Rizvi Builders v. Arun Subrao Prabhu

1988.

4.13 The captioned Suit for specific performance was filed thereafter by the flat purchaser on 27th April, 1988.

4.14 The flat purchaser also filed Notice of Motion No.1362 of 1988 inter alia seeking orders restraining the developer from selling, transferring, parting with possession or creating any third party interests in respect of the suit flat.

4.15 By an order dated 9th March, 1990 passed in Chamber Summons No.16 of 1990 filed by the flat purchaser, the Gulabanis were allowed to be impleaded as the Second and Third Defendants respectively in the captioned Suit.

4.16 By an order dated 10th July, 1990 an ad-interim order of injunction was passed in Notice of Motion No.1362 of 1988 restraining the developer from selling, transferring, parting with possession and/or creating any third party interests in respect of the suit flat.

4.17 By an order dated 8th October, 1990, Appeal No.994 of 1990 preferred by Gulabanis against the aforesaid order dated 10th July, 1990 was dismissed by this Court.

4.18 Against the aforesaid order dated 8th October, 1990, the Gulabanis preferred an Appeal before the Supreme Court of India being Special Leave Petition

(Civil) No.16211 of 1990. The SLP was disposed of by the Supreme Court by an order dated 19th November, 1991 wherein the Supreme Court in paragraph No.6 observed as under:

10. We have considered the evidence led by the parties. In our opinion, the aforesaid submission of the Appellant that the Suit is not capable of specific performance as it is the flat purchaser’s own case that his premises were not located in the completed building does not pass muster. It is the flat purchaser’s consistent evidence that until June, 1988 no construction work commenced on the portion of the building where his flat was situated. The present Suit for specific performance was lodged on 27th April, 1988 i.e. a date when as per the flat purchaser, construction of the flat was not complete and therefore; the Plaintiff sought specific performance of the Agreement. The contention of the developer that merely because it was the flat purchaser’s case that construction of his flat had not commenced; he should not be granted specific performance is preposterous. It is common practice for flats to be sold by developers when construction has not yet commenced. This non-commencement of construction cannot ipso facto defeat a Suit for specific performance. The developer’s reliance on the Supreme Court’s decision in Mayawati V/s. Kaushalya Devi[1] is clearly misplaced. In this decision, the Supreme Court laid down that the jurisdiction to order specific performance of a contract is based on the existence of a valid and enforceable contract. In the present case, at the time of entering into the Agreement, the developer contracted with the flat purchaser to sell the Flat which was to be constructed. The flat purchaser inter alia seeks a decree of specific performance ordering and directing the flat purchaser to specifically perform what it contracted to do i.e. construct the flat. Merely because at the time of fling of the Suit, it was the flat purchaser’s case that the flat was not constructed cannot non-suit the flat purchaser. In addition, to the aforesaid, it would also be pertinent to refer to the Order dated 3rd February, 2009 in Notice of Motion No.362 of 2009, wherein the developer’s statement has been recorded and the relevant part of which reads as under: “……… Mr. Kawli appearing for Defendant No.1 on instructions makes a statement that the flat is vacant and not allotted to anybody. It is neither sold or disposed of. No third party rights are created but the electricity bills are shown in the name of son of the builder (defendant No.1). However, even he is not occupying the flat.”

11. After recording the aforesaid statement, the learned Single Judge had ordered that the developer should not induct anybody in the suit flat until further orders and that the flat purchaser and his Advocate / representative was at liberty to inspect the suit flat after prior appointment with the developer and its Advocate. In light of the aforesaid statement made by the developer, it would now be preposterous to hold that the suit flat is not located in a completed building and that the captioned Suit is not capable of specific performance. It is pertinent to note that at the stage of making the aforesaid statement, the developer did not raise any plea regarding the suit flat being in an unconstructed building and therefore, the developer is estopped from raising this plea of the suit flat not being in the completed building at this stage. If we were to accept this contention of the developer at this stage, the aforesaid statement made on 3rd February, 2009 would be rendered totally worthless.

