JUDGMENT - AGUIAR A.S., J.: - The plaintiffs have filed the present suit praying that the defendants be ordered and decreed to specifically perform the agreement dated 17th May, 1979 and hand over vacant and peaceful of Flat No. 903, in the building known as "Mahendra Towers", together with a covered car parking space to the plaintiffs. Alternatively, the first defendant be ordered and decreed to pay to the plaintiffs a sum of Rs. 30,98,425/- with further interest, as more particularly set out in particulars of claim at Exhibit M to the plaint. The plaintiffs have also prayed for interim relief by way of injunction restaining the defendants from dealing with or disposing of, transferring, encumbering, using or parting with possession of the said Flat No. 903 or car parking space or any part thereof or inducting any one therein. 2. Briefly stated the facts of the case are that defendant No. 1, a Private Limited Company, engaged in the construction of buildings, is the builder of the building known as Mahendra Towers, on plot of land admeasuring about 3000 sq. fts., situate at 72, Bomanji Petit Road, Cumballa Hill, Bombay 400 026, defendant No. 2 is a statutory body under the Industrial Development Bank of India Act, 1964. 3. By an agreement dated 17th May, 1979 entered into between defendant No. 1 and the plaintiffs, the plaintiffs agreed to purchase and acquire from defendant No. 1, flat No. 903, on the 9th floor of the building known as Mahendra Towers at and for a price of Rs. 2,90,000/-. It is the case of the plaintiffs that the plaintiffs have paid to the 1st defendant, from time to time, the agreed price of the premiss to the tune of Rs. 2,75,500/-, leaving a balance of Rs. 14,500/- to be paid to the defendant No. 1, on the plaintiffs being put in possession of the said flat. The 1st defendant also issued receipts for the amounts paid by the plaintiffs, totalling Rs. 2,46,500/-. Subsequently the plaintiffs by their letter dated 20th February, 1980 forwarded to the 1st defendant a cheque for Rs. 14,500/-, which was duly received by the defendant No. 1. Thereafter, there was further correspondence between the plaintiffs and the defendant No. 1. By letter dated 2nd July, 1980 the plaintiffs brought to the attention of defendant No. 1 that they had paid an amount of Rs. 2,46,500/-. 14,500/-, which was duly received by the defendant No. 1. Thereafter, there was further correspondence between the plaintiffs and the defendant No. 1. By letter dated 2nd July, 1980 the plaintiffs brought to the attention of defendant No. 1 that they had paid an amount of Rs. 2,46,500/-. However, no reply was received to the said letter from defendant No. 1. Subsequently the plaintiffs realised that the cheque which was forwarded to defendant No. 1 had not been encashed. The plaintiffs, therefore, send another letter dated 9th August, 1980 bringing the aforesaid facts to the attention of defendant No. 1, who did not care to reply. Thereafter the plaintiffs addressed another letter dated 14th August, 1980 recording the earlier correspondence and asking for confirmation of the statement of the account. To this letter also there was no reply. Subsequently the plaintiffs again by letter dated 1st October, 1980 forwarded to the defendant No. 1 a cheque for Rs. 14,500/- and requested the 1st defendant to send a receipt for the same. There was no reply to this also to this letter. On making enquiries the plaintiffs came to know that both the cheques had not been presented for payment by the 1st defendant. 4. On or about February 1981 the plaintiffs found that the Board of Industrial Development Bank of India- Staff Quarters had been put up on the suit property, whereupon the plaintiffs addressed a letter dated 28th February, 1981 enquiring with the 1st defendant as to when possession would be handed over to the plaintiffs. No reply was sent even to this letter. Thereupon, the plaintiffs by their Advocates letter dated 28th February, 1981 addressed to the 2nd defendants, referred to the aforesaid facts and also to the notice put up on the said premises and called upon defendant No. 2 not to enter into or have any dealings with the 1st defendant in respect of the premises allotted to him. 5. The 2nd defendants by their letter dated 14th May, 1981 falsely alleged that the plaintiffs have no right title or interest whatever in respect of the said premises and that the entire property known as Mahindra Towers has been sold by 1st defendant to the 2nd defendant under conveyance executed in April 1980 and that the 2nd defendant was in possession of the entire property. The 2nd defendant however admitted that the plaintiffs would only be entitled to the refund of amounts paid to the 1st defendant as per Clause 9 of the agreement and the question of plaintiffs being put in possession of the suit premises does not arise. 6. After filing the suit the plaintiffs took out a Notice of Motion being Notice of Motion No. 800 of 1981 and applied for ad interim orders on 21st January, 1982 against defendant No. 2, on which day an undertaking was given by learned Advocate for defendant No. 2, that pending the hearing and final disposal of the suit, 2nd defendant will not, either by itself or its officers, servants, agents or otherwise dispose of, transfer, encumber or create any third party rights in the suit flat or the car parking space and further that in the event of the plaintiffs succeeding in the suit the 2nd defendant will forthwith hand over peaceful and vacant possession of the suit flat and the car parking space to the plaintiffs and the said motion was disposed of finally at the ad interim stage itself. 