Bombay High Court
The City Of Nagpur Municipal Corp. Thr. ... vs Smt. Umadevi Wd/O Omprakash Agrawal And ... on 26 July, 2019
Author: V. M. Deshpande
Bench: V.M. Deshpande
1 sa304.19.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
SECOND APPEAL NO.304/2019
The City of Nagpur Municipal Corporation, through its Commissioner,
Nagpur Municipal Corporation, Nagpur and anr. .vs. Umadevi wd/o
Omprakash Agrawal and ors.
_______________________________________________________________________
Office Notes, Office Memoramda of Coram,
appearances, Court's orders of directions Court's or Judge's orders.
and Registrar's Orders.
Mr. R. Chhabra, Advocate for appellants.
Mr. A. M. Ghare, Advocate for respondents.
CORAM : V. M. DESHPANDE, J.
DATED : JULY 262019 Heard Mr. Chhabra, learned counsel for the appellants-City of Nagpur Municipal Corporation and Mr.Ghare, learned counsel for the respondents.
An auction was held in the year 1990 by the Corporation for leasing out its plot situated at Shanti Nagar Housing Board Layout, bearing Plot No.H-4, admeasuring 418.21 Sq. Mtr. Late Omprakash Agrawal participated in the said auction proceeding and gave his bid and his bid was Rs.2,02,000/- He found to be the highest bidder. As per the auction term, on very same day, he deposited 1/4 th amount of the auction price. In view of the terms, within a period of two months, the bidder was to pay the entire amount. The said date was found to be 08.05.1990. However, the remaining amount was not paid. On 23.05.1990, 1/4 th amount was again credited with the Corporation. Thus, by ::: Uploaded on - 26/07/2019 ::: Downloaded on - 27/07/2019 06:27:21 ::: 2 sa304.19.odt 23.05.1990, auction purchaser paid half of the amount of his bid. Subsequently, no amount was credited. Resultantly, the Corporation sent reminders dated 30.06.1990, 17.09.1990 and 22.11.1990, still the balance amount was not deposited and ultimately on 24.01.1992, a communication was given by the Corporation that within seven days, if the amount is not deposited along with interest at 15%, the allotment will be cancelled. The said letter is available on record in the compilation of the present second appeal at page no.99.
Feeling aggrieved by this action on the part of the appellants, Omprakash Agrawal filed an appeal before the authorities specified in the City of Nagpur Municipal Corporation Act. The appeal was contested by the department. The learned Deputy Municipal Commissioner, vide order dated 12.02.2001, partly allowed the appeal inasmuch as the claim of Omprakash Agrawal that the Corporation was not entitled to charge interest, was negatived. By the said decision, the authority under the Corporation Act directed the bidder to deposit the amount as demonstrated in letter dated 24.01.1992 within seven days.
It is not in dispute that in pursuant to the order in the appeal, the auction purchaser deposited the amount of Rs.1,27,934/- on 07.04.2001, still the lease deed was not executed in his favour. Consequently, he approached the Civil Court by filing the suit for specific performance of contract. The suit was contested. During the pendency of the suit, the plaintiff has expired and his legal ::: Uploaded on - 26/07/2019 ::: Downloaded on - 27/07/2019 06:27:21 ::: 3 sa304.19.odt representatives were brought on record. The learned Judge of the trial Court, vide judgment and decree dated 29.06.2007, held that the plaintiff did not deposit 1/4th amount within the stipulated time and the plaintiff failed to prove that he was ready to fulfill the conditions. Consequently, suit was dismissed.
Against the said, an appeal bearing Regular Civil Appeal No.74/2012 was carried and the learned Ad hoc District Judge-1, Nagpur, vide judgment and decree dated 25.02.2019, not only reversed the decree of dismissal of the suit by the learned Judge of the trial Court but granted a decree for specific performance, directing the appellants therein to execute a lease deed within a period of 90 days from the date of the judgment.
After hearing learned counsel for the parties for admission of this appeal and after considering the pleadings as well as perusal of both the judgments and decrees, I am of the view that this appeal requires consideration since it involves substantial questions of law, though it is the submission of the learned counsel for the respondents that the appellants did not enter into the witness box through any of its officers nor undertook the exercise of cross- examination of the plaintiff's witness.
The appeal is Admitted, on the following substantial questions of law.
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(i) In the backdrop of admitted position on record that the appellants were required to issue reminders on 30.06.1990, 17.09.1990 and 22.11.1990 to deposit the balance amount agreed as per the auction dated 08.03.1990, could it be said that the auction purchaser was ready and willing to perform his part of contract?
(ii) Whether the appellate Court was justified in granting of discretionary relief of specific performance of agreement in favour of the plaintiff after lapse of more than 20 years, especially in the light of the fact that during this period, the price of immovable property has increased immensely?
(iii) Merely because defendants did not enter into the witness box, whether that by itself is sufficient to record a finding that the plaintiff was ready and willing to perform his part of contract?
Call for the record and proceedings.
Mr. Ghare, learned counsel waives notice for the respondents.
Civil Application No. 600/2019 This is an application for stay. The appeal is admitted in view of the substantial questions of law.
The suit for specific performance of contract was dismissed by the trial Court. However, at the appellate stage, the decree for specific performance of contract was ::: Uploaded on - 26/07/2019 ::: Downloaded on - 27/07/2019 06:27:21 ::: 5 sa304.19.odt granted. It is admitted before this Court by both the parties that possession of plot no.4 situated at Shanti Nagar Housing Board Layout, is still with the appellants-Corporation.
In that view of the matter, there shall be stay to the judgment and decree passed by Additional District Judge, Nagpur dated 25.02.2019 in Regular Civil Appeal No.74/2012, during the pendency of the present second appeal.
The appellants, any officer or person claiming through the appellants-Corporation, are directed not to create any third party interest whatsoever in nature in respect of the said plot. The Corporation is also directed to take necessary steps for saving the suit property from encroachment.
The amount, so far deposited by the auction purchaser, which is still lying with the appellants, the appellants are directed to invest the said amount with any Nationalised Bank, initially for a period of three years and shall renew the same as and when occasion arises. It is made clear that the party, which succeeds in this second appeal, will be entitled for the interest.
The application is disposed of.
JUDGE kahale ::: Uploaded on - 26/07/2019 ::: Downloaded on - 27/07/2019 06:27:21 :::