THE HON'BLE SRI JUSTICE P.S.NARAYANA A.S.No.2754 of 1996, W.P.No.1021 of 1999 And W.P.No.6480 of 2004 21st June, 2010 Between :- A.S.No.2754/96 Mandalapu Ramaiah .. Appellant And Central Excise Officers Coop.Housing Society limited, Hanamkonda Rep. by its Preident and others .. Respondents W.P.No.1021/99 Mandalapu Ramaiah .. Petitioner And Warangal Municipalit Rep. by its Commissioner andothers .. Respondents W.P.No.6480/2004 Mandalapu Ramaiah .. Petitioner And Kakatiya Urban Development Authority Rep. by its Vice-Chairman And another .. Respondents THE HON'BLE SRI JUSTICE P.S.NARAYANA A.S.No.2754 of 1996, W.P.No.1021 of 1999 And W.P.No.6480 of 2004 COMMON JUDGMENT:- This appeal A.S.No.2754/96 and W.P.Nos.1021/99 and 6480/2004 are being disposed of by this common Judgment in view of the commonality of the subject matter. 2. Mandalapu Ramaiah, the plaintiff in O.S.No.133/86 on the file of the Principal Subordinate Judge, Warangal, being aggrieved of negativing the relief of specific performance and only ordering the refund of amount had preferred A.S.No.2754/96 aforesaid. The aforesaid plaintiff also filed Writ Petition W.P.No.6480/2004 praying for the issuance of an appropriate writ, order or direction particularly one in the nature of writ of mandamus declaring the action of the 1st respondent in setting apart excess land towards Roads and Parks while approving the lay-out in L.P.No.6/1975 and not releasing the excess land of 6.5% area in L.P.No.6/1975 in favour of the owner of the lay-out is Assessment Year, unreasonable and consequently direct the 1st respondent to consider the case of the petitioner by releasing the excess land of 6.5% area which was earmarked towards Roads and Open spaces in respect of lay-out No.6/75 belongs to the Central Excise Officers Cooperative Housing Society, Warangal as per the proceedings of the 1st respondent in R.C.No.C1/808/2000/761, dt.1-9- 2001 and pass such other suitable orders. The aforesaid plaintiff also filed yet another Writ Petition W.P.No.1021/99 praying for the issuance of a writ, order or direction more particularly one in the nature of writ of mandamus declaring the action of the respondents in interfering with the possession of the lands situated in Sy.Nos.45 (New Sy.No.444, 445), 55 (new survey No.292), 114 (new survey No.275 and 408), Excise Colony, Waddepally Shsivar, Warangal by establishing Rythu Bazar, inspite of the Injunction Order passed by this Court in C.M.P.No.17185/96 in A.S.No.2754/96 is arbitrary, illegal and consequently direct the respondents not to interfere with the said lands by establishing Rythu Bazar till the disposal of the appeal in A.S.No.2754/96 on the file of this Court and pass such other suitable orders. 3. Sri Gangaiah Naidu, the learned senior Counsel representing the appellant in A.S.No.2754/96 and the Writ Petitioner in W.P.No.6480/2004 and W.P.No.1021/99 in all thoroughness and meticulously had taken this Court through the respective pleadings of the parties, the evidence available on record, the findings recorded by the trial Court in O.S.No.133/86 aforesaid and the elaborate grounds raised in the Grounds of Appeal as Grounds 1 to 14 and would maintain that having recorded positive findings, the learned Principal Subordinate Judge, Warangal is not justified in ordering refund instead of granting the principal relief prayed for i.e., the relief of specific performance. The learned senior Counsel also pointed out to the sue- motto contempt proceedings and the orders made there-under both by this Court and the Apex Court as well and would maintain that the said orders would not have bearing at all on the result of these matters. The learned senior Counsel while elaborating his submissions had brought to the notice of the Court the subsequent events and also would maintain that even if any other non-parties to the litigation would be affected, the said non-parties are entitled to agitate their rights if any by way of separate proceedings, even otherwise the doctrine of lis pendense would be applicable. While further elaborating his submissions, the learned senior Counsel pointed out to the respective stands taken by the parties in W.P.No.6480/2004 and W.P.No.1021/99 and would maintain that even in the light of the respective stands taken in the counter affidavits, these Writ Petitions are disposed of with suitable directions. 