SHRIKANT VASUDEO Vs. SATISH SHANKAR GUPTE

JUDGEMENT

(1.) By this appeal, the appellants who are original plaintiffs challenge the judgment and decree dated 2nd July, 2004 passed by the learned Single Judge of this Court in L.C. suit No. 37 of 1980. The plaintiffs had filed the suit seeking a decree of specific performance of the agreement of sale of a flat dated 27th February, 1977. The agreement was entered into between plaintiffs and defendant No. 1. Admittedly, defendant No. 1 is the owner of the land bearing No. 33, adrrieasuring 492 sq. yards, bearing C.S. No. 6/509, situated at Mahim, Mumbai. The defendant No. 1 was constructing a multistoreyed building on the land. He entered into an agreement dated 27th February, 1977 with the original plaintiff to sell flat No. 7 to him. The total agreed consideration was Rs. 55,000/- and the plaintiff paid full amount of consideration to the defendant No. 1. According to the plaintiff, the defendant No. 1 could not develop the property himself. Therefore, he entered into an agreement with the defendant No. 2 dated 2nd July, 1979 for completing the construction. The defendant No. 2 however was obliged to deliver possession of the flat to the persons with whom the defendant No. 1 had agreed to give possession of respective flats unless the issue is settled with the flat purchasers. According to the plaintiff, the defendant No. 2 was obliged to deliver possession of flat No. 7 which was renumbered as flat No. 14. According to the plaintiff, though the defendant No. 1 was willing to deliver possession to the plaintiff, he could not do so because of operation of injunction order passed in the suit filed by the defendant No. 2. The plaintiff was therefore seeking a decree for delivery of possession against the defendant No. 2. He was also claiming a decree against defendant No. 3 to whom the plot was sold by the defendant No. 2. The defendant No. 1 filed his written statement and admitted the claim of the plaintiff. According to the defendant No. 1, a decree in terms of prayer Clause (a) can be passed. By prayer Clause (a), a decree of specific performance was claimed only against defendant No. 1. The suit was opposed by defendant Nos. 2 and 3. On the basis of rival claims, following issues were framed :-" 1) Does plaintiff prove that agreement (Ex. A) dated 27th February, 1977 was registered under receipt (Ex. B) dated 29th March, 1977

(2.) The learned Counsel appearing for plaintiff submits that the defendant No. 1 had admitted the claim of the plaintiff. It is an admitted position that the defendant No. 1 was the owner of the land and continues to be the owner of the land. The status of the defendant No. 2 was only as a developer and the learned Single Judge has himself recorded a finding that he was merely an agent of the defendant No. 1. The learned Counsel submits that if the status of the defendant No. 2 was that of an agent, then in view of the admission of the claim made by the principal viz. defendant No. 1, it was not necessary for the learned Single Judge to hold any further enquiry and therefore, the learned Single Judge should have proceeded to make decree against defendant No. 1 and the agent of the defendant No. 1 viz. defendant No. 2 would be bound by that decree. The learned Counsel further submits that even assuming that the defendant No. 2 is a transferee and not an agent, then also there is no evidence led on behalf of the defendant No. 2 or defendant No. 3 that they were bona fide purchasers for value without notice. The learned Counsel submits that the learned Single Judge has recorded a finding that defendant No. 2 was a bona fide purchaser without notice, only on finding that the defendant No. 1 did not disclose the agreement dated 27th February, 1977 to the defendant No. 2. The learned Counsel submits that even accepting the finding that the defendant No. 1 while entering into agreement with defendant No. 2 concealed the fact that he has entered into an agreement with the plaintiff, then also in order to establish that the defendant No. 2 was a bona fide purchaser without notice, it was for the defendant No. 2 to prove what steps were taken by him to investigate the title of the defendant No. 1 to effect transfer in his favour. The learned Counsel submits that the learned Single Judge himself has found that the agreement between the defendant No. 1 and defendant No. 2 is dated 2nd July, 1977 whereas the agreement between the plaintiff and defendant No. 1 was admittedly lodged for registration on 29th March, 1977. Had the defendant No. 2 tried to investigate the title of the defendant No. 1, then he would have come to know that there is an agreement entered into between the plaintiff and defendant No. 1.

(3.) The learned Counsel appearing for defendant No. 2 submitted that the learned Single Judge has observed that there is suspicion whether the suit agreement related to the suit land. According to the learned Counsel, really speaking the suit agreement did not relate to the suit land because there are several factors indicating that the suit agreement does not relate to the suit property. The learned Counsel further submitted that there was a clear case of collusion between plaintiff and defendant No. 1. The learned Counsel took us through the record to contend that there was a clear case of collusion between plaintiff and the defendant No. 1. The learned Counsel submitted that the learned Single Judge was justified in declining to make a decree of specific performance against defendant No. 2. On being pointed out that the learned Single Judge himself has recorded a finding that the defendant No. 2 is merely an agent of the defendant No. 1 and that the defendant No. 2 has not taken any steps to challenge that finding, the learned Counsel stated that he should be given time to take steps to challenge that finding. The learned Counsel appearing for defendant No. 3 submitted that in the plaint, there is no pleading that the plaintiff was always ready and willing to perform his part of the contract and therefore the learned Single Judge was justified in declining to pass a decree of specific performance in favour of the plaintiff. In support of his submission, he relied on judgments of Supreme Court in the cases of Prem Raj Vs. The D.L.F. Housing and Construction (Private) Ltd. and anr.), 1968 AIR(SC) 1355, Abdul Khader Rowther Vs. P.K. Sara Bai and others, 1990 AIR(SC) 682, Umabai and anr. Vs. Nilkanth Dhondiba Chavan (dead) by L.Rs. and anr.,2005 Supp BCR 746 and the judgment of this Court in the case of Bhikaram Nathuji Vanjari and anr. Vs. Saraswatibai Motilal Zarkariya,1997 Supp BCR 707.