1

Civil Appeal no. 923/00

Presented on :07.09.1988 Registered on :07.09.1988 Decided on :08.01.2007 Duration :18 Ys.04Ms.01Ds. BEFORE THE DISTRICT COURT PUNE AT : PUNE. [Present : S. G. Deshpande,] [Ad-hoc District Judge -12, Pune ] CIVIL APEPAL No.923/2000 (Old Civil Appeal No.485/89) 1] Mr. A. S. J. D'silva, DECEASED through legal heirs 1a] Mrs. Luella Dias Age : 42 years. Occ : housewife, R/at : Memas P.O.Box 1102, Maham Baharain 1b]Mrs. Iola Sequeria Age : 39 years, Occ : Housewife R/at : JN4/Bldg.8, Ganga, Flat No.5, 1st floor, Sector 9, Vashi, New Mumbai. 1C]Mrs. Viola Mederia Age : 35 years, Occ : Housewife R/at : 34, Voltri Street, Mentos, Victoria, 3194, Australia. 2] Mrs. Grace D'silva, Age : 40 years, Occ : household work Both residing at L-63, Reserve Bank Quarters, Maratha Mandir Marg, Bombay. ..... -V E R S U S 1] Paramount Apartments, Co-operative Housing Society Ltd., 1981, Convent Street, Pune (registered under Maharashtra EXH.NO.

Appellants

2 Co-operative Societies Act, 1960) 2]The Managing Committee, Paramount Apartments Co-operative Housing Society Ltd.,1981, Convent Street, Pune 3]Poonawalla Promoters Pvt. Ltd., a Private Limited Company incorporated under the Companies Act, 1956, having registered office at No. 2409, East Street, Pune 4]Mr. Rusi S. Poonawalla, Adult, Occ : Busienss, R/at 1-B, Dr.Voyaji Marg, Elphinstone Road,pune 5]Mr. Rajgandhi K. Sayani, Adult, C/o Oriental Scientific Instrument Corporation 277, Narayan Peth, Pune 6]G. M. Shaikh, Adult, Major Retired Teacher R/at A/5, Third Floor, Paramount Apartment, Convent Streeth, Pune deceased his legal heirs are 7] Mrs. Sugrabi Gulam Shaikh, Age : 63 years, Occ : Housewife R/at : Flat No. A-5, 3 rd floor, Paramount Apartments, Co-operative Housing Soceity Limited, Convent Street, Pune 8]Mrs. Nadira wife of Ross Masud Gulam Shaikh, R/at : Flat No. A-5, 3rd floor, Paramount Aprtments, Covent Street, Pune. .....

Civil Appeal no. 923/00

Respondents

Adv. Shri. Khandgoankar for applicants. Adv. Shri. Kanitkar and Shri Swaminathan for respondents

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JUDGMENT [Delivered on this 8th day of January , 2007] The appellants filed Spl. CS no. 136/80 for declaration and possession of suit flat, in the alternative, for refund of the amount of Rs. 38,245/- with interest and a direction to the defendants 1 & 2 to provide

another flat with identical area and amenities to them. The facts in brief are as follows. 2] The respondent no.1 is a registered co-operative housing society, its managing committee . The defendant no.4 was

the defendant no.2

managing director of the defendant no.3, a private limited company and together they were promoters and builders of a housing complex, Paramount Apartments. The defendant no. 5 was secretary of the society and defendants 7 and 8 , heirs of the deceased G. M Shaikh were stated to have taken forcible possession of the suit flat. 3] The defendant no.4 issued advertisement for sale of residential

apartment in a building called as Paramount Apartments to be constructed on 1981, Convent Street, Cantonment, Pune. Pursuant to that, the appellant no.2 approached and advanced him a total sum of Rs. 38,245/- for one flat . An agreement was entered into on 3/12/1973 and flat no. A-5 (herein called as suit flat) on the third floor was allotted to the appellant. Possession was delivered to the appellants. The deceased appellant no.1 had executed a power of attorney in favour of appellant no.2. On her behalf, her brother Francis Pinto looked after the suit flat and was in possession thereof from 18/3/1978 openly. 4] The defendants no.3 and 4 committed irregularities in

management of the society. The secretary of the society, respondent no.5 forcibly dispossessed the appellants from the suit flat. Their belongings were thrown away and Francis Pinto was removed . They manipulated records and unlawfully allotted the suit flat to the former Joint Secretary of the

4 society, the defendant no.6 (deceased G.M. Shaikh) possession. the suit flat. 5]