7. It is pertinent to note that though defendant No. 1 appeared in the Notice of Motion he thereafter did not defend the suit, nor filed any written statement. In view thereof this Court vide order dated 12th February, 2004 decreed the suit in terms of prayer Clause (a) as against defendant No. 1. 8. It is the case of the plaintiffs that the agreement dated 17th May, 1979 entered into by the plaintiff with the 1st defendant is a duly registered document; that the 2nd defendant had notice of the fact that the 1st defendant had entered into the said agreement with the plaintiffs; that the claim of the 2nd defendant is subsequent to that of the plaintiff and therefore the alleged transfer of the said property of 1st defendant to the 2nd defendant is subject to the rights of the plaintiffs over the said property under the said agreement. 9. The plaintiffs have also contended that the defendant No. 1 has committed breach of contract and have failed and neglected to carry out their obligations under the agreement dated 17th May, 1979 by not completing the construction of the said building and handing over possession of the same to the plaintiffs. 9. The plaintiffs have also contended that the defendant No. 1 has committed breach of contract and have failed and neglected to carry out their obligations under the agreement dated 17th May, 1979 by not completing the construction of the said building and handing over possession of the same to the plaintiffs. The plaintiffs submitted that they were at all times material to the suit ready and willing, and are till ready and willing, to carry out their obligations under the said agreement. It is also the contention of the plaintiffs that compensation in terms of money would not be an adequate relief and therefore they are entitled to get the said agreement specifically performed. The plaintiffs also claim the right to enforce specific performance against defendant No. 2 since the 2nd defendants claim the right title and interest to the property arose subsequent to the said agreement. Alternatively, the plaintiffs claim that they are entitled to receive a sum of Rs. 30,96,425/- as per the particulars of claim, annexed as exhibit "M" to the plaint. 10. Defendant No. 2 has filed its written statement dated 30th March, 1993 as well as supplementary statement on the same day in view of the amendment of the plaint enhancing the monetary claim from Rs. 13,43,425/- to Rs. 30,98,425/-. The burden of their song is that they are not parties to the agreement entered into between the plaintiffs and the defendant No. 1; that at the time when the defendant No. 1 entered into the agreement with defendant No. 2 there was no registered agreement between the plaintiffs and defendant No. 1 and therefore, the defendants were not aware of the plaintiffs alleged right, title and interest in the flat or parking space; that by a deed of conveyance dated 23rd April, 1980 the entire structure put up by defendant No. 1 on the plot, was sub-leased to defendant No. 2 and hence the plaintiffs were fully aware of the execution of the sub-lease and coveyance in favour of the defendant No. 2 and it was only thereafter that the plaintiffs sought to get their document registered. It is therefore the contention of the defendant No. 2 that they are not bound by the agreement between the plaintiffs and defendant No. 1 and therefore the plaintiffs have no cause of action against defendant no. It is therefore the contention of the defendant No. 2 that they are not bound by the agreement between the plaintiffs and defendant No. 1 and therefore the plaintiffs have no cause of action against defendant no. 2 and that the agreement is specifically enforceable only against defendant No. 1. Defendant No. 2 contend that the plaintiffs were fully aware in the year 1981 itself that defendant No. 2 were in possession of the property since April 1980 and great hardship and prejudice would be caused to the defendant No. 2, if any reliefs are granted by way of specific performance. It is further contended that defendant No. 2 were going to use the entire property for the residence of their Senior Officers/ employees and therefore the plaintiffs would be outsiders and it would not be equitable to grant the plaintiffs any reliefs by way of specific performance. 11. On the basis of the pleadings this Court has framed following issues on 27th November, 2001: 1) Whether the plaintiffs prove that there is a valid agreement dated 17-5-1979 entered into with the defendant No. 1 for purchase of flat No. 903 on the 9th floor of building known as "Mahindra Towers" which was then under construction together with a covered car parking space in the said building for a price of Rs. 2,90,000/- and the same is subsisting and specifically enforceable against the defendants? 2) Whether the plaintiffs prove that they have already paid cheques amounting to Rs. 2,75,500/- as against the total consideration of Rs. 2,90,000/- payable under the agreement dated 17-5-1979? 3) Whether the plaintiffs prove that they are ready and willing to pay the balance amount of consideration, but it was not paid only because of the breach of contract committed by defendant No. 1? 