1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.85 OF 2001. Shri Pandurang Atmanand Camotin, alias Pramod Atmanand Kamat, 49 years old, married, Architect, Indian National, presently residing at Abu Dhabi, represented by his father and attorney Shri Atmananda Camotin, 74 years old, married, landlord, Indian National, residing at Dongri, Ilhas, Goa. .. Appellant/ (Original Plaintiff) Versus 1. M/s. Sunivas Builders a Partnership Firm, represented by Shri Shrinivas Balkrishna Bhujle, married, of full age, Civil Engineer, Indian National, residing at Sunivas Bldg. Santa-Inez, Panjim-Goa. 2. Shri Ashok M. Nevrekar, married, of full age, employed, Indian National, Residing at Neelsagar Coop. Housing Society, 3rd Floor, Bandra West-Bombay-50 .. Respondents. (Original Defendants) Mr. Shivan Dessai, Advocate for the appellant. Mr. Sudin M. S. Usgaonkar, Advocate for the respondent No.1. 2 CORAM :- C. L. PANGARKAR, J. DATE OF RESERVING THE JUDGMENT:11 TH FEBRUARY,2009 . DATE OF PRONOUNCING THE JUDGMENT: 21 ST FEBRUARY,2009. JUDGMENT : 1. This is a plaintiff's appeal. 2. The facts giving rise to this appeal, are as follows: The plaintiff is the resident of Goa while the defendant No.1 is a builder in Goa. The defendant No.1 has constructed a building known as Darshan Apartment at Miramar, Panaji, Goa. The plaintiff was interested in purchasing a flat in the said building known as Darshan Apartment. The plaintiff, therefore, approached the defendant No.1 for purchasing the flat. The agreement was executed between the plaintiff and the defendant No.1 for sale of flat bearing No.2/1 to the plaintiff. On 16.04.1983, the defendant No.1 gave to the plaintiff the keys of the flat No.2/1. On that day, the plaintiff could not check up whether the keys that were handed over to him, were in respect of the 3 flat which was agreed to be sold to the plaintiff. The plaintiff could not do so because of the fact that he was required to immediately leave for Bombay for proceeding to Abu Dhabi. It is the contention of the plaintiff that a plan was annexed to the said agreement, in which the flat was demarcated in the plan. It is further contention of the plaintiff that the flat which he had agreed to purchase, was one which lies to the right hand side on the second floor after climbing up the staircase. The plaintiff submits that after a month or so, he came back from Abu Dhabi to Goa. When he went to see the flat, he found that the some flats were not at all numbered and only one flat was already occupied. The plaintiff tried the keys in the flat which he had agreed to purchase, but could not open it. On the other hand, with those keys, he could open the flat which was in the opposite direction. The plaintiff submits that the defendant deliberately gave wrong keys to the plaintiff and in order to earn money out of sale of the flat which was agreed to be sold to the plaintiff, the defendant No.1 gave a wrong flat to the plaintiff. Further the plaintiff submits that his brother-in-law had kept certain furnitures in the flat. His brother-in-law did not know exactly which flat has been purchased by the plaintiff. The plaintiff submits that the defendant has no right to deprive him of the 4 flat which was agreed to be sold to him. It is the contention of the plaintiff that the said flat has been handed over by the defendant No.1 to defendant No.2. The plaintiff, therefore, prayed for decree that he is entitled to flat which is now numbered as 2/3, which lies to the right hand side on the second floor after climbing up the staircase. The plaintiff had also prayed for damages to the extent of 39,000/- since the plaintiff was required to have another flat on lease. 3. The defendant No.1 resisted the suit by filing written statement and admits that he had agreed to sale one flat to the plaintiff. He does not dispute that flat No.2/1 was agreed to be sold to the plaintiff. The defendant submits that the possession of this flat has already been handed over to the plaintiff. The plaintiff has passed a possession receipt and has accepted the keys. Further it is contended that the plaintiff has kept his belongings in the said flat. The defendant submits that flat No.2/3 which is in possession of the defendant No.2 was never agreed to be sold to the plaintiff. He submits that the plaintiff is taking disadvantage of the fact that in the map attached with the agreement, a wrong flat has been demarcated. The plaintiff had given instructions to the defendant to make certain special 5 amenities available to him in the said flat. Accordingly, the defendant submits that the defendant had provided a European type W.C., concealed wiring, provision