RADHAKRISHNA ANANTA PRABHU Vs. SIRI CONSTRUCTION

JUDGEMENT

(1.) THE plaintiffs are the promoters of the proposed Syndicate Bank Staff Co-operative Housing Society and are employees of the said Bank. The plaintiffs have filed this suit for declaration that the suit agreement being agreement dated 17th September 1983, as varied to the extent set out in para 10 of the plaint, is valid subsisting and binding on all the defendants. The plaintiffs have sought specific performance of the said agreement and claimed several consequential reliefs. The defendants Nos. 6 to 9 are the owners of the plot of land situated at village Dahisar bearing Survey No. 139, Hissa No. 2, admeasuring 3751 sq. yards equivalent to 3428. 41 sq. meters, more particularly described in Ex. A-1 to the plaint. The defendant Nos. 6 to 9 had entered into an agreement with the partnership firm known as M/s. Siri Construction on 20th April, 1983. Under the said agreement, M/s. Siri Construction were entitled to construct a building and develop the property, as set out therein. It is the case of the plaintiffs that with the knowledge and consent of the defendants Nos. 6 to 9 the suit agreement dated 17th September, 1983 was arrived at whereunder the defendants No. 1-firm agreed to conduct a building of ground and four floors consisting of 25 flats for the employees of the Bank who had agreed to join the society of which the plaintiffs were the promoters and convey title to the property in favour of the purchasers or their nominee or nominees including the proposed co-operative society of which the plaintiffs were the promoters. Clause 12 of the said agreement provided that the defendant No. 1 vendors shall cause the owners to execute the necessary conveyance in favour of the purchasers or their nominee or nominees including the proposed co-operative society and the vendors shall join in as confirming parties to the said conveyance. Under a package deal as evidenced by the agreement dated 17th September 1983, the plaintiffs agreed to pay price of the said property to their vendors at the rate of Rs. 180/- per sq. foot. The defendant No. 3 went out of the said partnership. The defendant No. 2 took over the project. The project was thereafter continued by the defendant No. 1 with the same rights and obligations in so far as the suit agreement is concerned after joining of defendants Nos. 4 and 5 as new partners of the defendant No. 1-firm. The reconstituted firm of defendant No. 1 took over the contract with consent of the plaintiff. It is the plaintiffs case in para 10 of the plaint that the said agreement dated 17th September, 1983 was mutually varied only to the extent recorded in the letter dated 17th January, 1984 alleged to have been addressed by the plaintiffs to the defendant No. 1. It is averred in para 10 of the plaint that the plaintiffs agreed to pay the price at the rate of Rs. 195/- per sq. foot to the vendors instead of Rs. 180/- per square foot. The construction work was at stand-still for quite some time because of the dispute and differences which had arisen between the defendants Nos. 2 and 3 and thereafter due to other difficulties. It is not disputed that the plaintiffs have already paid a sum of Rs. 20,53,400. 00 to the defendant No. 1 in part payment of their obligation to pay the agreed price which, according to the plaintiffs, would work out to Rs. 23,40,000/ -. According to the plaintiffs, a sum of Rs. 2,86,600/- remains outstanding. The plaintiffs have annexed a chart of the payment made by the plaintiffs to the defendant No. 1 and the said chart shows that various amounts were paid by the plaintiffs to the defendant No. 1 in the years 1983, 1984 and 1985. The defendant No. 1, as reconstituted after the deed of dissolution was executed between the defendants Nos. 2 and 3, made demands for further amounts from the plaintiffs by their letter dated 15th January, 1985 and 18th December, 1987. The copies whereof are annexed at Exh. C and Exh. B to the affidavit-in-rejoinder. It is common ground that the construction work is already completed to the extent of about 70 per cent. The plaintiffs have already paid very large amounts to the vendors. I asked Mr. Nesari, learned Counsel for the defendants Nos. 1 and 2, as to what funds would be approximately required for completing the remaining work. According to the learned Counsel for the defendants Nos. 1 and 2, a sum of Rs. eight lacs or near about would be required, as the prices of the construction materials etc. has increased. One does not know how far this estimate is right.

(2.) BY this Notice of Motion, the plaintiffs are seeking appointment of the Court Receiver as receiver of the said property with a direction to complete the incomplete construction situated at Dahisar and obtain necessary occupation certificates by employing such agency or assistance as this Honble Court may direct. By the said prayer (a) of the Notice of Motion, the plaintiffs have also sought reliefs to the effect that the Court Receiver be directed to hand over possession of the building in the property, described in the Schedule Ex. A-2 to the plaint, to the plaintiffs as representing the members of the proposed society. By an ad interim order dated 17th June, 1988, Khatri, J. , granted ad interim injunction in terms of prayer (b) of the Notice of Motion. It was also recorded by the said Order of ad Interim injunction that defendants were restrained from disposing of, parting with possession of, alienating or encumbering, or transferring or creating any right, title or interest in respect of any one and/or inducting anyone into or entering any agreement in respect of the said property, and/or the construction thereon or any part thereof. It was also recorded by the learned Judge that according to the vendors, the vendors had already entered into 11 agreements with some third parties, subject to rights of the plaintiffs under the suit agreement.

(3.) MR. Tulzapurkar, learned Counsel for the plaintiffs has produced copy of the Order passed by Khatri, J. , on 17th June, 1988. It was recorded by the learned Judge while granting ad interim relief in terms of prayer (b) of the motion as under :---