Notice of Motion No.1291 of 2014,Suit No.780 of 2014

12th November, 2014.

Petitioner Counsel: Mr. M.M. VASHI, Sr. Adv. a/w Ms. DEVIKA NIGADE i/by ASHOK PUROHIT & CO.
Respondent Counsel: Mr. PRAKASH SHAH i/by M/s. PDS LEGAL

Cases Cited:
Mohinder Kaur Kochar Vs. Mayfair Hsg. Pvt. Ltd. & Ors., 2012(6) ALL MR 862=2012 (6) BCR 194 [Para 17]
Girish Mulchand Mehta & Anr. Vs. Mahesh S. Mehta & Anr., 2010(1) ALL MR 719=2010 (1) Bom.C.R. 31 [Para 18]
Vardhaman Developers Limited Vs. Andheri Krupa Prasad Cooperative Housing Society Limited, 2015(4) ALL MR 651=Notice of Motion No.166/2014, Dt.10/11/2014 [Para 20]
Shri Nandakishore R. Patil & Anr. Vs. M/s.Rite Developers & Ors., Appeal (L) No.92/2013, Dt.21/2/2013 [Para 21]

JUDGMENT

JUDGMENT :- The plaintiff/applicant-Society has prayed for an appointment of the Court receiver in respect of the suit flats described in prayer clause (c) of the notice of motion with a direction to the Court receiver to take physical possession of the suit flats with the help of police, and to hand over vacant and peaceful possession of the suit flats to the plaintiff for the purpose of redevelopment of the suit property.

2. The plaintiff has filed the suit, inter alia, praying for a direction to the defendants to specifically perform their part of oral contract evidenced by resolutions dated 10th November 2012, 3rd January 2013 and 21st January 2013 and for various other reliefs. Some of the relevant facts for deciding this notice of motion are as under :

3. The plaintiff-Mangal Milan Co-operative Housing Society Limited is the owner of all that piece or parcel of land admeasuring 1040 sq. yards forming the western portion of original final plot no.5 and now bearing final plot no.5B of Town Planning Scheme No.IV, Santacruz and bearing C.T.S. No.G/516 of village Bandra-'G' together with the building standing thereon known as 'Mangal Milan' situate at East Avenue, Sharad Chandra Chatterji Road, Santacruz (W), Mumbai-400 054. The building was constructed in the year 1981 and comprises of stilts and 7 upper floors and contains 14 flats. It is the case of the plaintiff that actually there are only 7 flats. All the flats have been allotted to husband and wife respectively on each floor.

4. On 10th November 2012, the society passed a resolution in the Special General Body Meeting which was attended by all the members of the society. It was resolved by the members of the society to reconstruct its property by demolishing the existing building and constructing a new building thereon by utilizing the potential FSI of the Society's plot plus TDR-FSI that could be loaded thereon. The said resolution was proposed by four members of the society including defendant nos.1 & 3. The society resolved that the society would go in for self development of its property by way of each member contributing towards a common fund specially created for the said purpose. The society also resolved to appoint an Architect/Project Consultant for the proposed redevelopment project. On 3rd January 2013, in the Special General Body Meeting of the society which was also attended by all members of the society, it was resolved that the members approved the appointment of Shri G.K. Vanwari of Vanwari Architects as an Architect for the proposed redevelopment of the Society's property.

5. In the Special General Body Meeting held on 21st January 2013, the Society proposed to give an advance as per the terms of the said Architect so that he could start the preliminary work of surveying/measuring the Society's plot. The society also resolved to open a new bank account in the name of 'Mangal Milan CHS Ltd., A/c Reconstruction' and agreed that the said account could be operated by any three members of the Core Committee. The names of defendant nos.1 & 3 were suggested as members of the Core Committee. In the said meeting, it was also resolved that all the members present also assured the Managing Committee that they will make timely contribution towards the costs and expenses involved in the proposed redevelopment as and when required and demanded by the Core Committee. All the members proposed that they do not require more flats and instead would prefer larger flats in the proposed new building. The society accordingly passed the resolution. It was agreed that each member of the society should make an initial contribution of Rs.70 lacs. The amount shall be contributed by each member of the society towards redevelopment expenses on or before 15th April 2013. The said meeting was also attended by all the members of the society.

