JUDGMENT - D.R. DHANUKA, J.:---The plaintiffs are the promoters of the proposed Syndicate Bank Staff Co-operative Housing Society and are employees of the said Bank. The plaintiffs have filed this suit for declaration that the suit agreement being agreement dated 17th September 1983, as varied to the extent set out in para 10 of the plaint, is valid subsisting and binding on all the defendants. The plaintiffs have sought specific performance of the said agreement and claimed several consequential reliefs. The defendants Nos. 6 to 9 are the owners of the plot of land situated at village Dahisar bearing Survey No. 139, Hissa No. 2, admeasuring 3751 sq. yards equivalent to 3428.41 sq. meters, more particularly described in Ex. A-1 to the plaint. The defendant Nos. 6 to 9 had entered into an agreement with the partnership firm known as M/s. Siri Construction on 20th April, 1983. Under the said agreement, M/s. Siri Construction were entitled to construct a building and develop the property, as set out therein. It is the case of the plaintiffs that with the knowledge and consent of the defendants Nos. 6 to 9 the suit agreement dated 17th September, 1983 was arrived at whereunder the defendants No. 1-firm agreed to conduct a building of ground and four floors consisting of 25 flats for the employees of the Bank who had agreed to join the society of which the plaintiffs were the promoters and convey title to the property in favour of the purchasers or their nominee or nominees including the proposed co-operative society of which the plaintiffs were the promoters. Clause 12 of the said agreement provided that the defendant No. 1 vendors shall cause the owners to execute the necessary conveyance in favour of the purchasers or their nominee or nominees including the proposed co-operative society and the vendors shall join in as confirming parties to the said conveyance. Under a package deal as evidenced by the agreement dated 17th September 1983, the plaintiffs agreed to pay price of the said property to their vendors at the rate of Rs. 180/- per sq. foot. The defendant No. 3 went out of the said partnership. The defendant No. 2 took over the project. The project was thereafter continued by the defendant No. 1 with the same rights and obligations in so far as the suit agreement is concerned after joining of defendants Nos. 180/- per sq. foot. The defendant No. 3 went out of the said partnership. The defendant No. 2 took over the project. The project was thereafter continued by the defendant No. 1 with the same rights and obligations in so far as the suit agreement is concerned after joining of defendants Nos. 4 and 5 as new partners of the defendant No. 1-firm. The reconstituted firm of defendant No. 1 took over the contract with consent of the plaintiff. It is the plaintiffs case in para 10 of the plaint that the said agreement dated 17th September, 1983 was mutually varied only to the extent recorded in the letter dated 17th January, 1984 alleged to have been addressed by the plaintiffs to the defendant No. 1. It is averred in para 10 of the plaint that the plaintiffs agreed to pay the price at the rate of Rs. 195/- per sq. foot to the vendors instead of Rs. 180/- per square foot. The construction work was at stand-still for quite some time because of the dispute and differences which had arisen between the defendants Nos. 2 and 3 and thereafter due to other difficulties. It is not disputed that the plaintiffs have already paid a sum of Rs. 20,53,400.00 to the defendant No. 1 in part payment of their obligation to pay the agreed price which, according to the plaintiffs, would work out to Rs. 23,40,000/-. According to the plaintiffs, a sum of Rs. 2,86,600/- remains outstanding. The plaintiffs have annexed a chart of the payment made by the plaintiffs to the defendant No. 1 and the said chart shows that various amounts were paid by the plaintiffs to the defendant No. 1 in the years 1983, 1984 and 1985. The defendant No. 1, as reconstituted after the deed of dissolution was executed between the defendants Nos. 2 and 3, made demands for further amounts from the plaintiffs by their letter dated 15th January, 1985 and 18th December, 1987. The copies whereof are annexed at Exh. C and Exh. B to the affidavit-in-rejoinder. It is common ground that the construction work is already completed to the extent of about 70 per cent. The plaintiffs have already paid very large amounts to the vendors. I asked Mr. Nesari, learned Counsel for the defendants Nos. 1 and 2, as to what funds would be approximately required for completing the remaining work. B to the affidavit-in-rejoinder. It is common ground that the construction work is already completed to the extent of about 70 per cent. The plaintiffs have already paid very large amounts to the vendors. I asked Mr. Nesari, learned Counsel for the defendants Nos. 1 and 2, as to what funds would be approximately required for completing the remaining work. According to the learned Counsel for the defendants Nos. 1 and 2, a sum of Rs. eight lacs or near about would be required, as the prices of the construction materials etc. has increased. One does not know how far this estimate is right. 