Civil Appeal no. 923/00 delivering it in his

The defendants 7 to 8 his LRs were in unlawful possession of

The appellants claimed a declaration confirming allotment of

the suit flat to them. A further declaration that the respondent no. 3 had unlawfully withheld notifying allotment of the flat, another declaration that the appellants were valid members of the society and that allotment of the suit flat to the respondent no.6 was illegal. The appellants also claimed

actual possession of the suit flat and in the alternative, allotment of another flat with identical area or refund of the sum of Rs. 38,245/- with interest at 18% along with mesne profits at the rate of Rs. 500/- per month from 18/9/1979 the date of dispossession. . 6] The respondent nos. 1, 2 and 5 in their written statement (Exh.

36) admitted constitution of the society and that respondents 3 & 4 were builders and promoters of Paramount Apartments. The execution of the

agreement is denied for want of knowledge and therefore admitted. It is admitted that the respondent no.5 was a secretary of the society. It is

admitted that the suit flat was allotted to the respondent no.6 and that he was in possession of the same. It is admitted that the appellant no.1 had sought admission to the membership of the society but that was rejected. It is denied that the suit flat was alloted to the appellants and they were placed in possession thereof. It is denied that Francis Pinto was forcibly evicted. It is denied that the society record was manipulated. 7] It is submitted that though the agreement was held as executed, The appellants did not make payments of

it was forfeited by default .

installments after 3/7/75. It was learnt that they had withdrawn Rs. 10,000/from the payment made by them and canceled the allotment. There was no existing agreement. They were estopped from claiming the suit flat. The suit was barred by limitation not maintainable and the Court had no jurisdiction.

5 8] The respondents 3 & 4

Civil Appeal no. 923/00 admitted that they were builders and

promoters and Paramount Apartments. It is admitted that the appellants had approached them. Execution of the agreement is not disputed. It is however denied that the appellants were placed in possession of the suit flat. It is denied that Francis Pinto was dispossessed . It is denied that there was mis-management of the society. It is submitted that the agreement was forfeited by default of the appellants . They had not paid installment after 3/7/75. On the other hand they had withdrawn Rs. 10,000/- from out of the deposits and given up their rights in the suit flat. The suit was sought to be dismissed with cost. 9] The respondent no.7 and 8 in their written statement admitted

that the suit flat was alloted to her husband G. M. Sheikh. It is admitted that it was in her possession. It is denied that the appellants had paid the sum of Rs. 38,245/-. it is denied that agreement was executed. It is denied that they were ready to fulfill the agreement. It is denied that the suit flat was given to them and they were in possession at any time. It is submitted that the alleged agreement dated 3/12/73 was anti-dated . It was invalid and not enforceable. It was not stamped or registered. It is submitted that the suit was grossly under valued. It was sought to be dismissed. It is submitted that the defendant no.6 was a school teacher. From his savings, he had agreed to purchase the suit flat and in part performance of the same, he was inducted in possession. After his death, on 14/3/83, the respondent no. 7 and other heirs were residing in the suit flat. It is submitted that the court had no jurisdiction to try the suit and it was bad for non-joinder of necessary parties. 10] The trial Court framed as many as 23 issues. The appellants

examined Mrs. D'silva and P. W. 2 Francis Pinto. The respondents 1 & 2 examined Anthony Britto, Chairman of the respondent no. 1 society from 1983. Respondent nos. 7 & 8 examined Ross Sheikh, son of the deceased

Civil Appeal no. 923/00

defendant no.6. The trial Court held that the appellants had failed to prove that the suit flat was alloted to them or that they were placed in its possession. It was further held that the suit was barred by limitation and the Court had no jurisdiction to try it. It was further held that the agreement in favour of the plaintiffs was terminated and they had no right thereunder. The suit came to be decreed partly on 8/12/87 for refund of earnest money and the respondents 3 & 4 were directed to pay Rs. 29,015/- along with interest at the rate of 9% per annum to the appellants. 11] Being aggrieved by the judgment , the appellants preferred this

appeal. It was initially presented before the Honorable High Court Bombay and registered as Appeal No. 485/89. By virtue of change in the jurisdiction the appeal was returned to the District Court. 12] The learned advocate for the appellants and respondents 3 & 4

submitted written notes of arguments. No one else appeared, in spite of repeated calls made. It was necessary for this Court to decide the appeal at the earliest in view of the directions of the Honorable High Court for expeditious disposal . Finding that the other parties were not taking active part in hearing of the appeal it was required to be posted for judgment. Because of some administrative assignments entrusted, delivery of the judgment is slightly delayed. 13] I have gone through the written notes of the argument and the fell for are given

record and proceedings of the trial Court. Following points determination. The findings thereon and reasons therefor hereinafter. POINTS 1]Whether the trial Court was justified in holding lack of jurisdiction of the Civil Court? FINDINGS

No

2]Whether the trial Court was justified in holding that the suit was barred by limitation? :

No

7 3]Whether the trial Court erred in holding that the agreement Exh. 96 was not binding on the defendant? 4]Whether the trial Court was justified in rejecting that the plaintiffs were dispossessed from the suit flat? 5] Are the appellants entitled to the relief? : Yes.

