ABDUL KAYUM AHMAD Vs. DAMODHAR PAIKAJI KINHEKAR
LAWS(BOM)-1962-12-4
HIGH COURT OF BOMBAY
Decided on December 06,1962

ABDUL KAYUM AHMAD Appellant
VERSUS
DAMODHAR PAIKAJI KINHEKAR Respondents


Cited Judgements :-

NATIONAL PROPERTIES LIMITED VS. BATA INDIA LIMITED [LAWS(CAL)-2001-5-10] [REFERRED TO]
BOMI MUNCHERSHAW MISTRY VS. KESHARWANI CO OPERATIVE HOUSING SOCIETY LIMITED [LAWS(BOM)-1992-12-23] [REFERRED TO]
NARANJI MAKANJI VS. BHAGWANJI MAKANJI PATEL [LAWS(GJH)-1993-7-12] [REFERRED TO]
SAKINA MOHAMMEDALLY MULLA VS. SULPHUR REFINERY PRIVATE LIMITED [LAWS(BOM)-1999-10-51] [REFERRED TO]
JASWANT SINGH VS. KARAM SINGH [LAWS(P&H)-1992-9-39] [REFERRED TO]
DHANNA SINGH AND ANR. VS. MALKIAT SINGH AND ORS. [LAWS(P&H)-1982-11-39] [REFERRED TO]
HARSHAL DEVELOPERS PVT.LTD VS. MANOHAR GOPAL BAVDEKAR [LAWS(BOM)-2012-11-48] [REFERRED TO]


JUDGEMENT

- (1.)IN this second appeal by the defendants Nos. 2 to 4 against two concurrent decisions granting a specific performance of an agreement to sell the house to the plaintiff, the only question raised before me was whether a monetary compensation for breach of agreement would have been a more appropriate relief than a decree for Specific performance.
(2.)ON 26-12-1952, the defendant No. 1, who owned the house in suit, entered into an agreement with the plaintiff to sell that house to the plaintiff for a consideration of Rs. 2000/ -. The sale deed was to be executed within two years. That agreement was registered and Rs. 1000/- out of the agreed price of Rs. 2000/- were paid as earnest money before the Sub-Registrar, the balance of Rs. 100/- being payable at the time of the registration of the sale deed, In the meantime, a creditor of the defendant No. 1 attached the suit house in execution of a decree in Civil Suit No. 46-B of 1946 and the plaintiff got that house released from attachment on 18-11-1953 by depositing the decretal amount of Rs. 186-10-0 for and on behalf of the judgment-debtor. It was agreed between the plaintiff and the defendant No. 1 that Rs. 100- out of this deposit of Rs. 186-10-0 was to be appropriated towards the balance of the price of the suit house. On 26-12-1054, the defendant No. 1 wrote a letter to the plaintiff to extend the time for executing the sale deed till 21-4-1955 and the plaintiff granted that extension. In the meantime, the house in suit was again attached by the mother of the present appellants-defendants NOS. 2 to 4 on 9-8-1954 in execution of her decree in Civil Suit No. 115-A of 1953. That house was put to sale and was auctioned by the executing Court on 18-3-1955. the auction being knocked in favour of the decree-holder who had bid with the permission of the Court. On 15-4-1955 the plaintiff gave the notice (Exhibit P-7) to the defendant No. 1 to remind him that the sale in his favour was to be executed by 21-4-1955 and to say that it would not be possible to execute that sale as per the agreement dated 26-12-1953 unless the auction sale was set aside in the meantime. He also said in that notice that, in case, the auction stood and was confirmed, the plaintiff will have no alternative but to demand back the consideration for the sale. On 16-4-1955, the defendant No. 1, who was a judgment-debtor, deposited the decretal amount plus 5 per cent thereof as per Order 21, Rule 89, of the Code of Civil Procedure in order to get the sale set aside. On 28-4-1955, the plaintiff gave another notice to the defendant No. 1 to call upon him to execute the sale in his favour as per the agreement dated 26-12-1952. The plaintiff also gave one notice, dated 30-4-1955, to the defendant No. 2 to intimate to him his prior agreement with the defendant No. 1 for the purchase of the suit house and to tell him not to take a sale Of that house because of the subsisting agreement, dated 26-12-1952. However, these notices were disregarded by the defendants and the defendant No. 1 executed the sale deed (Exhibit P-4) in favour of the defendants Nos. 2 to 4 with respect to the suit house for a consideration of Rs. 2200/ -. The executing Court had not passed an order setting aside the sale in favour of the decree-holder on that day but that order was passed on 1-7-1955. These facts were found by the Courts below and cannot be questioned in this second appeal.
(3.)THE plaintiff had sued for specific performance of his agreement on the allegation that he had performed his part of the contract by paying the full consideration, but the defendant No. 1 had not, carried out his part and had instead sold the house to the defendants Nos. 2 to 4 despite their having knowledge about the prior agreement in favour of the plaintiff. The defendant No. 1 had contested the suit first by denying that he had received Rs. 1900/- at the time of the agreement and by further alleging that the agreement, dated 26-12-1952, was collusively brought about for shielding his property from his other creditors. The defendants Nos. 2 to 4, who are the appellants in this Court, claimed that they were bona fide purchasers for value and the prior agreement in favour of the plaintiff was bogus and collusive. The Courts below overruled these defences and decreed the claim for specific performance on finding that the defendants Nos. 2 to 4 were not bona fide purchasers for value without notice of the plaintiff's right.


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