for a heater and flooring of the flat to be in tune with the flooring of the balcony. The defendant submits that all these amenities, according to the plaintiff's requirements, were provided. Further the defendant's contention is that the plaintiff had approached the defendant through one of the partners of the defendant namely Shri Gaunekar. He submits that upon request of Shri Gaunekar, the defendant agreed to sale the flat to the plaintiff, which was the only available flat on the second floor of the building. It is the contention of the defendant that the other three flats on the second floor, were already sold and one which was not sold, was agreed to be sold to the plaintiff. The defendant, therefore, submits that there has been no mistake whatsoever as far as the identity of the flat is concerned. Further the defendant contends that the defendant No.2's wife is also one of the purchaser of the flat and she has not been made party to the suit. Therefore, the suit is bad for non-joinder of the necessary parties. 4. The defendant No.2 did not contest the suit. On 6 these pleadings, the learned Judge of the Trial Court, framed issues and found that the plaintiff had failed to prove that the defendant No.1 had delivered a wrong flat to the plaintiff. The agreement between the defendant Nos. 1 and 2, was prior to the agreement between the plaintiff and the defendant No.1. The sale in favour of the defendant No.2, was not malafide and the suit was bad for non-joinder of necessary party. He also found that the plaintiff had failed to prove that he was entitled to claim the damages. Holding so, the learned Judge dismissed the suit and being aggrieved by that order of dismissal, this appeal is preferred by the plaintiff. 5. I have heard the learned Counsel for the plaintiff and the defendant/ respondent. 6. The learned Counsel for the appellant, submits that as far as rejection of the claim for damages is concerned, the plaintiff does not press that claim here. I, therefore, need not consider that aspect of the suit. Following points arise for my consideration : (i) Does plaintiff / appellant prove that the defendant No.1 had 7 agreed to sale to him a flat lying to the right hand side on second floor in Darshan Apartment upon climbing up the staircase, which is now numbered as flat No.2/3 ? .. No. (ii) Does he prove that in order to deprive him of that flat, the defendant No.1 has wrongly numbered that flat as 2/3 ? .. No. (iii) Is plaintiff entitled to possession of flat No.2/3 ? .. No. (iv) Is wife of defendant No.2 necessary party ? .. Yes. (v) What order ? .. The appeal is liable to be dismissed. POINT NOS. 1 TO 3 : 7. The pleadings of the plaintiff would disclose that the the plaintiff's claims that what was intended to be sold to him, was a flat on second floor which lies to the right hand 8 side upon climbing up the staircase. This flat, according to the plaintiff, now is numbered as 2/3 while the agreement P/2, shows the description of the flat to be sold to the plaintiff as flat No.2/1. The plaintiff says that the flat numbers have been now deliberately changed and in fact the flat No.2/3 should be numbered as 2/1 and it was agreed to be purchased by him. The plaintiff mainly relied upon the map attached to the agreement to make out his case that what was agreed to be sold, was the flat which is now numbered as 2/3 which lies to the right hand side after climbing up the staircase. The map along with the said agreement, does show that what is demarcated by red line, is the flat which is now numbered as 2/3 and which is numbered as 2/1 in the map. The defendant's defence is that the demarcation was made only with a view to show the area or layout of the flat to be sold and not actual location of the flat. 8. The intention of the parties has to be gathered from the evidence available on record. Such evidence would no doubt be admissible under the provisions of Section 91 and 92 of the Indian Evidence Act. The admission of P.W.1 Pandurang here, assumes great importance. He admits in cross-examination that demarcation of flat by colour in the 9 map, was not done in his presence. It is, therefore, clear that the plan which was attached to the agreement was not demarcated consciously by the agreement of the parties and in the presence of the plaintiff. Obviously, the plaintiff had not seen the said flat in actual layout plan which was coloured. This shows that the plaintiff himself did not know as to which was the flat agreed to be sold to him on the plan. But it appears to be pretty clear, that the plaintiff very well knew, which flat he has purchased. It is the case of the defendant that