Civil Appeal no. 923/00

Yes

No

6] What order ? 14]

: Appeal allowed partly.

Before proceeding to reasons, certain things need mention at the

outset. Though disputing parties, the defendants were clearly identified, the trial Court gave them liberty to cross examine without any sequence. After the PW 1 Mrs. D'silva was cross examined, an application was moved at Exh.128 on her behalf for leave to additional evidence in view of certain documents. The application was allowed. Additional examination in chief was recorded and she was again cross examined. However, the Trial Court did not control the cross examination to the newly stated facts and if wondered even beyond the additional chief examination. 15] It is a usual practice that a defendant who is not at issue with

another defendant is asked first to cross examine witness of such other defendant. It is only thereafter that the plaintiff is called upon to cross examine. It is not the other way around. The main object is that such a 'friendly' defendant should not get a chance to undo the effect of cross

examination of the witness by the plaintiff. However, the Trial Court seems to have sacrificed this golden rule. For instance, the counsel appearing for the defendant no.6 initially declined to cross examine the DW Anthony Britto. However, after the plaintiff's cross examination, again the defendant no.6 was permitted to cross examine the same witness of length. In that cross examination, the witness seems to have assented to the question put to him. Similar instance was repeated when evidence of the DW Ross Sheikh

Civil Appeal no. 923/00

was recorded. The defendant nos.1 & 2 were permitted to cross examine him after the cross examination by the plaintiff. This approach ought to have been avoided. It appears that the Trial Court was casual in that. This

requires the Court to approach evidence of these witnesses with additional caution. 16] Another thing worth mentioning in the beginning is that a clear

picture having distinct bearing to the dispute has emerged from the evidence. The testimony of the witnesses yielded that picture and therefore it is far more important. It seems that sometime in 1978 79, disputes about management of the housing scheme arose. It is alleged and also held by the trial Court that the defendant no.4 had sold same flat to several persons. Accusations were hurled at him and the secretary, defendant no.5 as well. Police had also initiated action against the defendant no.4 and he had gone underground. It is further brought on record that purchasers of the flat, having grown scary and panicked had taken possession of flats still very much under construction. Many of such flats were not having even basic amenities like doors, window pains, toilets, plastering of walls and so on. Even then the purchasers, out of fear of loosing everything had rushed, fitted their own doors and locked them in an attempt of securing and ensuring their respective possession. It was only subsequently, after 1981 82 that the purchasers had gathered, formed a group, taken additional contribution @ Rs. 30 40/- per sft from the purchasers and completed construction and provided amenities. Formation of co-operative housing society was thus a subsequent development. It is in this backdrop that the evidence deserves appreciation. REASONS

AS TO THE POINT NO.1 : (jurisdiction of Court)

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Civil Appeal no. 923/00

The learned trial Court held that the Court had no jurisdiction to

try the suit. That goes to the root of the case and deserves initial attention.

18]

There can not be two opinions about the fact that civil Court has

no jurisdiction to declare a party a valid member of co-operative society. That is the exclusive jurisdiction of Co-operative Courts. The plaintiffs' counsel had conceded this aspect before the Trial Court and he accepted it in para no. 30 of the judgment. 19] The Trial Court further observed that the Civil Court had no

jurisdiction to grant a declaration confirming allotment of the suit flat. The reasons given in support of that are not sustainable. Presuming that the plaintiffs did not pay the purchase money, or that they were defaulters, or that the defendant no.4 had informed that the allotment of the flat was canceled, it does not mean that the Civil Court was not capable of declaring whether the suit flat was allotted to him. It is a settled law that the pleadings define jurisdiction. As per the plaintiffs, they had booked the suit flat in 1973 with the defendants 3 and 4. There was no co-operative society at that time. The allotment of the suit flat was confirmed by the defendants 3 and 4 and latter all the defendants had challenged their legal right as to the suit flat. In such circumstances, the plaintiffs could rush only to the Civil Court and seek a declaration. The reasons and conclusion of the Trial Court in this respect need to be and is rejected. It is held that the Civil Court had the jurisdiction to decide the suit barring of course the plaintiff's entitlement to be accepted as a member of the respondent no.1 point is therefore answered in affirmative. Co-Op. Society. The