12. At this stage, we consider it incumbent upon ourselves to deal with the argument putforth across the bar by the developer that there is a variation in the pleadings by the flat purchaser and in his evidence regarding the location of the suit flat and hence he cannot seek specific performance. It is alleged that on the one hand, the flat purchaser had deposed that the area where the flat which was agreed to be sold to Respondent No.1 had not been constructed upon and that consequently, the liability to pay the balance of the installments had not arise. On the other hand, in paragraph 5 of the Plaint, the plea was to the effect that there was no occasion for making any further payment as the developer had not made any progress in respect of the construction work inasmuch as they were not in a position to demolish the existing structure in which place the building was to be constructed by the developer (which was to house the suit flat). We fail to find any inconsistency between paragraphs 3 and 5 of the Affidavit of evidence and the pleadings set up by the flat purchaser; and find no force in the contention putforth by the developer. In both, the Plaint and the Affidavit of Evidence, it is the grievance of flat purchaser that the area where the suit flat was agreed to be sold to the flat purchaser had not been constructed upon. We have culled out the relevant portions of the flat purchaser’s evidence in this respect hereinabove. If the Affidavit of Evidence is closely examined, it is evident that there is no variance between the same and the Plaint, since the existing structure at the place on which the new building was to be constructed by the developer was not demolished. It is indisputable that the new building in which the suit flat was to be constructed, had not been constructed and therefore; the area where the suit flat was agreed to be sold to the flat purchaser had not been constructed leading to the filing of the Suit for Specific Performance.

13. As far as the contention of the Appellant that there is consensus ad idem on the description of the property and therefore, no scope for specific performance is concerned, the premises which forms the very subject matter of the agreement to sell, has been precisely defined and identified in the agreement at Exhibit P[2]. At this stage i.e. when the flat purchaser has already instituted the captioned Suit, the developer cannot be allowed to contend that there is any ambiguity over the description of the premises, since the same would be in stark contradiction to the developers’ prior conduct. The Appellant in its letter dated 25th January, 1988 addressed to Gulabanis has unequivocally stated that the same premises which have been agreed to be sold to the flat purchaser were those in respect of which the Gulabanis had expressed an intention to purchase. Infact, the Gulabanis were on notice of the fact that the premises which were to be sold to them were the same premises which are the subject matter of the Agreement with the flat purchaser. Similarly, the contention of the developer that the flat purchaser could not produce the original plan relating to the premises, would not help its case since there was palpably no dispute with regard to the identity of the premises.

14. Moreover, a mere perusal of the developer’s statement recorded in the aforesaid Order dated 3rd February, 2009 in Notice of Motion No.362 of 2009, manifestly proves that there was infact no lack of consensus ad idem between the parties. The developer knew exactly where the suit flat was located and therefore, stated that the same was lying vacant and that the same had not been allotted to anybody. There is clearly no dispute with regard to the location of the suit flat as is sought to be contended by the developer. In light of inter alia the aforesaid statement, the question of there being an absence of consensus ad idem between the parties does not arise.

15. The Supreme Court’s decision in Mayawati V/s. Kaushalya Devi[2] was relied upon by the Appellant to contend that since there was no consensus ad idem between the parties on the property description, which is the subject matter of the contract, this Court cannot order specific performance. The aforesaid decision is inapplicable to the case at hand since there is, in fact, consensus ad idem between the parties herein. The Agreement is admitted. The description of the property in the Agreement is admitted. The property is precisely identified in the Agreement at Exhibit P-2. The same property has been purportedly sold to the Gulabanis. In these circumstances, the contention that there is an absence of consensus ad idem between the parties herein would not carry the case of the developer any further.

