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2009 Supreme(Bom) 335
High Court of Judicature at Bombay
THE HONOURABLE MR. JUSTICE D.K. DESHMUKH & THE HONOURABLE MR.
JUSTICE A.A. SAYED
Sharad Chhajjuram Aggarwal & Others
Versus
Bombay Builders Company Ltd. & Others
Appeal No.370 of 2004 in Suit No.1053 of 1981 and Appeal No.391 of 2004
Decided on : 13-03-2009
For the Appellants:A.Y. Bookwala, Sr.Advocate with Rishabh Shah, Deepak Thakkar, Kalpesh Parikh i/b Pragna Thakkar & Co., Advocates. For the Respondents:R1 & R2, D.D. Madon, Sr.Advocate with O.S. Kutty i/b P.S. Shah, R3, Ms. R.C. Nichani, Advocates.
Headnote:Specific Relief Act, 1963 - Section 21 - Decree for compensation - Cannot be passed - Unless a prayer made in plaint claiming compensation - No such prayer in plaint - Passing of decree for compensation violative of - Provisions of Section 21(5) of Act. - Perusal of the above provisions makes it clear that unless there is a prayer made in the claiming compensation no decree for compensation can be passed by the Court. In other words, in the absence of any prayer in the plaint, whereby by plaintiff claim a decree for payment of compensation against the second defendant, the Court could not have made a decree against the second defendant for payment of compensation. Perusal of the proviso shows that there is power in the Court to permit the plaintiff to amend the plaint at any stage to include the claim for compensation. Perusal of the judgment of the single Judge shows that the single Judge has observed that it is not necessary at this stage to amend the plaint and without even amending the plaint a decree for compensation can be passed against the second defendant, because the second defendant has stepped into shoes of the first defendant. In our opinion, the learned single Judge is in error in making those observations. An amendment in the plaint would be necessary to give notice to the second defendant as to on what basis the compensation is claimed against him. The plaintiff also will have to lead evidence to prove as to what will be the proper amount of compensation? The second defendant will then get an opportunity to lead the evidence in rebuttal. If without following such procedure, a decree for payment of compensation is passed, then the decree would be violative of principles of natural justice and the provisions of sub-section (5) of Section 21. In Court’s opinion, therefore, the single Judge was not at all justified in passing a decree for payment of compensation against the second defendant.
Specific Relief Act, 1963 - Section 21(5) - Suit for specific performance and damages - Suit for specific performance of agreement to sell flats was filed - After that suit for damages filed - Flats in suit sold by defendant 1 to defendant 2 - Decree of specific performance denied by single Judge and allowed damages - Challenged - Construction was in complete - Held - Construction in incomplete as such decree for specific performance cannot be granted - Putting decree for damages against defendant 2 to execution also desentitles plaintiff to claim decree for specific performance of agreement - No fault found with order of single Judge.
P.C.: (D.K. Deshmukh, J.)
1. Boththese Appeals are directed against the same judgment and decree passed by the learned single Judge of this court in Suit No.1053 of 1981. Therefore, both these Appeals can be conveniently disposed of by a common order.
2. The facts that are material and relevant for deciding these Appeals are, Sharad Chhajjuram Aggarwal and Poonam @ Poornima Sharad Aggarwal filed a suit being Suit No.1053 of 1981, to which the Bombay Builders Company Pvt.Ltd. was joined as Defendant No.1 and Industrial Development Bank of India was joined as Defendant No.2. (The parties will be referred to by their designation in the suit). The Plaintiffs claimed in the suit that the Plaintiffs entered into an agreement dated 17th May, 1979 with Defendant No.1, which is a company incorporated under the Companies Act. The Defendant No.1 was constructing a building called "Mahendra Towers" on plot of land admeasuring about 3000 sq.ft. situated at 72, Bomanji Petit Road, Cumballa Hill, Bombay 400 026. According to the Plaintiffs, by an agreement dated 17th May, 1979 the Defendant No.1 agreed to sell to the Plaintiffs Flat No.903, on the 9th floor of the Building for the total consideration of Rs.2,90,000/-. Out of the agreed amount of consideration, an amount of Rs.2,61,000/- was paid by the Plaintiffs to the Defendant No.1. According to the Plaintiffs, though the balance amount of Rs.29,000/- was also sent to the Defendant No.1, Defendant No.1 did not encash the cheque, therefore, payment of that amount remains due. The Plaintiffs claimed that they were informed by 2nd Defendant by letter dated 14th May, 1981 that the entire property known as "Mahendra Tower" has been sold by Defendant No.1 to the second Defendant under a conveyance executed in April, 1980 and that the second Defendant was in possession of the property. The second Defendant IDBI is statutory body constituted under the Industrial Development Bank of India Act, 1964. It appears that they have purchased the property for their staff quarters.
3. ThePlaintiffs, in this situation, filed a civil suit. In the civil suit by prayer clause (a) they claimed a decree of specific performance of the agreement dated 17th May, 1979 against both the Defendants. By prayer clause (b) in the alternative a decree for damages is claimed only against Defendant No.1. It appears that though the Defendant No.1 initially appeared in the suit, he did not thereafter appear. However, the Defendant No.2 contested the suit. The Defendant No.2 filed written statement. On the basis of rival pleadings by order dated 27th November, 2001 the court framed following issues:
ISSUES
(1) Whether the Plaintiffs prove that there is a valid agreement dated 17-5-1979 entered into with the defendant No.1 for purchase of flat No.903 on the 9th floor of building known as "Mahendra Towers" which was then under construction together with a covered ‘car parking space’ in the said building for a price of Rs.2,90,000/- and the same is subsisting and specifically enforceable against the defendants?
(2) Whether the Plaintiffs prove that they have already paid cheques amounting to Rs.2,75,500/- as against the total consideration of Rs.2,90,000/- payable under the Agreement dated 17-5-1979?
(3) Whether the Plaintiffs prove that they are ready and willing to pay the balance amount of consideration, but it was not paid only because of the breach of contract committed by defendant No.1?
(4) Whether the defendant No.2 proves that it acquired right, title and interest over 7035 sq.metrs., of the property under the Article of Agreement dated 5th April 1980 (Ex.1 to the written statement) Indenture of sub-lease dated 22nd April 1980 (Ex-2 to the written statement), Tripartite Agreement dated 23rd April, 1980 (Ex-3 to the written statement) and Deed of Conveyance dated 24th April, 1980 (Ex-4 to the written statement)?
(5) Whether the defendant No.2 prove that they were not aware of the plaintiffs’ contract with def