AS TO THE POINT NO.2 : (question of limitation)

20]

The trial Court proceeded on a wrong assumption that the suit

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ought to be for specific performance of contract. The reasons given for holding that the suit was barred by limitation are absurd. It may have been agreed in Exh.96 that possession was to be given in 1975. The fact remains that the construction work was not completed till 1979-80. Besides, by their acts, the defendants had denied the legal character of the plaintiffs as

regards the suit flat in 1979-80. The suit filed in 1980 is therefore absolutely within time. The finding of the trial Court cannot be sustained. The point under consideration is therefore answered accordingly.

AS TO POINT NO.3 : (binding nature of agreement)

21]

The plaintiffs proved at Exh.96 the agreement dated 3/12/1973. It

was introduced in evidence without any objection (though subsequently question of it's validity for want of registration was raised. That is addressed separately). That was executed by the defendant no.4 as a proprietor of the defendant no.3. Together, they were promoter and builder of the building. 22] Exh.96 states (para 9) that the plaintiff had booked a two

bedroom flat no. A -5 on the third floor with an area of 790 sft. The consideration of Rs. 47,000/- (page 5) was to be paid in installments depending on the stage of construction. The last but one installment of Rs. 4000/- was to be paid within 10 days of completion of work of tiling and internal plastering. The last of the ten installments was to be paid at the time of delivery of possession of the flat. Clause (vi) provided that if within one month of demand payment due, was not made, the defendant no.3 and 4 were entitled to terminate the agreement and forfeit the earlier payments made. Para (ix) provided that a notice was to be given by the promoter to the purchaser that the flat was ready for use and occupation and thereafter the purchaser was to bear taxes and charges for electricity and so on. 23] Absence of registration of the agreement Exh.96, in this

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particular case would not come in the way of asserting effect of the terms thereof. The first reason is that parties are not at issue about that. That is held by the Trial Court in para 16 of the judgment. The trial Court also discussed contents of the agreement (Exh.96) at various places in the judgment. The agreement was referred to the witnesses during cross

examination. Moreover issue no.3 pertaining to the binding nature of the agreement is answered against the plaintiff but not for want of registration. The trial Court came to that conclusion because of some admissions of the plaintiff which went contradictory to the terms of the agreement Exh.96. There is no cross objection on all these. There is therefore no hindrance nay, it is all the more essential to consider the agreement though not registered. 24] It would be beneficial here to consider the receipts Exh.97 to They prove that the

Exh.105. They span from 8/6/1972 to 3/7/1975.

plaintiffs had paid installments to the defendant nos. 3 & 4 for the suit flat no. A 5 on third floor. The installments were in consonance with the

repayment Schedule stated in para 9(i) of the agreement. In fact, amount in excess was paid by the plaintiffs till 3/7/75. The last few installments were for Rs. 4775/- when the scheduled installments were for Rs. 4000/-. Secondly, the installment paid under Exh.105 was for the stage of laying fifth slab. As per the schedule, the plaintiff was required to pay only Rs. 32,000/- till that stage. But the plaintiffs had paid Rs. 38,245/- till then. A small amount of Rs. 8755/- out of the consideration of Rs. 47,000/- remained to be paid. 25] As per the schedule of payment in the agreement, the next two

installments were payable within 10 days of demand after laying sixth and seventh slab. The last two installments were payable after completion of plastering and at the time of taking possession respectively. 26] As stated earlier, the agreement provided specific conditions in

which it could be terminated. The promoter could not terminate the

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agreement nor forfeit the money received (as per Cl. iv) unless the purchaser had failed to pay money within a month of the same being demanded. 27] The defendant no.4 did not step in the witness box and led no

evidence that such a thing which entitled him to terminate the agreement had occurred. The PW 1 Mrs. D'silva admitted that money was demanded through the notice of Adv. Oswal (notice dated 21/3/79). She explained that payment could not be made because there was news reporting (Exh.107) about credibility of the defendant nos. 3 & 4. 28] The back drop of the chain of events is discussed earlier. The

