Mrs. Vijaya
Shrivastava Vs. M/S Mirahul Enterprises & Ors [2006] Insc 430 (19 July 2006)
Arijit
Pasayat & S.H. Kapadia
O R D
E R WITH
CIVIL APPEAL NOS.1211-1212 OF 2003 REAR ADMIRAL R.R. SOOD (RETD.) Appellant
Versus M/s MIRAHUL ENTERPRISES & OTHERS Respondents Two suits bearing
no.450/86 and 451/86 were filed in the Delhi High Court for specific
performance of the agreement dated 2.11.1983 in which it was alleged that
defendant nos.1 to 5 (developers) had agreed to sell to the plaintiffs two
flats in Mirahul Apartments, Green Park Extension, New Delhi. The above two
suits claimed from the developers execution of the sale deed and refund of the
alleged loan amount extended by the vendees to the developers. The
defendant-developers submitted that there was no conclusive agreement between
the parties and that the agreement dated 2.11.1983 was a provisional agreement
which the plaintiff required to avail of the loan from HDFC Bank. During the pendency
of the suits, the defendant-developers conveyed a portion of the suit flat to
the 6th defendant, viz., S.S. Mohd. Arshad, a resident of Madras. Therefore, the plaintiffs
(appellants herein) amended the plaint and alleged that the conveyance in favour
of Mohd. Arshad dated 9.6.1987 was a sham transaction and that the vendees were
not bound by such transaction.
In the
said suits, the learned single judge framed the following issues:
"Suit
No.451/86:
-
Whether the
plaint has been signed and verified by a person competent to do so and suit
instituted by a duly authorized person? OPP
-
Whether the
agreement dated 2.11.1983 executed between the plaintiff and the defendants 1-5
and set up by the plaintiff, is binding in all respects on the parties? OPP
-
If issue No.2 is
held in favour of the plaintiff, whether defendants 1-5 are not liable to
execute the sale deed and transfer possession of the flat measuring 1156 sq.
ft. to the plaintiff? OPDs 1-5
-
Whether the
plaintiff is liable to pay to defendants 1-5 any sum over and above the
admitted sum of Rs.2,64,261/- in execution of agreement to sell? OPDs 1-5
-
Whether the
plaintiff was ready and willing to perform his part of the agreement at all
material points of time? OPP
-
Whether the
plaintiff/her husband made any additional to writings as part of the agreement
to sell dated 2.11.1983, as alleged by defendants 1-5? If so, to what effect? OPDs
1-5
-
Whether any sum
by way of loan was advanced to defendants 1-5 by the plaintiff? If so, what
amount and during what period and on what terms and whether plaintiff can seek
relief in respect to said loan in the present suit? OPP
-
n case
defendants are held entitled to recover from the plaintiff in the event of
specific performance being granted, any amount of Rs.2,64,261/- then whether the
plaintiff is entitled to claim adjustment for the excess claim against the
alleged loan amount?
-
Whether the sale
or parting with possession by defendants 1-5 of one bed room of that flat in
question in favour of defendant no.6 is fraudulent, illegal and not binding on
the plaintiff for the reasons stated in paras 24(a) to 23(i) of the plaint? OPP
-
Relief. OPP Suit
No.450/86:
-
Whether the
plaint has been signed and verified by a person competent to do so and suit
instituted by a duly authorized person? OPP
-
Whether the
agreement dated 2.11.1983 executed between the plaintiff and the defendants 1-5
and set up by the plaintiff, is binding in all respects on the parties? OPP
-
If issue no.2 is
held in favour of the plaintiff, whether defendants 1-5 are not liable to
execute the sale deed and transfer possession of the flat measuring 955 ft. to
the plaintiff? OPDs 1-5
-
Whether the
plaintiff is liable to pay to defendants 1-5 any sum over and above the
admitted sum of Rs.2,68,000/- in execution of agreement to sell? OPDs 1-5
-
Whether the
plaintiff was ready and willing to perform his part of the agreement at all
material points of time? OPP
-
Whether the
plaintiff/her husband made any additional to writings as part of the agreement
to sell dated 2.11.1983, as alleged by defendants 1-5? If so, to what effect? OPDs
1-5
-
Whether any sum
by way of loan was advanced to defendants 1-5 by the plaintiff? If so, what
amount and during what period and on what terms and whether plaintiff can seek
relief in respect to said loan in the present suit? OPP
-
In case
defendants are held entitled to recover from the plaintiff in the event of
specific performance being granted, any amount of Rs.2,68,000/-, then whether
the plaintiff is entitled to claim adjustment for the excess claim against the
alleged loan amount?
-
Relief.