when the plaintiff came to him for purchase of flat, only one flat was available on the second floor and three other flats were already sold and, therefore, there would be no question of selling another flat to the plaintiff by mistake. In this regard, the documentary evidence would be material. The agreement of sale of flat No.2/2 in favour of Cresant Pereira is dated 06.11.1979, an agreement in favour of Nandkishor Sinari of flat No.2/4 is dated 03.08.1979 and the agreement of defendant No.2 of flat No.2/3 is dated 15.04.1981. The agreement of plaintiff's of flat No.2/1 is dated 13.07.1981. Obviously, when the plaintiff agreed to purchase the flat, all three other flats were actually sold. There was only one flat remaining to be sold. It is admitted by P.W.1 Pandurang that after coming back from abroad, he 10 went to Shri Gaunekar, one of the partners of the defendant No.1 to deliver certain instruments, which he had brought. He states that at that time, the defendant No.1 told him that they have one flat available on second floor and Shri Gaunekar showed that flat to him and he agreed to purchase that flat. Thus, it is clear that only one flat was available on second floor and that was agreed to be purchased by the plaintiff. Thus, what was agreed to be purchased by the plaintiff was the only remaining flat others having already been sold. These flats are numbered as 2/1 to 2/4. Yet another admission of the plaintiff, assumes importance in this regard. P.W.1 Pandurang admits that sequence/ numbering of the flats on the second floor, is same as available on the first floor although he feigns ignorance about third floor. He admits further that the numbering of the flat as they stand now, were the same in the year 1983. The fact that the numbers of all flats on all floors, are given in the same manner and sequence, clearly suggests that there is no substance in the contention of the plaintiff that to deprive the plaintiff of the suit flat, the sequence or manner of numbering the flat was changed. This fact is fortified by the evidence of D.W.1Kisan. He has been cross-examined by the plaintiff and it is elicited in his cross-examination that the 11 flats were numbered in January 1983 and the flat No.2/1 lies to the left. Thus, when the agreement of plaintiff had taken place, the flats were actually numbered. The plaintiff claims to have seen and booked the flat in July 1981. The flats did obviously have the same numbers and as earlier pointed out,the plaintiff admits that since 1983, the numbers are the same. There is, therefore, no possibility of there being any mistake or there being any change of sequence of numbering of the flats and its location. 9. Further admissions of the plaintiff, fortify above conclusions. In this regard, it needs to be noted that the plaintiff is an architect. He could be said to be an expert in such transactions. It is stated by the P.W.1 Pandurang that he took keys of the flat on 16.04.1983. He claims that he had seen flat 2 days prior to 16.04.1983. Thus, the plaintiff did have the keys with him 2 days prior to 16.04.1983. He goes to the flat and takes look at the flat. He admits that when he took the keys, he executed a receipt of delivery of possession of flat to him vide Exh.P1. It is difficult to accept that a person, who is an architect, would execute a possession receipt without verifying as to which flat has been given possession of and whether the amenities that were required 12 to be provided to him, have been provided or not. He admits that after the keys were taken, his furniture was kept in the flat. Though plaintiff claims his brother-in-law kept the furniture there, the fact is that the plaintiff handed over the keys and asked him to keep the articles there. This fact of keeping the luggage and the articles in the flat, clearly suggests that the plaintiff did take the possession of the flat consciously and cannot now resile from that position. 10. Further P.W.1 Pandurang admits that he had visited the building when construction was in progress and he had suggested some additional facilities in his flat such as European type W.C., concealed wiring, provision for heater and level of flooring of balcony and the flat. He states that 4 to 5 days before taking the keys, he visited the flat again and found that all those things were provided in the flat. Thus, the work was done according to the suggestions of the plaintiff before the keys were handed over to the plaintiff and the plaintiff had verified that. In spite of having verified all those things 4 to 5 days before taking the keys, the plaintiff has a courage to say that the flat which was agreed to