DATTATRAY V BHIDE Vs. VITHAL R KARANDIKAR

JUDGEMENT

(1.) The defendant is the appellant in this second appeal. The plaintiffs respondents intended to form a Co-operative Housing Society. They styled themselves as the promoters of the proposed Sahakar Mitra Mandal Housing Sangh and entered into an agreement to purchase a plot, bearing Final Plot No. 394/N situate in Navi Peth at Poona, for a sum of about Rs. 1,35,000/-. The agreement with the owners was entered into on 26th March ,1964 and a sum of Rs. 10,000/- was paid by them by way of earnest money. The plot at the relevant time was under requisition to the Government. The owners undertook to set the same derequisitioned and the sale was to be effected within six months from the date of that agreement. The owners also indicated their readiness to extend the time for the benefit of the defendant if for some reason or the other the Society could not be formed within that period or they required some time for technical reasons. Clause (8) of the Agreement contemplated cancellation of the agreement and refund of Rs. 10,000/- in case the plot was not derequisitioned. The plaintiff then executed an agreement in favour of the present defendant on 2-4-1964. The agreement recited how the defendant, a house agent, was instrumental in tracing this plot and finalising the terms of the sale and getting that transaction fructified. The owner agreed to pay remuneration to the defendant, as such agent and broker, at the rate of 0.50p. per sq.ft., the price of the land as agreed with the owners being at Rs. 1/- per sq.ft. This agreement also stipulated that in the event of there being no derequisition, the defendant would be liable to refund the amount of Rs. 5,000/-.

(2.) It is common ground that the plot ultimately was not only not derequisition but acquisition proceedings were resorted to by the Government, the plot was acquired and a sum of Rs. 2,74,507.07 was paid to the owners by way of compensation. It is also common ground that the plaintiffs were driven to institute the suit against the defendant in the year 1964 itself, when they discovered that the owners were trying to sell the property to others. This suit was ultimately dismissed. Then another suit was filed in the year 1966, being suit No. 167 of 1966 against the owners for specific performance of the contract. It is true that during the pendency of the said suit acquisition proceedings were commenced and finalised. It is also common ground that the compromise was entered into between the plaintiffs and the owners in the said suit No. 167 of 1966, under which the owners paid a sum of Rs. 75,000/- to the plaintiffs in full settlement in consideration of their agreeing not to press their suit for specific performance of the contract.

(3.) Even before the above suit for specific performance of the contract was filed by the plaintiffs against the owners, the plaintiffs instituted the present suit against the defendant estate agent, i.e. for refund of Rs. 5,000/- with interest on the ground that the property was not derequisitioned and, therefore, the purchase transaction with the owners effected through him could not be finalised and the defendant was liable to refund the same.