SATINDERPALSINGH ANAND Vs. SHARMPAL BALMUKUND CHOPRA

JUDGEMENT

(1.) PARTIES will be described by their names as the matter involves two suits which were referred to arbitration by the order of this Court dated 13-8-1999 passed in Arbitration Petition No. 34 of 1999 in Appeal No. 173 of 1992 in Suit No. 363 of 1988 and in Appeal No. 172 of 1992 in Suit No. 721/88. By the said order passed in proceedings in Suit No. 363/88 at the instance of the respondent Chopra who is plaintiff in Suit No. 363/88 filed against Sunder Singh Anand, since deceased, who was defendant No. 1 and the petitioner herein, who was defendant No. 2 and in proceedings arising from Suit No. 721 /1988 filed by Sardar Singh Anand, original plaintiff against the respondent Chopra, the Court ordered that the parties without prejudice to their rights and contentions had agreed to refer all the disputes arising between the parties in relation to Suits No. 363/1988 and 721/1988 to the sole arbitration of Mr. S. R. Shah, Senior Advocate as provided in the earlier consent terms dated 23-6-1992. The petition is filed only by Satinderpal Singh Anand. Earlier reference in the same suits to arbitration was made in terms of the consent terms dated 23-6-1992. By the said consent terms parties in the two suits being Suit No. 363 of 1988 and Suit No. 721/1988 agreed by consent that all disputes, differences, claims, counter claims between the parties arising out of and in relation to the Suit No. 363 of 1988 and 721 of 1988 pending in the Court be referred to sole arbitration of Mr. S. R. Shah, Senior advocate. However, it transpired that the proceedings came to an end without an Award as the time was not extended. By the order of 13-8-1999, it was clarified that the petition be treated as petition under Indian Arbitration Act, 1940 as admittedly Arbitration and Conciliation Act, 1996 is not applicable.

(2.) SUIT No. 363 of 1988 was filed by Mr. S. B. Chopra against one Sardar singh Anand, since deceased, and Satinderpal Singh Anand his son. In that suit, the main reliefs prayed for were that the defendants therein be ordered and decreed to vacate and hand over vacant and peaceful possession of the suit premises which were described as Flat Nos. 1 and 2 on ground floor situated at 108, Chopra House, Dr. Ambedkar Road, Bandra. Prayer Clause (b) was for damages/ mesne profits at the rate of Rs. 15000/- per month from 1-8-1987 to 31-1-1988 and prayer Clause (c) was for future mesne profits. By prayer Clause (e) interim relief was sought which included a restraint order against defendants therein from carrying out alterations, additions, etc. to the suit premises described in Exhibit (c), to the plaint or doing any other acts of trespass or remaining upon the same or disturbing in any manner plaintiffs possession of flat, building and other structures standing thereon or from the garden in front of Chopra House. Late Sardar Singh Anand had filed Suit No. 721 of 1988 against S. B. Chopra who is plaintiff in Suit No. 363 of 1988. The main relief in the suit was for a declaration that the plaintiff is entitled to specific performance of agreement of the property described in Exhibit A and shown in sketch plan Exhibit b to the plaint for the sum of Rs. 45 lacs, as per terms and conditions contained in the draft agreement for sale Exhibit J to the plaint and consequently relief of specific performance of that agreement. In the alternative to the said prayer, late Sardar Singh Anand in the event prayer for specific performance was not granted, prayed that a sum of Rs. 50. 00 lacs be granted as shown in particulars of claim for loss and damage suffered by reason of non-performance and breach of agreement for sale as also to pay sum of rupees seventeen lakhs eighty two thousand, four hundred twenty five only being the amount paid in part performance, as set out in particulars of claim with further interest at the rate of 18% p. a. on the sum of rupees sixteen lakhs and ten thousand only and for declaration that the property is charged for repayment of the sum of Rs. 17,82,425/ -. Interim reliefs were sought for as set out in the plaint. Both Mr. S. B. Chopra and late Sardar Singh Anand took out motions for interim reliefs. They were disposed of by a common order dated 18-10-1991. In those proceedings a receipt was relied upon, signed by S. B. Chopra for Rs. 4,50,000/ -. At that prima facie stage, contention of late Sardar Singh anand that receipt would evidence an agreement for sale was accepted and the contention of Mr. S. B. Chopra to the contrary was rejected. For the present, further reference need not be made to those orders at this stage, as reference, if required, will be made if need be subsequently. Appeals were preferred by both the plaintiffs in their respective motions. In the appeals, both the parties agreed to refer the matter to arbitration of sole arbitrator Mr. S. R. Shah sometime on 23-6-1992. At that time, Sardar Singh Anand was alive.

