ARUNKUMAR PURUSHOTTAMBHAI CHAUHAN Vs. UNITY PRINTERS

JUDGEMENT

(1.) Admit, notice of which is waived by learned counsel Mr. K.N. Raval for the respondents. Upon joint request, the matter is taken up today for final hearing.

(2.) By this appeal, the appellant-original, defendant, in Special Civil Suit No. 242 of 1985 has questioned the legality and validity of the judgment and decree recorded by the learned 4th Joint Civil Judge (S.D.) Vadodara on 31.12.1997, whereby, the respondent- plaintiff came to be awarded a decree for possession in respect of Industrial Shed No. 6 ('I.S.') from the appellant- defendant and to get damages or compensation of Rs. 4,000/- per month since 6.8.1982 by way of mense profit on the ground that the appellant- defendant occupied two sheds at a time since then, by invoking aids of provisions of Sec. 96 of the Code of Civil Procedure, 1908 ('the Code'). For the sake of convenience and brevity, the parties are addressed to as they were arraigned in the Trial Court.

(3.) The plaintiff is a partnership firm dealing with construction of industrial sheds, at Vadodara, at the relevant time. The defendant was an automobile engineer doing business in the name of Calcutta Diesel. There was an agreement to sell, Ex. 51 dated 6.8.1977 in respect of I.S. No. 12 for a consideration of Rs. 1,25,000/- out of 12 proposed I.S. in United Estate at Kareli Baug, Vadodara, admeasuring about 1250 sq. ft. (6' x 25'). The amount of Rs. 1,20,000/- out of total consideration of Rs. 1,25,000/- came to be paid and remaining amount of Rs. 5,000/- was agreed to be paid upon completion of construction of I.S. No. 12, as there was likelihood of some delay in completion. In the meantime, it appears, since out of 12 I.S., 6 I.S. had been constructed and sanction of remaining 6 I.S. had been sought, it was agreed by both the parties that I.S. No. 6 temporarily should be allowed to be used by the defendant till construction of I.S. No. 12 is completed. The plaintiff inter-alia contended that out of 12 such sheds, the municipal corporation did not accord sanction for only one plot like that I.S. No. 12. It was in that context that it was pleaded that since I.S. No. 12 could not be constructed beyond the power of the plaintiff firm, the agreement to sell in respect I.S. No. 12 came to be frustrated. In the meantime, the defendant was alleged to have, forcibly, taken after transfer of I.S. No. 11/12 on 6.11.1982. Since the defendant was in possession of I.S. No. 6 and, forcible, possession of I.S. No. 11-12, the plaintiff filed the aforesaid suit and inter alia sought for relief that on account of doctrine of frustration, it was not possible to implement the agreement to sell in respect of I.S. No. 12 and, therefore, agreement to sell had become unenforceable and as a result of which, the plaintiff is entitled to possession of sheds and mesne profits for use of two sheds viz. I.S. Nos. 6 and 11.