6. It is the case of the plaintiff that pursuant to the said resolution passed by the society, all the members excluding defendant nos.1 & 2 made contribution though not of the entire amount as resolved in the meeting but partly. By letter dated 31st August 2013, the society called upon defendant nos.1 & 2 to co-operate in the process of redevelopment of the said property or to exercise two options given in the said letter. It was suggested by the society that if the defendant nos.1 & 2 did not desire to join the society for redevelopment of the property and insist on sale of the flats, the society would pay Rs.9 crores for flat nos.201 and 202 to the defendant nos.1 & 2 though the present market value of the flat, according to Ready Reckoner, would not exceed Rs.3.50 crores. The society also suggested that if the defendant nos.1 & 2 were not able to identify a purchaser of their choice, then the society would assist them to identify a purchaser who would be willing to purchase a flat for a price not less than Rs.9 crores.

7. It was also suggested in the alternative that if the defendant nos.1 & 2 do not wish to participate or sell the flats, the society will be ready to provide alternate accommodation during the period of redevelopment on Leave and License basis and upon completion of the project of redevelopment of the property, will offer defendant nos.1 & 2 a flat having the same area on the same floor where their existing flats with all the extra amenities that would be offered to the rest of the members, free of costs. It was made clear that if the said alternate offer was not accepted within the 15 days from the date of receipt of the said letter, the society would approach the Court of law.

8. Vide letter dated 5th October 2013, the plaintiff once again called upon the defendant nos.1 & 2 to accept one of the alternatives provided by the society in their letter dated 31st August 2013. Vide letter dated 21st May 2014, the plaintiff informed the defendant no.3 that on the basis of the quotations received from the various Architects/Consultants in relation to the redevelopment including the scope of work of the lawyers, the amount involved would be to the tune of Rs.35,79,00,875/- which would be estimated expenditure for the entire process of self-redevelopment. The society informed the defendant no.3 that if no response was received within 7 days from the date of receipt of letter, the society would file a suit against the dissenting member in the competent Court.

9. The defendant no.3 by his letter dated 30th May 2014 addressed to the Chairman of the society informed that the project cost was going very high and it was beyond his capacity and the said self-redevelopment project was not viable. It is stated in the said letter that initially he was informed about the cost contribution which would be less than Rs.1.5 crores per existing floor which went on rising as per the estimates of the society. Now, it would be over Rs.5 crores per floor. It is stated that if defendant no.3 had known that the cost contribution would rise so drastically, he would have never given his assent to self-redevelopment of the property. The defendant no.3 informed that he was not agreeable to self redevelopment of the building.

10. Vide letter dated 10th June 2014 addressed to the defendant nos.3 & 4, the society contended that all the members of the society had decided to go in for self-redevelopment and for the same, have vacated their premises. It was contended that it was unfair now on their part to dissent to the process of self-redevelopment at this tardy stage and requested them to reconsider their decision. There was further correspondence exchanged between the society and defendant no.3. The defendants made their stand clear that they were not agreeable for self-redevelopment. The plaintiff therefore filed this suit.

11. Mr.Vashi, learned senior counsel appearing for the plaintiff invited my attention to the various resolutions passed by the society referred to aforesaid and submits that each of the defendants had participated in the various resolutions passed by the society. Defendant no.3 was the Secretary of the society at the relevant time and even today holds the said post. It is submitted that out of 14 members of the society, 10 members have vacated their respective flats and shifted to alternate accommodation so as to demolish the existing building and construct a new building. It is submitted that even in the first resolution passed by the society, all the members including the defendants had made an assurance that they will make timely contribution towards the cost and expenses involved in the proposed redevelopment and each member of the society would contribute the same. It is submitted that all these resolutions are partly acted upon. All the members except defendant nos.1 & 2 have already contributed the substantial amount towards initial contribution. It is submitted that the defendants can not be permitted to take a stand at this stage that the project would not be viable or they would not able to contribute any amount at this stage.