OPP"
By
judgment and order dated 5th
July 1996, the learned
single judge decided all the issues in favour of the plaintiffs and granted
specific performance of the agreement for immovable property. However, the
learned single judge found that the conveyance dated 9.6.1987 executed by the
defendant-developers in favour of defendant no.6 was collusive and accordingly
the claim of defendant no.6 of being a bona fide purchaser for value without
notice was rejected. By the said judgment, the learned single judge granted
decree in respect of flat no. S-2 and flat no.S-1 respectively in favour of the
original plaintiff. However, the learned single judge refused to grant decree
for refund of the loan and, therefore, four appeals were filed before the
division bench of the Delhi High Court bearing RFA (OS) Nos.29, 30, 41 and 42
of 1996. Even defendant no.6 joined the developers in their appeal and
reiterated that he was a bona fide purchaser of a portion of the suit land for
consideration without notice.
By the
impugned judgment dated 10th
May 2002, the division
bench allowed the appeals filed by the developers by holding that the suit
agreements dated 2.11.1983 were provisional agreements; that they were
inconclusive and accordingly the plaintiff-appellants herein were not entitled
to claim specific performance of the agreement for immovable property.
Surprisingly, none of the other issues were answered by the division bench.
In our
view, the division bench ought to have answered all the issues which were
framed by the trial court. All the issues are inter-connected. For example, in
the suit, the plaintiff-appellant has alleged that there were two separate
transactions one for sale of the flat and another for specific performance of
the agreement under which interest-free loan was extended to the developers.
Whether the loan amount was adjustable towards the price payable to the
developers was an important issue which has a linkage with the agreement for
sale of flats. We do not wish to express any opinion on any of the said issues.
In the
circumstances, we are of the view that the division bench ought to have given
findings on all the issues referred to hereinabove.
It was
vehemently urged on behalf of the original plaintiffs who are the appellants
before us that the findings on other issues need not be called for particularly
in view of the fact that defendant no.6 had not filed the written statement in
the suit. We do not find any merit in this argument. In the said suit, a
specific issue was framed by the single judge as to whether the sale deed
dated 9.6.1987 in favour of defendant no.6 stood vitiated on account of
collusion between the developer and the subsequent purchaser. This issue was
answered in favour of the plaintiff. The suit was decreed inter alia on that
basis. Defendant no.6 was also asked to join in execution of conveyance with
defendant nos.1 to 5 in favour of the plaintiffs. Aggrieved by the decision of
the learned single judge, all the six defendants preferred RFAs. They have
challenged all the findings of the learned single judge. In the appeals,
defendant no.6 has categorically submitted that he was a bona fide purchaser
for value without notice. Therefore, we are of the view that the division bench
ought to have given its findings not only on the conclusiveness of the suit
agreement but also on the remaining issues including the finding on the issue
of collusion between the developer and defendant no.6, as alleged by the
plaintiffs.
The
doctrine of lis pendens was invoked by the learned counsel appearing on behalf
of the plaintiffs- appellants. He submitted that the alienation in favour of
defendant no.6 had taken place during the pendency of the suit and, therefore,
the decree passed by the single judge was binding on defendant no.6. We do not
find any merit in this argument.
In the
case of Jayaram Mudaliar v. Ayyaswamy reported in AIR 1973 SC 569, it has been
held as follows:
".
The purpose of section 52 of the Transfer of Property Act is not to defeat any
just and equitable claim but only to subject them to the authority of the Court
which is dealing with the property to which claims are put forward." To
the same effect is the judgment of the Kerala High Court in K.A. Khader v. Rajamma
reported in AIR 1994 Kerala 122.
In the
present case, it may also be noted that the plaintiffs have alleged that the
sale deed dated 9.6.1987 is vitiated by collusion and, therefore, not binding
on the plaintiffs. As stated above, this issue is decided against defendant
no.6 by the single judge. Decree has been passed against defendant no.6. He has
preferred RFA to the division bench, in which he has categorically stated that
he was a resident of Madras; that, he had given power of
attorney to the managing partner of M/s. Mirahul Enterprises; and that, he was
a bona fide purchaser for consideration and without notice. This issue is very
relevant because even if in a given case, the contract is found to be
concluded, still the Court can refuse specific performance if the subsequent
purchaser is found to be a bona fide purchaser for value without notice. On
this point, we do not wish to express any opinion. We have only given reasons
in respect of our conclusion that the division bench of the High Court should
have decided all the above quoted issues which the single judge has decided
while passing the decree in favour of the plaintiffs. In the circumstances, the
following order is passed:
The
Registry is directed to place the above Civil Appeals for further hearing on
4.12.2006. In the meantime, we are directing the division bench of Delhi High
Court to return to us the findings on all the above- quoted issues in RFA (OS)
Nos.29, 30, 41 and 42 of 1996.
Back