An agreement for sale of a flat in a cooperative society is not a contingent contract and the contingency (approval of the society) does not have to be fulfilled before the contract is enforceable.

( 1 ) THESE two appeals arise of the same, judgment and decree passed by the Sub-Ordinate Judge, 2nd Court, Alipore in T. S. No. 246/81 and T S No. 123/84 tried analogously by the Learned Trial Judge under the order of High Court, Calcutta. The facts of these two suits may be briefly stated as follows: -ONE Bidyut Sarkar has filed the T. S. No 246/81 before the Learned Trial Judge alleging that he is the owner of the flat in suit. He agreed to sell the same to one Smt. Anjali Das, the defendant in February, 1980 for a consideration of Rs. 48,800/- subject to the permission being granted by Vidyasagar Samabaya Abasan Samity Limited, a registered Co-operative Society under which the plaintiff was holding the flat in suit. Inspite of his sincere attempts, both the plaintiff and the defendant failed to obtain necessary permission from the said Samity. As such, the Agreement dated 7. 4. 80 was cancelled Meanwhile, the defendant was allowed by the plaintiff to stay in the suit flat as licensee. The Samity objected to such illegal occupation of the defendant and asked the plaintiff to get it vacated by the defendant. The plaintiff then asked the defendant to quit and vacate by a letter dated 10. 8. 81, but the defendant failed and neglected to quit and vacate the same. The plaintiff has, therefore, filed this suit for recovery of possession of the flat in suit from the defendant and for damages and compensation for use and occupation of the flat.

( 2 ) THE defendant, Anja1i Das contested the suit contending, inter alia, that the defendant entered into agreement for sale with the plaintiff to purchase the flat in question for Rs. 1,10,000/- and at the suggestion of the plaintiff's father the agreement as well as the Deed of Conveyance was agreed to show the consideration money to be Rs. 48,800/-, that the defendant agreed to the said suggestion on condition' that he would be in possession of the suit flat immediately on payment of Rs 61,200/- by way of earnest money, that the defendant paid the said amount to the plaintiff and the plaintiff delivered possession of the flat in suit to the defendant on 7. 4. 80. The defendant was entitled to get the specific performance of the agreement for sale and he not being a licensee is not liable to be evicted from the suit flat.

( 3 ) DURING the pendency of the above suit Anjali Das, the defendant in the above Title Suit has filed Title Suit No. 123 of 1984, the suit for specific performance of contract against Bidyut Sarkar alleging that she was all along ready and willing to perform her part of contract but the defendant failed and neglected to do so and that as the demand notice was issued to the defendant to get the Sale Deed executed and registered and as the defendant did not execute and register the Sale deed inspite of such notice, the plaintiff has filed the suit for specific performance of contract.

( 4 ) THE defendant, Bidyut Sarkar contested that suit disputing the claim of the plaintiff that the consideration money was Rs 1,10,000/- and reiterated that the consideration money of flat in suit in question was fixed at Rs 48,800/ -. The defendant also denied to have received the earnest money of Rs. 61,200/ -. His case is that agreement stood cancelled for want of necessary permission from the Samity and the defendant, therefore, revoked the licence granted to the plaintiff and the plaintiff is, therefore, neither entitled to get the specific performance of contract nor to continue to be in occupation of the suit premises.

( 5 ) THE learned Trial Judge on considering the evidence adduced by both the parties has decreed the T. S. No 246/81 and dismissed the T. S. No. 123/84.

( 6 ) BEING aggrieved by and dissatisfied with the judgment and decree passed in the above two suits, Smt. Anjali Das, the defendant in T. S. No 246/81 and the plaintiff in T S. No. 123/84 has preferred the two appeals which have also been heard analogously by this Bench.

( 7 ) ON behalf of