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IN THE HIGH COURT OF BOMBAY
D.G. Deshpande, J.
Haren Krishnakumar Mehta.... Plaintiff.
Versus
Kamla Pribhdas Nebhanani.... Defendant.
S.C. Suit No. 1097 of 1978, decided on 11-10-2000.
Advocates appeared :
M.L. Palan, for the plaintiff.
Malik, for the defendant.
Once, it is held that the agreement was entered into between the parties and they intended to act upon it, it also becomes immaterial Whether society rejected the plaintiffs application for membership because as admitted by the defendant she then consulted the plaintiff and both of them reapplied for making the plaintiff as member of the society that the plaintiff was interviewed by the Managing Committee, he changed his stand and then society agreed to make him member on plaintiffs giving undertaking which the plaintiff specifically gave. When both the parties reapplied again and society agreed to make the plaintiff as a member, then burden shifts upon the defendant to prove that inspite of the decision of society the plaintiff failed to perform his part of the contract, Court have no hesitation in holding that the defendant has failed to prove any breach on the part of the plaintiff. Once it is concluded that the lime was not essence of the contract and once it is concluded that the society had agreed to accept the plaintiff as its member by their decision after 13.5.1978 and after having accepting security bond from the plaintiff, then the burden shifts upon the defendant to prove that the plaintiff is not entitled to the reliefs claimed.
Section 10-Specific Relief Act, 1963, Section 6-Evidence Act, 1872, Section 58-Suit of specific performance of contract for sale of flat- Contradictory pleas and admissions-Sale opposed on ground that payment could not be made in given time-Held-New plea raised by defendant-Contrary to his earlier pleas-It was not possible to complete all formalities within a weeks period -Pleas and other records show that she wanted to get out of contract.- The defendant Was only interested in receiving balance of consideration. Once she was paid that amount the plaintiff should take risk of fighting with the society for becoming member or for other rights which he was entitled to get as a member. She wanted all this within one week to suit her Convenience. It is clear that the defendant has terminated the agreement because the plaintiff did not concede to her demand that he pays her the balance of consideration, takes possession of the flat and then fights with the society before execution of conveyance by her. Therefore, this so called termination has to be declared as totally illegal and improper and against the express agreement between the parties.
Section 15-Contract Act, 1872, Section 10-Enforceability of assessment-Defendant refusing to sell flat-Ground-Society had itself refused to transfer flats-Held-When subsequently society decides otherwise the agreement too does not get cancelled.-It is an admitted fact that at that time the plaintiff had represented to the society that he would not be occupying the suit flat but someone else occupying the suit flat. It is also an admitted fact that the society rejected the application of the plaintiff because he was not going to occupy the suit flat. However, it is a matter of record that thereafter the defendant immediately informed the plaintiff of this decision of the society and then plaintiff made a representation to the society, he was interviewed by the Managing Committee of the society wherein the plaintiff changed his stand and represented to the society that he would himself be occupying the suit flat and upon this representation the society agreed to accept the plaintiff as its member. There is no dispute of this last order of the society because it was this order which was specifically challenged by the defendant before the authorities under the Co-operative Court and wherein she failed as per Exhibit G, tendered by the plaintiff during his examination in chief, which is a copy of the order in that regard. Therefore, even though it is a fact that the plaintiffs request was turned down by the society initially, that cannot and did not result in cancellation of the suit agreement because even though earlier cancellation was on 7.5.1978, the society thereafter accepted the plaintiff as its member and obtained indemnity bond against him, and therefore, even if the findings on this issue is partly in the affirmative that the society had rejected the plaintiffs application for membership, agreement does not stand cancelled because of the subsequent decision of the society.
Sections 15 and 6-Civil Procedure Code, 1908, Order I, Rule 1-Concept of necessary party-Who is a necessary party-Defendant owning a flat in society-Refusal to leave it-Ground-Society not to agree in accepting plaintiff as member-Though society has agreed to accept him as his undertaking that he himself would be occupying the flat-Contention-Society is not a necessary party-Held -After giving no objection society no more remains a necessary party.- The society is not necessary party to the suit because no relief is claimed against the society. When the plaintiff is entitled to get specific performance, then the society will have to accept the plaintiff as its member, and since that has already been done by the society, joining of the society was not necessary. Therefore, Merry-land Co-operative Housing Society Ltd. is not the necessary party as alleged in the written statement.
2. The defendant was the owner of the suit flat. She was the member of Merryland Co-operative Housing Society Limited. She was also the owner of the furniture and fixtures. She entered into an agreement of sale with the plaintiff, for the shares, suit flat and the furniture and fixtures for a sum of Rs. 1,65,000/- upon the terms and conditions mentioned in the said agreement. The plaintiff paid Rs. 10,000/- as an earnest money. The balance was to be paid after giving possession of the suit flat by the defendant and transferring the flat to the plaintiff. That the possession was given on or before 30-4-1978. The date of this agreement is 1-4-1978. According to the plaintiff, the defendant applied to the society in May 1978 for transferring the shares and flat in the name of the plaintiff. The society by their letter dt. 13-5-1978 asked the plaintiff to give undertaking. There upon the plaintiff gave necessary undertaking and also paid transfer fee by a cheque. Thereafter the defendant resiled from the agreement and tried to return the amount of Rs. 10,000/- to the plaintiff by her letter dated 23rd/25th May, 1978 on the ground that the society has refused to accept the plaintiff as its member. The dispute therefore arose between the parties because according to the plaintiff, the society informed him by their letter dated 2nd June, 1978 that the society had no objection to transfer the suit flat in the name of the plaintiff. According to the plaintiff, the defendant has deliberately and mischievously cancelled the agreement and tried to cancel the agreement while he was all the while ready and willing to perform his part of the contract, and therefore, he filed this suit for specific performance.
3. The defendant filed her written statement admitting therein agreement between the parties. However, according to her, she submitted all the documents and necessary papers along with the copy of the agreement on 28-4-1978. Thereafter the plaintiff was interviewed by the society. But since the plaintiff stated before the society that he would not be occupying the flat himself, the society refused the permission to the plaintiff by their letter dated 7-5-1978. The defendant further stated that though the society initially rejected and refused the plaintiff proposal for the aforesaid reasons, the plaintiff re-submitted his application to the society contending therein that he wanted the flat for his residence. According to the defendant, the management of the society disbelieved the changed statement of the plaintiff and wanted undertaking to that effect and since the undertaking was not given by the plaintiff to the satisfaction of the society, the society refused to recognize the same and refused to transfer the said flat to the plaintiff, and consequently, the defendant wrote a letter dated 20-5-1978 to the society and the society returned all the papers to the defendant and finally rejected the transfer proposal, and therefore, the defendant returned the sum of Rs. 10,000/- by way of cheque. The plaintiff accepted the refund unconditionally and therefore he has no right in the suit flat. The defendant has also alleged that the plaintiff at the relevant time was not ready and willing to perform his part of the contract, and therefore, he was not entitled to the reliefs claimed.
4. On the basis of these pleadings the following issues were framed by me on 29th June, 2000.
ISSUES :
1) Whether Merryland Co-op. Hsg. Society Ltd. is necessary party as alleged in para 2 of the written statement ?
2) Whether the plaintiff is entitled to specific performance of the agreement dated 1-4-1978 on payment of balance purchase pr
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