GAJANAN R SALVI Vs. SATISH SHANKAR GUPTE

JUDGEMENT

(1.) BOTH these proceedings can conveniently be disposed of by this common judgment as they are between the same parties and the issues involved are inter-linked.

(2.) THE appeal is aimed against the judgment and order dated 26. 4. 1988 passed by the City Civil Court Judge, bombay in S. C. Suit No. 2847 of 1982 whereby the suit came to be dismissed under the provisions of Order 2 rule 2 of the C. P. C. , whereas the Appeal from Order has arisen due to order dated 5. 3. 1990 passed toy the City civil Court Judge, Bombay, dismissing the notice of motion of the present appellant.

(3.) THE facts giving rise to the dispute, in nut-shell, are thus -The plaintiff-appellant appears to be a retired pensioner, while the defendant No. 1 is and builder and developer of various properties. On 10. 9. 1974, an agreement came into existence between the plaintiff and defendant No. 1 whereby the plaintiff was to purchase and defendant No. 1 was to sell flat No. C-23 on third floor of a construction proposed on Plot Nos. 702/704 at Dadar in T. P. S.-IV, Mahim area. The price agreed upon was rs. 26,500/ -. Accordingly, an agreement was entered into between the two and out of the said consideration, a sum of Rs. 23,576/- came to be paid by the plaintiff and received by defendant No. 1. There had been some considerable delay in the construction and lance the plaintiff made a query to the dependant No. 1 but defendant No. 1 could not give any satisfactory answer. In October or November 1974, one Mahadeshwar informed the plaintiff that the said flat in question was sold to him (Mahadeshwar ). The plaintiff confronted the defendant No. 1 and there had been another agreement by way of modifying the earlier agreement which took place on 30th July, 1975, where instead of Flat No. C-23 on the third floor, Flat No. 15 on the fourth floor was agreed to be sold to the plaintiff keeping the other terms of the earlier agreement intact. The plaintiff claimed that only balance of Rs. 2,424/- remained to be paid out of the entire consideration, which was to be paid on plaintiff being put in possession. However, subsequently, despite the valid and subsisting agreement for this flat No. 15 on 4th floor, defendant No. 1 put up second defendant in possession of this flat No. 15 and when the plaintiff questioned defendant No. 1 about this aspect, plaintiff was informed by defendant No. 1 that defendant No. 2 was put in possession as a temporary arrangement and defendant No. 2 would be shifted to the flat allotted to him on third floor as soon as the same became vacant and thereupon the plaintiff was to be given possession of the said flat. The plaintiff also claimed that the first defendant gave an undertaking in writing on 20. 6. 1977 to the plaintiff. It appears that the plaintiff also prosecuted defendant No. 1 for cheating in criminal case. and defendant No. 1 was convicted. Thus, according to the plaintiff, the said agreement dated 30. 7. 1975 still subsisting and that was also got registered. According to him, he is entitled for recovery of possession from the defendants. Defendant No. 3 appears to be mother of defendant No. 2, and is joined as a party as it was transpired from the say of defendant No. 2 that the agreement was between defendant Nos. 1 and 3. Thus, according to the, plaintiff he was ready and willing to pay the balance as per the agreement and was entitled to get possession of the flat. He showed his willingness to perform the part of the contract and, therefore, plaintiff prayed for declaration that the agreement dated 30. 7. 1975 was valid and subsisting and was enforceable in law against the defendants and decree against the defendants to hand over the possession of flat No. 15 on the fourth floor in the building in question.