DATTATRAYA TATYA KAMBLE Vs. WAMAN NARAYAN BHAVE

JUDGEMENT

(1.) ALL the above Writ Petitions are being disposed of by a common Judgment because the said Writ Petitions are against identical orders passed by the Executing Court viz., the Joint Civil Judge (S. D.), Thane in Special Darkhast Applications filed by the Decree holder in whose favour Special Civil Suit No. 96 of 1979 came to be decided on 30th June, 1987. The said Suit was filed under Section 6 of the Specific Relief Act, 1963.

(2.) BRIEFLY the facts giving rise to these Writ Petitions are as follows : (a) On 19th March, 1976 the Decree holder (who is a builder) purchased a plot in Court auction sale. The Petitioners herein are the purchasers of the flats who have entered into the Agreements with the Builder. (b) On 16th September, 1976, the Builder took possession of the said plot. (c) On 16th November, 1976, the Builder obtained sanction from the Municipality on the building plan which he had of the building. (d) During the period December, 1976 the proposed flats were sold to various prospective buyers by the said builder. (e) On 1st June, 1979 despite repeated promises given by the Builder and since the possession of the flats were not given to the Occupants it is alleged by the Builder that they forcibly took possession of the flats. In this connection, it may be mentioned that initially the builder had agreed to give possession on 30th November, 1977; that the Society of the Purchasers came to be registered on 19th January 1978; that in November, 1978 the Builder demanded certain extra amount from the purchasers, that he agreed to give possession by March, 1979. However, he could not give possession and the work remained incomplete as alleged by the Petitioners. Similarly, the Builder promised to give possession on 25th April, 1979 but it was not given; that on 29th April, 1979 once again on the promised date the possession was not given. On the contrary, on 29th April, 1979 the Builder demanded Rs. 58,000 from the total number of prospective buyers of the flats. There are approximately 38 members. On 11th May, 1979, ultimately about 34 out of 38 purchasers of the flats gave Final Notice through their Advocates to the builder calling upon him to handover possession of the flats which were replied to by the Builder vide letter, dated 21 st May, 1979. In the above circumstances, on 1st June, 1979 the said 34 purchasers forcibly occupied the flats in question as alleged by the Builder. Complaints were also made to the Police. (f) On 9th July, 1979, 18 Suits under Section 6 of the Specific Relief Act came to be filed, in the Court of Joint Civil Judge (S. D.), Thane. (g) On 3rd January, 1981, the Society of prospective buyers completed the work which was incomplete in respect of the said building. The said Society in fact obtained electricity and water connections. (h) On 3rd January, 1991, the Society filed a Title Suit being Regular Civil Suit No. 9 of 1981 in the Court of Joint Civil Judge, (S.D.), Thane inter alia (or a declaration that the Society had become owners in respect of the property. The said Society also filed one more suit in the same Court on 1st January, 1981 being Regular Civil Suit No. 4 of 1981 for recovery of Rs. 1,99,000 (approximately) for doing the work which was required to be done by the Developer. (i) On 30th June, 1987 the suits in the present proceedings filed by the Builder under Section 6 of the said Act were decreed in favour of the Builder. According to the Judgment in the suits under Section 6 of the Special Relief Act, the Court below came to the conclusion, in respect of each of the respective flats, that the Builder was dispossessed without his consent and without following due process of law and within six months prior to the date of the institution of the suit by the Developer. In the 18 suits separate decrees were accordingly passed and each of the occupants were directed to deliver possession of the respective suit flat/block to the Builder. (j) On 31st July, 1989 against the said Decrees passed by the Court below on 30th June, 1987, the occupants filed 18 Writ Petitions in this Court being Writ Petition No. 3785 of 1987 upto Writ Petition No. 3802 of 1987. By the Judgment and Order dated 31st July, 1989 all the above 18 Writ Petitions came to be disposed of. While passing the Judgment, this Court took into account the fact that the Petitioners herein had in fact made an Application for interim relief in Regular Civil Suit No. 9 of 1981 restraining the Respondent/Builder from taking possession in execution of the Decree passed in suits filed under Section 6 of the Specific Relief Act. It was also made clear that the Trial Judge hearing the Title Suit No. 9 of 1981 shall not consider himself to be bound by the fact that this Court had restrained the Builder from taking possession in execution of the Decree under Section 6 of the Specific Relief Act. Accordingly, this Court directed that the above suits filed by the Society on Title and for recovery of the moneys should be heard and decided. Accordingly, the Order came to be passed permitting the Petitioners to withdraw the abovementioned Writ Petition Nos. 3785 of 1987 upto 3802 of 1987. (k) On 31st August, 1989 the above Title Suit filed by the Society came to be decreed in favour of the Petitioners herein by Judgment passed by the Joint Civil Judge (S. D.), Thane. The Trial Court came to the conclusion that the builder had not kept his promise of handing over possession to the occupants; that he had asked for higher amounts from time to time under various heads; that the said demands were unauthorised and that ultimately in the above circumstances, the Petitioners herein took possession of the respective blocks. The trial Court observed that each of the occupants with their families were in physical possession of the building and the adjoining area. The trial Court also found that the Society had carried out the incomplete work which was required to be done by the Builder. At this stage, it may also be mentioned that the Builder contended before the trial Court in the Title Suit that the Plaintiff Society was not in possession of the land and that the flats was not occupied by the members of the Plaintiff Society. The trial Court found that the Defendant/Builder had admitted in evidence that there were no dues remaining payable from the Society or from individual purchasers of the flats and taking into account the fact that the purchasers had occupied the possession of their respective blocks there was no bar for filing the above Title Suit under the provisions of the Maharashtra Ownership Flats Act, 1963 read with provisions of Transfer of Property Act; that trial Court rejected the contention of the Builder that the possession of the purchasers of individual flats was not legal and that they had taken forcible possession from the Builder of their respective flats. The trial Court in the Title Suit also found that in a