4. Per contra, the learned standing Counsel representing the respective respondents in the Writ Petitions had taken this Court through the affidavits filed in support of these Writ Petitions and also the respective stands taken in the counter affidavits and would maintain that since much water had flown and inasmuch as refund had been ordered, if the same to be disturbed and the principal relief of specific performance to be granted, such non-parties to the litigation and their rights would be seriously affected and prejudiced. The learned standing Counsel aforesaid also would maintain that even otherwise it would be just and proper if all those parties also are impleaded as parties for the purpose of giving an opportunity to such parties so that such parties also may explain their stand. While further elaborating submissions, the said standing Counsel also would maintain that the litigation is just a speculative litigation as can be seen from the affidavits filed in support of these Writ Petitions and the counter affidavits as well and hence the Writ Petitions are to be dismissed. 5. Heard the Counsel on record, perused the oral and documentary evidence available on record and also the findings recorded in O.S.No.133/86 aforesaid and also the respective stands taken by the parties in the respective affidavits filed in support of the Writ Petitions aforesaid and the counter affidavits as well. 6. A.S.No.2754/96:- Before taking up further discussion, it may be appropriate to have a glance at the respective pleadings of the parties, the Issues settled, the evidence available on record and the findings recorded by the trial Court in nutshell. 7. Averments made in the plaint:- The appellant/plaintiff filed the suit for the relief of specific performance of contract or in the alternative for refund of Rs.2,00,000/- with interest. The averments made in the plaint are as hereunder:- “That the plaintiff on 28-3-72 had agreed to sell Ac.35.32 guntas of land @ Rs.8/- per Sq.Yd.and Ac.33.39 guntas @ Rs.5/- per Sq.Yd. situated at Waddepally shivar, Warangal to the 1st defendant Cooperative society. While so, there was some change and therefore another agreement dt.13-3-77 was executed under which the plaintiff took up the responsibility to bear the lay-out charges @ Rs.1.50 per Sq.Yd. and further agreed that if the lay-out charges were more, the plaintiff would not be responsible. The vendors shall be responsible to convert the land covered by Sy.No.423 to 426 into plots at their expense. That the implementation of the contract was slow. That the plaintiff had fulfilled dhis obligations, paid the lay- out charges. That the sale consideration was not paid by the 1st defendant. That by then a sum of Rs.2,00,000/- was due to be paid by the society to the plaintiff. That the society made huge profits from out of the transaction as the plots were sold at Rs.10/- to 12/- per Sq.Yd. That there was a tacitunderstanding that the extra amount would be paid to the plaintiff. That the 1st defendant promised that it would call a general body meeting and consult its members and pay Rs.1/- extra per Sq.Yd. to the plaintiff but it did not materialize. That the plaintiff got issued notice around July, 1982 to the defendants to which no reply was received. That there was non-payment of sale consideration in time. That the plaintiff sustained loss of Rs.4,00,000/- in the matter for which the first defendant society is responsible. That realizing the gravity of situation, the defendant No.2and 3 have executed the suit agt6 dt.3-12-84 agreeing to pay Rs.2,00,000/- to the plaintiff, by raising money by sale of additional area, which would be available after change in lay-out of lands covered by Sy.No.408, 401, 45, 55 and 114 supported by a resolution of the society dt.24- 10-82 agreeing to declare that the plaintiff would be at liberty to sell the excess area