4) Whether the defendant No. 2 prove that it acquired right, title and interest over 7035 sq. mtrs., of the property under the Article of Agreement dated 5th April, 1980 (Ex. 1 to the written statement), Indenture of sub-lease dated 22nd April, 1980 (Ex. 2 to the written statement), Tripartite Agreement dated 23rd April, 1980 (Ex. 3 to the written statement) and Deed of Conveyance dated 24th April, 1980 (Ex. 4 to the written statement) ? mtrs., of the property under the Article of Agreement dated 5th April, 1980 (Ex. 1 to the written statement), Indenture of sub-lease dated 22nd April, 1980 (Ex. 2 to the written statement), Tripartite Agreement dated 23rd April, 1980 (Ex. 3 to the written statement) and Deed of Conveyance dated 24th April, 1980 (Ex. 4 to the written statement) ? 5) Whether the defendant No. 2 prove that they were not aware of the plaintiffs contract with defendant No. 1, prior to execution of Tripartite Agreement dated 5th April, 1980 Indenture of sub-lease dated 22-4-1980, agreement dated 23rd April, 1980 and Deed of Conveyance dated 24th April, 1980? 6) Whether the plaintiffs prove that in case of defendant No. 1s failure to perform their part of obligation under the agreement dated 17-5-1979 plaintiffs would be entitled for refund of money together with interest thereon, so also for damage as claimed in the suit for the breach of contract committed by defendant No. 1.? 7) Do the plaintiffs prove that they have already issued cheques amounting to Rs. 2,75,500/- as against the total consideration of Rs. 2,90,000/- payable under the agreement dated 17-5-1979 as stated in Paragraph 5 of the plaint? 8) Do the plaintiffs prove that out of the cheques of Rs. 2,75,500/- issued to the defendant No. 1 against the consideration of Rs. 2,90,000/- payable, the defendant No. 1 has already encashed cheques worth Rs. 2,46,500/-, leaving only two cheques of Rs. 14,500/- each unencashed as stated in para 5 of the plaint? 9) Does the defendant No. 2 prove that in view of plaintiffs agreeing with defendant No. 1 to cancel agreement and to collect refund of payment made by him with interest, plaintiffs are not entitled for specific performance of the agreement against defendants and the remedy is only against defendant No. 1 for recovery of amount paid as per the agreement as stated in para 10 of their written statement? 10) Whether the plaintiffs prove that they are entitled to receive from the defendants sum of Rs. 30,98,425/- together with further interest at 18% p.a., on 30,30,000/- if decree for specific performance cannot be granted as stated in paragraph 18 of the plaint? 11) What order? 10) Whether the plaintiffs prove that they are entitled to receive from the defendants sum of Rs. 30,98,425/- together with further interest at 18% p.a., on 30,30,000/- if decree for specific performance cannot be granted as stated in paragraph 18 of the plaint? 11) What order? subsequently on 14th November, 2003 issue No. 5 was recast and the following issued framed: "Does defendant No. 2 prove that the first defendant had obtained cancellation of the agreement for sale entered into by him (defendant No. 2) with various purchasers of flats by the time sub-lease was executed?" 12. In support of the plaintiffs case the plaintiff No. 1 has examined himself while defendants have examined one Mahadeshwar, General Manager of defendant No. 2, I.D.B.I., who has deposed to the fact that defendant No. 2 obtained cancellation of 79 agreements entered into by the defendant No. 1 with various flat purchasers and that Clause 9 of the agreement provides the only remedy to the plaintiffs. 13. Clause 9 of the agrement dated 17-5-1979 entered into between the plaintiffs and defendant No. 1 reads as follows: "9. The vendors will endeavour to hand over possession of the said premises latest by 30th June, 1980 provided the Municipal completion certificate or certificates or the Municipal occupancy certificate or certificates is or are issued. If for reasons beyond the control of the vendors (including non availability of building materials including cement, iron, etc., or controlled, materials), the vendors are unable to give possession by the aforesaid date then and in that case the said date shall be deemed to have been agreed to be extended by a further period of six months in the absence of any other date agreed upon between the parties hereto. Notice shall be given by the vendors to the purchaser/s to take possession of the said premiss and the purchaser/s shall take possession thereof within 7 days of such notice. Notice shall be given by the vendors to the purchaser/s to take possession of the said premiss and the purchaser/s shall take possession thereof within 7 days of such notice. Possession as aforesaid shall be delivered by the vendors provided all the amounts due under this agreement including deposits are paid by the purchaser/s to the vendors and the purchaser/s has/have observed and performed all the terms and conditions of the agreement to be observed and performed by them and all necessary papers for possession are signed and executed by the purchaser/s. It is further specifically agreed between the parties hereto that in case the vendors fail or are unable for any reason whatsoever to give possession of the said premises to the purchaser/s then in such event the purchaser/s will only be entitled to the refund of the moneys paid by him/ her/ them to the vendors under this agreement with interest thereon at 10% per annum on the vendors agreeing to make payment of such refund of moneys and interest as stated above, the purchaser/s shall have no right whatsoever to claim the said premises in any manner or to any other claim and the vendors shall be entitled to resell the said premises to any person". 