HAREN KRISHNAKUMAR MEHTA Vs. KAMLA PRIBHDAS NEBHANANI

JUDGEMENT

(1.) THIS is a suit filed by the plaintiff for a declaration that the agreement dated 1st April, 1978 is valid and subsisting and the plaintiff is entitled to specific performance thereof, and for specific performance and other incidential reliefs. The case of the plaintiff, in short, is as under :-

(2.) THE defendant was the owner of the suit flat. She was the member of Merryland Co-operative Housing Society Limited. She was also the owner of the furniture and fixtures. She entered into an agreement of sale with the plaintiff, for the shares, suit flat and the furniture and fixtures for a sum of Rs. 1,65,000/- upon the terms and conditions mentioned in the said agreement. The plaintiff paid Rs. 10,000/- as an earnest money. The balance was to be paid after giving possession of the suit flat by the defendant and transferring the flat to the plaintiff. That the possession was given on or before 30-4-1978. The date of this agreement is 1-4-1978. According to the plaintiff, the defendant applied to the society in May 1978 for transferring the shares and flat in the name of the plaintiff. The society by their letter dt. 13-5-1978 asked the plaintiff to give undertaking. There upon the plaintiff gave necessary undertaking and also paid transfer fee by a cheque. Thereafter the defendant resiled from the agreement and tried to return the amount of Rs. 10,000/- to the plaintiff by her letter dated 23rd/25th May, 1978 on the ground that the society has refused to accept the plaintiff as its member. The dispute therefore arose between the parties because according to the plaintiff, the society informed him by their letter dated 2nd June, 1978 that the society had no objection to transfer the suit flat in the name of the plaintiff. According to the plaintiff, the defendant has deliberately and mischievously cancelled the agreement and tried to cancel the agreement while he was all the while ready and willing to perform his part of the contract, and therefore, he filed this suit for specific performance.

(3.) THE defendant filed her written statement admitting therein agreement between the parties. However, according to her, she submitted all the documents and necessary papers along with the copy of the agreement on 28-4-1978. Thereafter the plaintiff was interviewed by the society. But since the plaintiff stated before the society that he would not be occupying the flat himself, the society refused the permission to the plaintiff by their letter dated 7-5-1978. The defendant further stated that though the society initially rejected and refused the plaintiff proposal for the aforesaid reasons, the plaintiff re-submitted his application to the society contending therein that he wanted the flat for his residence. According to the defendant, the management of the society disbelieved the changed statement of the plaintiff and wanted undertaking to that effect and since the undertaking was not given by the plaintiff to the satisfaction of the society, the society refused to recognize the same and refused to transfer the said flat to the plaintiff, and consequently, the defendant wrote a letter dated 20-5-1978 to the society and the society returned all the papers to the defendant and finally rejected the transfer proposal, and therefore, the defendant returned the sum of Rs. 10,000/- by way of cheque. The plaintiff accepted the refund unconditionally and therefore he has no right in the suit flat. The defendant has also alleged that the plaintiff at the relevant time was not ready and willing to perform his part of the contract, and therefore, he was not entitled to the reliefs claimed.