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2015 DIGILAW 353 (ORI)

Baljit Singh v. Kamal Kishore Bhawsinka

2015-06-17

D.DASH

body2015
JUDGMENT : This appeal has been filed challenging the judgment and decree passed by the learned District Judge, Cuttack in R.F.A. No. 143 of 2013 confirming the judgment and decree passed by the learned First Additional Civil Judge (Sr. Division), Cuttack in C.S. No. 486 of 2005. The respondent no. 1 as the plaintiff had filed the suit for eviction of the appellants from the suit premises and for realization of arrear house rent as well as the damages. The suit having been decreed by the trial Court the same has been confirmed by the lower appellate Court. 2. For the sake of convenience, to avoid confusion and in order to bring in clarity, the parties hereinafter have been referred to as they have been arraigned in the suit. 3. The case of the plaintiff is that he being the owner of the suit room, which is part of the Municipal Corporation Holding No. 845 in old Ward No. 15 which is now Ward No. 16 of the Cuttack Municipal Corporation had let out the same to defendant nos. 1 and 2 on payment of monthly rent of Rs. 2100/- The relationship between the plaintiff and the defendant nos. 1 and 2 is that of landlord and tenant. When such was the state of affair, the plaintiff entered into an agreement with defendant no. 3 who is a developer that the defendant no. 3 would construct a multistoried building with provision of shop rooms on the ground floor. Subsequently, the plaintiff, the defendant nos. 1 and 2 and the defendant no. 3 entered into a tripartite agreement with the terms and conditions that defendant nos. 1 and 2 would be provided with a shop room by defendant no. 3 in the proposed multistoried building. The plaintiff claims that he had no role in the said agreement except to accord his consent being the owner of the land in question as well as the landlord of the defendant nos. 1 and 2. It is stated that defendant no.3 without any justification all of a sudden abandoned the project in the midway and, therefore, the plaintiff was constrained to cancel the said agreement and also the power of attorney executed by him in favour of the Managing Director of defendant no. 3. So, it is stated that when the agreement of development got the jolt, the tripartite agreement is rendered infructuous. 3. So, it is stated that when the agreement of development got the jolt, the tripartite agreement is rendered infructuous. The plaintiff then terminated the tenancy of the defendant nos. 1 and 2 by a notice under section 106 of the T. P. Act and asked them to vacate the shop room by the end of August, 2005. Since the defendant nos. 1 and 2 did not vacate, the suit came to be filed. 4. The defendant nos. 1 and 2 in their written statement although admitted their relationship with the plaintiff as that of tenant and landlord, gave emphasis upon the tripartite agreement describing in detail about the terms and conditions of the said registered agreement. It is further stated that they are to purchase the shop room in the proposed multistoried building from defendant no.3 and in pursuance to the said promise they had vacated a portion of the tenanted premises as it was agreed and that is in order to facilitate the proposed construction work to be done by the defendant no. 3. It is further stated that they were to pay a sum of Rs. 3,08,000/- as consideration amount to the defendant no.3 for purchase of the new shop room and had already paid a major chunk of it. It is next stated that though the defendant no. 3 had abandoned the project the registered tripartite agreement dated 23.08.1999 is subsisting and binding on all. Therefore, it is claimed that unless the defendant nos. 1 and 2 shifts to the proposed building as agreed upon, the plaintiff is stopped from evicting them in violation of the terms and conditions of the said agreement. Also, technical objections have been raised as regards the maintainability of the suit on the ground that M/s. Auto Ways (India) a partnership firm being the actual tenant the defendant nos. 1 and 2 have been made parties in their individual capacity they having been sued. It may stated here that the said plea is not no more pressed into service on. The ground that these defendant nos. 1 and 2 have been impleaded as parties being two partners of the said partnership firm and being in that capacity. 5. The defendant no. 3 participated on the hearing of the suit though the written statement filed was not accepted. The ground that these defendant nos. 1 and 2 have been impleaded as parties being two partners of the said partnership firm and being in that capacity. 5. The defendant no. 3 participated on the hearing of the suit though the written statement filed was not accepted. Practically he has no say in the suit filed by the plaintiff for eviction of the defendant nos. 1 and 2 upon termination of their tenancy. 