14. The plaintiffs contend that the said agreement dated 17-5-79 is a valid and subsisting agreement and the said agreement it deemed to have been registered from the date on which it was presented for the registration i.e. 7th August, 1979. The agreement entered into between the defendant No. 1 and defendant No. 2 is dated 5-4-1980. The 2nd defendant is therefore deemed to be aware of the existence of the prior agreement in respect of flat No. 903 between the defendant No. 1 and the plaintiffs. Therefore, the rights 2nd defendant under the said agreement would be subject to the prior right of the plaintiffs under the agreement dated 17-5-79 so far as flat No. 903 is concerned. The said agreement has at no time been cancelled and / or terminated and is hence enforceable against defendant No. 1. 15. By virtue of section 19 of the Specific Relief Act the said agreement will also become enforceable against defendant No. 2. Section 19 of the Specific Relief Act, reads as follows: "19. The said agreement has at no time been cancelled and / or terminated and is hence enforceable against defendant No. 1. 15. By virtue of section 19 of the Specific Relief Act the said agreement will also become enforceable against defendant No. 2. Section 19 of the Specific Relief Act, reads as follows: "19. Relief against parties and persons claiming under them by subsequent title.- Except as otherwise provided by Chapter, Specific performance of a contract may be enforced against- a) either party thereto; b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract; c) any person claiming under a title which, though prior to the contract and known to the plaintiff, might have been displaced by the defendant; d) when a company has entered into a contract and subsequently becomes amalgamated with another company, the new company which arises out of the amalgamation; e) when the promoters of a company have, before its incorporation entered into a contract for the purpose of the company and such contract is warranted by the terms of the incorporation, the company; Provided that the company has accepted the contract and communicated such acceptance to other party to the contract". 16. In the circumstances the plaintiffs would be entitled to seek specific performance of the agreement as against 2nd defendant, since defendant No. 2 claims title to the property subsequent to the agreement of 1st defendant with the plaintiffs in respect of flat No. 903. 17. Clause 8 of the Tripartite Agreement dated 5-4-1980 between Tulsidas V. Patel Private Limited, the head lessee, Bombay Builders Co., Private Limited defendant No. 1 the confirming party and Industrial Development Bank of India defendant No. 2 herein stipulates as follows: "8. The confirming party has represented to and assured the sub-lessee that save and except entering into agreements to sell flats and parking spaces and receiving part payments thereunder, it has not alienated and/or encumbered and/or disposed of in any manner whatsoever, its rights under the said agreement dated 10th February, 1978 and/or in respect of the said part constructions and the said further part construction. The confirming party further agrees to produce cancellations of all the agreements entered into by it with the various purchasers of flats and parking spaces within two months from the date hereof." 18. From the said clause it is clear that 2nd defendant was fully aware of the prior agreements for sale of flats by defendant No. 1, Bombay Builders Co. Private Limited with various purchasers of flats numbering 88. It is also admitted that out of the 88 flats the 1st defendant has secured cancellation of 79 flats. However, no attempt seems to have been made by 1st defendant to obtain cancellation of agreement entered into by plaintiffs with 1st defendant. Nothing has been brought on record to demonstrate that the plaintiffs would, like other purchasers of flat, in the said building, on termination of their agreements, be entitled only to the amount paid by them towards the purchase of the flat together with interest at the rate of 10% and nothing more. Even though the plaintiffs, after becoming aware of the 2nd defendant coming into picture, wrote to 1st defendant several letters asking when possession would be handed over to them, the 1st defendant failed and neglected to respond to said letters. The 1st defendant at no time informed the plaintiffs that they had entered into an agreement of sale of the entire property with 2nd defendant nor did 1st defendant exercise his option of terminating the agreement in favour of the plaintiffs pursuant to the provisions made in Clause 9 of the agreement between the plaintiffs and defendant No. 1. Neither has defendant No. 2 called upon the plaintiffs to take back the money and release the property as envisaged under Clause 9 of the agreement. Thus as things stand today, the rights of the plaintiffs in respect of the suit flat continues to survive. 19. Order dated 21st January, 1982 passed in Notice of Motion No. 800 of 1981 reads as follows: "Mr. Cooper states that by virtue of a conveyance and sub-lease the 2nd defendant is in possession of the entire land as also of the entire building including the suit flat and the suit car parking space. 19. Order dated 21st January, 1982 passed in Notice of Motion No. 800 of 1981 reads as follows: "Mr. Cooper states that by virtue of a conveyance and sub-lease the 2nd defendant is in possession of the entire land as also of the entire building including the suit flat and the suit car parking space. Through its learned Counsel the 2nd defendant gives an undertaking to the Court that pending the hearing and final disposal of the suit, the 2nd defendant will not either by itself or its officers, servants, agents or otherwise dispose of, transfer, encumber or create any third party rights in the suit flat or the car parking space and further that in the event of the plaintiffs succeeding in the suit the 2nd defendant will forthwith hand over peaceful and vacant possession of the suit flat and the car parking space to the plaintiffs. In view of the above undertakings given by the 2nd defendant, no order on the motion save and except that the costs of the motion be costs in the cause." 