SURYABEN VINODBHAI SHAH Vs. B.K. JHALA

JUDGEMENT

(1.) THIS is a revision application filed by the original plaintiff against that part of the order of the trial Court by which it refrained from passing any order to the effect that the possession of the flat for which receiver was appointed at her instance should be given to her as the receiver's agent. As will be presently pointed out, this prayer of the petitioner/plaintiff has practically no answer either in law or equity except perhaps in the technical contention of the pleadings and hence the revision application has got to be allowed.

(2.) THE facts as are relevant for the purpose of this petition may be stated as follows: (a) The plaintiffs' contention in the plaint which does not appear to be seriously disputed is that there is a colony called 'Mayur Corporation Colony' at village Kothrud in the city of Pune, In the said colony, there are various residential plots. Plot No. 7 out of the same belonged at all the material times, to one Mrs. Madhuri Madhav Sheode, who is defendant No. 2 in the suit out of which the present revision application arises. Defendant No. 1 who is the present opponent is a partnership firm of builders engaged in the business of constructing buildings and selling the flats therein. For the sake of convenience, the parties will be referred to hereafter with reference to their position in the trial Courts as 'plaintiff' and 'defendant' as the case may be, 'Defendant No. 1 entered into an agreement dated June 4, 1979 with defendant No. 2, Mrs. Sheode, for purchase of said Plot No. 7 situate in the 'Mayur Corporation Colony.' The land was to be purchased by him for construction of a building thereon consisting of various flats. The flats were to be sold to various flat owners who were to be the members of the co -operative housing society to be formed by them. The sale -deed in respect of the flats was to be executed in favour of the society, but the individual flat owner had to be a member of the society. In other words, this is the usual kind of builder's agreement with the intending purchasers of flats, which purchasers form the co -operative society and become the owners of the flat in somewhat loose sense of the word. It is not disputed that defendant No. 1 entered' into an agreement with various persons for purchase of the various flats in the building, all of whom formed a co -operative society. The plaintiff, the petitioner before us, was one such member of the society. In fact she claims to be the founder -member of the society. She and the other intending flat purchasers formed a co -operative society called 'Panchasheel Co -operative Housing Society.' The society was registered under the Co -operative Societies Act. Just as the other members, the plaintiff entered into an agreement with defendant No. 1, the builder, for purchase ot one flat in the building to be constructed by the builder, the flat consisting of ,three rooms and totally admeasuring 568 sq. ft. on the second floor of the building. The purchase price agreed was Rs. 56,000. The above were the averments in the plaint. I may mention here that the identity of the flat is not in dispute and may refer to one of the averments the veracity of which is no longer in dispute. The averment is that on June 29, 1979, the plaintiff paid a sum of Rs. 10,000 to the builder, defendant No. 1 as part payment of the price of Rs. 56,000 for the said flat and defendant No. 1 executed a receipt in her favour in that behalf. (b) The grievance of the petitioner/plaintiff is that defendant No. 1 was to execute a written agreement as regards the transaction of sale and was to hand over the possession of the flat to her in pursuance of the agreement after the receipt of the balance of the sale price, but the defendant started giving indications of resiling from the agreement. Probably as a step towards this, he is abstaining from executing a written agreement as required by law. He has completed the construction of the entire building and in fact the possession of the remaining flats has already been handed over to the other flat -purchasers; but only the plaintiffs flat is retained by the defendant. (c) Some correspondence ensued between the parties in culmination of which a notice dated October 13, 1980 was given by the plaintiff to defendant No. 1 calling upon him to execute ,the necessary written agreement and to register the same as required by law. In the notice it was stated that she was prepared to pay the balance of the price and to take the possession of the flat at any time. Her grievance is that instead of performing his part of the agreement, defendant No. 1 has given every indication of his intention to resile from the agreement. As a matter of fact, she has learnt that he was trying to sell the same flat to some other person, thus causing loss and damage to her. The plaintiff, therefore, raised a dispute before the co -operative court against defendant No. 1 in this connection. But the co -operative court had no jurisdiction in that behalf. Hence she withdrew the said dispute from the co -operative court and filed the instant suit for specific performance of the agreement of sale of the flat in question. In the suit she has also asked for mandatory injunction requiring defendant No. 1 to obtain the requisite completion certificate from ,the municipal corporation and to put the plaintiff in possession of the flat after securing the completion certificate. She also asked for a permanent injunction restraining defendant No. 1 from dealing with the flat either by transferring the possession of the same or by alienating the same or by dealing with the same in any other manner which will in any way affect the plaintiffs' right to have the flat conveyed to her together with its possession. (d) Immediately after the filing of the suit the plaintiff also made an application for appointment of receiver for the flat in question. In the application she referred to the various above mentioned pleas and also contended that the defendant was likely to dispose of the flat in favour of some unknown person and contended that in that eventuality she would suffer irreparable loss. By an application she prayed for an appointment of receiver for the flat in question with a further prayer that the possession of the flat be taken by the receiver and that the flat should be looked after by the receiver himself. (e) Defendant No. 1 opposed the said application. The gravamen of his contention is that ,the plaintiff is not entitled to purchase the flat because she is already the owner of another flat in a building belonging to a society called 'Jhala Co -operative Housing Society' of which she is still a member. He contended ,that it was the condition precedent for agreement of sale of the flat in the Panchsheel Co -operative Housing Society between defendant No. 1 and the plaintiff, ,that the plaintiff should dispose of her flat in the Jhala Co -operative Housing Society. Defendant No. 1 contended that the plaintiff had assured her that she would give up her membership in the Jhala Co -operative Housing Society and would dispose of the flat before purchasing the flat in the Panchsheel Co -operative Housing Society. It was contended that defendant No. 1 entered into an agreement with the plaintiff on this specific condition. He also raised various other contentions which are of no relevance for the purpose of this revision application. But one averment made in reply to the application for appointment of receiver may be mentioned here. In para. 11 of the reply, it was stated by defendant No. 1 that defendant Nos. 1 and 2 sold and handed over the suit flat to one Mrs. Lalita Wandekar. The contention was that this was done long before the filing of the present suit. However, significantly enough, no where in the reply it is mentioned that said Mrs. Lalita Wandekar had become the member of the co -operative housing society to whom the flat was to be sold ultimately by defendant Nos. 1 and 2. It was contended that since the flat was not in the possession of defendant No. 1 and since the same was in possession of the third party, meaning thereby, Mrs. Lalita Wandekar, the Court had no jurisdiction to appoint a receiver in respect of the flat in question.