and recover the amount. That the society undertook to execute sale deeds in favour of the nominees of the plaintiff after sanction of lay-out in the alternative the society would execute a power of attorney in favour of some other persons to execute the sale deeds. That in July, 1983 an application was made to the Commissioner of City Municipality, Warangal (D.4) stating that under the approved lay-out the society lost an area of 41.72% of the totally lay-out area by way of roads and open spaces, which is much more than required percentage and that in view of the fact that large number of members were yet to be allotted plots, the President of the society requested D.4 Municipal Corporation to permit the society to convert Ac.1.73 of vacant site into plots and Ac.0.96 of land into commercial area. That D.4 asserted through a publication on 17-10-85 that nobody should purchase the open space provided for in the approved lay-out, that the open spaces were taken over by the Municipality.” 8. Averments made in the written statement of defendants 1 to 3:- Defendants 1 to 3 filed common written statement admitting the execution of the sale agreement and earlier agreements and at the same time denying the material allegations. The issuance of legal notice by the plaintiff also is admitted. They alleged that in response to the notice, the Managing Committee meeting was convened on 24-10- 1982 which the plaintiff had also attended. It was also resolved that the plaintiff was solving and settling disputes concerning some encroachments in the Managing Committee had allotted 20 plots to the nominees of the plaintiff and further agreed to allow four plots only after the plaintiff settled the disputes. That after the legal notice the society resolved to take up the issues relating to the revision of lay-out as per the existing rules. That the plaintiff attested the resolutions. That the plaintiff submitted an application before the 4th defendant for revision of lay-out which was rejected. That the allotted excess land as per the plaintiff’s allegation would be available only if the lay-out gets revised. The allegation of the plaintiff that he sustained loss of Rs.4,00,000/- is denied. That the claim of the plaintiff for Rs.2,00,000/- had been made for allotting 20 plots and 4 plots in favour of the plaintiff by virtue of resolution dt.24-10-82. That at any rate the claim of the plaintiff is subject to the plaintiff’s resolving and settling the disputes with the owner in respect of plots No.588, 589, 598, 599 etc. That there are also some suits bearing No.224/86, 176/86, 780/86 in the District Munsif Court, Warangal, which are pending and that the plaintiff had not taken any steps to settle the disputes with the third parties covered by the suits and that unless the plaintiff fulfills his obligations to settle the disputes and gets the revised lay-out sanctioned, the plaintiff has no claim at all and that all the suit claims are pre-mature and not sustainable. That the plaintiff had attended the Manging Committee meeting on 2-12-84 and agreed to abide by the resolutions passed by the Managing Committee and attested the minutes and as per the resolution dt.2-12-84, the plaintiff had demanded a sum of Rs.2,00,000/- towards the loss caused to him and that the plaintiff represented that for settlement of issues with Harijans, he has to be allotted excess available land to him as per the revised lay-out and that he agreed to take over the responsibility of individual obligations. That the 4th defendant had taken over the vacant land as alleged by the 4th defendant, that the society has no duty to the plaintiff to render accounts and that the plaintiff is not entitled for performance of contract. 