16. Amongst the arguments putforth by the developer before this Court is that the flat purchaser was aware of the progress of the construction of the building and hence no notice under Clause 6 and 7 of the Agreement was required to be given. Admittedly, no notice under Clause 6 of the Agreement was served. We find it difficult to accept the submission of the developer that the flat purchaser being aware of the construction, must be held to be in default of the payment of installments linked to the completion of each slab. Once the parties had stipulated an express procedure for payment, by the making of a demand by the builder, by a notice in writing, which was to be transmitted in a particular mode, in our view, it would be impermissible to hold a purchaser in default, on the supposed premise that he was aware of the construction, by his own personal visits near the site. The flat purchaser cannot be expected to be familiar with the nitty-gritties of the construction industry and furthermore, cannot be expected to release payments based on incomplete knowledge. As far as the Agreement is concerned, the only manner in which the flat purchaser could have been made aware of the casting of slabs, was by issuance of notice by the developer in strict compliance of Clause 6 of the Agreement and in the manner specified in Clause 7 of the Agreement. If we were to read anything else into the Agreement and accept the contention put forth by the developer, we would be laying down a dangerous precedent in as much as parties would tomorrow contend that just because another party’s residence / place of business was near a construction site, it was to be assumed that they were fully aware of the progress of construction and specific clauses providing for the manner in which they were to be informed of the same, would no more be worth the paper they are written on it. For similar reasons, any other mode of communicating the progress of construction to Respondent No.1 or any other manner in which Respondent No.1 could have been made aware of the progress of construction ( such as by site visits, oral assurances of the builder’s representatives etc.), cannot be allowed to substitute the prescribed procedure in the Agreement itself. We are convinced that the obligation of flat purchaser to pay the installments had not arisen in the absence of a demand for payment.

17. Admittedly, the construction could not commence until October, 1987. Moreover, we find it irrelevant whether or not the flat purchaser continued to reside at his address mentioned in the Agreement and consequently, find no force in the argument put forth by the developer that, if the Agreement was interpreted as proposed by the flat purchaser, a notice would be served at an address at which the flat purchaser no longer resided. Pertinently, it is also not the case of the developer that a notice was in fact issued to the flat purchaser. This is a weak attempt on the part of the developer to wriggle out of its express obligations under the Agreement. Furthermore, it would be absurd to suggest that a purchaser was required to keep an eye on the progress of the construction and keep inquiring from the builder regarding further payments.

19. During the hearing of the captioned Suit, the Appellant had contended that Clause 28 of the Agreement provided that the flat purchaser agreed to pay all the amounts due under the Agreement when they fall due, and time was of the essence. It was also contended by the developer that the developer was not bound to give a notice requiring payment and its failure to do so, would not be treated as an excuse for non payment. We are unable to agree with this interpretation of Clause 28 of the Agreement. In the event that we were to give any credence to this interpretation, it would render a large part of the commercial provisions of the Agreement completely otiose and would render Clauses 6 and 7 thereof totally redundant. As has been laid down time and again by the Supreme Court of India, the golden rule of construction is to ascertain the intention of the parties to the instrument after considering all the words, in their ordinary and natural sense. To ascertain this intention, the Court has to consider the relevant portion of the document as a whole and also to take into account the circumstances under which the particular words were used. A clause of an Agreement cannot be looked at in isolation, as is being sought to be done by the Appellant herein. The Court cannot place emphasis on an isolated provision divorced from the context and unrelated to the other provisions which govern contractual obligations. An effort must be made to harmonize all the provisions of the contract. It is beyond cavil that Clause 28 is a general provision in relation to the payment of amounts that fell due under the contract. Besides payment of the agreed consideration, this contract refers to the payment of certain other sums such as security, municipal taxes, insurance, outgoings, and maintenance expenses etc. Clause 28 can obviously have no reference to payments which were due under Clauses 6 and[7] whereby parties specifically stipulated that the Appellant would address a written notice to flat purchaser demanding payment of each installment against the casting of each successive slab. Clauses 5 and[6] are express provisions relating to the payment of the installments towards the purchase price and Clause 7 provides for the mode of service of the notice. On the other hand, Clause 28 of the Agreement is a general provision in relation to the payment of amounts that fall due under the contract. In light of these facts and circumstances, we are inclined to hold that Clause 28 of the Agreement cannot override Clauses 6 and 7 of the Agreement and the learned Single Judge has not erred in holding so. Thus, the obligation of the flat purchaser did not and could not by any stretch of imagination, arise until the developer had complied with his part of issuing notice under Clauses 6 and 7 of the Agreement.