2. By this Notice of Motion, the plaintiffs are seeking appointment of the Court Receiver as receiver of the said property with a direction to complete the incomplete construction situated at Dahisar and obtain necessary occupation certificates by employing such agency or assistance as this Hon'ble Court may direct. By the said prayer (a) of the Notice of Motion, the plaintiffs have also sought reliefs to the effect that the Court Receiver be directed to hand over possession of the building in the property, described in the Schedule Ex. A-2 to the plaint, to the plaintiffs as representing the members of the proposed society. By an ad interim order dated 17th June, 1988, Khatri, J., granted ad interim injunction in terms of prayer (b) of the Notice of Motion. It was also recorded by the said Order of ad Interim injunction that defendants were restrained from disposing of, parting with possession of, alienating or encumbering, or transferring or creating any right, title or interest in respect of any one and/or inducting anyone into or entering any agreement in respect of the said property, and/or the construction thereon or any part thereof. It was also recorded by the learned Judge that according to the vendors, the vendors had already entered into 11 agreements with some third parties, subject to rights of the plaintiffs under the suit agreement. 3. Mr. Tulzapurkar, learned Counsel for the plaintiffs has produced copy of the Order passed by Khatri, J., on 17th June, 1988. It was recorded by the learned Judge while granting ad interim relief in terms of prayer (b) of the motion as under :--- "Mr. Damle, appears and states that the defendants Nos. 3. Mr. Tulzapurkar, learned Counsel for the plaintiffs has produced copy of the Order passed by Khatri, J., on 17th June, 1988. It was recorded by the learned Judge while granting ad interim relief in terms of prayer (b) of the motion as under :--- "Mr. Damle, appears and states that the defendants Nos. 1 and 2 have entered into agreement with 11 persons subject to the rights of the plaintiffs. Ad-interim injunction granted will obviously operate from today. The plaintiffs seek judicial intervention of this Hon'ble Court for the purpose of completion of building and obtaining of occupation certificates, in the first instance, through the instrumentality of the Court Receiver, High Court, Bombay. The plaintiffs are ready and willing to put the Receiver in funds whatever required for completion of the construction work in the first instance. The plaintiffs are the middle class-Bank employees and the Court would be inclined to assist the plaintiffs in getting the construction work completed, in view of more than Rs. 20 lacs having already been paid by the plaintiffs to the vendors, unless there are some legal insurmountable difficulties in the way of passing the order sought for the plaintiffs. The plaintiffs have already paid large amounts to the defendant No. 1 and no useful purpose will be served by allowing the building to remain incomplete. With this preface, I shall now refer to some of the contentions urged on behalf of the defendants Nos. 1 and 2 at the hearing of this Notice of Motion. 4. The learned Counsel for the defendants Nos. 1 and 2 has submitted that the agreement dated 20th April, 1983 which was arrived at between the defendant Nos. 1 to 3 and the defendants Nos. 6 to 9 was impliedly cancelled by the defendants Nos. 6 to 9 on 27th April, 1984, when a fresh agreement was arrived at between the defendant No. 1 on the one hand and the defendants Nos. 6 to 9 on the other hand. It was submitted by the learned Counsel for the defendants Nos. 1 and 2 that the suit agreement dated 17th September, 1983 is deemed to have become un-enforceable as soon as the agreement dated 20th April, 1983 between the defendants Nos. 1 to 3 and the defendants Nos. 6 to 9 was substituted by another agreement dated 27th April, 1984. The learned Counsel for the defendants Nos. 1 and 2 that the suit agreement dated 17th September, 1983 is deemed to have become un-enforceable as soon as the agreement dated 20th April, 1983 between the defendants Nos. 1 to 3 and the defendants Nos. 6 to 9 was substituted by another agreement dated 27th April, 1984. The learned Counsel for the defendants Nos. 1 and 2 has submitted that the suit agreement is not in force from 17th April 1984 in view of fresh agreement having been arrived at between defendant No. 1 and defendants 6 to 9. This contention is raised by the defendants purely as an afterthought and lacks bona fides. The defendants themselves treated the suit agreement as subsisting all these years. The defendants No. 1-firm accepted monies from the plaintiffs in part performance of the said agreement even in the year 1985. The defendant No. 1 called upon the plaintiffs to make further payments by a letter dated 18th December, 1987. Prima facie, this contention raised on behalf of the defendant No. 1, is without any merit whatsoever. 