9. Averments made in the additional written statement filed by the society: - The society denied its liability under the suit contract by alleging that the signatories of the contract were not authorized and were not office-bearers of the society. It also alleged that there was never any resolution authorizing the defendants 2 and 3 to do anything in favour of the plaintiff including the execution of the alleged suit contract. That the plaintiff is a real-estate broker who actually arranged land deals to the society after he himself entering into agreement with the land owners and in a way had co-founded the society along with some Central Excise Officials. That the plaintiff had to deposit Rs.1,00,000/- with the society and get the socalled excess land specified and excluded from the land left out for common use and enjoyment including park and play-grounds etc., from out of total land purchased by the society and get the same specified and that the plaintiff undertook to get these things done at his cost and expense by approaching Kakatiya Urban Development Authority and that the plaintiff undertook to get the excess land and have it in lieu of the allotted plots sale price payable to him and that the plaintiff failed to fulfill his obligations and therefore he is not liable to claim anything against the society. That the defendants 2 and 3 had colluded with plaintiff by mis-using their office adversely affecting the rights of hundreds of members of the society. That the defendants 2 and 3 without knowledge of the members of the society filed the socalled written statement in the name of 1st defendant society and that the plaintiff is not entitled to any reliefs sought for. 10. Averments made in the written statement of the 4th defendant:- The 4th defendant filed separate written statement admitting the sanction of lay-out No.6/75. It is also admitted that an application, dt.15-7-85 had been filed by the President of the 1st defendant society seeking conversion of an extent of Ac.1.73 of open space into plots and an extent of 0.96 acres into commercial plots to which a suitable reply dt.17-10-85 was issued by the 4th defendant informing the society that the proposed conversion cannot be allowed and that the nature of area shown as open space in the approved lay- out becomes the property of the Municipality and the owners seized to have any rights and that the open area shown in the lay-out 6/75 is not in excess as alleged by the plaintiff and that once the lay-out is approved by the Director of Town Planning and the Municipal Council, it cannot be reopened and that the defendant society is estopped in law from reopening the lay-out and that there is no cause of action against the 4th defendant. 11. Issues and Additional Issues settled:- Issues:- 1) Whether the plaintiff is entitled to specific performance of agreement? 2) Whether the plaintiff is entitled to rendition of accounts? 3) To what relief the parties are entitled to? Additional Issue:- “Whether the alternative remedy recovery of Rs.2,00,000/- with interest thereon is barred by limitation?” 12. Oral and documentary evidence adduced on behalf of the parties:- Witnesses examined on behalf of the plaintiff:- P.W.1 :- M.Ramaiah Witnesses examined on behalf of the defendants:- D.W.1 :- A.Purushotham Rao D.W.2 :- G.Purushotham Exhibits marked on behalf of the plaintiff:- Ex.A.1 :- Existing lay-out of the Central Excise Officers Cooperative Society Ex.A.2 :- Dt.3-12-84, Agreement executed by D.2 and D.3. Exhibits marked on behalf of the defendants :- Ex.B.1 dt.16-5-76 :- Receipt Ex.B.2 dt.5-5-76 :- Receipt Ex.B.3 dt.3-5-76 :- Receipt Ex.B.4 dt.14-2-76 :- Receipt Ex.B.5 dt.16-5-76 :- Receipt Ex.B.6 dt.16-5-76 :- Receipt Ex.B.7 dt.10-5-76 :- Receipt Ex.B.8 dt.10-2-76 :- Receipt Ex.B.9 dt.9-12-75 :- Receipt Ex.B.10 dt.2-10-75 :- Receipt Ex.B.11 dt.15-7-75 :- Receipt Ex.B.12 dt.19-10-74 :- Receipt Ex.B.13 dt.11-10-74 :- Receipt Ex.B.14 dt.11-10-74 :- Receipt Ex.B.15 dt.10-11-75 :- Receipt Ex.B.16 dt.6-11-74 :- Receipt Ex.B.17 dt.19-10-74 :- Receipt Ex.B.18 dt.10-4-74 :- Receipt Ex.B.19 dt.31-3-75 :- Receipt Ex.B.20 dt.30-3-75 :- Receipt Ex.B.21 dt.30-3-85 :- Receipt Ex.B.22 dt.30-3-85 :- Receipt Ex.B.23 dt.9-8-74 :- Receipt Ex.B.24 dt.10-6-74 :- Receipt Ex.B.25 dt.22-7-74 :- Receipt Ex.B.26 dt.3-7-74 :- Receipt Ex.B.27 dt.15-2-74 :- Receipt Ex.B.28 dt.30-6-74 :- Receipt Ex.B.29 dt.2-6-74 :- Receipt Ex.B.30 dt.8-6-74 :- Receipt Ex.B.31 dt.11-1-74 :- Receipt Ex.B.32 dt.15-6-74 :- Receipt Ex.B.33 dt.5-6-74 :- Receipt Ex.B.34 dt.10-1-74 :- Receipt Ex.B.35 dt.13-5-72 :- Receipt Ex.B.36 dt.4-4-72 :- Receipt Ex.B.37 dt.11-5-72 :- Receipt Ex.B.38 dt.13-5-72 :- Receipt Ex.B.39 dt.16-5-72 :- Receipt Ex.B.40 dt.11-5-72 :- Receipt Ex.B.41 dt.9-10-74 :- Receipt for Rs.2,447/- Ex.B.42 dt.9-10-74 :- Receipt for Rs.26,750/- Ex.B.43 dt.15-7-75 :- Receipt Ex.B.44 dt.15-7-75 :- Receipt Ex.B.45 dt.15-7-75 :- Receipt Ex.B.46 dt.15-7-75 :- Receipt Ex.B.47 dt.15-7-75 :- Receipt Ex.B.48 dt.15-7-75 :- Acknowledgment Ex.B.49 dt.24-10-82 :- Resolution of the Managing Committee Ex.B.50 :- Ledger Ex.B.51 :- Ledger Ex.B.52 dt.28-3-73 :- Agreement of sale. Ex.B.53 :- Pamphlet Ex.B.54 dt.31-3-93 :- Letter from P.W.1 to the President of the Society Ex.B.55 dt,15-5-80 :- Inspection Report Ex.B.56 dt.28-9-87 :- Letter Ex.B.57 dt.2-10-87 :- letter Ex.B.58 dt.2-10-87 :- Letter Ex.B.59 dt.14-1-89 :- Letter Ex.B.60 dt.19-4-89 :- Acknowledgment Ex.B.61 :- Defect sheet of the Central Cooperative Society Limited for the year 1976-77 Ex.B.62 :- Defect Sheet of the Central Cooperative Society Limited for the year 1977-78 Ex.B.63 dt.4-7-81 :- Letter by R.D.O., Municipal Commissioner, Warangal Ex.B.64 dt.25-10-79 :- Letter addressed by the Secretary of the Society to the Municipal Commissioner, Warangal Ex.B.65 dt.11-1-82 :- Letter from one V.Venkata Mallaiah Ex.B.66 dt.1-10-86 :- Pamphlet Ex.B.67 dt.17-10-86 :- Pamphlet Ex.B.68 dt.2-10-86 :- Pamphlet Ex.B.69 dt.10-10-87 :- Letter from Central Excise Officer to Advocate Ex.B.70 dt.2-1-88 :- Letter from Secretary to Government. Ex.B.71 dt.17-2-76 :- sale deed Ex.B.72 dt.22-12-75 :- Sale deed Ex.B.73 dt.5-11-75 :- Sale deed Ex.B.74 dt.16-5-78 :- Sale deed Ex.B.75 dt.11-1-78 :- sale deed Ex.B.76 dt.19-2-71 :- Sale deed 13. Findings recorded by the trial Court in brief:- The trial Court appreciated the evidence of P.W.1, Ex.A.1 and Ex.A.2, D.W.1, D.W.2 and Ex.B.1 to Ex.B.76 aforesaid and while answering issue No.2 held that since the plaintiff by way of an amendment deleted old para No.9 of the plaint, thereby giving up the claim for rendition of accounts, the said issue having become infructuous, the same was answered accordingly. While answering issue No.1 and Additional Issue dt.28-3-94, the learned Judge appreciated the oral and documentary evidence available on record in elaboration had referred to the contents of Ex.A.2 as well, recorded reasons commencing from paras 18 to 31 and ultimately answered Issue No.1 and Additional Issue as well and further while recording further reasons while answering Issue No.3 at paras 33, 34, 35 and 36 as well, ultimately came to the conclusion that the relief of specific performance cannot be granted in the light of the oral and documentary evidence available on record. But however decreed the suit directing payment of Rs.2,00,000/- by the 1st defendant society but however the interest was ordered only from the date of decree and not from the date of the suit and the interest shall be at the rate of 6% per annum from the date of decree till the date of payment. The parties are directed to bear their own costs. 14. In the light of the submissions made by the learned senior Counsel Sri G.Gangaiah Naidu and the standing Counsel representing Respondent-4/Municipality, the following points arise for consideration in this appeal:- 1) Whether the findings recorded by the Trial Court granting only the refund of Rs.2,00,000/- with interest for limited period to be confirmed or to be disturbed in the facts and circumstances? 2) Whether the findings of the Trial Court refusing the principal relief of specific performance to be disturbed or to be confirmed in the facts and circumstances of the case? 3) If so, to what relief the parties would be entitled to? 15. Points 1 and 2:- For the purpose of convenience points 1 and 2 are being discussed together. The case of the plaintiff is that by way of two agreements of sale dt.28-3-72 and 13-3-77 he agreed to sell Ac.35.32 and Ac.33.39 situated at Waddepally shivar, Warangal to the 1st defendant society. The plaintiff does not claim to be the owner of the land. The plaintiff claims that he is