20. The Supreme Court’s decision in Bachhaj Nahar V/s. Nilima Mandal and Anr.[3] was relied upon by the developer to contend that; since the factum of nonissuance of notice has not been pleaded by the flat purchaser, therefore, no relief should be granted. The aforesaid decision is inapplicable to the case at hand. It is indisputable that Respondent No.1 has pleaded non-issuance of notice by the Appellant in paragraph 7 of the Plaint. The averments contained in paragraph 7 of the Plaint have been reiterated in the course of the examination-in-chief. In paragraph 24 of the examination-in-chief, flat purchaser has reiterated what has been stated in paragraph 7 of the Plaint. In fact, this contention of Respondent No.1 has been expressly recorded by the learned Single Judge at paragraphs 13 and 23 of the impugned Judgment which read as under:

21. In its written submissions, the developer has contended that in the Flat Purchaser’s Affidavit of Evidence, he has disavowed his case regarding the failure of the developer to issue a notice. This averment will be of no help to the Appellant. If the agreement clearly stipulates that the Appellant was under an obligation to issue a notice to Respondent No.1 under Clause 6 thereof, this Court is bound to decide the matter in light of the aforesaid Clause.

22. In so far as the contention of the Appellant that Respondent No.1 was not ready and willing to perform his part of the obligation is concerned, after carefully considering the arguments put forth and after thoroughly going through the material on record, we unhesitatingly hold that Respondent No.1 was always ready and willing to perform his part of the contract. We have arrived at the aforesaid conclusion due to the following reasons: 22.[1] At the outset, the flat purchaser has expressly pleaded his readiness and willingness to perform the contract in paragraph 7 of the Plaint. The flat purchaser has pleaded that no slab was raised or laid by the developer, of the building in which the Respondent No.1’s flat was to be situated and the developer had at no point in time, demanded the payment of instalments. Consequently, the flat purchaser had not committed any default in making the payment of instalments. The flat purchaser has pleaded that he was at all material times, ready and willing to perform his obligations and was ready and willing even on the date of the filing of the captioned Suit. 22.[2] In paragraph 5 of the Plaint, there is a categoric averment to the effect that there was no occasion for the flat purchaser to make any further payment as the developer had not made any progress in construction. 22.[3] It is the admitted case of the developer that between 1980 and 1987, no progress had taken place in construction and therefore, we are of the opinion that there was no occasion for the flat purchaser to make the payment. Furthermore, during this period between 1980 and 1987 there was not a single letter from the developer addressed to flat purchaser demanding payment. Also, during the subsistence of the agreement with the flat purchaser, the developer had accepted a deposit of Rs.[4] lakhs from the Gulabanis in respect of the very same flat. On a mere perusal of the developer’s letter dated 25th January 1988 addressed to the Gulabanis, it emerges that even at that very stage, the developer would wait for the flat purchaser to pay the instalments before entering into an agreement with the Gulabanis and that the developer did not treat time to be of the essence of the contract with the flat purchaser. Despite having addressed the aforesaid letter, the developer entered into an agreement with the Gulabanis on 4th April 1988, during the subsistence of the Agreement with the flat purchaser and without the Agreement being terminated. It has been stated by the witness that the agreement was handed over to the Gulabanis only after the termination of the Agreement took place, on 11th April 1988. We find ourselves unable to give any credence to this statement. 22.[4] It is also pertinent to note that the flat purchaser’s letter dated 3rd June 1987, which was addressed during the subsistence of the Agreement and regarding which we have stated more hereinafter, manifestly shows his readiness and willingness. 22.[5] Moreover, the flat purchaser’s conduct after the date of the termination viz., 11th April 1988, shows a clear sense of ardour in resorting to remedies available to him under law. No sooner did the developer attempt at terminating the Agreement than the flat purchaser addressed a letter dated 20th April 1988 to the developer and the captioned Suit for specific performance was filed on 27th April 1988. 22.[6] It is pertinent to note that on 3rd June 1987, the flat purchaser addressed a letter to the developer that the payment of the balance was due slab wise within ten days of a notice in writing calling for payment; however, the flat purchaser had not received any such letter from the developer since there was presumably no progress in the construction of the building. The flat purchaser recorded that he had sought nearly twenty appointments from the developer during the previous two years, but to no avail. The flat purchaser sought another meeting for discussion on 27th June 1987; however, there was no reply to the letter. These two letters alone, neither of which have been denied by the developer, sufficiently demonstrate that the flat purchaser was always ready and willing to perform his part of the contract.

