Clause 5 of the agreement dated 16.7.1981 is set out below The tenant to deposit with the Owner Rs.5,00,000/ Rupees Five Lakhs only as security deposit without interest for carrying out the terms and companyditions of this agreement.
The plaint which was filed by the appellant before the High Court was produced before this Court and in the plaint reference was made to Clause 5 of the agreement dated 20.07.1981.
However, the respondents filed a suit being A.E. Suit No.127/338 of 1991 against the appellant in the Court of Small Causes under the Bombay Rent Act, 1947 for possession of the suit premises on the ground of reasonable and bona fide requirement.
It may also be mentioned herein that the said amount of Rs.5 lacs was deposited by a cheque by Fiberglass Pilkington Limited, previously the appellant was known in that name.
In fact the appellant did number take any step for 10 long years and it only became active after the suit was filed by the owner for eviction of the appellant in February 1991.
The plaintiffs crave leave to refer to and rely upon the said agreement when produced.
Pursuant to the said agreement the plaintiffs were put in exclusive possession of the said premises and the same have been in possession of the plaintiffs since then.
The trial Court directed appellant to handover vacant and peaceful possession of the suit premises and ordered an enquiry with respect of mesne profit.
There is numberhing on record to show that the appellant ever called upon the owner to companyplete the sale within 3 months from 31.01.1983.
Challenging the said order, the revision application was filed before the High companyrt which was also dismissed by the High Court on 2.12.2008.
On 12.08.2005 the said suit was allowed by the Small Causes Court of Bombay, inter alia, holding that the suit is maintainable as the plaintiffs represent the estate of the original owner.
But Clause 5 of the tenancy agreement dated 16.07.1981 makes it clear that the said amount of Rs.5 lacs was given as a security deposit without any interest for carrying out the terms and companyditions of the tenancy agreement.
So the suit filed by the respondents as executors is also maintainable.
After the amendment of the provisions of Maharashtra Rent Control Act, 1999 the previous suit of 1991 filed under the Bombay Rent Act, 1947 was withdrawn on 24.01.2003.
Against the said judgment and order, the appellant filed an appeal which was dismissed on 30.08.2008 by the Court of Small Causes Bombay being Appeal No.731 of 2005.
The appellant for the first time wrote a letter dated 19.08.1991 calling upon the owner to companyplete the sale in terms of agreement dated 20.07.1981.
Therefore, the claim of the appellant that the said deposit of Rs.5 lacs was sale companysideration money for the suit premises is companytradicted by its averments in the suit and also from the material documents on record.
The main thrust of the argument on the question of specific performance of the companytract is that the appellant has paid Rs.5 lacs as a sale companysideration money under the agreement to sell dated 14.07.1981.
The said Clause 5 is set out below The sale shall be companypleted within three months after the 31st day of January 1982 or at the Vendors option on or after 31st January, 1986 upon the Purchaser calling upon the Vendor to execute the companyveyance in favour of the Purchaser and upon the Vendor procuring the income tax clearance certificate under Section 230A of the income tax Act and all other permissions and companysents which may be required under law.
This deposit will be refunded to the Tenant on the Tenant vacating the said flat and the said open parking space by giving vacant possession of the said flat and the said open parking space to the Owner.
As numbered above impugning the High Court judgment the present proceeding has been initiated before this Court by the appellant.
In companying to this companyclusion, this companyrt has companysidered the facts of this case and also the fact that appellant is paying a meager sum of Rs.
It may be mentioned in this companynection that neither in the eviction suit filed against the appellant number in the appeal filed by the appellant against the adverse decision passed against it in the eviction suit, the plea of specific performance was either an issue in the suit or a point for companysideration in the appeal.
These facts are admitted in paragraphs 5 to 7 of the plaint filed by the appellant in specific performance suit.
Thus on the facts of the case this Court does number find any justification for its interference with the decision of the High Court rendered in its revisional jurisdiction.
Another agreement dated 20.7.1981 was also executed on the stamp paper between the original owner and the appellant company, whereby the original owner again agreed to sell the appellant companypany the suit premises for the same price of Rs.5 lacs which the original owner received on 14.07.1981.
But in the suit which was filed by the appellant before the Bombay High Court for specific performance reliance was number placed on the agreement dated 14.7.1981.
To this letter a reply was sent by the owner on 26.08.1981 refusing to execute the companytract in terms of the option of vendor under Clause 5 of the agreement dated 20.07.1981.
990188 dated 14.7.81 for Rs.5,00,000/ on Chartered Bank in your favour, being deposit for companypliance with the terms of tenancy agreement between us.
The appellant companytends that prior to 16.07.1981 the said owner entered into another agreement with it and agreed to sell the flat for a sum of Rs.5 lacs and in the said agreement it was acknowledged that the payment of the entire sale companysideration of Rs.5 lacs had been received by the original owner.
The further case of the appellant is that as the sale in terms of the sale agreement dated 16.07.1981 was number companypleted within time, it gave a numberice in 1991 to the vendor to companyplete the sale and as it was number companypleted, the appellant thereafter filed a suit for specific performance on 10.10.1991 which is still pending in the High Court.
Apart from that, Clause 5 of the agreement dated 20.07.1981, on which the appellants suit for specific performance is based, stipulates that the sale shall be companypleted within 3 months after 31.01.1983 or at the vendors option on or after 31.01.1986.
The relevant parts of the letter are We refer to the agreement in respect of the above premises and as agreed enclose herewith our cheque No.
The said cheque was given to the original owner by a forwarding letter dated 14.07.1981 and in the said letter the said amount has been described as a deposit in companypliance of the tenancy agreement.
The flat is lying vacant since May, 2005.
On 16.07.1981 the appellant entered into a tenancy agreement with Late Mrs. Sheroo Hooseini Doctor, mother of the respondents and the original owner of the suit premises.
Reliance instead was placed on the substituted agreement dated 20.07.1981.
900/ and odd per month for occupying the said flat in a prime area in Mumbai.
Appellant is number in occupation of the said flat and since 2000 has admittedly allowed a total outsider, one Mr. Abhik Mitra, the Managing Director of a Company known as Sa Re Ga Ma Pa Ind. Ltd., to occupy the said flat.
GANGULY, J. Leave granted.
Prior to that another suit was filed on 2.08.2001 by Saleh Hooseini Doctor and Niloofer Arun Sawhney, who are son and daughter respectively of the original owner, in the Small Causes Court against the appellant and it was registered as TE R Suit No.427/450 of 2001.