6. The trial Court on such rival pleadings framed six issues and has rightly taken up issue no. 3 first for decision. In course of which all those controversies have been set-at-rest. Issue relates to entitlement of the plaintiff to the relief of eviction of defendant nos. 1 and 2. This issue having been answered in favour of the plaintiff, the other issues relating to the claim of arrear house rent and damage have accordingly been decided. So, the decision on issue no. 3 has led the trial Court to allow the principal relief of eviction of defendant nos. 1 and 2. 7. The lower appellate Court being moved by unsuccessful defendant nos. 1 and 2 has gone to examine the finding of the trial Court rendered on this issue no. 3. Before the appellate Court a point was raised with regard to maintainability of the suit on the ground of non-impletion of the partnership firm as a party and non service of notice under section 106 of the T. P. Act upon the said firm. The lower appellate Court has repelled the said submission and here it is not pressed. As regards the tripartite agreement the lower appellate Court has refused to accept the contention of the appellants on the ground that the project having not materialized and abandoned halfway by defendant no. 3 leading to cancellation of the tripartite agreement, the defendant nos. 1 and 2 cannot take advantage of it so to claim that they cannot be evicted from the suit premises until and unless they are provided with a shop room as agreed to under the tripartite agreement which they had agreed to 'purchase and had paid advance consideration for the same. With this view of the matter the appeal has been dismissed. 8. The present appeal has been admitted on the following substantial questions of law: (a) Whether the tripartite agreement under Ext. With this view of the matter the appeal has been dismissed. 8. The present appeal has been admitted on the following substantial questions of law: (a) Whether the tripartite agreement under Ext. 10 has become infructuous in the eye of law as the defendant no. 3 did not perform his part of the contract and whether it is an executable and enforceable one with specific legal obligation to be discharged by the parties to each other: and (b) Whether that the defendant-appellants are not entitled to protect their possession in respect of the suit premises with the aid of the provision under section 53-A of the Transfer of Property 'Act? 8. Learned counsel for the appellants here submits in a completely different angle in saying that the Courts below has M/s.directed in appreciating the terms and conditions embodied of the tripartite agreement dated 23.08.1999 (Ext. 10) and have come to an erroneous conclusion without assigning any reason that the said agreement has become infructuous. It is stated that the vital conditions stipulated in the agreement have been taken into consideration. It is further submitted that the agreement in question is an executable one between the parties having specific obligation to be discharged by them towards each other. So, it is submitted that when the appellants were/are ready and willing to perform their part of contract and as the plaintiff and defendant no. 3 have escaped from performing their part of the contract, the present suit for eviction is not maintainable and the possession of the appellant is protected under section 53 A of the T. P. Act. 9. Learned counsel for the respondents on the other hand submits that the tripartite agreement is in no way enforceable against the plaintiff and there remains no question of the plaintiff discharging any obligation under the same to the defendants. Thus, it is urged that the submission' of the learned counsel for the appellants on this count is Misconceived that for that reason the defendant nos. 1 and 2 cannot be evicted until and unless they are provided with a shop room in the multistoried building to come up which now in fact can never be dreamt of. He further contends that under the tripartite agreement, the plaintiff had absolutely no role to play. It was the agreement between the defendant nos. 1 and 2 on one hand and defendant no. He further contends that under the tripartite agreement, the plaintiff had absolutely no role to play. It was the agreement between the defendant nos. 1 and 2 on one hand and defendant no. 3 on the other as regards sale of the shop room to be constructed in the proposed multistoried building on payment of agreed consideration and necessary arrangement to facilitate construction of that multistoried building and at the same time to help defendants to continue with the running of the: business. He further contends that the relationship between the plaintiff and the defendant nos. 1 and 2 admittedly all along has remained as landlord and tenants and this tripartite agreement did not put an end to the said relationship all so long as the defendant nos. 1 and 2 did not occupy the shop room after construction of multistoried building by defendant no. 3 on purchasing the same. The said relationship so far as the plaintiff and the defendant nos. 1 and 2 are concerned continues as before and, therefore, the tenancy having been rightly terminated in accordance with law, there remains no infirmity in the finding of the Courts below in the regard. 