12. Learned senior counsel submits that though the society had given various alternate suggestions to the defendants that the society would not put financial burden on the defendants are not accepted by the defendants. The society was ready and willing to contribute all the contributions which were to be made by the dissenting members which could be adjusted from the sale of additional flats of the defendants. Mr. Vashi, learned senior counsel for the plaintiff invited my attention to various objections raised by the defendants in the affidavit-in-reply.

13. Mr. Shah, learned counsel appearing for the defendants also raised various issues on the maintainability of the suit and also made various submissions on merits of the matter. It is submitted by the learned counsel that this Court has no jurisdiction to entertain the suit on the ground that the dispute touches the business of the society and thus the subject matter of the above suit falls within the exclusive jurisdiction of the Co-operative Court in view of Section 91(3) read with Section 163(1)(b) of the Maharashtra Co-operative Societies Act, 1960. It is submitted by the learned counsel that the society was formed of the building which was already in existence. Learned counsel invited my attention to the objects more particularly the object 2(a) provided in the bye-laws of the society which reads thus :-

"2. The objects of the Society shall be :-

(a) to take on lease or to purchase Plot No.5, Old Plot No.198, East Avenue, Santacruz- 54 admeasuring 861.60 sq.mtrs. and/or to purchase the building known as Mangal Milan constructed on the above plot (referred to in the application for registration) and to construct tenements on such plot or plots for the use of its members."

14. It is submitted that since the building of the society was already in existence, the resolutions passed by the society would be for a construction of the building and not for a redevelopment. It is submitted that thus the resolutions passed by the society itself are bad-in-law and contrary to the objects incorporated in the bye-laws of the society.

15. It is submitted by the learned counsel that the defendant no.1 is a member of the Committee of the society. The society has not passed any resolution to file any such suit or authorise the Chairman of the society to file a suit on behalf of the society. Learned counsel also invited my attention to this plea in the affidavit-in-reply and would submit that there is no denial to this plea in the affidavit-in-reply. It is submitted by the learned counsel that there is no contract between the members of the society and the plaintiff. At the most, it would amount to a mere proposal to development of the property of the society. No such proposal would indicate or spell out the exact obligation of the members. It is submitted that in any event, the alleged contract would require minute and numerous details of the development to be supervised which cannot be enforced by this Court under Section 14 of the Specific Relief Act, 1963.

16. Learned counsel submits that none of the members have contributed Rs.70 lacs as agreed to be contributed on or before 15th April 2013. Learned counsel submits that even the Court fees for filing this suit has not been paid by the society. It is submitted that chairman of the society who is developer himself has filed this suit in his individual capacity and not on behalf of the society. It is submitted by the learned counsel that most of the members of the society have vacated their respective flats much earlier and prior to the date of resolutions passed by the society for redevelopment. It is submitted that the plaintiff has not denied this plea of the defendants. It is submitted that the plaintiff has no funds to carry out any redevelopment. In view of the absolute uncertainty in the proposed redevelopment, this Court cannot grant a specific performance of such alleged contract. It is submitted that there is no resolution passed by the society for offering any alternate proposal to the defendants. Lastly, it is submitted that the total costs of reconstruction which was estimated at the time of passing of such resolution which was about Rs.1.60 crores for construction of two flats on each floor which is multiplied by more than three times even according to the plaintiff. The defendant no.1 who is a retired person and whose total annual income is Rs.5 lacs, cannot contribute the escalated amount and that also when even this amount is not certain and may escalate further.

17. Mr. Vashi, learned senior counsel for the plaintiff in rejoinder invited my attention to the judgment of this Court in the case of Mohinder Kaur Kochar Vs. Mayfair Hsg. Pvt. Ltd. & Ors., reported in 2012 (6) BCR 194 : [2012(6) ALL MR 862] and in particular paragraph 19 and would submit that redevelopment would not amount to a business of the society. It is submitted that the building is quite old and requires reconstruction and redevelopment. Paragraph 19 of the said judgment of the Division Bench reads thus :-

"19. When a co-operative housing society initially constructs the buildings for its members, it is not a redevelopment, but the initial development of the property. The initial construction of the property for a co-operative housing society is one of its prime objects. The two activities namely, initial construction of a building and its redevelopment are different activities. By passage of time, as the building becomes older, the Housing Society may take a decision to repair or redevelop the property. Such activity is totally different from initial development of the building. The dispute arising from such redevelopment, which becomes necessary by passage of time, is not "business" of the society. Such activity cannot be considered as 'touching the business' of the society. The dispute involving members, developers, managing committee in respect of redevelopment of the property which becomes necessary in view of passage of time, is not relatable to the business of the society. The initial development of the co-operative housing society of constructing the building may be business of the society, but the subsequent redevelopment is not."

