CHANDRAKANT BHOGILAL GOHIL Vs. PARUSHOTTAM MOHANLAL MAKWANA

JUDGEMENT

(1.) HEARD the learned Counsel for the parties.

(2.) BRIEFLY stated, according to the plaintiff, the facts are as under:- By an agreement dated 28th May, 1981 entered into by and between the plaintiff and the 2nd defendants, the plaintiff agreed to acquire a flat bearing No. 2 on the first floor of the said building admeasuring about 550 sq. ft. (hereinafter referred as "the said flat") in the said building, which was then to be constructed by the 2nd defendants on the terms and conditions mentioned therein. Under the said agreement, though the plaintiff was required to pay total consideration amount of Rs. 94,500/- for purchase of the said flat, the plaintiff has made payment of Rs. 96,000/- to the 2nd defendants. The plaintiff has always been ready and willing to perform his obligation under the said agreement. The 2nd defendants were to hand over possession of the said flat to the plaintiff in any event in the first week of April 1985. The said agreement dated 28th May 1981 entered into by and between the plaintiff and the 2nd defendants has been registered with the Registrar of Assurances, Bombay. The 2nd defendants have wrongly put the 1st defendant in possession of the said flat and thereby committed breach of the said agreement entered with the plaintiff. The plaintiff having performed his obligations under the said agreement is entitled to specific performance thereof. The suit has thus been filed for specific performance of the said agreement. It is the case of the 1st defendant that he was a monthly tenant in respect of house bearing No. 2 in the building earlier situated on the same plot on which the said building has now been constructed which was then known as "prakash SADAN" duly protected under the provisions of the Bombay Rent Act, 1947 at the monthly rent of Rs. 12. 10 paise. The said property belonged to the 3rd defendant and his brother, Shyam Mastakar of whom the Ist defendant was a tenant. Although the 3rd defendant has died during the pendency of the suit, for the reasons best known to the plaintiff, the heirs of the 3rd defendant have not been brought on record. The landlords of the said property permitted to 2nd defendants to develope the same and tripartite agreements were entered into by the tenants including the 1st defendant in the building known as "prakash SADAN" with the 2nd defendants and the said landlords under which the tenants at the said "prakash SADAN" including the 1st defendant were agreed to be provided with new accommodation in the said building then to be constructed by the 2nd defendants at the said property. Accordingly, an agreement dated 6th November, 1979 was also entered into by and between the 1st defendant, the 2nd defendants and the said landlords of the said property on the terms and conditions similar to the terms and conditions on which such agreements were entered into by the 2nd defendants and the said landlords with other tenants threat. Under the said agreement dated 6th November, 1979, the 1st defendant agreed to vacate and hand over to the 2nd defendants peaceful possession of the said House No. 2 at the said "prakash SADAN" on the terms and conditions mentioned therein. The 2nd defendants agreed to provide the 1st defendant on ownership basis the premises admeasuring 165 sq. ft. in the said building then to be constructed at the said property free of cost. In respect of additional area of 235 sq. ft. agreed to be provided to the 1st defendant at the said building alongwith the said 165 sq. ft. . . , the 2nd defendants agreed to charge to the 1st defendant at the rate of 150 per sq. ft. from the 1st defendant. Accordingly, the 2nd defendants agreed to allot new premises in the said building to be constructed at the said property having an area of 165 sq. ft. free of cost and agreed to sell to the 1st defendant additional area admeasuring 235 sq. ft. threat at the rate of Rs. 150/- per sq. ft. of the built-up area. Thus the 2nd defendants and the said landlords agreed to provide the 1st defendant new premises at the said building then to be constructed by the 2nd defendants at the said property having area of 400/- sq. ft. (built up) for which the 1st defendant agreed to pay to the 2nd defendants an aggregate sum of Rs. 35,250/- in the manner provided for at the said agreement. The 1st defendant agreed to the request of the said landlords and the 2nd defendants had agreed to vacate the said House No. 2 at "prakash SADAN" and to take allotment on ownership basis of the new premises in the said building then to be constructed by the 2nd defendants threat as agreed to be allotted by the 2nd defendants on the terms and conditions mentioned in the said agreement. The 2nd defendants agreed to allot to the 1st defendant new premises bearing flat No. 5 on the 2nd floor of the said building on the basis of plans for construction of the new building at the said property tentatively prepared by the architects of the 2nd defendants for being submitted to the Municipal Corporation of Greater Bombay for approval thereof. The said plans being tentative, it was provided in the said agreement that the 1st defendant would not object to the required changes therein. It was also agreed by and between the parties to the said agreement that on the 1st defendant being put in possession of the new premises in the building to be constructed by the 2nd defendants at the said property, the tenancy rights of the 1st defendants in respect of the said House No. 2 would get extinguished and cease to exist. It is also the case of the 1st defendant that the 1st defendant paid to the 2nd defendants a sum aggregating to Rs. 20,000/- out of the said sum of Rs. 35,250/- required to be paid by him under the said agreement. It is the case of the 1st defendant that in the month of January, 1984, when the construction of the said building at the said property was more or less completed, the tenants in the old premises viz. , the said PRAKASH SADAN including the 1st defendant were put in possession thereof. The 1st defendant was put in possession of the flat No. 2 at the said building by the 2nd defendants since the flat No. 5 originally agreed to be allotted to the 1st defendant having an area of 400 sq. ft. (built up) was not constructed by the 2nd defendants in the said building. Since then the 1st defendant has been residing in the said flat No. 2 at the said building with the members of his family in his own legal rights as lawful owner thereof. The area of the said flat No. 2 is 410 sq. ft. (built Up ). The tenancy rights in respect of the said house No. 2 which the 1st defendant was earlier occupying in the said PRAKASH SADAN extinguished and ceased to exist on the 1st defendant being allotted and put in possession of the said flat No. 2. Since the 2nd defendants did not form a society as was required to be formed by the 2nd defendants, all the tenants at the said old premises who were put in possession of the said building formed a co-operative housing society in the name of the Deepali Co-operative Housing Society Limited, (hereinafter referred as "the said society") and got the same registered under the Maharashtra Co-operative Societies Act, 1960 and became members thereof. The 1st defendant also became a member of the said society and the said society has issued share certificate to the 1st defendant as issued to other members thereof occupying flats in the said building. The certificate so issued to the 1st defendant has been issued in the name of the 1st defendant. Since the possession of the 1st defendant was sought to be disturbed by the plaintiff and as the 1st defendant apprehended that his possession in respect of the said flat No. 2 was likely to be disturbed , the 1st defendant filed a suit, being Suit No. 1830 of 1985 in the City Civil Court at Bombay and on 25th March 1985 obtained an ad-interim order of injunction not to forcibly dispossess the 1st defendant therefrom without due process of law. The said suit filed by the first defendant is still pending in that Court.

(3.) THE defendant Nos. 2 and 3 have not filed their written statements and have not contested the suit. It, however, does appear that the defendant No. 2 had filed his affidavit in reply to the notice of motion taken out by the plaintiff. The said affidavit of the 2nd defendant builder cannot be treated as a written statement in the present suit as neither he has appeared to say so nor has he participated in the proceedings which have gone undefended on his behalf. It is also an admitted position that the 3rd defendant was deleted from the proceedings as he had expired during the pendency of the proceedings though no formal amendment appears to have been carried out and no reliefs also are sought against him by the plaintiff. On the basis of the aforesaid pleadings, the following issues were framed on 21st December 1998.