20. It may be noted here that at the time of passing of the Notice of Motion no attempt was even made to bring to the notice of the Court that the plaintiffs had no right to continue in the suit flat under the said agreement dated 17th May, 1979 in view of Clause 9 of the said agreement. In fact defendant No. 2 gave an unconditional undertaking not to encumber or part with possession of the said flat pending disposal of the suit on merits. Thus it is seen that the rights of the plaintiffs in the suit flat continue till date. Further more, the plaintiffs have on their part complied with the obligations required to be performed by them. The plaintiffs have paid a total sum of Rs. 2,46,000/- to the builders defendant No. 1, as per Clause 5 of the agreement. They had also forwarded cheques to the defendant No. 1 for the balance amount of Rs. 29,000/- by two cheques of Rs. 14,500/- each, which the defendant No. 1 has for reasons best known to him not encashed. 2,46,000/- to the builders defendant No. 1, as per Clause 5 of the agreement. They had also forwarded cheques to the defendant No. 1 for the balance amount of Rs. 29,000/- by two cheques of Rs. 14,500/- each, which the defendant No. 1 has for reasons best known to him not encashed. Although the plaintiffs had written several letters to defendant No. 1 enquiring about the state of affairs and as to when possession would be handed over to the plaintiffs the defendants sent no reply to the said letters addressed by the plaintiffs. 21. The defendant No. 1 having failed to terminate the agreement dated 17-5-79 or make composition with the plaintiffs, the only question that remains for consideration is whether the plaintiffs are entitled to have the agreement specifically performed or damages for breach on the part of the defendant No. 1 in completing the building and handing over possession to the plaintiffs as stipulated in the agreement for sale. 22. Learned Advocate for defendant No. 2 has referred to the conduct of the plaintiffs, which according to him dis-entitles the plaintiffs to the relief of specific performance of the contract. It is pointed out that the plaintiffs claim to have written to defendant No. 1, enquiring about when possession of the flat would be given and asking for confirmation of statement of account. However, it is pointed out that these enquiries made by the plaintiffs with the defendant No. 1 are general in nature, lacking diligence and display want of sufficient care and caution. It is further pointed out that the plaintiffs are claiming specific performance of the agreement although the plaintiff have clearly admitted that there is no privity of contact between defendant No. 2 and the plaintiffs. It is the case of the defendant No. 2 that prior to the execution of the documents with defendant No. 1, defendant No. 2 carried out diligent search as to the state of the property, the manner, nature and extent of rights, title and interest if any, created in respect thereof and sought legal opinion and advice of their then advocates to consider the feasibility of purchase of the said property. Further, in the course of the assessment they considered and perused the articles of agreement entered into between defendant No. 1 and proposed flat purchasers and verily believed that the articles of agreement was only an agreement for sale terminable by defendant No. 1 for any reason whatsoever and that defendant No. 1 would refund the amounts paid by the plaintiffs. It is further pointed out that the defendant No. 1 builder in fact did secure cancellation of 79 such agreements out of 88 flat purchasers, within one week of the execution of the conveyance. It is pointed out that the entire construction is not complete and car parking spaces have not been constructed yet. It is submitted that the plaintiffs were fully aware of the purchase of the entire building by defendant No. 2 some time in November, 1980 and that from these facts the plaintiffs ought to have realised that it would be impossible to have the agreement specifically performed and that the only remedy would be refund of money paid by the plaintiffs, by virtue of Clause 9 of the agreement, since the entire property has been purchased by defendant No. 2 for its staff members on payment of huge money and the question of allotting flat No. 903 to the plaintiffs could not arise as he is not an officer/employee of the IDBI, defendant No. 2. It is further submitted by defendant No. 2 that after becoming aware of the fact that the property has been taken over by IDBI the plaintiffs did not take any timely action. Time being the essence, specific performance of the contract would not be the proper relief. 