18. Learned counsel relied upon the judgment of this Court in the case of Girish Mulchand Mehta & Anr. Vs. Mahesh S. Mehta & Anr., reported in 2010 (1) Bom.C.R. 31 : [2010(1) ALL MR 719] and would submit that since the defendants who are members of the society have not challenged the resolutions passed by the society, the said resolutions are binding on the defendants and cannot be violated by the defendants. Relevant portion of the said judgment read thus:-

"16. In the present case, it is not in dispute that the General Body of the Society which is supreme, has taken a conscious decision to redevelop the suit building. The General Body of the Society has also resolved to appoint the Respondent No.1 as the Developer. Those decisions have not been challenged at all. The Appellants who were members of the Society at the relevant time, are bound by the said decisions. The Appellants in the dispute filed before the Cooperative Court have only challenged the Resolution dated 27/4/2008, which challenge would merely revolve around the terms and conditions of the Development Agreement. As a matter of fact, the General Body of the Society has approved the terms and conditions of the Development Agreement by overwhelming majority.

Merely because the terms and conditions of the Development Agreement are not acceptable to the Appellants, who are in minuscule minority (only two out of twelve members), cannot be the basis not to abide by the decision of the overwhelming majority of the General Body of the Society.

By now it is well established position that once a person becomes a member of the Cooperative Society, he looses his individuality with the Society and he has no independent rights except those given to him by the statute and Bye-laws. The member has to speak through the Society or rather the Society alone can act and speaks for him qua the rights and duties of the Society as a body (see Daman Singh & ors. v/s. State of Punjab reported in AIR 1985 SC 973). This view has been followed in the subsequent decision of the Apex Court in the case of State of U.P. v/s. Chheoki Employees Cooperative Society Ltd. reported in AIR 1997 SC 1413. In this decision the Apex Court further observed that the member of Society has no independent right qua the Society and it is the Society that is entitled to represent as the corporate aggregate. The Court also observed that the stream cannot rise higher than the source. Suffice it to observe that so long as the Resolutions passed by the General Body of the Respondent No. 2 Society are in force and not overturned by a forum of competent jurisdiction, the said decisions would bind the Appellants.

They cannot take a stand alone position but are bound by the majority decision of the General Body. Notably, the Appellants have not challenged the Resolutions passed by the General Body of the Society to redevelop the property and more so, to appoint the Respondent No.1 as the Developer to give him all the redevelopment rights. The propriety rights of the Appellants herein in the portion (in respective flats) of the property of the Society cannot defeat the rights accrued to the Developer and/or absolve the Society of its obligations in relation to the subject matter of the Arbitration Agreement."

19. Learned senior counsel also placed reliance on the judgment in the case of Vardhman Developers Limited Vs. Thailambal Co-op. Hsg. Socy. Ltd. & Ors. rendered on 7th March 2011 in Notice of Motion No.3274 of 2010 in Suit No.2725 of 2010 and submits that since the members in the meeting have agreed to the process of redevelopment by the plaintiff, they cannot be allowed to plead that there is a lack of privity. Paragraph 8 of the said judgment reads thus:-

"8. Finally, it may be observed that there is no merit in the contention that there is no privity of contract between the objecting Defendants and the Plaintiff. All the objecting Defendants are members of the first Defendant which is a Cooperative Housing Society. They have executed Consent Affidavits agreeing to the process of re-development by the Plaintiff. The argument that there is a lack of privity is therefore devoid of substance."