10. In order to appreciate the rival contentions and answer the substantial questions of law, it is felt apposite to quote the relevant portions of that tripartite agreement dated 23.08.1999 (Ext. 10) as those stand. For better and ready understanding it may be indicated that first part is the plaintiff-owner; second part is the tenant-defendant and third part is the developer-defendant. "Whereas the shop room described in the schedule and the sketch map are tenanted by the party of the FIRST Part. In favour of the party of the SECOND PART who is possessing of the said shop room as a tenant. The party of the SECOND PART has filed Title Suit No. 50/1999 for permanent injunction in the Court of the Civil Judge (Sr. Division), Cuttack for injuncting the party of the FIRST PART not to evict him from the aforesaid shop room. In the suit in Misc. Case No. 47/1997, learned Civil Judge (Sr. The party of the SECOND PART has filed Title Suit No. 50/1999 for permanent injunction in the Court of the Civil Judge (Sr. Division), Cuttack for injuncting the party of the FIRST PART not to evict him from the aforesaid shop room. In the suit in Misc. Case No. 47/1997, learned Civil Judge (Sr. Divn.) Cuttack has granted interim injunction not to dispossess the Tenant, party of the SECOND PART from the said shop room (page-3 of the Contract Agreement) xxxx xxxx xxxx Whereas the owner, party of the FIRST PART has represented the developer, party of the THIRD PART as follows: (a) " That the OWNER, party of the FIRST PART is in possession of the said shop room (described herein above) through his TENANT the party of the SECOND PART and has exclusively and absolute rig!)t, title and interest in the said shop room." (b) That the said land is free from all encumbrances, charges, lien, lispendence, attachment, trust, acquisition, requisition, alienation, whatsoever except the said shop room being under the lawful possession of the TENANT party of the SECOND PART and the said land does not come under the purview of the land Ceiling Act. (page-4 of the agreement). xxxx xxxx xxxx WHEREAS, consequent upon such agreement between the parties of the FIRST PART and party of the THIRD PART, for performing the agreement between them. it is absolutely necessary to demolish the aforesaid shop room and the LAND LORD had decided to take possession of the demolish shop room as shown in the sketch map at present occupied by the TENANT of the SECOND PART facing north measuring 646 Soft. More or less at a monthly rental of Rs. 2,100/- per month only payable to the LANDLORD according to the English calendar month; (Page-5 of the agreement) xxxx xxxx xxxx WHEREAS, the TENANT, PARTLY of the SECOND PART is a renowned businessman of the locality with a good will attached to his shop M/s. Autoways (India), considering this aspect, the party of the THIRD PART agreed to provide the TENANT. party of the SECOND PART with one shop room the ground floor of the proposed building delineated in the sketch map appended to this agreement from out of his 70% share and in consideration thereof the tenant party of the SECOND PART would give vacant possession of the said shop room to the party of the FIRST PART to be evicted in phase manner which shall not be inconvenience to either the SECOND PART or the THIRD PART. (Page-6 of the agreement) WHEREAS the Developer/Builder has agreed to provide to the aid TENANT with the suitable alternative accommodation in the new building by way of sale after its construction as soon as possible. NOW THIS AGREEMENT WITNESSETH AS FOLLOWS 1. That the parties of the FIRST PART and THIRD PART will immediately after execution of this agreement arrange for, and provide the tenant, party of the SECOND PART with the temporary accommodation in the temporary shop room with 2" RC roof of 13 FEET and 20 feet to be constructed in from the existing shop room along with the remaining part of the present shop room which shall not be demolished for the time being pending construction of the new building complex. 2. That the TENANT, the party of the SECOND PART will there upon leave and vacate the portion of the said shop room to the extent of 16ft. 10 inch. Now under his occupation and hand over vacant possession for demolition of the same to the LANDLORD after completion of temporary shop room and immediately shift his business to the temporary constructed shop room which is not required to be demolish at present to the extent of 8 ft. to the north of the said shop. . 3. That the TENANT, the party of the SECOND PART hereby agrees with the party of the FIRST PART and party of the THIRD PART as follows; (a) That the TENANT WILL IMMEDIATELY on the completion of the temporary shop room, as aforesaid, give vacant possession to the LANDLORD, the part of the existing shop room required to be demolished for the construction of the multistoried building at present, i.e., to say 19ft. -10ft. x .10" (Southern part) of shop room. -10ft. x .10" (Southern part) of shop room. (b) xxxx xxxx xxxx (c) that after allotment and possession of the new shop room the ground floor in the proposed building complex within 8 months of this agreement; the tenant will immediately give UP the possession of the remaining part of the existing and temporary shop room for demolition of the LANDLORD for the same. (d) The party