs to withdraw the sum of Rs. 51 lakhs with any accretion thereon out of the said sum of Rs. 51,50,000/- deposited with the Prothonotary & Sr. Master in pursuance of the order passed on 21st April, 1992. In the event of plaintiffs exercising this liberty, Prothonotary & Sr. Master to recall the amount if invested with any nationalised bank and do pay the same to the plaintiff No. 2 along with any accretion thereto retaining the sum of Rs. 50,000/- and proportionate interest accrued thereon.
3. The plaintiffs are at liberty to serve certified copy of this order on the aforesaid Acapulco Co-operative Housing Society Ltd., so as to intimate the said Society about this order.
3-A. Costs of the Notice of Motion to be costs in the cause.
4. Prothonotary to act on the minutes of this order.
5. Issuance of certified copy of the minutes expedited.