23. It is further submitted by defendant No. 2 that from the two letters dated 8-9-1980 and 25-10-1980 it is quite clear that the plaintiffs were aware that the whole building was purchased by defendant No. 2 and despite such knowledge the plaintiffs have falsely sought to demand specific performance of the agreement which is nothing but an after thought, lacking bona fides and motivated at the instance of legal advice given to the plaintiffs. It is also submitted by defendant No. 2 that the plaintiffs not being employees of the IDBI could never have believed or reasonably expected to obtain possession of the said flat since the plaintiffs were aware that the entire building was taken over by defendant No 2 which is clear from the notice dated 28th February, 1981 addressed to defendant No. 1 (Exhibit H to the plaint) and addressed to defendant No. 2, (Exhibit I to the plaint), being letters dated 8-9-1980 and 25-10-1980 respectively. The said letters, according to the defendants, indicate that the plaintiffs were not serious about getting possession of the said flat for their use and therefore no case for specific performance has been made out by the plaintiffs. 24. Thus while on the one hand there is nothing on record to show that the defendants got the agreement dated 17th May, 1979 with the plaintiffs cancelled as required under the tripartite agreement entered into between the defendant No. 1 and defendant No. 2 and the sub-lessee, no steps were taken to set aside the claim, right, title or interest of the plaintiffs in the said flat; on the other hand it is seen that the plaintiffs have not shown the requisite desire and earnestness to obtain possession of the flat and to have the agreement specifically performed. The fact however, remains that plaintiffs have paid practically the entire consideration for the flat and even sent cheques for the balance amount of Rs. 29,000/- which were not encashed for reasons best known to defendant No. 1. The defendants have taken no steps under Clause 9 of the agreement dated 17th May, 1979 to pay off the plaintiffs and get the plaintiffs claim, right, title and interest released in respect of the said flat and refund the money together with interest. The defendants have not exercised the option set out in Clause 9. The defendants have taken no steps under Clause 9 of the agreement dated 17th May, 1979 to pay off the plaintiffs and get the plaintiffs claim, right, title and interest released in respect of the said flat and refund the money together with interest. The defendants have not exercised the option set out in Clause 9. Admittedly there is no notice terminating the agreement dated 17th May, 1979 and no attempt was made to get the agreement cancelled as has been allegedly done in the case of other 79 other flat purchasers and therefore it cannot now be contended by defendants that the plaintiffs would only be entitled to refund of the amounts paid towards the purchase of the flat under the said agreement, together with interest thereon at the rate of 10% as set out in Clause 9 of the agreement. 25. Undoubtedly, the plaintiffs were fully aware that the property in question has been taken over by IDBI for its employees/officers. If the prayer of the plaintiffs for specific performance is granted and plaintiffs put in possession the plaintiffs would be a fly in the ointment. The entire property being occupied by IDBI officers/employees, the plaintiffs would be the odd man out. Admittedly the building is not yet complete. There is a suit pending in the Court of small causes being R.A. E R Suit No. 51/172 of 1984, filed by the head lessee Tulsidas V. Patel Private Limited against the 2nd defendant and the sub lessee Bombay Builders defendant No. 1 herein. The said suit was filed for a declaration that the sub-lease dated 22nd April, 1980 is lawfully terminated and forfeited. However, the said suit was withdrawn for presentation to the appropriate Court and accordingly the suit was then filed in the City Civil Court at Bombay being LC. Suit No. 2184 of 1990 by the head lessee Tulsidas V. Patel Private Limited against Bombay Municipal Corporation and IDBI, praying for an injunction restraining the Bombay Municipal Corporation from accepting or approving the building proposal submitted by the Bombay Builders for construction of building Mahendra Towers on the plot of land bearing C.S. No. 609, Cumballa Hill, Bombay 26 and approved by Bombay Municipal Corporation letter dated 4th January, 1973 in the name of IDBI and/or accepting or approving any building proposal in the name of 2nd defendants. An injunction was granted in terms of prayer Clause (a) which is still in force. In the circumstances it is clear that the building cannot be completed till the disposal of the suit which would take some time. In view thereof it would not be possible for the defendants to comply with any order of specific performance, if granted. 26. From the correspondence it is seen that the plaintiff were in no hurry to get possession of the flat. Letter dated 25-10-1980 addressed by the plaintiffs to defendant No. 2 (the Estate Department of IDBI) shows only the plaintiffs concern in bringing to the notice of defendant No. 2 the plaintiffs prior claim and rights in the said flat and that the right of defendant No. 2 would be subject to the plaintiffs prior title. The said letter does not disclose any anxiety to have the flat handed over to them at the earliest for personal use. In the circumstances it would be inequitable to grant specific performance of the agreement in favour of the plaintiffs. 27. The plaintiffs have demonstrated that the agreement dated 17-5-1979 is valid and subsisting. The objection of the learned Advocate for defendant No. 2 that the agreement was not enforceable for non-registration and non-compliance of the terms contained in the agreement is without substance. The agreement though lodged for registration on 7-8-1979 was in fact registered on 16-11-1981 thus making it effective from the date of execution of the agreement. Hence the agreement was valid and subsisting. However, in view of the facts stated above it would be inadvisable, for the reasons stated above, to have the agreement specifically performed. Hence issue No. 1 will have to be answered in the affirmative so far as validity of the agreement is concerned and answered in the negative on the question of the agreement being specifically enforceable against the defendants. 