1998 Supreme(Guj) 475

Gujarat High Court
Judgename :H.L.Gokhale
ANJALIBEN NIKHILCHANDRA MEHTA - Appellant
Versus
PRABHAKAR BAPURAO FANSALKAR - Respondent
S.C.A. 13 of 1998
Decided On : 08/29/1998

Headnote:(a) Gujarat Co-operative Societies Act, 1961 - Secs. 96 & 99(3)(a) - Disputes referred under Sec. 96 - Scope of - Controversy raised by a member against the society seeking to enforce his rights arising under an agreement entered into with the society is a dispute covered under - Merely because some others are inducted into that property it can not be said that forum under the Act is not available to member of society seeking relief - Precisely to deal with such type of situation that a specific provision has been made under Sec. 99(3)(a) of Act.

       In the present case, it is a controversy raised by a member against the society seeking to enforce his rights arising under an agreement entered into with the society. Such a member cannot be told that because some others are inducted into that property, the forum under the cooperative law is not available to him. The dispute is essentially concerning the business and management of the affairs of the society and it is precisely to deal with such type of situations that a specific provision has been made under Sec. 99(3) (a) of the Co-operative Societies Act.

       [Para 9]

       (b) Specific Relief Act, 1963 - Secs. 20 & 19(b) - Specific performance of contract - Base statement of petitioner that they are bonafide purchaser of property for value in good faith not sufficient - In the facts of the case they are deemed to have notice of prior contract - Claim that specific performance can be granted only against executant of the contract is also not acceptable.

       The fact remains that whereas the society was formed way back in the year 1966 the petitioners herein were becoming members in the year 1979 and when the structure that had come up on the concerned plot upto lintel level was available for anybody to see, it was expected of them that they would make the necessary inquiries. There is no use in simply saying that in the city survey record their names came to be entered in October, 1978 and at that time the name of respondent no. 1 was not there in that record. At that time, Respondent no. 1 herein was admittedly a persona non grata for the society and his name would not be there in the revenue record since the society would not do it. The petitioners were becoming members of the society 12 years after its formation and when anybody could see the construction that had come up to a particular level, it was expected of them to inquire as to in whose place they were coming as members. Sec. 19 of the Specific Relief Act provides that a specific performance of a contract may be enforced against (a) either party thereto; (b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for a vlaue who has paid his money in good faith and without notice of the original contract. In the instant case, any deligent entrant would have made necessary inquiries about any other contract with respect to membership or otherwise concerning these premises.

       [Para 11]

       The petitioners are opposing the enforcement of the contract on the basis of their title which they claim from the society and, as stated above, it cannot be said that they have acted diligently in the matter and they are deemed to have a notice of the prior contract as held by the learned single judge in 13 GLR 773. Besides, Sec. 99(3) (a) of the Gujarat Cooperative Societies Act specifically permits an action against such third parties. Hence, in my view, the above submission of Shri Nanavati that the petitioners were bona fide purchasers in good faith and without notice of the original contract cannot be accepted.

       [Para 12]

       (c) Specific Relief Act, 1963 - Secs. 20 & 21 - Alternative remedy of compensation - Grant of - Scope - Court comparing hardship likely to follow by an award of specific performance in favour of respondent No. 1 two families of petitioners will be on street - As against that respondent No. 1 does have a house to stay - Her two sons are well settled in the meanwhile & are staying in their own houses - In the facts Court instead of specific performance awarded compensation of Rs. 3 lakhs to be paid by petitioners to respondent No. 1 in instalment made.

       In the facts of the present case, in my view, one cannot insist on more than what is being offered by the petitioners. The alternative to this is to award specific performance in favour of respondent no. 1 whereby two families will be on street and both are large families staying in two small tenaments. As against that, respondent no. 1 does have a house to stay presently though it is stated that it is a dilapidated one. It appears that her two sons are well settled in the meanwhile and are staying in their own houses. In the event of any difficulty arising in the meanwhile, she has certainly her sons to look forward to.

       [Para 17]

       For the reasons the orders passed by the courts below are interfered with to this limited extent that instead of specific performance of the contract and a direction to hand over the possession, the same will be substituted by award of compensation of Rs. 3 lakhs to be paid by the petitioners to respondent No. 1 in installments as recorded above. This petition is accordingly disposed of.

       [Para 18]