SOURAV CHOWDHURY Vs. NALINI GOPAL BANERJEE

JUDGEMENT

(1.) The instant second appeal has arisen out of common judgment and decree dated 26th, September 1997 passed by the First Appellate Court reversing the common judgment and decree dtd. 20/12/1996 passed by the Trial Court. One Nalini Gopal Banerjee is the plaintiff in Title Suit No. 17 of 1992 and defendant no. 1 in Title Suit No. 89 of 1994. Said Nalini Gopal filed Title Suit No. 17 of 1992 for specific performance of contract against defendants, (Smt. Manju Banerjee is defendant no.1 and Chetla Housing Co-operative society is defendant no. 2. Defendant no. 3 is the Secretary of the society) contending that defendant no.1 Smt. Manju Banerjee along with others formed a Housing Cooperative Society for the purpose of construction of multi-storeyed building comprising of several flats for residential purpose and after completion of the said building, one flat namely flat no. B-6/3, which is the suit property, was allotted to said defendant no.1. Further contention is that defendant no.1 at the material point of time did not have enough money to pay instalments as against the price of the flat and for that defendant no.1 offered to sell the flat to the plaintiff at a consideration of Rs.60,000.00 on condition that the plaintiff would pay the balance loan amount and thereafter on full payment, the defendant no.1 would arrange for transfer of flat through defendant no.2/ society in favour of aforesaid plaintiff.

(2.) Further contention of the plaintiff in the said suit is that said arrangement was duly approved by the defendant no.2/society and a Sum of Rs.4,500.00 was paid by plaintiff to defendant no.1 by cheque dtd. 21/6/1976 and subsequently a further sum of Rs.11,000.00 was paid by the plaintiff to the defendant no.1 and the husband of the defendant no.1 acknowledged the said amount by mentioning it as a loan. It has been stated that after completion of construction of the multi-storeyed building, the plaintiff was put to possession of the said flat by the defendant No.1 on 7/7/1976 and since then the plaintiff has been living in the suit flat by paying user charges. Plaintiff states that he had paid a sum of Rs.41,945.20 to the society as against the consideration money of the said flat as agreed upon in the name of defendant no.1. Defendant no. 2/society by it's letter dtd. 25/5/1988 informed the plaintiff that the managing committee of the defendant no.2/ society had decided to offer the suit flat to the said plaintiff and asked for consent of the plaintiff and the plaintiff by his letter dtd. 3/6/1988 accepted the said offer. It is further alleged in the plaint that there had been several correspondences between the parties for completion of the transaction of payment of balance consideration money and despite the plaintiff being ready and willing to complete the transaction, on payment of the balances consideration money, the defendant no.1 had refused to execute the deed in his favour. Plaintiff further stated that on 23/10/1991, plaintiff received an intimation from the defendant no.1 that she had arranged to disburse the suit flat to defendant no.4 and on the basis of such information plaintiff filed aforesaid Title suit no. 17 of 1992 for specific performance of contract.

(3.) On the other hand the present appellant Sourav Chowdhury filed suit for eviction being T.S No. 89 of 1994 against said Nalini Gopal Banerjee (plaintiff of title suit no. 17 of 1992) contending that he purchased the aforesaid suit flat from aforesaid Manju Banerjee and on being allotted membership of the said cooperative society he went to take possession of the suit flat and he was told by his vendor that aforesaid Nalini Gopal Banerjee who is in possession of suit flat is her relative and care taker of the said flat and is residing at suit flat as licensee under Smt. Manju Banerjee who is defendant no.1 of T.S 17 of 1992. In the aforesaid circumstances, said Sourav Chowdhury as plaintiff filed aforesaid Title Suit no. 89 of 1994 for eviction of said Nalini Gopal Banerjee from the suit flat. The defendant no.2 namely Chetla Co-operative Housing Society Ltd. and the defendant no.4 contested the said suit being T.S 17 of 1992 by filing the written statement and also participated in the trial. The defendant no. 1 filed separate Written Statement but ultimately she did not appear and the suit proceeded exparte against her. In the said later suit i.e. Title Suit no. 89 of 1994, plaintiff Sourav Chowdhury specifically pleaded that there is no agreement for transfer of the said flat in favour of plaintiff of the earlier suit at any point of time and no earnest money whatsoever was paid by the plaintiff to the defendant in respect of the said suit flat.