promoter was reported to have sold flat to more persons than one and the police were after him. Moreover those who had paid to the defendant no.3 & 4 were rushing and occupying flats at whatever state they were in. In these circumstances, it was absolutely normal for the plaintiffs not to make further payment of a small sum outstanding. It is stated that they had paid over Rs. 38,000/- out of the consideration of Rs. 47,000/-. Whatever remained due was not a big amount. A bank pass book is filed by the plaintiffs to show that they had enough money. That can not be of much use in absence of evidence of the banker maintaining that. Even then, the non payment of the balance amount by the plaintiffs was not a matter of great concern. In the circumstances of the case, the defendants 3 and 4 could not invoke the clause of forfeiture against the plaintiffs. 29] The learned trial Court heavily relied upon the plaintiffs

admission that she had taken Rs. 10,000/- from the defendant no.4 for the treatment of her ailing husband and had not returned it. He overlooked her explanation that it was a different transaction. It cannot be understood as to why the two transactions cannot be regarded separate and distinct. The defendant no.3 is a Private Limited Company. The agreement Exh.96 did not provide that the purchaser could withdraw from the purchase money; definitely no partial withdrawal was permitted. The agreement stipulated

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only one contingency in which the purchase money could be refunded. That was in the event of the contract getting frustrated. For any other breach, the money paid was liable to be forfeited. Therefore, under the agreement,

nothing entitled the plaintiff to withdraw partly from the defendants 3 and 4 nor was there any obligation upon them to allow that. The defendant nos. 3 & 4 did not adduce any evidence in support of their contentions. 30] The probabilities incline against holding that the plaintiffs had

withdrawn Rs. 10,000/- from the purchase money. The defendant no. 3 as a private company was not constituted for that. In spite of that, if Rs. 10,000/was paid out of the purchase money, that could have reflected some where in the accounts of the company. But as stated, no evidence was led and the trial Court came to a wrong conclusion totally discarding the explanation offered about taking a hand loan from the defendant no.4. That was a different transaction and should have been held as such. Considering the relations it is probable that the defendant no.4 may have lent Rs. 10,000/- to help the plaintiff in attending her husband. That was a different transaction and the payment of Rs. 38,245/- was not affected by that . 31] Admittedly, the plaintiffs did not return Rs. 10,000/- to the

defendant no.4. However, for the above reasons, that fact shall not come in the binding nature of the agreement at Exh.96. The learned trial Court gave undue importance to some part of oral evidence of the plaintiff. In fact, he was so moved by that, that he felt it unnecessary to consider the documentary evidence (para 19 of the judgment). He held that the agreement is not binding because, the entire consideration was not paid. That was an undisputed fact but as a Court, the attending circumstances, the facts and the entire evidence should have been considered. By not following these basic requirements, the trial Court demonstrated undue haste in arriving at his conclusions. 32] The agreement (Exh.96) was executed on 3/12/73. The plaintiffs

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paid more than 3/4th of the consideration. There is nothing on record to show that the deceased G. M. Sheikh or the present occupant of the flat had entered into agreement prior to that. In the evidence not supported by pleadings his son, DW Ross testified that the agreement was entered into on or about 1/6/77. That agreement is no where placed on record though the trial Court, vide order below Exh.126 had directed the defendants 7 and 8 to produce it. Presuming that any such agreement was entered into, that was about four years after Exh.96. 33] Now to the question as to whether the agreement was

terminated. On this crucial aspect also, the trial Court has not considered the evidence in its proper perspective. In fact, it did not consider the evidence led and not led by the defendants. 34] As stated above, the agreement clearly stipulated that on failure

to pay the installment within one month of the demand made after the stage of construction was over, that the agreement could be terminated. The plaintiffs had made payment of surplus amount at the 6th stage of construction. The last installment was paid on 3/7/75 vide the receipt at Exh.105. It says that the 5th slab was laid and the installment paid there under was sixth installment. 35] The plaintiffs did not pay further installments after 3/7/75. It

would be interesting in this respect to note how they and the defendant nos 3 & 4 were reacting to the situation thereafter. 36] As stated above, the agreement stipulated payment of Rs.