be sold to him, is not the one which is handed over to him. In this regard, perusal of the agreements of other flat owners, 13 becomes necessary. We have seen that the special amenities that were asked for by the plaintiff, were provided separately by the defendant and the plaintiff admits the same in evidence. The agreement of plaintiff, shows that there is special clause No.13 inserted in his agreement, which reads as follows : “13. CHANGES REQUIRED : 1. Western type W.C. 2. Provision for heater 3. Floor level for living room and balcony to be same. 4. Concealed wiring. ” 11. Thereafter, there is clause No.14, which is in respect of extra works. In all other agreements, the last clause is clause No.13 being extra. The other agreements do not contain any provision for European W.C., heater, concealed wiring etc. These agreements show that electrical installations was of open wiring. The learned Counsel for the appellant, submits that these amenities may have been provided even to other flat owners. It is difficult to accept this proposition. Why should the builder do so when the party has not asked and agreement has not provided for it and had not paid for it. When an extra work is required to be 14 carried out, extra cost is to be paid. Therefore, it is difficult to accept that the builder would provide unnecessary extra amenities for which no payment is made. Therefore, such amenities cannot be said to be available in other flats. At least, the plaintiff does not examine any other owner to prove that such amenities are also provided in their flats. P.W.1 Pandurang admits having verified these amenities before taking the keys. In the circumstances, it cannot be said that the plaintiff had taken the possession of different flat than what was agreed to be sold. 12. The defendant No.1 has examined D.W.3,Subhas Gaunekar, the other partner of defendant No.1. This partner is related to the plaintiff. He states that the plaintiff who is related to him, approached him for purchasing the flat and, therefore, he requested the defendant No.1 to give one flat to the plaintiff. It is in the cross-examination of this witness that no other flat except the one which is given to the plaintiff, was available at that time for sale. It is the plaintiff's own evidence that he had seen the flat with this witness and had approved it. The defendants have not kept back this witness, who happens to be a relative of the plaintiff. If according to the plaintiff,he had seen the flat 15 along with this witness and approved it, he could have and should have elicited from this witness as to which is the actual flat that was shown to the plaintiff and was agreed to be sold to him. Nothing of the sort is elicited in his cross- examination. The plaintiff's case, therefore, that the D.W.3,Subash had shown the flat which is now numbered as 2/3 to him, cannot be accepted. 13. The plaintiff is not at all entitled to any kind of relief much less specific performance. He is not entitled to the relief not only for the above reasons,but also because of the fact that the defendant No.2's agreement was prior in time. The learned Counsel for the appellant, had cited a ruling in Jeetmal MangalchandSakhlecha V. Neelkanth Building Corporation reported in 2008(4) ALL Maharashtra Reports 535. This ruling has no bearing on the case at hand. The learned Counsel for the respondent, submits before me that the suit is bad for non-joinder of necessary parties. He brings to my notice the fact that the agreement in favour of the defendant No.2 is a joint agreement in as much as the wife of the defendant No.2 is also a co-purchaser or a contracting party. He submits that the plaintiff is seeking to dispossess the defendant No.2. If the decree is passed 16 against the defendant No.2,it would naturally affect his wife, who is one of the contracting party and co-purchaser. He submits that she cannot be evicted as there maybe no decree against her. I find much substance in the contention of the learned Counsel. It is apparent, therefore, that the suit could not be decided finally and effectually without the presence of the wife of the defendant No.2. For this reason the contention has to be accepted that the suit is bad for non- joinder of necessary parties. 14. In the circumstances, I find that the learned Judge of the Trial Court has correctly appreciated the evidence and there is no reason to interfere with the findings recorded by him. I, therefore, find no substance in the appeal. In fact, the appeal is liable to be dismissed by awarding the compensatory costs, but I shall refrain from doing so and dismiss the appeal with costs. C. L. PANGARKAR, J. SMA