23. In any event, in the case of Ramesh Chandra Chandiok vs. Chuni Lal Sabharwal[4], the Supreme Court of India has held that readiness and willingness cannot be treated as a strait jacket formula. These requirements have to be determined from the entirety of facts and circumstances relevant to the intention and conduct of the party concerned. The conduct of the flat purchaser before the institution of the captioned Suit, will clearly demonstrate that the flat purchaser had, at no stage, been languid, nor had he acted in any manner that would be inconsistent with his plea of being ready and willing to perform the contract.

24. In its Written Submissions, the developer has also contended that the other payments stipulated in the Agreement do not have any fixed timelines for payment as envisaged in Clause 28 of the Agreement. This argument cannot be accepted by us, because what the developer is practically attempting at doing is, rendering Clauses 6 and 7 of the Agreement totally redundant. If we were to accept this contention of the developer, Clauses 6 and 7 of the Agreement would be left with no purpose, which would be in blatant contravention of the axiomatic principal of interpretation of contracts which is that no part of an agreement or words used therein could be said to be redundant.

25. We have noticed that in paragraph 15 of the Impugned Judgement, the Learned Single Judge has relied upon the Supreme Court’s decision in M.Arul Jothi v., while reiterating that no part of the agreement or words used therein could be said to be redundant. In this regard, it would be appropriate to refer to what a Full

Bench of this Court has held in S. Kumar Construction Co., Mumbai and Another v. Municipal Corporation of Gr. Bombay and Others[6], which is as under: “8. Having heard the learned counsel for the parties we now proceed to answer the questions framed by us. The answers to the said questions would undoubtedly be contingent upon the interpretation of Clauses 96 and 97 of the General Conditions of Contract which form part of the agreement entered into between the parties. Hence the position in law in so far as interpretation of agreements/deeds assumes some importance. In the said context the judgments cited on behalf of the MCGM by the learned Senior Counsel Shri Setalvad would have to be dealt with. In M. Arul Jothi's case (supra) the rent agreement between the parties regarding use of the shop premises contained a clause that shop should be used by the tenant for carrying on his own business and the tenant shall not carry out any other business than the one specified (dealing in radios, cycles, fans, clocks and steel furniture). The tenant started using the shop to carry out business of provisions such as spices and dals etc along with original specified business. The respondent-landlord filed a eviction suit under the Tamil Nadu Buildings (Lease and Rent Control) Act 1960 on the ground that the tenant was using the premises for different purpose than one specified). The Trial Court decreed the suit and the Appellate Authority dismissed the Appeal filed by the tenant. On the matter coming to the High Court, the High Court dismissed the Revision Petition filed by the tenant. On the matter coming to the Apex Court, the decree passed against the tenant was upheld. It was held by the Apex Court that since in the case before it there is specific prohibition clause in the rent deed which stated that the premises shall be used by the tenant only for carrying on his own business and the tenant shall not carry on any other business than the above said business. The said clause restricted user of the tenanted premises only for the business which is stated therein and no other. The word in the rent deed “not to use it for any other purpose” would have to be given effect to. The Apex Court held that once parties enter 6 2017 SCC Online Bom. 130 into a contract then every word stated therein has to be given its due meaning and no part of the agreement or words used therein could be said to be redundant unless it is contrary to statute. …..