28. As this Court is not inclined to grant specific performance of the agreement the question still remains whether the plaintiffs are entitled to damages as claimed by them as per the particulars of claim (Exhibit M), or whether the defendants need only to pay the plaintiffs the price of the flat which the plaintiffs allegedly paid to the defendant No. 1 together with interest at the rate of 10% as stipulated in Clause 9 of the agreement. 29. 29. As discussed above, the plaintiffs have established by cogent evidence, documentary as well as oral, that they have paid the entire purchase price to the defendant No. 1, excepting the sum of Rs. 29,000/- being the two cheques for Rs. 14,500/- each, which for the reasons best known are not encashed by defendant No. 1 and further sum of Rs. 14,500/- which is to be paid only on handing over of the possession. Thus the defendant No. 1 has in fact been paid a sum of Rs. 2,46,500/-. In the circumstance it cannot be said that the plaintiffs have not complied with the obligations on their part under the said agreement dated 17-5-1979. 30. The defendants though entitled under Clause 9 of the agreement to get the agreement cancelled by paying the plaintiffs the amounts received from them with interest at the rate of 10%, have taken no steps for cancellation of the said agreement. Although the defendants claim to have obtained cancellation of 79 out of 88 agreements with various other flat purchasers, the defendants have admittedly not even approached the plaintiffs for cancellation of the agreement dated 17-5-1979 as they could have done under Clause 9 of the agreement, nor have the defendants approached the plaintiffs for any settlement. 31. The plaintiffs had booked the flat under the said agreement with the reasonable expectation that they would be given possession of the flat within a reasonable time and could have either used it for personal occupation or could have re-sold it at a much higher rate in view of the sky rocketing prices at the time when the property was under construction. The plaintiffs have amended the plaint and claimed enhanced damages from Rs. 13,48,425 to Rs. 30,98,425/-. The enhancement was allowed by order dated 16th March, 1990. The said claim of the plaintiffs was allowed on the basis of the valuation report of M/s Shah Shah, registered valuers. It is common knowledge that at the relevant time the rates of flats had been sky rocketing. It is also common knowledge that the sum of Rs. 2,75,500/- paid by the plaintiffs for the said flat, if invested would have increased four fold, if not more. The plaintiffs have been quite reasonable in their claim for damages/compensation, restricting it to a sum of Rs. 30,98,425/-. It is also common knowledge that the sum of Rs. 2,75,500/- paid by the plaintiffs for the said flat, if invested would have increased four fold, if not more. The plaintiffs have been quite reasonable in their claim for damages/compensation, restricting it to a sum of Rs. 30,98,425/-. This Court had already passed an ex parte decree against defendant No. 1 making the decree absolute in terms of prayer Clauses (a) of the plaint. Prayer Clause (b) is an alternative prayer to prayer Clause (a). Unfortunately it has been restricted to defendant No. 1 only. It is therefore, the contention of learned Advocate for defendant No. 2 that they are not liable to pay any amount by way of damages to the plaintiffs. 32. Sub Clause (b) of section 19 of the Specified Relief Act shows that specific performance may be enforced even against defendant No. 2, as defendant No. 2 was fully aware of the agreement of purchase of flat No. 903 by plaintiffs. The defendants have settled the claim of 79 other flat purchase but did not settle or even attempt to settle with the plaintiffs. Defendant No. 2 cannot claim to be a transferee for value without notice of the contract and therefore an order of specific performance can be enforced even against defendent No. 2, especially in view of the admitted position that it is defendant No. 2 who is in possession of the entire property and who is developing the said property. However, this Court has on equitable considerations held that the plaintiffs are not entitled to specific performance of the contract and therefore not entitled to be put in possession of the flat. The order of this Court dated 21st January, 1982 in Notice of Motion No. 800 of 1981, shows that the motion was disposed of on an undertaking given by defendant No. 2 that in the event of plaintiffs succeeding in the suit 2nd defendant would forthwith hand over peaceful and vacant possession of the said flat and car parking space to the plaintiffs. In view of this Court holding that the plaintiffs are not entitled to specific performance the defendant No. 2 is not liable to hand over possession of the flat to the plaintiffs. 33. In view of this Court holding that the plaintiffs are not entitled to specific performance the defendant No. 2 is not liable to hand over possession of the flat to the plaintiffs. 