20. Learned counsel also placed reliance on the judgment of this Court rendered on 10th November 2014 in the case of Vardhaman Developers Limited Vs. Andheri Krupa Prasad Cooperative Housing Society Limited in Notice of Motion No.166 of 2014 : [2015(4) ALL MR 651] and would submit that redevelopment project being carried out by the society would not amount to a business of the society. It is submitted that the society is not required to carry out any amendment to its bye-laws or to include the redevelopment of the building as one of the objects of the society before taking any decision to redevelop its properties. Paragraph 37 of the said judgment reads thus :-

"37. I am of the view that in view of the fact that the construction of the buildings of the society was carried out long back and the buildings have become older and being in dilapidated condition, society through its members are entitled to take a decision to repair or redevelop the property. In my view the redevelopment of the property may be necessitated in view of the buildings being in dilapidated condition or in view of passage of time. The redevelopment thus in my view would be a requirement and/or necessity and cannot be termed as business. The society is thus not required to carry out any amendment to the bye-laws or to include the 'redevelopment of the buildings' as one of the object of the society before taking any decision to redevelop its properties. In my view there is no merit in the submission of the learned counsel for the applicant that the resolution passed by the society for carrying out redevelopment without the same being one of the object or that the same being not business of the society, is illegal and cannot be acted upon. The Notice of Motion filed by the applicant under order VII rule 11(a) is without any merits and thus deserves to be dismissed."

21. Learned counsel also relied upon the order dated 21st February 2013 passed by the Division Bench of this Court in Appeal (L) No.92 of 2013 in the case of Shri Nandakishore R. Patil & Anr. Vs. M/s.Rite Developers & Ors. in support of his submission that reconstruction would not amount to a business of the society and need not be part of the object clause. Paragraphs 5, 6, and 7 of the said judgment read thus :-

"5. Mr. Vashi, learned counsel for the appellants, however, sought to distinguish the said decision on the ground that in the present case one of the objects of the society refers to reconstruction of buildings which was not the object in the case of Mohinder Kaur Kochar. The learned counsel has invited our attention to the Object Clause 5(a) which reads as under:-

"(a) To obtain conveyance from the owner/ Promoter (Builder), in accordance with the provisions of the Ownership Flats Act and the Rules made thereunder, of the right, title and interest, in the land with building/buildings thereon, the details of which are as hereunder:

The building/buildings known/numbered as constructed to be reconstructed on the plot/plots Nos. S. No./CTS No. of ....... admeasuring ..... sq. metres, more particularly described in the application for registration of the society."

We are afraid the contention is misconceived. The word "reconstructed" cannot be treated as providing for reconstruction of the buildings as the business of the society. The clause relied upon by the learned counsel for the appellants merely refers to description of property on the land with building/buildings thereon known/numbered as constructed/to be constructed on the plot in question. The idea is that the ownership of the society will vest not only in the land with the existing buildings thereon but also in the land with buildings which may be reconstructed in future. Defendant No.10 society is essentially a Co-operative Housing Society. We are of the view that the principles laid down in Mohinder Kaur Kochar vs. Mayfair Housing Private Ltd. & Ors., are applicable to defendant No.10 society as well.

6. It must also be noticed that the plaintiff-developer is not a member of defendant No.10 society and the plaintiff-developer is not claiming any relief against defendant No.10 society, but only against the individual members who were not cooperating and were obstructing the redevelopment. Hence on this ground also, it must be held that Section 91 of the M.C.S. Act would not be applicable.

7. As regards the contention that the notice under Section 164 of the M.C.S. Act was not served, that objection can be raised only if it is held that the dispute was covered by Section 91 of the M.C.S. Act. Since we have held that the dispute is not covered by Section 91 of the M.C.S. Act, the notice under Section 164 of the M.C.S. Act is not required."

22. On perusal of the judgment referred to and relied upon by Mr. Vashi, learned senior counsel for the plaintiff, I am not inclined to accept the submissions made by Mr. Shah, learned counsel for the defendants that reconstruction or redevelopment would amount to business and thus this Court has no jurisdiction to entertain this suit. This Court has already held that redevelopment would not amount to business of the society and need not be part of the object clause of the bye-laws of the society. In my view, there is no merit in the submission of Mr. Shah, learned counsel for the defendants that this Court has no jurisdiction to entertain this suit or that only the Co-operative Court has jurisdiction to entertain such suit under Section 91(3) of the Maharashtra Co-operative Societies Act, 1960.