14. Insofar as Clause 97 is concerned, it has been worded in the widest possible manner, as it begins with the expression “all disputes and differences whatsoever” covers the stages when they may arise “concerning the works or the execution or the maintenance thereof or the construction meaning operation thereof and also covers the determination of the rights and liabilities of the parties or arising out of or in relation thereto also covers the point of time when they can arise “whether during or after completion of the contract, or whether before or after determination, foreclosure or breach of the contract.” Hence the manner in which Clause 97 is structured, it can be said to be an all encompassing clause covering all disputes and differences arising at whatsoever stage and providing for arbitration. The said Clause as indicated above inter alia covers, the aspect as to the manner of appointment of arbitrator, the qualifications of the arbitrator, fees that are payable to the arbitrator and the manner of their fixation etc. Hence a conjoint reading of Clause 96 and Clause 97 indicates that the parties have provided themselves a dual mechanism i.e. Clause 96 providing for doubts, disputes and differences arising at the time of the execution of the works, being resolved in a particular manner, and then Clause 97 which is an arbitration clause which can be said to be all encompassing. Significantly in Clause 97 there is no reference to Clause 96 which can be said to be a defining feature of the agreement, in so far as the present works contract is concerned. Hence Clause 97 can be said to be a stand alone arbitration clause whose invocation is not contingent upon invocation of Clause 96. The said Clause 96 cannot eclipse Clause 97 which as indicated above is a stand alone arbitration clause and is all encompassing. It is therefore not possible to subscribe to the proposition as enunciated by the learned Senior Counsel Shri Setalvad that having regard to the law applicable to the interpretation of deeds, if every word is to be given meaning to in Clause 96 then all the disputes would be covered by Clause 96 and therefore invocation of Clause 96 is a precursor to invocation of Clause 97. The acceptance of such a proposition would in fact render Clause 97 otiose. The acceptance of such a proposition would also militate against the object behind Clause 97 which is to provide a remedy by way of arbitration to the parties. Such an interpretation also cannot be accepted in view of the fact that it was also the submission of Shri Setalvad that in so far as the MCGM is concerned, it can directly invoke Clause 97. The same would give rise to an anomalous situation namely that the MCGM can invoke Clause 97 directly whereas the Contractor has to go through the route of Clause 96. The parties obviously cannot be meted out a different treatment under the same contract. The interpretation therefore would have to be one which results in a uniform treatment to the parties and furthers the object behind which the parties agreed to Clause 97. It would be one thing to say that Clause 96 is worded in the widest possible terms, but another thing to deny the efficacy of Clause 97 insofar as reference to arbitration de hors Clause 96 is concerned.

20. As indicated herein above, Clause 96 provides for any doubt, dispute or difference in respect of the matters mentioned in the said Clause between the Engineer or any other officer and the contractor being referred to the Municipal Commissioner. The said matters include the items covered by Clause 7, namely, plans, workings, drawings section and specifications. If that be so, then applying the rule of interpretation which is applicable in respect of deeds, the said Clause 7 and Clause 96 would have to be construed in a manner which would make the scheme envisaged in Clause 96 workable. If the Municipal Commissioner is the referrable authority provided by Clause 96, he would also have to be so in respect of the items or matters mentioned in Clause 7 as otherwise the mechanism provided by Clause 96 would become meaningless. In fact the said proposition was advanced by the learned Senior Counsel for the Municipal Corporation of Greater Mumbai in support of his submission as regards the wide ambit of Clause 96. Hence to the extent that the items mentioned in Clause 7 are covered by Clause 96, to the said extent the decision of the Engineer would have to be held to be not final, conclusive and binding and would therefore be at large before the Municipal Commissioner and thereafter before the arbitrator if the occasion so arises.” ( emphasis supplied ) In light of the aforesaid principle of interpretation of contracts, to hold that the payment of consideration as stipulated in Clause 6 of the Agreement is in fact covered by Clause 28 of the Agreement, would be to militate against the very object behind Clause 6 of the Agreement which is to provide for a categoric and pre-determined mechanism of informing the buyer of the progress of the laying of slabs.

26. We may also profitably refer to the Supreme Court’s decision in JSW Infrastructure Limited and Anr. v. Kakinada Seaports Limited and Ors[7], wherein the Supreme Court discussed principles to be followed by Courts while interpreting tender documents. The Supreme Court held as under:

7. On a bare reading of the policy clause some weightage and meaning has to be given not only to the word “next” as done by the High Court but also to the words “only one private operator” appearing in the opening part of the clause. The words “only one private operator” cannot be treated as surplusage. The entire clause has to be read as a whole in the context of the purpose of the Policy which is to avoid and restrict monopoly. In our opinion, this clause will apply only when there is one single private operator in a port. If this single private operator is operating a berth, dealing with one specific cargo then alone will he not be allowed to bid for next berth for handling the same specific cargo. The High Court erred in interpreting the clause only in the context of the word “next” and ignored the opening part of the clause which clearly indicates that the clause is only applicable when there is only one private berth operator. It appears to us that the intention is that when a port is started, if the first berth for a specific cargo is awarded in favour of one private operator then he cannot be permitted to bid for the next berth for the same type of cargo. However, once there are more than one private operators operating in the port then any one of them can be permitted to bid even for successive berths. In the present case, as pointed out above there are already 5 private operators other than the first consortium.” If we were to give any credit to the contention put forth by the Appellant regarding the irrelevancy of the notice provided for under Clause 6 of the Agreement, the aforesaid clause would in fact, be rendered superfluous, which would be in the teeth of settled law which has been reiterated by the Hon’ble Supreme Court time and again.