of the FIRST PART and the party of the THIRD PART agree to sale to the tenant party of the SECOND PART the new shop room of dimension 22ft. x 20ft. = 440 sqft. in the proposed multistoried building on the ground floor as per sketch map appended to the agreement to be constructed @ Rs. 700/- only per Sqft. floor area (no super built of area) and the sale price of the said shop room shall not be escalated in future under any circumstances whatsoever by the party of the THIRD PART as allotted in the sketch map. (e) xxxx xxxx xxxx (ii) That the TENANT shall pay Rs. 10.000/- every month towards monthly installment to the Builder/Developer within 1 OID date of every calendar month till the last balance amount is paid in respect of completely self price of Rs. 3,08,000/- only of the shop room in the proposed building, the Builder/Developer shall give a proper receipt in token of such payment of monthly installment and final installment. 3.(f) xxxx xxxx xxxx The vacation of part of the temporary construction and part of existing shop room by the party of the SECOND PARTY shalr be in terms of Clause-3(c) above and would be dependent up payment of full and final price of the shop room allotted in the multistoried building. xxxx xxxx xxxx 3(h) That the tenant party of the SECOND PART after being put in possession of the temporary shop room and after giving delivery of possession of the existing shop room to party" of the FIRST PART, as aforesaid, the party of the THIRD PART shall issue a letter to acceptance to deliver of one shop room in the proposed building as agreed herein. The payment to be made by the party of the SECOND PART to the party of the THIRD PART for the aforesaid purpose will be in accordance with the aforesaid terms. 4. The payment to be made by the party of the SECOND PART to the party of the THIRD PART for the aforesaid purpose will be in accordance with the aforesaid terms. 4. xxxx xxxx xxxx 4(b) xxxx xxxx xxxx The parties of the FIRST PART and SECOND PART will jointly move the Court of the Civil Judge (Sr. Divn.), Cuttack in the aforesaid Title Suit for vacation of the interim order passed in terms of this agreement and keep the suit in abeyance for at least 8 months by which time the new shop room will be likely to be sold to the TENANT in terms of this agreement and the terms are complied with TENANT SHALL MOVE THE COURT FQR WITHDRAWAL OF THE SUIT." (Emphasis supplied by underlying) 11. At this stage, at the cost of repetition, the following admitted factual aspects need to be stated as those are to be kept in view. (a) the progress and fulfillment of the terms and conditions as stipulated in the agreement dated 03.02.1999 between the plaintiff and defendant no. 2, i.e., Ext. 6 are wholly dependent upon the demolition of the existing structure over the land in question including the portion in possession of the defendant nos. 1 and 2 as tenants. (b) as per the tripartite agreement Ext. 10 it is for the developer, defendant no, 3 to construct the temporary house for shifting of the defendant nos. 1 and 2 for occupation as tenants as before till construction and sale of the shop rooms from out of his 70% share of built up area; (c) the defendant nos. 1 and 2 have not yet left the occupation of the original tenanted shop room and that has not yet been demolished and is also occupying the temporary shed constructed by defendant no. 3; (d) the developer, the defendant no. 3 having left the project midway, there has been no demolition of existing structure for the new construction to come up which has not yet begin and in fact no more survives for even future; (e) the developer, defendant no. 3 having the author by virtue of power of attorney Ext. 3; (d) the developer, the defendant no. 3 having left the project midway, there has been no demolition of existing structure for the new construction to come up which has not yet begin and in fact no more survives for even future; (e) the developer, defendant no. 3 having the author by virtue of power of attorney Ext. 7 mortgaged the property with OSFC and had taken the loan; (f) for non-payment of loan, there was seizure of the property under section 29 of the State Financial Corporation Act and the plaintiff donor having paid money has got the attachment lifted; (g) the plaintiff-owner has cancelled the agreement with defendant no. 3 (Ext. 6), the power of attorney (Ext. 7) and the tripartite agreement by executing deeds of cancellation which are all within the knowledge of the defendant-tenants. In the backdrop of above factual aspects of the case, giving a careful and cumulative reading to the above referred clauses of the agreement, it is seen that the relationship of landlord and tenant between the plaintiff and the defendant nos. 1 and 2 had been intended to cease in future only in the happening of the event, i.e. coming up of multistoried building wherein the defendant no. 3 had promised to sell one shop room to the defendant nos. 1 and 2 on receipt of the balance consideration and upon its occupation by the defendant nos. 1 and 2. Admittedly, the defendant nos. 1 and 2 had been paying rent to the plaintiff despite of such tripartite agreement and notwithstanding