5. The learned Counsel for the defendants Nos. 1 and 2 submitted that the plaintiffs had addressed a letter to Dr. V. Subramanyam Hon'ble Minister for Housing and Urban Development, on 20th March, 1987 complaining of non-performance of the suit agreement by the defendant No. 1. A copy of the said representation made by the plaintiffs to the Government of Maharashtra seeking intervention of the Hon'ble Minister is at Exh. 'E'. to the plaint. On 11th May, 1987, the Government of Maharashtra addressed a letter to Mr. Ajay S. Dhumal and Mr. A.N. Shaikh, partners of the defendant No. 1, stating therein that the defendant No. 1 was bound to hand over possession of the flats to the members on the date mentioned in the agreement or was liable to repay the purchase price along with the interest. The Government of Maharashtra had no right to terminate the suit agreement nor did it do so. The defendants are misconstruing letter dated 11th May, 1987 with mala fide intention. The plaintiffs never accepted the alternative suggestion made in the said letter dated 11th May, 1987 and the plaintiffs never agreed to accept the refund of the amount paid with interest or otherwise. The plaintiffs called upon the defendant No. 1 to specifically perform the said agreement at all times. The plaintiffs never accepted the alternative suggestion made in the said letter dated 11th May, 1987 and the plaintiffs never agreed to accept the refund of the amount paid with interest or otherwise. The plaintiffs called upon the defendant No. 1 to specifically perform the said agreement at all times. As a matter of fact, the Government of Maharashtra quickly addressed another letter to the defendant No. 1 withdrawing the said letter dated 11th May, 1987 and called upon the defendant No. 1 to perform the said agreement specifically. It is the case of the defendant No. 1 in the affidavit-in-reply that the defendant No. 1 became entitled to terminate the said agreement in view of the order passed by the Hon'ble Minister on 11th May, 1987 and the suit agreement is, therefore, not subsisting. With respect, this contention is equally without any merit whatsoever. The defendant No. 1 could not have unilaterally terminated the said agreement. As a matter of fact, by the letter dated 18th December, 1987, the defendant No. 1 asked for payments of Rs. 2 lacs from the plaintiffs. The defendant No. 1 cannot approbate and reprobate. 6. It has been further contended on behalf of the defendants Nos. 1 and 2 that the plaintiffs had agreed to reimburse the defendant No. 2 for the amount which the defendant No. 2 was required to pay to the defendant No. 3 on retirement from partnership. There is no supporting material whatsoever and the said plea is prima facie imaginary. The defendant No. 2 has stated in para 6 of the affidavit-in-reply that the plaintiff's case of variation of the price from Rs. 180 sq. foot to Rs. 195 per Sq. foot should not be believed by this Court and as a matter of fact the plaintiffs had agreed to pay the price at the rate of Rs. 255/- per sq. foot to the defendant No. 1 when the agreement was varied. The plaintiffs say that there is contemporaneous evidence to show that the increased price was only to the extent of Rs. 15/- per sq. foot and as a matter of fact a resolution has been passed by the proposed society. Whatever it may be, there is no material to indicate that the plaintiffs have agreed to pay the price at the rate of Rs. 255/- per sq. foot to the defendant No. 1. 15/- per sq. foot and as a matter of fact a resolution has been passed by the proposed society. Whatever it may be, there is no material to indicate that the plaintiffs have agreed to pay the price at the rate of Rs. 255/- per sq. foot to the defendant No. 1. There is also no clinching material to show that the plaintiffs had agreed to pay the increased price to Rs. 195/- per sq. foot only. The balance of the amount payable can be worked out at the time when the suit is heard. The fact remains that the defendant No. 1 never issued any notice, to the plaintiffs calling upon the plaintiffs to pay balance of the amount by computing the same on the basis of the alleged market rate of Rs. 255/- per sq. foot. The plaintiffs are ready and willing to carry out their part of the contract. In the correspondence referred to in the pleading, no reference is to be found to the alleged varied rate of Rs. 255/- per sq. foot at all. This contention of the Vendors is also in nature of an afterthought. Accordingly, I cannot attach any importance to this particular plea raised by the defendant No. 1 in para 6 of the said affidavit-in-reply as an afterthought. 