27. The developer has also raised a plea that the Impugned Judgement proceeds solely on the basis of failure to give notice. In light of all that has been stated herein, this argument has no legs to stand on. The Learned Single Judge has evidently referred to other aspects such as the readiness and willingness of the flat purchaser to fulfil his obligations under the Agreement, the lack of concern on the path of the developer to provide the flat purchaser with as much as an appointment, the developer’s failure to establish when as a matter of fact, each slab was cast, etc. Also, the Learned Single Judge has categorically directed the developer to deposit the balance consideration payable under the Agreement i.e., Rs.1.44 lakhs with the Prothonotary & Senior Master. The Learned Single Judge has delivered the Impugned Judgement well within the four corners of the Agreement.

28. Furthermore, we find it appropriate to now briefly refer to the authorities cited by the developer before us. The Supreme Court’s decision in State of Madhya Pradesh v. Nomi Singh and Anr.[8] was relied upon by the developer to contend that, the burden of proof lies on the Plaintiff and for the relief claimed by a Plaintiff, he has to stand on his own legs by proving his case. The aforesaid decision is inapplicable to the case at hand since as discussed above, the flat purchaser has, indeed, succeeded in proving his case. Whilst the Appellant has made every effort to find fault in the Plaintiff’s evidence, we do not find the Plaintiff’s evidence lacking.

29. The England and Wales Court of Appeal’s decision in Newbold and Ors.

V. Coal Authority[9] was relied upon by the developer to contend that, the noncompliance of issuance of Notice is not fatal to its case. The following paragraph from the decision is relevant: “ I do not consider that there is any such conflict. In all cases, one must first construe the statutory or contractual requirement in question. It may require strict compliance with a requirement as a condition of its validity. In Mannai at 776B Lord Hoffman gave the example of the lease requiring notice to be given on blue paper: a notice given on pink paper would be ineffective. Against that, on its true construction a statutory requirement may be satisfied by what is referred to as adequate compliance. Finally, it may be that even non-compliance with a requirement is not fatal. In all such cases, it is necessary to consider the words of the statute or contract, in the light of its subject matter, the background, the purpose of the requirement, if that is known or determined, and the actual or possible effect of non-compliance on the parties. We assume that Parliament in the case of legislation, and the parties in the case of a contractual requirement, would have intended a sensible, and in the case of a contract, commercial result. ” ( emphasis supplied) In the case at hand, there is an express requirement of notice in Clause 6 of the Agreement. This is clear and unambiguous. The Ld. Single Judge has rightly considered the evidence and held that the issuance of the notice was a precondition to any payment falling due under Section 6 of the Agreement. 9 (2014) 1 WLR 1288

30. The Court of Appeal’s decision in Barrett Bros. v. Davies10 was relied upon by the developer to contend that, the non-compliance of issuance of Notice is not fatal to its case. Apart from the fact that the aforesaid decision is not binding upon this Court, the aforesaid decision was delivered in light of facts and circumstances which bear no semblance to those at hand. In the facts therein, a notice was indeed given to the insurance company by the Solicitors. In the facts of the case in hand, admittedly, no written notice demanding payment has been issued by the developer.