(3.) CHOPRA in his plaint in Suit No. 363/88, had come with a stand that on the land there was a building with four flats. That he was in possession of Flat nos. 3 and 4 as also Nos. 1 and 2, in the circumstances set out in the plaint and the shed and garages were also in his possession. It was also pleaded that prior to 24-7-1979 Chopra and his brother were owners of plot of land admeasuring 4644 sq. yards. By agreement of sale dated 10-11-1976 both the brothers agreed to sell to one M. K. Construction Company 3300 sq. yards which was demarcated from the rest of the property in red boundary line in the plan annexed to the agreement. A compound wall was thereafter constructed separating the two plots. Chopra was in occupation and possession of 1344 sq. yards. In the building on the Plot, Flat Nos. 1 and 2 were tenanted to one Pereira and Flat No. 4 to one P. V. Naik. The pleadings then refer to the defendant No. 2, son of Sardar Singh Anand meeting S. B. Chopra and who had persuaded him to give part of plot for development. Negotiations took place. Defendant No. 2 started investigating the title and also sought information from B. M. C. as to how much land was available. On enquiry, it was found that M. K. Construction Company had consumed excess F. S. I. on the plot of 3300 sq. yards. In the light of that, various proceedings were taken out. Relationship between parties therein is set out. It was further the case, that Sardar Singh Anand gained confidence of plaintiff Chopra and stated that he undertook responsibility and liability of vacating the tenants. It was set out that the plot was to be sub-divided and that defendant No. 2 undertook that an area of 4500 sq. yards would be given for development at the prevailing market rate. These and other terms were to be incorporated when the agreement was concluded. It is set out that in the discussions question arose as to what would be the F. S. I, available. If plaintiff failed in the proceedings, then the building that could be constructed on the said plot of land, could not be more than 700 sq. yards or thereabout. There are also pleadings that a bungalow had to be constructed for Chopra and his family members of an area of 250 sq. yards. There are some other averments which need not be adverted to. It is explained that receipt for Rs. 4,50,000/- was prepared by satinderpal Singh who had came prepared with it and who had given it to defendant, though in fact the sum of Rs. 4,50,000/- had been paid by late sardar Singh Anand to Mr. Naik. Plaintiff Chopra was induced to sign the receipt, as Satinderpal Singh assured him that it was necessary only for the purpose of showing that a sum of Rs. 4,50,000/- was paid through the plaintiff to the tenant and in the event ultimately the development agreement in respect of area admeasuring 450 sq. yards was not signed for any reason whatsoever then in that event the sum of Rs. 4,50,000/- could be refunded. It is also pointed out, to obtain possession from Pereira letter of authority was taken and the terms and conditions under which Pereira agreed to vacate the suit flat are set out in letter dated 24/07/1987. In para 9 it is specifically denied that Sardar Singh was authorised to retain occupation of two flats in part performance of the agreement to remain thereon and therefore for various reliefs. In the written statement filed by Sardar Singh Anand in Suit No. 363 of 1988, it is specifically set out that apart from flat bearing Nos. 1 and 2 they were also in use and occupation of shed. It was Sardar Singh's case that they were in use and occupation of the flat and shed pursuant to receipt dated 11-8-1987 executed by Mr. Chopra and the letter of authority dated 24-7-1987 by Chopra to his tenant Pereira, pursuant to which they paid tenant Pereira rs. 11. 60 lacs to vacate the premises in his occupation in the building and the shed on the land as part consideration under the agreement. In so far as possession of the two flats taken from Pereira, it was contended that it was in part performance of the agreement pursuant to the receipt signed by Chopra for the amount of Rs. 11. 60 lacs paid to Pereira. It was the case of Sardar singh that possession of land admeasuring 4530 sq. ft. on the Northern side of Zigzag road along with shed was given to late Sardar Singh Anand and his son Satinderpal Singh Anand on signing of receipt dated 11 -7-1987. The area of 4533 sq. ft. to be sold was demarcated by constructing small bund. It was also pleaded that the suit as filed is bad for non-joinder of causes of action as defendants were in lawful and peaceful possession not only of the flats but also of the area admeasuring 4533 sq. ft. Plaintiff Chopra knowing that still had chosen to file suit only in respect of two flats and as the suit filed was only for a part of his claim, the entire suit is bad for non joinder of parties.