23. It is not in dispute that the defendants who are members of the society have not challenged the resolutions passed by the society. The question however arises for consideration of this Court is that even if the resolutions passed by the society are not challenged by the members, whether the plaintiff has made out a prima facie case for grant of specific performance of the oral contract alleged to have been recorded in the resolutions and for interim reliefs.

24. The defendants have raised a specific plea in the affidavit-in-reply that the society has not passed any resolution for filing this suit in the Managing Committee meeting of the society or by General Body and authorising the Chairman of the society to file this suit on behalf of the society and incurred expenditure on behalf of the society. In the rejoinder filed by the plaintiff, there is no denial to this plea raised by the defendants.

25. Mr.Vashi, learned senior counsel for the plaintiff could not produce copy of any resolution passed by the society to file this suit and authorising the Chairman to file this suit in this Court and to incur expenses on behalf of the society. Learned senior counsel could not deny the submission of the defendants that even the Court fees for filing the suit has not been paid by the society. This would be one of the crucial issue for taking the decision in the matter as to whether the suit could have been filed by the Chairman on behalf of the society without passing a resolution by the society and is maintainable or not.

26. There are 14 members of the society. It is the case of the plaintiff itself that there are virtually 7 flats only. There is no dispute that the defendants had also participated in the resolutions passed by the society resolving to redevelopment of the building of the society. Out of 14 flats which are in possession of the 7 families, four members are now opposing the redevelopment. The plaintiff has not denied the fact that most of the members have already vacated their flats much prior to the date of passing of the resolutions by the society in the rejoinder. The plaintiff has also not denied that even initial amounts of Rs.70 lacs agreed in the resolution passed by the society have not been contributed by any of the members of the society before the date provided in the resolution. Only a part of the contribution has been made by 12 members out of 14 members. The plaintiff has not denied in the rejoinder that the plaintiff has no means to carry out redevelopment of the building. Mr. Shah, learned counsel for the defendants produced a copy of the balance sheet of the society for the year ending 31st March 2012 which indicates that when the resolution came to be passed by the society, only a sum of Rs.16,271/- was cash in hand and amount of about Rs.50,000/- was bank balance of the society.

27. A perusal of the record indicates that pursuant to the resolution passed by the society, certain steps are taken by the society such as appointment of Architect, submission of the plan with the Municipal Corporation, IOD obtained, etc.

28. A perusal of the resolution dated 21st January 2013 and the resolution passed prior thereto clearly indicates that no specific amount required to be contributed by each member of the society for redevelopment of the property for the entire project was ascertained. Some assurance of the members that as and when required and demanded, contribution would be made by the members was recorded. A perusal of the letter addressed by the society to defendant no.1 on 31st August 2013 clearly indicates that it was the stand of the society itself that no pre-estimate was calculated when the resolution for redevelopment was passed by the society. It is stated in the said letter that the cause of delay in taking decisions by all society members and also more attributable to the DC Rules and Regulations amended in the January 2012 that it would put lot of burden on increase in price for purchase of premium and fungible FSI which had increased the cost of redevelopment. It is stated in the said letter that the society had still not been able to finalise the figure that would be required to be paid by each member.

29. A perusal of the affidavit-in-rejoinder clearly indicates that the plaintiff had not denied that the cost of redevelopment had exceeded multifold. Even if on conjoint reading of the resolutions passed by the society, it is construed that there is an oral contract between the defendants and the society, it is clear that none of the material terms of the contract for the purpose of redevelopment are incorporated in the resolutions passed by the society. None of the members know what would be the final contribution for redevelopment of the property. Other 10 members of the society are not joined as a party to the suit. Whether other members are also going to contribute any amount as may be directed by the Managing Committee in future is not certain. Who will carry out the construction of the building is not decided. When the construction of the building would commence and completed is not decided and is not known. When the members of the society would be handed over possession of the new flats is not decided. In my view, these are some of the crucial and material terms of the contract which are missing in the resolution passed by the society.