the said tripartite agreement, the tenancy continued as before. In fact, the agreement is clear that the defendant no. 3 had undertal4en to provide a shop room to the defendant no. 1 and 2 in the said multistoried building and that was agreed to be purchased by the defendant nos. 1 and 2 for a consideration as agreed of which a part has been paid. Even the said shop room as agreed to be sold was to be from out of the share of defendant no. 3 in the said multi storied building being the developer and not from the share of the owner-landlord. who is the plaintiff. So, the multistoried having not come up in pursuance of the agreement and the defendant no. Even the said shop room as agreed to be sold was to be from out of the share of defendant no. 3 in the said multi storied building being the developer and not from the share of the owner-landlord. who is the plaintiff. So, the multistoried having not come up in pursuance of the agreement and the defendant no. 3 having1'l0t gone for execution of the same for its completion which is no more even possible to come in future, the question of cessation of relationship of landlord and tenant between the plaintiff and the defendant nos. 1 and 2 does not arise and the defendant nos. 1 and 2's possession in any other capacity having separate Characteristics cannot be so said. A bare reading of the above clauses further goes to show that the agreement in any way is not an enforceable against the plaintiff. Moreover, the object projected under the agreement when now no more survive and in that event the question of getting the occupation of a shop room by the defendant nos. 1 and 2 on payment of balance consideration as agreed by way of purchase does not arise. The defendant nos. 1 and 2 cannot bank upon the said agreement to thwart the move of their eviction at the hands of plaintiff Landlord upon termination of their tenancy. Moreover, the plaintiff cannot be held responsible in any way for the failure of the performance of the contract between the defendant nos. 1 and 2 and defendant no. 3 as he had no obligation in the said contract towards defendant nos. 1 and 2 being a party to it as the owner of the property. So, the tripartite agreement Ext. 10, in the facts and circumstances does not have any independent existence and it being dependant on Ext. 6 which stands cancelled not for any other reason but in view of abandonment of the project which is no more possible also to materialize as such in future, there arises or would arise no such occasion even for the plaintiff to honour Ext. 10. Thus, there arises no question of plaintiff incurring any responsibility or liability under Ext. 10 having no such obligation to be shouldered and performed towards the defendant nos. 1 and 2 under it. Said agreement has thus no enforceability against the plaintiff. The tripartite agreement Ext. 10. Thus, there arises no question of plaintiff incurring any responsibility or liability under Ext. 10 having no such obligation to be shouldered and performed towards the defendant nos. 1 and 2 under it. Said agreement has thus no enforceability against the plaintiff. The tripartite agreement Ext. 10 can be said to be in the nature of a contract that unless the project comes up with construction of multistoried building, its enforceability so far as the defendant nos. 1 and 2's getting the shop room there by way of purchase as intended would not spring up. The tripartite agreement was in the nature of a contingent contract which was dependant on the project with multistoried building coming up. Unless that contingency was fulfilled the agreement is not capable of specific enforcement as stated in Section 31 of the Indian Contract Act, 1872. There is a clear difference between a contract under which a present obligation is created but performance IS postponed to a future date and a contract under which there is no present obligation at all and the obligation arises by reason of some condition being complied with or under some contingency occurring. In case of "Baij Nath vrs. Ansal Andsaigal Properties Pvt Ltd."; AIR 1993 Delhi 285, a purchaser had booked flats on the 13th floor of the building contingent on sanction of plan by competent authority and seller failed to get plan sanctioned. It has been held that as it contract was dependant on sanction of plan and that contingency was not fulfilled, the contract was not capable of specific performance and so held that the hall constructed on the 13th floor cannot be handed over to purchaser. The decision cited by the learned counsel for the appellant in case of Ranchhaddas Chhaganlal Vrs, Devaji Supdi Dorik, AIR 1997 S.C. 1517; M/s. Technicians Studio Pvt, Ltd, Vrs, Smt. Liza Ghosh and another; AIR 1977 SC 2425 ; Tasen Singh Vrs. Sukhwinder Singh; AIR 1998 S. C. 1400 and Bikram Kishore Panda and another Vrs. Benudhar Jena; AIR 1976 Orissa 4 being carefully read are found to have been rendered completely on different factual setting of the cases and the principles of law set out therein have no applicability .to the instant case. 12. In the wake of aforesaid, the appeal stands dismissed and in the peculiar facts and circumstances without cost.