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IN THE HIGH COURT OF BOMBAY
A.P. Shah, J.
Prataprai Trambaklal Mehta.... Plaintiff.
Versus
Jayant Nemchand Shah another.... Respondents.
Chamber Summons No. 1060 of 1994 in Suit No. 2434 of 1987, decided on 18-1-1996.
Advocates appeared :
M.H. Shah with Satish Shah P.T. Mehta i/b Pimanta Kapasi Co., for the
plaintiff.
D.V. Merchant i/b Dhru Liladhar Co., for the respondent
Sections 19 and 22- Transfer of Properly Act, 1882, Section 55(1)(f)-Specific performance of contract for sale-Decree for-Executing Court empowered to deliver possession even if contract silent about possession relief.
Section 55-Specific Relief Act, 1963, Section 19-Bomhay Rents, Hotel and Lodging House Rates Control Act, 1947, Section 28-Right of transferee-What right can claim a transferee?
Held; the question which next arises for consideration is what is the right of H in respect of flat No.5 can a transfer in violation of an undertaking which amounts to an injunction confer any right on the transferee? Whether such a transferee is entitled to protection of Rent Statute.
It has not derived any right under the tenancy, which is created in derogation and in violation of the express undertaking given by the defendants to the Court.
The consent decree, which is passed, cannot be defeated on the ground that a third party has been illegally inducted by the judgment-debtor.
Section 55(1)(f)-See Specific Relief Act, 1963-Sections 19 and 22.
2. The facts are that the defendants were the owners of the aforesaid building on plot No. 191. On April 15, 1985, the plaintiff and the defendants entered into an agreement of sale in respect of the said building with vacant possession of two flats i.e. flat Nos. 1 and 3 situated on the ground floor of the said building for a total consideration of Rs. 1,00,000/-. By another agreement dated November 15, 1985, the earlier agreement was confirmed. On August 14, 1987, the plaintiff filed Suit No. 2434 of 1987 for specific performance of these agreements. The suit property was described in the schedule of the property in Exhibit 'A' to the plaint as follows :-
"All that piece or parcel of land or ground together with the building situate thereon and lying and being at village Pahadi, Goregaon, Taluka Borivali, in the Registration District and Sub-District of Bombay City and Bombay Suburban, being Plot No. 191, Jawahar Nagar, Ward No. 13, Goregaon (West), Bombay-400 062, bearing Survey No. 147, Chalta No. 231 of 235, CTS No. 602, admeasuring 502 sq. mtrs. or thereabouts, Municipal Ward No. P-1160, 1160 (1-A), 1160 (1-B)".
Main prayer of specific performance contained in prayer Clause (a) of the plaint reads thus :-
"That the defendants may be ordered and decreed to specifically perform the said agreement for sale dated 15th day of April, 1985 and also confirmed by the Agreement of Confirmation dated 15th November, 1985, registered under serial No. 914 dated 5th March, 1986 in the office of the Sub-Registrar of Documents at Bombay, and to hand over the said property together with the vacant possession of the said flats Nos. 1 and 3 on the ground floor of the said Property at Plot No. 191, Road No. 13, at Jawahar Nagar Co-operative Housing Society, Goregaon (West), Bombay-400 062, to the plaintiff and to do all act, deeds and things as may be required for the purpose of carrying out the said Agreement."
3. On September 21, 1987, the plaintiff and the defendants presented consent terms before the Court and a consent decree was passed in terms of the consent terms. It will be necessary to note some of the relevant terms of the compromise decree, which are reproduced below :---
"1. Defendant Nos. 1 and 2 declare that the agreement dated 15th April, 1985 and 15th November, 1985 are valid, subsisting, and binding and the defendants are in possession of the suit property and Flats Nos. 1 and 3 on the Ground floor of the building at Plot No. 191 of the suit property at Road No. 13, Jawahar Nagar Co-operative Housing Society Limited, Goregaon, Bombay-400 062.
2. Decree on admission in terms of prayer (a) of the plaint.
3. Defendants agree and undertake to the Court not to dispose of or create fresh tenancy rights and/or third party rights and/or any charge or encumbrance or obstruction whatsoever upon the said suit property, more particularly described in the schedule to Ex. 'A' to the plaint and more particularly on or in respect of Flat Nos. 1 and 3 on the Ground floor of the building on the said property at Plot No. 191, Road No. 13, at Jawahar Nagar Co-operative Housing Society Ltd., Goregaon, Bombay-400 062.
4. Defendants agree and undertake to the Court to quit, vacate and hand over to the plaintiff the quiet, vacant and peaceful possession of the said Flat Nos. 1 and 3 on or before 31st December, 1988.
5. ... ... ... ... ...
6. In the event of the defendants Nos. 1 and 2 fail to hand over possession on 31st December, 1988, the plaintiff to take possession on or after 9th January, 1989 through Sheriff's Bailiff, in execution of the Decree herein.
7. ... ... ... ...
8. Defendants to execute the Sale Deed in
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