IDEAL MOTORS LIMITED Vs. PATEL MOTILAL JYOITARAM

JUDGEMENT

(1.) This is defendants' First Appeal against the judgment and decree passed by the Court of Jt.Civil Judge (Senior Division), Ahmedabad (Rural) at Narol, passed on 30th April 1980 in Special Civil Suit No.95 of 1976 whereby the suit was decreed in favour of the plaintiffs.

(2.) The original plaintiff, namely, Motilal Jyoitaram filed the present Special Civil Suit on 30th September 1976 in the Court of Civil Judge (Senior Division), at Narol on the basis of the cause of action against the defendants which arose to him on 16th June 1976 when he had withdrawn his earlier Suit No. 30 of 1971 on the basis of a purshis dated 16th June 1976 and thereafter on 23rd August 1976 when the defendants wrote a letter to him that the sale deed is to be executed by 30th September 1976 and thereafter on 6th September 1976, 10th September 1976 and 27th September 1976 when the correspondence transpired between the parties in this regard. The original plaintiff, namely, Motilal Jyoitaram expired during the pendency of the suit and his heirs were brought on record. The property in question is situated in village Dehgam and consists of the land bearing Survey No.490 and the super structure thereon which belonged to the defendants. The suit property was given on rent to the plaintiff on 29th October 1957 on the basis of a lease deed executed between the parties. This lease deed was registered in the office of the Sub Registrar. Thus, the suit property was taken on lease by the plaintiff at the rent of Rs.5305.00 per year. The property was taken on lease as above for a period of 10 years and the condition was that in case the plaintiff want to take the said property on lease for another period of 10 years after the expiry of the 10 years for which it was given in the year 1957, the plaintiff will be required to give in writing an intimation three months prior to the date of expiry of the period of lease. The initial period of 10 years of this lease was to expire in October 1967 and the further period of 10 years was to commence from 26th October 1967. The say of the plaintiff is that it was agreed between the parties that no other document of lease deed was to be entered into for this purpose. It is also the say of the plaintiff that the other condition of the lease deed was that if the plaintiff wanted to purchase the suit property during the period stipulated in the lease deed, the defendants shall sell the suit property for Rs.42,401.00 to the plaintiff and that the expenses for the execution shall be borne by the plaintiff and at the time of such sale, if any amount is lying with the defendants, the defendants shall give set off for that amount towards the price of the suit property. The plaintiff had accordingly deposited Rs.5,101.00 with the defendants and the defendants had agreed to pay interest at the rate of 4% on this amount. The defendants then gave a notice on 7.10.1967 in connection with the lease deed and the plaintiff gave reply reply on 11th June 1968. In this reply, the plaintiff intimated the defendants that as per the terms of the lease deed, he had intimated the defendants about the extension of the lease period for 10 years. The defendants gave another notice on 14th April 1969 and the plaintiff gave a reply on 29th October 1969. The defendants then filed the suit against the plaintiff in the Court of Civil Judge (Junior Division), at Dehgam being Regular Civil Suit No.29 of 1970. In that suit, the compromise was entered into and as per the terms of that compromise, the possession of the suit property was to be given on 30th May 1971. As per the terms of this compromise, the suit property was to remain in possession of the plaintiff upto 30th May 1971 on the basis of user and occupation and in case the plaintiff fails to hand over the suit property, the defendants could recover the possession of the same in execution proceedings. It was also agreed that the plaintiff was not to make any demand or has not to raise any dispute while handing over the possession of the suit property and that the plaintiff had to hand over the possession of the suit property in the condition in which it was, at the relevant time, without making any demand of money. In that compromise, it was also mentioned that the defendants were giving the concession to the plaintiff that if the plaintiff pays to the defendants all the amount that is required to be paid over and above the amount of Rs.42,500.00 on or before 30th May 1971, the defendants' rights in the suit property by virtue of the lease deed shall be treated as rights acquired by the defendants. That the defendants shall have to execute the transfer deed and that it was to be treated that the defendants had no right in the suit property. It was further the case of the plaintiff that as per the clear