AIR 2000 BOMBAY 18
Chandrakant Bhogilal Gohil, v. Parushottam Mohanlal Makwana and others,
Suit. No. 1873 of 1985, D/- 26-4-1999.
(A) Limitation Act (36 of 1963), Art. 54 -Suit for specific performance-Limita- tion-Contract for sale of flat-Time not essence of contract- Payment in instal- ment paid till period of 3 years from date of contract- Suit filed within one year from last date of payment of instalment- Not barred by limitation.
(B) Civil P. C. (5 of 1908), O. 1, R. 10- Parties to suit-Suit for specific perform- ance of contract for sale of flat- Agreement between plaintiff and builder – No reliefs prayed for, against owner of property – Death of owner who was joint owner of property-His heirs not brought on record- They are neither necessary nor proper parties.
(C) Specific Relief Act (47,of 1963), S. 20-Contract for sale of flat-Specific performance Suit, for – Claim for specific performance from defendant No. 1 who was in occupation of flat through defendant No. 2 the builder Plea that defendant No. 1 was in unauthorised oc- cupation of flat which was allotted to plaintiff by the builder-Defendant however, by oral and documentary evidence on record proving his legal and absolute right to have suit flat in the building as its tenant-No privity of contract between defendant No. 1 and plaintiff – Notice allegedly sent by builder to defendant No. 1 terminating his agreement proved to be fabricated document disentitling plain- of tiff from having equitable relief – Plain- tiff also being guilty of negligence not entitled to specific performance of con- tract by ordering defendant for vacating suit flat- Builder directed to repay en- tire amount received from plaintiff with interest @ 18%.