33. Prayer Clause (b) claiming compensation/damages by plaintiffs in the alternative to prayer Clause (a) for specific performance is restricted only so far as defendant No. 1 is concerned. There is no prayer in the alternative claiming compensation against defendant No. 2. However, in view of the fact that this Court has refused the plaintiffs prayer for specific performance on equitable considerations it would be inequitable for this Court not to direct defendant No. 2 to compensate the plaintiffs as it is defendant No. 2 who is in possession of the entire property including flat No. 903. This Court has taken into consideration the fact that since defendant No. 2 is developing the property specifically for its own officers/employees it would be inequitable for the plaintiffs to be put in possession of the flat. Further more, in view of the fact that the construction of the building is incomplete and no progress made due to litigation the building cannot be completed till the litigation is over. Defendant No. 2 being in such a hapless position any order for specific performance at this stage would be rendered nugatory. No doubt there is no prayer for compensation/damages made by the plaintiffs against defendant No. 2. However, under section 19 of the Specific Relief Act the plaintiffs would have been entitled to enforce the order against defendant No. 2, since defendant No. 2 is claiming title to the flat subsequent to the plaintiffs claim. Further more, defendant No. 2 was fully aware of the plaintiffs claim and chose to enter into the contract with defendant No. 1 despite the encumbrances by way of agreements of sale in favour of several other persons. Moreover, defendant No. 2 has failed to take steps to cancel the agreement in favour of the plaintiffs which it could have done under Clause 9 of the agreement. 34. The learned Advocate for plaintiffs has also referred to Clause 21 of the Specific Relief Act which states that in a suit for specific performance of the contract the plaintiffs may also claim compensation for its breach either in addition or in substitution of such performance. 34. The learned Advocate for plaintiffs has also referred to Clause 21 of the Specific Relief Act which states that in a suit for specific performance of the contract the plaintiffs may also claim compensation for its breach either in addition or in substitution of such performance. Sub-clause 2 of section 21 makes it clear that in any suit for specific performance if the Court decides that specific performance ought not to be granted but that there is a contract between the parties which has been broken by the defendant, then the Court will award compensation for the breach of contract to the plaintiff. However, sub-clause 5 of Clause 21 provides that no compensation shall be awarded under this clause unless the plaintiffs claim compensation in the plaint. In the present case the plaintiffs have claimed compensation only against defendant No. 1. However, proviso to Clause 5 of section 21 enables the plaintiffs who had not claimed any compensation in the plaint to allow the plaintiffs to amend the plaint for including such prayer for compensation. In the present case there is a claim made for compensation though against defendant No. 1 only. Defendant No. 2 has stepped into the shoes of defendant No. 1 and therefore the claim for compensation against defendant No. 2 is consequential. Since we are at the stage of passing judgment the question of any formal amendment to include any prayer for compensation by plaintiffs against defendant No. 2 would be a mere formality. The Court is not prevented from awarding compensation to plaintiffs against defendant No. 2 in the absence of any such formal amendment. Equities demand that in view of the specific performance having been denied to the plaintiffs adequate compensation should be awarded to the plaintiffs. 35. In view of the above discussions- Issue No. 2 and 3 are answered in the affirmative. Issue No. 4 need not be answered. So far as recast issue No. 5 is concerned it is undisputed that the defendant No. 2 has obtained cancellation of the agreements of sale with 79 flat purchasers out of 88, by the time the sub-lease was executed. This issue is therefore answered partly in the affirmative since admittedly agreements in respect of 79 out of flat purchasers have been cancelled. This issue is therefore answered partly in the affirmative since admittedly agreements in respect of 79 out of flat purchasers have been cancelled. The issue is answered partly in the negative since the agreements of the remaining flat purchasers, including the plaintiffs, have not been cancelled. Issue No. 6 is answered in the affirmative since this Court has held that the defendants have committed breach of contract is selling the flat No. 903 to defendant No. 2, without getting the agreement in favour of plaintiffs cancelled and the agreement therefore is subsisting till date. In view thereof the plaintiffs would be entitled to the amounts as claimed in the particulars of claim at Exhibit M to the plaint. Issue Nos. 7 and 8 also have to be answered in the affirmative since the plaintiffs by production of documentary evidence have established that a sum of Rs. 2,46,500/- has been paid to defendant No. 1 and who for the reasons best known to him has failed to encash the remaining two cheques of Rs. 14,500/- each. The said issues therefore have to be answered in the affirmative. For the reason stated above Issue No. 9 is answered in the negative and Issue No. 10 is answered in the affirmative. In view of the above discussion the suit is decreed in terms of prayer Clause (b). Defendant No. 2 is directed to pay to the plaintiffs the sum of Rs. 30,98,425/- together with interest at the rate of 10% p.a., from the date of the filling of the suit till payment. No order as to costs. Order accordingly. -----