an agreement of sale holder for the said land. According to the plaintiff, as per the agreement, he paid the lay-out charges etc. That for the implementation of the contract, the plaintiff had fulfilled his obligations and paid lay-out charges. That the sale consideration was not paid by the 1st defendant and by that time, the society was due Rs.2,00,000/- to him. That the society made huge profits from the sale of plots to its members by selling the plots at Rs.10/- to Rs.12/- per square yards. That there was tacit understanding that extra amount would be paid to the plaintiff. That the plaintiff was promised that the general body meeting of the first defendant would be called and after consulting with the members of the society, he would be paid Rs.1/- per Sq.Yd., which had not materialized. That there was non-payment of sale consideration by that time and that the plaintiff sustained loss of Rs.4,00,000/- for which, the first defendant society is responsible. That the defendants No.2 and 3 have executed Ex.A.2 agreement dt.3-12- 84 agreeing to pay Rs.2,00,000/- by raising money by sale of additional area which would be available after change in the lay-out in lands supported by a resolution of the society dt.24-10-82. That in July,1983 an application was made to the Commissioner of City Municipality, Warangal, for revision of lay-out by alleging that the society lost an area of 41.72% of the total lay-out area by way of roads and open spaces, which is much more than the required percentage. That the Municipal Corporation cautioned the public against purchase of vacant spaces. Defendants 1 and 3 admitted the execution of suit agreement Ex.A.2 but however had taken a stand that the suit agreement is not supported by consideration and the plaintiff failed to comply with the conditions of the agreement. An additional written statement also was filed by the 1st defendant – society. It was pleaded that the society had no liability under the suit contract and that the signaturies to the contract Ex.A.2 were not authorized and were not the office-bearers of the society and that there was never any resolution authorizing defendants No.2 and 3 to do anything in favour of the plaintiff including execution of the alleged suit contract. That the plaintiff is a real estate broker who actually arranged the land deals to the society after he himself entering into agreements with the land owners and in a way had co-founded the society along with some other Central Excise Officials. That the plaintiff had to deposit Rs.1,00,000/- with the society and get the so-called excess land specified and that the plaintiff undertook to get these done at his cost and expense by approaching KUDA and that the plaintiff undertook to get the excess land and have it in lieu of the allotted plots sale price payable to him and that the plaintiff failed to fulfill the obligations and therefore he cannot proceed for any relief against the society. The execution of Ex.A.2 agreement of sale by defendants 2 and 3 is not in serious dispute. The 1st defendant society in fact admitted that the plaintiff also was one of the co-owners of the society. It is true that the 1st defendant society had taken a stand that the plaintiff is only a land broker and the suit is a speculative one. The learned Judge referred to the contents of Ex.A.2, had taken into consideration the evidence of P.W.1, the evidence of D.Ws.1 and 2, Ex.B.50, Ex.B.55 and also Ex.B.1 to Ex.B.47 – the receipts, Ex.B.49 the resolution of the Managing Committee, Ex.B.50 to Ex.B.54 and Ex.B.56 to Ex.B.76 as well and ultimately while answering issue No.3 observed:- “The plaintiff and defendants No.2 and 3 acted in a way which is not completely above board. It is also clear from the material on record that the members of the society have benefited from these activities. Only when it became clear that the plaintiff earned huge profits, they became restless. Otherwise, there is no meaning in imputing earning in lakhs by the plaintiff solely on the basis of the sale considerations mentioned in the sale deeds. The suspicion entertained by the Inspecting