32,000/- till the sixth installment but the plaintiffs had paid Rs. 38,245/- till then. On 26/5/1977, the defendant nos. 3 & 4 issued Exh.106 to the PW 2 Francis Pinto. That is styled as a pass and permitted Pinto to see the suit flat. In his letter Exh.117 dated 4/8/1977, Pinto assured the defendant no.3 payment of the remaining amount. The last but one para of that letter is important. It shows how Pinto wanted the defendant nos. 3 & 4 to effect

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some changes in the construction of the toilet. Not just that, in his letter dated 13/1/1978 (Exh.108) the defendant nos. 3 & 4 had issued a blanket certificate that the plaintiff no.1 was allotted the suit flat. 37] The evidence thus shows that in spite of non payment of further

installment, the defendants 3 & 4 till January 1978 had not canceled the agreement. 38] The PW 1 Mrs. D'silva admitted to have received notices from

Adv. Oswal on behalf of the defendants 3 & 4 demanding balance payments. According to her, that notice was dated 21/3/1979. the defendant did not care to prove that notice and therefore its contents beyond what is admitted by the plaintiff cannot be presumed. 39] The question is whether failure of the plaintiffs to abide on the

notice of Adv. Oswal would entail termination of the agreement? Mere non payment could not result in that. For payment of installment, the condition precedent was completion of a particular stage of construction. Without that, the defendants 3 & 4 could not demand the installment let alone terminate the contract. The evidence does not indicate in any manner that the construction was completed before the notice was issued through Adv. Oswal. There is no proof that the defendant nos. 3 & 4, exercising options under the agreement Exh.96 had terminated it. It was a simple thing which the defendants alone could prove and were bound to prove. They led no such evidence. 40] Adv. Mr. Oswal may have issued a notice as admitted by PW Mrs.

D'silva on 21/3/1979. But it is also established that the construction was not completed at that time. It was brought out in the cross examination of PW 2 Pinto that there were no doors or window panes or toilet fittings in the suit flat in 1979. The DW 1 Britto stated that the defendants 3 and 4 had left the work incomplete and that was subsequently done by the defendant no.1 society. Even DW Ross Sheikh testified the same thing.

16 41]

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It is therefore established that the construction work was not

completed before 1980-81. It was certainly not complete in March,1979 when the defendants 3 and 4 issued notice through Adv. Oswal. The notice (not produced) was therefore not in consonance with the agreement Exh.96. Moreover, at that time, there was a confusing atmosphere prevailing with flat allottees rushing to the site and asserting their right against another. 42] The plaintiffs did not pay anything to the defendants 3 and 4

after 1975. Even then, the evidence shows that till 13/1/78 (Exh.108) the defendants recognized them as the allottee of the suit flat. Rest as stated above, establishes that no stage wise construction was completed as could enable the defendants 3 and 4 to terminate the agreement by the notice through Adv. Oswal. There was no valid termination of the agreement. In the background narrated in the beginning and in view of the evidence discussed, it must be held that the agreement was not determined by the defendants 3 and 4 and it did not stood terminated because the plaintiff did not pay the balance of consideration of Rs. 47,000/-. 43] The plaintiffs had entered into the agreement Exh.96 in 1972-73.

That was acted upon for a long period. The plaintiffs paid more than 3 / 4 the consideration and the agreement was not terminated. There was no reason why the agreement could not be binding upon others. 44] One more aspect remains to be considered namely the allotment

of the suit flat to the deceased defendant no.6 G. M. Sheikh. DW Ross Sheikh, his son took stand in the witness box on behalf of the defendants 7 and 8 . It is plain that his evidence was a substantial advancement over the written statement. The evidence was very much beyond pleadings. 45] The defendants 7/8 did not plead that they were bonafide

purchasers for value without notice. The DW Ross deposed that. There is no whisper in the written statement that his father had booked the suit flat in 1977 and had paid Rs. 40,000/-. It was no where pleaded that an agreement

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was entered into and that as well as receipts of payment of installments were lost. The written statement is absolutely silent about the major particulars of the agreement, the consideration agreed, and paid and so on. Even then, minute particulars are testified in evidence by DW 1 Ross Sheikh. evidence is therefore wholly beyond pleadings and can not be acted upon. 46] It is observed in the earlier paras that a Bank pass book, without The

supporting evidence of the banker is of no use. On that count alone, the pass books Exh.156 to 158 filed by the plaintiff are kept out of consideration. For similar reasons, the pass book Exh.199 filed by the defendants 7 and 8 can not be accepted in evidence. Admittedly, the entries therein are not in the handwriting of the witness. Instead of relying on the pass book, the defendants could have produced a certified extract of the saving account as per Bankers Book Evidence Act. 47] It is pertinent to note that the loss of the alleged original lay foundation for

agreement was not pleaded and the defendants did

adducing secondary evidence. In fact, the trial Court had directed them to produce the agreement. They did not abide by that. 48] The defendants relied upon Exh.200/Exh.216 to show that the

suit flat was allotted to them. These are two copies of the same letter dated 29/11/78 issued by the defendant no.4 to the defendant no.1. It says that the deceased G. M. Sheikh had booked a flat for Rs. 65,000/- and out of which Rs. 60,000/- was received by him. By the said letter, the defendant no.4 allotted the suit flat to Shri. Sheikh and that the flat was canceled by its previous allottee. 49] It is clear from the above letter Exh.200 that the suit flat was

allotted to Sheikh by virtue of that letter on the day on which it was written namely 29/11/78. That falsifies the defence contentions that the suit flat was allotted to them before the date on the letter. One important aspect connected to the letters Exh.200 and 216 need mention here.