7. The defendants Nos. 6 to 9 through their learned Counsel have made a submission to the effect that certain amounts payable by them to the defendant No. 1 have not been paid to them by defendant No. 1 and their interest should be safeguarded. It is for the defendants Nos. 6 to 9 to file a suit against the defendant No. 1, if it is within time and in the plaintiffs' suit and in the Notice of Motion, I cannot issue any direction to the plaintiffs to deposit or pay any amount to the defendants Nos. 6 to 9. At any rate, it cannot be done at this stage and all these contentions can be kept open to be considered when the suit is heard. Prima facie, the defendants 6 to 9 have no right to obstruct the completion of the building. 8. Mr. 6 to 9. At any rate, it cannot be done at this stage and all these contentions can be kept open to be considered when the suit is heard. Prima facie, the defendants 6 to 9 have no right to obstruct the completion of the building. 8. Mr. Nesari, learned Counsel for the Vendors has relied upon the judgment of the Division Bench of the High Court of Gujarat in the case of (Shri Ramji Mandir Narsinhji and others v. Narisnh Nagar Co-operative Housing Society Ltd. Navsari and others)1, reported in A.I.R. 1979 Gujarat. 134. In this case that Co-operative Society known as Narsinh Nagar Co-operative Society Ltd. after its incorporation had sought specific performance of an agreement which was entered into by the promoters of the said society before its incorporation. Following certain English cases enunciating the principles of English common law, the Division Bench of the High Court of Gujarat held that the Co-operative Society could not seek specific performance of an agreement which was entered into by its promoters before the society was brought into existence. As a matter of fact, it has been held in several English cases that according to principles of common law prevailing in England at one time, the Company could not enter into a contract before its incorporation because it did not exist in law as a legal person. In some of the cases cited in the above referred Division Bench judgment of the High Court of Gujarat, it was held by the English courts that the Company was not bound by the contract which was entered into by the promoters before its incorporation unless it adopted the said contract or a fresh contract was arrived at. The above referred principle of common law, recognised by the English Court in England in the past no longer holds the field in view of the passing of European Communities Act, 1972, by which it is provided that a person who purports to contract on behalf of a company not yet incorporated, is personally liable on the contract. In other words, pre-incorporated contracts are binding on the persons who make the contracts even though the same may not be binding on the Corporation when it is incorporated unless the Corporation adopts a contract or enters into a fresh contract. In other words, pre-incorporated contracts are binding on the persons who make the contracts even though the same may not be binding on the Corporation when it is incorporated unless the Corporation adopts a contract or enters into a fresh contract. Section 15(h) of the Specific Relief Act, 1963 specifically provides that the specific performance of the contract may be obtained by the Company when the promoters of the Company have, before its incorporation, entered into a contract for the purposes of the Company and such contract is warranted by the terms of the incorporation. Similarly, section 19(e) of Specific Relief Act, 1963 provides that specific performance of a contract may be enforced against the company when the promoters of a Company have, before to incorporation, entered into a contract for the purpose of the Company and such contract, is warranted by the term of incorporation, provided the Company has accepted the contract and communicated such acceptance to the other party to the contract such a contract cannot be treated as nullity merely because it was entered into by the promoters on behalf of the proposed society. The principles of English Common Law followed by the Division Bench of the High Court of Gujarat, are irrelevant and do not have legal efficacy in Indian legal system Clause 12 of the suit contract specifically to enable the plaintiffs to sue for specific performance of contract, in their own favour. 