1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO.3053 OF 1997 Mrs. Shanta R. Thawani @ Parwani .. .. Plaintiff v/s. Mrs.Bineta Nagpal & ors. .. .. Defendants Mr.Navin Parekh with Mrs.A.S. Malvankar for Plaintiff. Mr.M.G.Patil i/by Mr.N.N. Bhadrashete for Defendant No.4. ----- CORAM : DR. D.Y. CHANDRACHUD, J. DATED : 1st July, 2009 P.C.: 1.The original 1st Defendant was the mother of the Plaintiff. She died on 2nd March 2000 during the trial of the Suit. Apart from the Plaintiff, Defendant Nos. 1(a) to 1(f) are the heirs and legal representatives of the original 1st Defendant. The original 1st Defendant had purchased a residential flat being flat No.D-3 situated on the Ground Floor of a building by the name of Sukhdayak Co-operative Housing Society Ltd. at J.B. Nagar, Andheri (East), Mumbai in 1974-75. The original 1st Defendant was a member of the Co-operative Society. The flat was purchased from one Nanak Singh Sahani, who was the member of the Society. On 11th February 1988, the Plaintiff purchased from the original 1st Defendant the front half portion of the residential flat 2 admeasuring 480 sq. ft. under a registered Agreement for sale, at and for a consideration of Rs.1,25,000/-. The portion, which was purchased, comprises of two bed rooms, kitchen, bath-room, W.C. and passage. The Plaintiff claims to be in exclusive use, possession and enjoyment of the aforesaid portion till date where she resides with the members of her family. 2.The 3rd Defendant was, at the material time, the Chairman of the Co-operative Society and the 2nd Defendant is his son. The 4th Defendant is the Co- operative Society where the premises are situated. The Society appears to have initiated certain proceedings against the member Nanak Singh Sahani and a recovery certificate is stated to have been issued under Section 101 of the Maharashtra Co-operative Societies Act, 1960. According to the Plaintiff, on 4th May 1994, when she was in possession of the flat she realized in the morning that the flat had been sealed and locked from the outside. The Plaintiff thereupon lodged a complaint at the J.B. Nagar Police Station after having evacuated herself through the window. Proceedings were initiated under Section 145 of the Code of Criminal Procedure, 1973. 3.Apprehending forcible dispossession, the Plaintiff instituted a Suit in the City Civil Court being Short 3 Cause Suit No.6785 of 1994. An ad-interim injunction was issued in a Notice of Motion taken out by the Plaintiff on 19th November 1994. During the pendency of the Suit, on 11th August 1994, the entire flat came to be transferred by the original 1st Defendant to the 2nd Defendant at and for a consideration of Rs.3,00,000/-. The purchaser came to be impleaded as a co-Defendant to the Suit before the City Civil Court. The order of ad- interim injunction was confirmed on 4th December 1996. The Suit instituted by the Plaintiff was decreed on 30th August 1999 and an order of permanent injunction came to be issued restraining the 2nd and 3rd Defendants from interfering with and/or taking forcible possession of the premises that were in the occupation of the Plaintiff. 4.The Suit before this Court was instituted on 11th August 1977 for seeking a declaration that the Agreement executed by the original 1st Defendant in favour of the 2nd Defendant was null and void and not binding on the Plaintiff, for a declaration that the Plaintiff was entitled to sale and possession of the rear portion of the flat by way of specific performance of the Agreement to sell dated 11th February 1988 between the Plaintiff and the 1st Defendant, for a direction to the Prothonotary and Senior Master to execute a Deed of Conveyance in favour of the Plaintiff 4 against a price of Rs.3,00,000/- and for consequential reliefs, including an order of injunction against the Defendants. 5.The 1st, 2nd and the 3rd Defendants have entered appearance. 6.The 2nd and the 3rd Defendants have not filed a Written Statement, though they have entered appearance through Advocates during the course of the interlocutory proceedings. The 4th Defendant is the Co-operative Society. The learned Advocate appearing on behalf of the 4th Defendant states that the 4th Defendant is a formal party and submits to the order of the Court. 7.In the absence of a Written Statement, the averments contained in the Plaint remain to be uncontroverted. The Plaintiff has relied upon her Affidavit in lieu of examination-in-chief dated 16th October 2006 and verified the correctness of the same. The Plaintiff has also tendered a compilation of the original documents. Amongst the documents on which reliance is placed is a registered agreement to sell between the Plaintiff and the original 1st Defendant dated 11th August 1988, the ration card of the Plaintiff, electricity and telephone bills, electoral identity card, certified copies of the judgments of the City Civil Court and the Deed of 5 Transfer between the original 1st Defendant and the 2nd Defendant. 8.By the Agreement that was entered into between the Plaintiff and the original 1st Defendant dated 11th February 1988, the Plaintiff was placed in vacant possession of half of the area of the residential flat in question at and for a consideration of Rs. 1,25,000/-. Clause-6 of the Agreement further provides that both the parties undertook to sell the respective portions of the premises of their ownership to the other by giving a first preference in the event of sale. The Plaintiff has a right of pre-emption under Clause-6 of the Agreement. Acting in breach of Clause 6, the original 1st Defendant purported to sell the entire flat to the 2nd Defendant on 11th August 1994. Since the Agreement with the Plaintiff has been duly registered, the 2nd Defendant cannot be regarded as being a transferee for value without notice. 9.The Plaintiff has duly proved her claim on the basis of the evidence on the record. The Plaintiff is entitled to a declaration to the effect that the Agreement between the original 1st Defendant and the 2nd Defendant dated 11th August 1994 does not bind the Plaintiff. The Plaintiff has also sought specific performance in terms of Clause-6 of the Agreement entered into between her 6 with the original 1st Defendant. 10.For the reasons indicated above, the Suit shall have to be decreed and is accordingly, decreed in terms of prayer clauses (a) to (d) and (i). In so far as prayer clause (c) is concerned, the amount to be deposited by the Plaintiff with the Prothonotary and Senior Master is quantified at Rs.3,00,000/-. 11.The original documents, which had been tendered, may be returned to the Advocate appearing for the Plaintiff, subject to verification of the photo copies. (DR. D.Y. CHANDRACHUD, J.)