Declaratory Suit there was no bar imposed on the trial Court to decide the question about the legality of the possession of individual purchaser notwithstanding the fact that 18 suits came to be Decreed in favour of the Builder in the Suits under Section 6 of the Specific Relief Act. The trial Court also found, what Section 6 of the Specific Relief Act contemplated in summary trial. In the above circumstances, the trial Court came to the conclusion that since the Builder had agreed to handover individual blocks to the purchasers by specified date mentioned in the Agreements between the parties and since it was also admitted by the Builder that on the dates mentioned in the Agreements between the parties he was not able to handover possession of the blocks to the purchasers and since he has failed to do so, the possession of the occupants cannot be deemed to be unauthorised/ unlawful. The trial Court found that in view of Section 11 of the Maharashtra Ownership Flats Act, 1963, which require the Promoter to convey right, title and interest in the property and execute the document to complete his title and to convey the same to the organisation of persons with whom he had entered into an Agreement and since Section 11 of the said Act, 1963 was binding on the Builder and which required him to execute all the relevant documents in accordance with the Agreement executed under Section 4 of the said Act, the Court directed after moulding the relief that the Builder in the present case shall execute the Conveyance as required under Section 11 of the said Act, 1963. In view of the above facts, the trial Court came to the conclusion that since the entire amount of consideration has been paid by the Society as well as by the .individual purchasers to the Builder and since the purchasers occupied their flats as stated hereinabove it was clear that the entire title and the full ownership in respect of the property passed on to the Society and only execution of the Conveyance remained to be done. Accordingly, the Court declared that the 'Society had become the owners of the suit building bearing Tika No. 5, situated at C.T.S. No. 67 (part) and 68 (part) at Kharkar Ali, Thane, alongwith the structure standing thereon. Accordingly, the suit was decreed. At this stage it may be mentioned that the Builder has filed an Appeal against the Judgment and Order, dated 31st August, 1989 passed in the Title Suit. The said Appeal by pending before the Lower Appellate Court. In the above circumstances, the observations made by me hereinabove are only in justification of the Order in the present Writ Petition and they are not meant to be final and binding observations for the Lower Appellate Court before whom the Appeal filed by the Builder is pending. (l) To complete the chronology of events, it may be mentioned that in view of the Decree passed in favour of the Builder on 30th June, 1987 in the said 18 Suits under Section 6 of the Specific Relief Act the above Darkhast proceedings came to be filed by the Builder seeking possession pursuant to the Judgment of the Civil Court in the above Suits. (m) By the impugned Orders passed by the Executing Court all dated 28th June, 1990 in the various Special Darkhast Applications filed by the Builder (which are the subject -matter of each of the above 18 Writ Petitions), the present Writ Petitions are filed seeking to challenge 18 Orders in the said Darkhast Applications. For the sake of convenience the facts mentioned hereinabove are reproduced from the 1st Writ Petition No. 2273 of 1990. The impugned Orders in the said 18 Darkhast Applications are identical and which is not in dispute. By the impugned Order the Executing Court came to the conclusion that in view of the above facts, it is clear that there were two convicting decrees. One Decree was in favour of the Builder and the other in favour of the occupants in the Title Suits. The Executing Court came to the conclusion that the Decree holder/ builder was right in raising the contention that the Title Suit was only Declaratory in nature. There was no Decree for possession in favour of the Petitioners herein/occupants and there was no prohibitory order passed in the Title Suit against the Decree holder restraining the Decree holder from taking possession. The Executing Court therefore came to the conclusion that the Builder was entitled to take possession of the Suit property. The Executing Court also found that in the Title Suit the Society has not claimed any relief by way of injunction against the Decree holder/Builder restraining him from taking possession. At this stage it may be mentioned that Application for interim relief was made by the Petitioners herein in the Title Suit. However -since the Petitions were pending in this Court, there was no question of the Trial Court granting interim relief to the Society in the Title Suit. The Executing Court found that had the Title Suit contained the prayer for injunction the situation would have been otherwise. Since such a prayer was not there, there was no impediment as to why the Decree in Suit under Section 6 of the Specific Relief Act cannot be executed. Accordingly, the objections raised by the Petitioners herein as Judgment Debtors were overruled and the Executing Court directed Possession Warrant to be issued. (m) Being aggrieved by the 18 Orders of the Executing Court in the above Darkhast Applications, the present Writ Petitions have been filed by each of the Occupants.

(3.) MRS . Gokhale, the learned Advocate appearing for the Builder submitted that in the present case the Court below erred in granting a Decree for specific performance in the Title Suit filed by the Society. She submitted that an Appeal has been filed by the Builder against the Decree in the Title Suit. She further submitted that there was no prayer for injunction in the Title Suit filed by the Society and in the circumstances the Decree passed in favour of the Builder in the 18 Suits under Section 6 of the Specific Relief Act became executable. She further submitted that in the absence of the prayer for injunction there was no impediment by which the Decree in favour of the Builder could not have been executed. She further submitted that under Section 34 of the Specific Relief Act, 1963 in the absence of any pleading to the effect that the Society was ready and willing to comply with all the terms and conditions of the Agreement the Decree passed in the Title Suit in favour of the Society requiring the Builder to execute the Conveyance was not maintainable and it was bad in law. She further submitted that in any event the Appeal was filed by the Builder in which the said Decree had been stayed. She further submitted that in the above circumstances the Builder should be permitted to execute the Decree obtained by him in Section 6 Suits filed by the Builder against prospective buyers of the flats. Mrs. Gokhale also relied upon various authorities which I will discuss at the appropriate time.