9. On this aspects, I hold as under :--- (a) Pre-incorporation contracts (whether entered into on behalf of a proposed company or proposed society) are binding on the individuals and are enforceable by or against them. (b) On incorporation, the contract becomes enforceable by or against the company or the society depending upon the terms of incorporation and adoption of the contract by the company or society and the provisions of section 15(e) and 19(e) of the Specific Relief Act, 1963 would apply. (c) The principles of English Common law followed in the above referred Gujarat case do not hold his field in England or in India. (d) With respect, I do not agree with the view expressed in the above referred. Gujarat judgment. 10. The plaintiffs have made out a strong prima facie case. The conduct of the plaintiffs is equitable. 11. (c) The principles of English Common law followed in the above referred Gujarat case do not hold his field in England or in India. (d) With respect, I do not agree with the view expressed in the above referred. Gujarat judgment. 10. The plaintiffs have made out a strong prima facie case. The conduct of the plaintiffs is equitable. 11. Having regard to the above discussions, and equities of the case, I pass the following order :--- (i) The Notice of Motion is made absolute in terms of prayer (a) subject to limitations and directions set out hereinafter. (ii) The Court Receiver, High Court, Bombay shall obtain the estimate from a reputed Architect on his panel of the cost of completion of the incomplete building. The Court Receiver shall, thereafter submit a report to this Court and take approval of the learned Chamber Judge before awarding the contract to the Contractor or completing engagement of the Architect for completing of the entire project upto the state of obtaining the completion certificate or occupation certificate as the case may be. (iii) The construction work shall be completed in accordance with the sanctioned plans. The defendants Nos. 1, 2, 4 and 5 are directed to hand over the sanction plans and all other relevant papers and documents to the Court Receiver in order to enable him to complete the Project. The defendants Nos. 1, 2, 4, 5, 6 to 9 are restrained from causing any obstruction directly or indirectly in respect of completion of the said project. (iv) The plaintiffs shall put the Court Receiver into funds whatever required for completion of the project. (v) The Court Receiver shall allow the plaintiffs to associate with completion of construction work in such manner as he deems fit and proper; (vi) The Court Receiver shall not hand over possession of the flats to the plaintiffs without obtaining specific permission of the Court after the completion certificate or occupation certificate is obtained. Once the completion certificate or occupation certificate is obtained, the Court Receiver shall immediately make a report to the learned Chamber Judge and obtain direction for handing over possession of the respective flats to the concerned employees of the Bank who are members of the proposed Society, as agent of the Court Receiver without security but subject to such other terms and conditions as the Receiver may deem fit to impose. (vii) The plaintiffs are directed to file the list of the members who would claim possession of the said flats as agent of the Receiver with the Court Receiver before 31-1-1991. (viii) Ad interim injunction granted by Khatri, J., on 17th June, 1988 shall continue to be in force until the Court Receiver takes charge of the suit property under this order. 12, This order is without prejudice to the rights and contentions of the parties. It is hereby clarified that merely because the plaintiffs are permitted to get the incomplete building completed at their own cost, they should not be under impression that they have succeeded in the suit, as all the disputes and contentions of all the parties are kept open and the order is passed mainly on the footing that the plaintiffs have better case on equity. Hearing of the suit ex expedited. Suit to be heard peremptorily in the month of June, 1991. 13. Written Statement to be filed by the defendants within four weeks from today. Discovery and inspection within two weeks thereafter. 14. The learned Counsel for the defendants Nos. 1 and 2 applies for stay of operation of the order for a period of two weeks. The said application is refused as there is no equity whatsoever in the case of the defendants Nos. 1 and 2. 15. Costs of the Motion shall be costs in the suit. Order accordingly. -----