31. Before we conclude, it would be apposite to refer to a few other aspects of the captioned Suit. During the hearing of the captioned Suit, the defence taken up by the developer in the Written Statement was that the first slab was cast on 5th December 1987 and that all subsequent slabs were cast by March 1988. The developer’s sole witness Khalid Badsha (D.W.1), during the course of his crossexamination, stated that based on the commencement certificate, he could state that the construction of building had commenced in October 1987. The commencement certificate was, however, not produced on record and D.W.[1] stated that he had no reason for not producing the commencement certificate. The witness admitted that he had no document available to show that the laying of the first slab took place in December 1987. He deposed that his statement in the affidavit of the Examination-in- Chief that the first slab was laid in December 1987, was based on the instructions 10 (1966) 1 WLR 13341 which the developer gave to the contractor regarding laying of the slabs after the work of the plinth was completed and that these instructions were not given in writing. Similarly, the witness states that he had no document to show that the construction of all the slabs was completed on 5th March 1988. Despite being a developer who would be in possession of the entire record relating to the construction of the building, the developer has failed to produce the best possible evidence to establish the dates on which each successive slab came to be cast. An adverse inference would, therefore, have to be drawn against the Appellant, as has been rightly done by the Learned Single Judge. Mr. Rizvi, who according to D.W.1, attended to the day-to-day business, did not choose to enter the witness box. Therefore, we hold that the Appellant has failed to establish the dates on which each successive slab of the building was cast. The failure of the Appellant to do so assumes significance because in the absence of that evidence, it cannot be stipulated that the obligation of the flat purchaser to pay the instalments had arisen before the date of the termination of the Agreement.

32. Furthermore, in so far as the agreement between the developer and Gulabanis dated 4th April 1988 is concerned, it cannot bind the flat purchaser, nor can it be enforced against the flat purchaser. The developer proceeded to accept an amount of Rs.[4] lakhs from Gulabanis in January 1988. Gulabanis were clearly on notice by the developer’s letter dated 25th January 1988 of the Agreement with the flat purchaser. The agreement was executed on 4th April 1988 during the subsistence of the Agreement with the flat purchaser and therefore, before the Agreement with the flat purchaser was terminated on 11th April 1988.

33. In conclusion, it is admitted that the flat purchaser had paid Rs.5,000/as earnest money and Rs.31,000/- subsequently towards the purchase price of Rs.1,80,000/-, as provided in the Agreement. Pertinently, the flat purchaser has already deposited Rs.1.44 lakhs ( balance consideration payable under the Agreement ) with the Prothonotary & Senior Master, pursuant to the Impugned Judgment. The flat purchaser was at all material times, ready and willing to perform his obligations and was ready and willing even on the date of the filing of the captioned Suit. There is a specific plea that the flat purchaser was ready and willing to perform the contract. Parties had agreed that the balance of the consideration would be payable upon the casting of each slab, in instalments, upon a written notice by the developer demanding payment. From the evidence on record, the developer has failed to establish when as a matter of fact, each slab was cast and hence, an inference, that there was a default on the part of the flat purchaser, cannot be drawn.

34. For the reasons aforesaid, the above appeals are accordingly dismissed. No order as to costs. Interlocutary Applications also stand disposed of.

35. During the pendency of the Appeals, Notice of Motion No.4041 of 2009 was taken out by the develpoer seeking a stay of the execution of the decree of specific performance granted in favour of the flat purchaser. Furthermore, Notice of Motion No.560 of 2010 was taken out by the flat purchaser seeking an order to put him in possession of the Suit Flat and in the alternative; for the appointment of the Court Receiver. By an order dated October 19, 2013, this Court inter alia directed that the execution of the decree shall remain stayed conditional upon the develpoer paying the dues of the society up to the date of an agent being put in possession of the Suit Flat by the Court Receiver pursuant to the aforesaid order. The Court Receiver, High Court, Bombay was appointed as receiver of the Suit flat. Now, since the captioned Appeals stand dismissed, the aforesaid stay stands vacated. The Court Receiver shall stand discharged without passing accounts but subject to payment of his costs, charges and expenses by the Plaintiff. The Court Receiver shall handover possession of the suit flat to the flat purchaser. The amount deposited by the flat purchaser with the Prothonotary & Senior Master alongwith interest accrued if any shall forthwith be handed over to the Appellant. ( MILIND N. JADHAV, J. ) ( S.J.KATHAWALLA, J. )

36. At the request of Advocate Rebello representing the Appellant, this Order shall not be implemented for a period of two weeks from today. ( MILIND N. JADHAV, J. ) ( S.J.KATHAWALLA, J. )