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Exh.200 was addressed to the defendant no.1. It was a

forwarded to G. M. Sheikh and therefore, address of defendant no.1 at the top was scratched. However, in its xerox copy Exh.216, the scratching does not appear. There was no way in which both these letters could could reach the defendants 7 and 8 or the deceased G. M. Sheikh. Exh.201 is the original nomination form states to whom the flat was to be transferred in the event of death of G. M. Sheikh. The said document should normally have been with the society and not with the defendants. That raises suspicion. 50] Exh.174 to Exh.180 are receipts issued to G. M. Sheikh from

15/7/79 to 17/8/80 by the defendant no.1 society. They are not much useful to the defendants. There is no resolution of the society allotting the suit flat to the deceased G.K. Sheikh. In fact the D. W. Ross Sheikh admitted that the documents at Exh.138 filed by the defendants 3 and 4 were copies of the society (def.1) record issued by Deputy Registrar. In that document it is shown that the deceased G. M. Sheikh was allotted not the suit flat but flat no. R. A. 8 on 3rd floor . The said fact speaks a lot and the evidence through Exh.174 to 180 ( like most other) being beyond pleadings, in the peculiar circumstances for from corroborate the defence. 51] There is therefore absolutely no reason not to accept that the

agreement Exh.96, in favour of the plaintiff was binding on all. The learned trial Court failed to understand the entire evidence. He appears to have discussed nothing but the evidence of the plaintiffs. In the process, he reached wrong conclusions. They cannot be sustained. For the present, the point under consideration needs to be and is held in affirmative.

As to point no.4 :

(on the question of dispossession)

52]

The trial Court held that the plaintiffs could not show in the first

place that they were in actual possession and the question of dispossession

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did not survive. In my opinion, the trial Court considered this entire aspect from a wrong perspective. It was a multi storied building. The apartments were allotted to buyers since prior to starting of construction or during construction. The plaintiffs were one of the buyers. They had booked the suit flat. It can not be imagined that unless the construction was completed they could be placed in its possession. Till that time their possession was constructive. That is demonstrated in this case by two factors. The first one is the pass Exh.106 . Thereby PW 2 Pinto could visit 'his' (suit) flat during construction. The second one is his letter (Exh.117) to the defendant no.4. He stated therein that he wanted certain alterations to be made in the toilet in the suit flat. The third important factor defining constructive possession was that during subsistence of the agreement, the plaintiffs (with the builder) could prevent trespass in the flat. From these points of view, they could be held in constructive possession of the suit flat. 53] There is yet another angle to this case. It is described earlier how

a state of confusion and chaos prevailed in 1978 79 when the defendant nos. 3 & 4 were accused of selling the same flat to more than one person. The purchasers were rushing to the flats booked by them, fixing their own doors and bolting and locking them, with a view to ensure possession. It is evident from the evidence led by the plaintiffs that PW 2 Francis Pinto was also one of such persons. He too had entered the suit flat, put his lock and ensured possession of the suit flat on behalf of the plaintiffs. It also appears that he was thrown out and the matter was reported. 54] The act of PW 2 Pinto ( like others alike him) in locking the suit

flat was illegal. Though the plaintiffs had booked the flat and the agreement was subsisting, they nor Pinto had authority to take possession of the flat unless the construction was completed. The defendants 3 and 4 alone could deliver them that. That was not done. In spite of their booking, their act of taking possession of th suit flat was not lawful.

20 55]

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That apart, the evidence suggests that by visiting the flat and

suggesting structural changes in the flat, the plaintiffs had demonstrated their constructive possession over the suit flat. They were not in actual lawful possession. Nevertheless, the foregoing discussion establishes that the suit flat was subsequently delivered in actual possession of the deceased G. M. Sheikh and the defendants 7 and 8 though the agreement Exh.96 with the plaintiff was subsisting. From this angle must be held that the plaintiffs were dispossessed from their initial constructive possession over the suit flat. The point under consideration is therefore answered in affirmative.