understanding between the parties, the defendants had agreed to sell their rights in the suit property after taking the amount of Rs.42,501.00 as mentioned in the sale deed. According to the plaintiff, it was further agreed that the plaintiff has to give the due rent as well as the amount of mesne profit to the defendants. On the strength of this compromise, the plaintiff requested the defendants to make clear the titles of the property and to sell it to the plaintiff. It was alleged that the defendants went on finding excuses and thereby they were extending the time to execute the sale deed. The plaintiff, therefore, filed Special Civil Suit No.30 of 1971 against the defendants claiming the relief to direct the defendants to sell the suit property and to execute the sale deed. The said Special Civil Suit was proceeded further and on 16th June 1976, the defendants told the plaintiff that as per the compromise in Civil Suit No.29 of 1970 filed in the Dehgam Court, if the plaintiff will pay the mesne profit, expenditure and costs and the price of the suit property upto 30th July 1976 to the defendants, they will execute the sale deed. It was also averred that the plaintiffs placing reliance on such representation of the defendants, withdrawn the suit on 16th June 1976. After 27th July 1976, a letter was written by the plaintiff to defendants with regard to the amount to be paid. In the said letter, the plaintiff also required that the defendants to settle the final account and the dues of each other. The plaintiff also intimated the defendants to resolve the dispute. The plaintiff then sent the accounts to the defendants by post and the defendants replied on 23rd July 1976 and in this reply, the defendants stated that they were prepared to execute the sale deed in respect of their rights in the suit property if the plaintiff gives all the dues as per the decree of Dehgam Court upto 30th September 1976. That in reply to this letter, the plaintiff wrote another letter on 6th September 1976 and a clarification was made about the particulars of the accounts between the parties. The defendants again replied on 10th September 1976 and demanded the amount that may be found to be due after the settlement of account between the parties. According to the plaintiff, it transpired from the correspondence that the defendants admitted to execute the sale deed, but there was a dispute about the accounts. Lastly, the plaintiff sent a letter dated 27th September 1976 to the defendants to give clear amount but the defendants did not reply. It was further averred in the plaint that the plaintiff was prepared to pay the due amount and was also prepared to pay the price of the suit property. The defendants had averred that if the plaintiff pays such amount upto 30th September 1976, they will execute the sale deed. It is alleged that the defendants were extending the time in clearing the accounts between the parties and the time was consumed and the plaintiff was suffering the loss. The plaintiff then filed the suit on the stipulated date, i.e. 30th September 1976 so as to cause the defendants to sell the property by executing the sale deed. It was also stated that the plaintiff was prepared to deposit the amount of the price of the suit property and the other amount as mentioned in the letter dated 27th September 1976 in the Bank as per the order of the Court and that the plaintiff was making this offer in order to show his bonafides. The plaintiff prayed for a decree directing the defendants to sell the suit property to the plaintiff and to pass the decree in his favour and against the defendants.

(3.) The defendants filed the written statement at Exh.21 inter alia, contending that the suit was not maintainable and that the suit was barred by limitation, it was barred by the principle of non-joinder, latches, waiver and acquiescence. It was also contended that the terms and conditions of the original lease deed were binding upon both the parties; that consent decree in Civil Suit No.29 of 1970 was also binding. According to the defendants, the final decree had been passed and the defendants had given certain concessions to the plaintiff. Such concessions were given without prejudice to the case of the defendants and without affecting adversely the decree which had been passed in Civil Suit No.29 of 1970. That the plaintiff had failed to avail the concessions as was given by the defendants. The plea was also taken that the suit was barred by the principles of res-judicata and that it was also barred under Order 23 Rule 4 of CPC and it was also stated that even now the plaintiff could show the bonafides and financial soundness by depositing the amount of Rs.75,000.00 in the Court within one month from the date of filing of the written statement, i.e. 29th March 1978. The suit was thus sought to be dismissed.