(3.) AGAINST the said order appointing the receiver, A.C. No. 412 of 1982 was filed by defendant No. 1 to this Court. The same came up for hearing before me on July 12, 1982, A caveat was filed on behalf of the plaintiff at the time of hearing itself and Mr. A.C. Agarwal appeared on her behalf. I examined the entire evidence of both the parties in support of their case. I was satisfied that the pleas and contentions sought to be raised by defendant No. 1 did not have a ring of truth, having regard to the evidence that was sought ,to be produced before the Court by defendant No. 1 at the stage. I was of the opinion that the agreement between the plaintiff and defendant; No. 1 was, in fact, an admitted fact and that the excuse for not performing the agreement set -up by defendent No. 1 was just a ruse for getting rid of the agreement with a view to secure higher bid which was bound to be received by defendant No. 1 having regard to the escalation of prices within the period of about 2 years. By my order dated July 12, 1982, therefore, I rejected the appeal summarily after giving hearing to both the sides. I was also intending to pass a speaking order in that behalf, but Mr. Dalvi, the learned Advocate appearing for the appellant, made a statement before me that he had no intention to file any appeal against the said order since no Letters Patent Appeal was competent and since he was not inclined to approach the Supreme Court in this matter. I, therefore, made a specific observation to that effect in my order dated July 12, 1982 and dismissed the said appeal summarily. However, at the time of the dismissal of the appeal, Mr. Agarwal, the learned Advocate who had filed caveat for the plaintiff made an application before me on behalf of the plaintiff that since the receiver had already recovered possession of the suit flat and was very much in possession of the same, pursuant to the order against which defendant No. 1 intended to file no appeal, there is no reason why this Court should not direct that the plaintiff should be put in possession of the flat in question as the receiver's agent. Mr. Agarwal contended that the hearing of the suit may take a long time and having regard to the defendant's present attitude he would not rest content with the decision of the trial Court if the decree was against him. On the other hand, if the suit was dismissed for any reason, the plaintiff was bound to file an appeal against the same. All this meant that litigation would continue for a long time and during all that period the flat would remain unoccupied in possession of the receiver. He contended that if the plaintiff had made out a prima facie case for appointment of receiver it meant that she had made out a prima facie case to succeed in the suit itself and, hence, had also made out a prima facie case for getting into immediate possession of the flat at least as the receiver's agent. No loss would be caused to the defendant if the plaintiff went into the possession of the flat because she would after -all be in possession only as the receiver's agent and if the defendant's contention is ultimately accepted by the Court and the plaintiff's suit, is dismissed, the defendant would get back the possession from the plaintiff because the defendant would be sufficiently protected by the undertaking to be given by the plaintiff to the Court to hand over possession back to the receiver and ultimately to the defendant if no decree for possession was passed in her favour for any reason.