As to point no. 5 : (as to the entitlement)

56]

From the above discussions, it becomes clear that plaintiffs had

booked the suit flat way back in the year 1973. They paid more than Rs. 38,000/- out of the consideration of Rs. 47,000/-. The defendant nos. 3 & 4 regarded them as allottees of the suit flat even in 1978. The construction of the building as well as the suit flat was never completed by the defendant nos. 3 & 4. The defendant no.4 was charged for selling same flat in the building to several persons . Finally , the purchasers had come together. They had formed an association and ultimately the defendant no.1 society which, under the apartments Ownership Act the defendant no.3 & 4 were bound to constitute was formed. The agreement with the plaintiffs was not terminated in the manner in which it was stipulated therein and the notice issued through Adv. Oswal (not proved) could not determine the agreement with the plaintiff. In fact, the defendant nos.3 & 4 were under legal obligation to honour their commitment to the plaintiff and should have

effected necessary conveyance, inducting the plaintiff in possession of the suit fat, of course on receipt of the balance consideration. Instead by their mis-management, a chaotic situation arose and every purchaser tried to force

21 and establish his possession over the flat. 57]

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It cannot be said that the plaintiffs were entitled to the suit flat

at a price less than the agreed consideration of Rs. 47,000/-. There were sufficient reasons which explained how the plaintiffs were justified in not paying the balance consideration to the defendants 3 and 4. That apart, they cannot be freed from that liability for ever. As stated above, the Co-operative Court is competent to decide whether the plaintiffs should be made member of the society and after that decision in their favour, the plaintiffs will have to pay the balance consideration to the society. 58] It is established in the evidence that when the defendant nos.3 &

4 left the work undone , the defendant no.1 Society had collected a further contribution @ Rs. 30/- per sft. from the purchasers to complete the work . That would be another amount which the plaintiffs shall have to pay if their claim of membership is allowed by the Co-operative Court, Pune.

59]

For the reasons stated, the judgment and decree of the learned

trial Court cannot be sustained. The Court below committed a grave error in dismissing the suit. No doubt , the Co- operative Court would alone be competent to decide whether the plaintiff should be admitted as a member of the society. However, I find no hesitation in holding that the plaintiffs were allotted the suit flat by the builder and promoter in the year 1973. It is also established that the agreement was executed in respect of the suit flat. The plaintiffs had made payments of installments and were entitled to be inducted possession. The action on the part of the defendants in placing the deceased G. M. Sheikh in possession of the suit flat and in permitting the defendants 7 and 8 and heirs of deceased to occupy the suit flat is illegal, high handed and unlawful. This is more so because they failed to prove that the suit flat was either booked by or allotted to them. 60] It would be necessary to make certain observations in order that

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the reliefs granted are made effective. After the Co-operative Court decides the claim of membership in favour of the plaintiffs, it would be necessary for them to pay the balance consideration (Rs. 47000/- 38245/-) either to the defendants 3 and 4 or the Society. It would also be necessary for the

plaintiffs to pay improvement charges @ of Rs. 30 per sft. to the defendant no.1 in view of the evidence that the society had effected the improvements after the defendants 3 and 4 had left the work incomplete. It is needless to state that the society would execute necessary conveyance. Therefore

answering the point under consideration accordingly, the order below is passed .

ORDER 1] 2] Appeal is allowed partly with proportionate costs. The judgment and decree of the 6th Jt. CJSD, Pune in Spl CS no. 136/80 is set aside and the suit is decreed as follows. a] b] The suit is decreed partly with costs. It is hereby declared that the suit flat being flat no. V-A on the third floor in Paramount Apartments Co-operative Housing Society Limited, 1981, Convent Street, Pune, measuring approximately790 Sft was and stood allotted to the plaintiff and that, its subsequent allotment to and possession of deceased G.M. Sheikh (defendant no.6) and his heirs was illegal and not binding on the plaintiffs. The plaintiffs to approach the Co-operative Court Pune for adjudication of her claim of membership in continuation with the earlier proceedings in that Court. Decree be drawn up accordingly. Informed accordingly.

c]

4] 5]

Date : 8/1/2007

[S. G. Deshpande] [Ad hoc District Judge-12,Pune]

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I affirm that the contents of this P. D. F. file Judgment are same word for word as per original Judgment. Name of Steno : Smt. S. K. Doiphode Court Name : S. G. Deshpande, Ad-hoc District Judge-12,Pune Date : 9/1/2007