30. A question therefore arises for consideration of this Court in view of the facts of this case is that when the plaintiff seeks an order of appointment of a Court receiver with power to forcibly evict the defendants, is whether the plaintiff had made out any strongest prima facie case and has demonstrated before this Court that the plaintiff would succeed in this suit for specific performance.

31. In my view, since the material terms of the contract itself are not agreed upon by and between the parties, the plaintiff has not made out any prima facie case in this proceedings that the plaintiff would be able to succeed in the suit for specific performance of the oral agreement alleged to have been recorded in the resolutions passed by the society. Even initial contributions have not been paid by all the members of the society.

32. Under Section 14(b) read with Section 14(d) of the Specific Relief Act, 1963, the Court cannot grant specific performance of the contract, if the nature of the contract is such that the Court cannot enforce specific performance of its material terms. The Court cannot grant specific performance of the contract also if a contract the performance of which involves the performance of a continuous duty which the Court cannot supervise. Section 16(c) of the Specific Relief Act provides that specific performance of the contract cannot be enforced in favour of a person who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him. Perusal of the entire plaint clearly indicates that no such averment had been made by the plaintiff. In the absence of other members before this Court, even otherwise, it is not possible for this Court to come to even any prima facie conclusion that the plaintiff is ready and willing to perform its part of obligations.

33. Section 18 of the Specific Relief Act, 1963 provides that if the parties have subsequent to the execution of the contract, varied its terms, the plaintiff cannot obtain the performance sought except with variation. It is one of the submissions made by the learned senior counsel for the plaintiff that if the defendants are not in a position to contribute the amount for redevelopment of the building, the society would contribute on their behalf and can adjust their contribution by sale of additional flat proposed to be constructed and allotted to the defendants. In my view, the Court cannot compel the parties to accept the alternate proposal made by the plaintiff in a suit for specific performance. Neither any such alternate proposal is forming part of the resolution nor it is supported by the members of the society. On this ground itself, in my prima facie view, the plaintiff would not able to succeed in the suit for specific performance. Sub-section 2(b) and 2(c) of Section 20 of the Specific Relief Act, 1963 makes it clear that the Court may not exercise discretion to pass a decree for specific performance if the performance of the contract would involve some hardship on the defendant which he did not foresee. The Court would not exercise the discretion also in the situation when the defendants had entered into the contract under the circumstances which though not rendering the contract voidable, makes it inequitable to enforce the specific performance.

34. In so far as submission of Mr.Vashi, learned counsel for the plaintiff that the defendants who have agreed for redevelopment through a developer cannot raise any objection in respect of self redevelopment by the society is concerned, in my view, the terms and conditions of the self redevelopment by the society and of the redevelopment of the buildings through a developer may be totally different. In case of redevelopment through the developer, normally the members of the society do not have to pay any contribution for construction of building and may even get alternate accommodation or compensation for acquiring alternate accommodation. In my view, the proposal of self redevelopment cannot be compared with the proposal for redevelopment through the developer who may make provision for alternate accommodation, pay compensation and would offer the flats in the redevelopment buildings. In my view, thus there is no merit in the submission of the learned senior counsel.

35. A perusal of the record clearly indicates that even according to the plaintiff, cost of redevelopment is multiplied which was not anticipated by any member. While considering a prayer for specific performance and exercising the discretionary powers, the Court cannot overlook the exorbitant escalation in cost between the date of agreement and when the plaintiff applies for specific performance.

36. The resolution was passed on 10th November 2012. Two years have already passed from the date of said resolution. All the members have not even contributed the initial contributions and that also fully. The plaintiff-society in its correspondence has admitted that initial cost was not even estimated. In my view, since there is a total uncertainty about the terms of the alleged oral contract between the members of the society and the society, the Court cannot grant specific performance of uncertain and vague terms. In my view, in a case of specific performance for contract, there has to be a greater degree of certainty. All the terms and conditions of the contract shall be absolutely clear, definite and processable which aspects are missing in this case. In my prima facie view, thus the plaintiff would not be able to succeed in the suit for specific performance and thus interim reliefs for appointment of the Court receiver cannot be granted in favour of the plaintiff. The notice of motion is devoid of merits and is accordingly dismissed. No order as to costs.

Notice of motion dismissed.