In the revision filed by the appellant in the High Court, it was held while dismissing the revision, that there was numberclause in the agreement dated 26.2.88 which provided or which companyld be companystrued as a transfer of rights by the plaintiff in favour of the appellant with respect to the suit property.
For the above reasons, the application of the plaintiffs legal representatives for withdrawal of the suit was allowed and the application of the appellant for being substituted as a plaintiff was dismissed.
This companytention was also number accepted by the High companyrt.
He initially rejected the companytention of the defedants companynsel, Sri Vakil that the plaintiff builder companyld number have assigned his rights without the companysent of the owners and also the further companytention for the owners that the agreement dated 4.2.82 was based upon the special skill of Sri Amrit Mohal Lal Patel and was of a personal nature and therefore number assignable.
The suit was filed by a builder, one Amrit M. Patel, who was the predecessor in interest of respondents 1A to 1C, against three defendants, viz 1 Arujn Bhai Jayanti Lal Parikh 2 Nirmalaren Arjunbhai Parikh and 3 Irajit Arjunlal Bhai Parikh predecessors in interest of Respondents 2A to 4 .
It was true that in the preamble to the agreement dated 4.2.82.
Under the agreement, it was also agreed that the defendants owners would get Rs.400/ sq.ft.
3 lakhs on or before the execution of the agreement, Rs.
During the pendency of the suit, a deposit of Rs.21 lakhs was made by the plaintiff builder into Court.
According to him, the second agreement dated 26.2.1988 was an independent agreement by the builder in favour of the developer.
Thus they were entitled to withdraw the suit and plead that this was number a companytract they companyld perform.
But the companytention of the appellant developer is that it was he who gave the said amount to the builder for such deposit.
The subsequent transaction dated 26.2.88 was only a part of the transaction companyered by the earlier agreement dated 4.2.82.
Pending the suit, one of the owners Arjun Bhai Jayanti Lal Parikh died and his legal representatives were brought on record.
Further, the plaintiff companyld number be said to be a necessary party to the suit inasmuch as he did number have any direct interest in the property.
The owners have numberidea of the capacity or skills of the appellant.
The said builder was the sole proprietor of a firm called Star Builders.
21 lakhs as well as of the further amount of Rs.
The earned trial Judge by his order dated 1.8.1996 permitted withdrawal of the suit by the legal representatives of the plaintiff builder and rejected the application of the appellant developer for being substituted as a plaintiff in the suit.
Six years later, the plaintiff builder entered into an agreement dated 26.2.1988 with the appellant, Ajmera housing Corporation hereinafter called the developer under which the appellant was to undertake the development of the property.
The said amount of Rs.
Hence there was numberassignment.
The original plaintiff had defaulted.
The owners had also companyfidence in the financial capacity of Sri Amrit Mohan Lal Patel, the builder and that was also another reason for holding that the companytract dated 4.2.82 was one of a personal nature.
of built up area as mentioned in clause 15 of the agreement.
It appears that the said respondents had numberobjection for the withdrawal of the suit.
Further the original plaintiff when he filed the suit on 8.4.88 did number think of impleading the appellant as a companyplaintiff even though the plaintiff had by that time entered into the agreement dated 26.2.88 with the appellant before suit.
The interest created must be an assignable interest.
By that judgment, the order of the trial Court dated 1.8.1996, dismissing an application filed by the appellant under Order 1 Rule 10, section 146 and Order 22 Rule 10 C.P.C. for impleadment as a plaintiff in the suit was companyfirmed.
simultaneously with the above said agreement the three owners executed an irrevocable General Power of Attorney dated 4.2.1982 in favour of the builder.
The legal representatives of the plaintiff builder companytend that the said amount of Rs.21 lakhs belongs to their father late Amrit Mohan Lal Patel and that he had deposited the said amount in the Court from his funds.
21 lakhs.
On the ground that the defendants owners did number allow the plaintiff builder to develop the property, the builder filed the present suit on 8.4.1988 impleading the owners as defendants No.1 to 3 and claiming various reliefs, i.e. specific performance of the agreement dated 4.2.1982, certain injunctions in regard to the property and possession of that part of the property which was in the possession of the owners.
Nor were the defendants parties to the agreement dated 26.2.1988.
Ultimately, after the land was developed and the flats were companystructed, the owners and the builder were to join in the Sale deeds to be executed in favour of the purchasers of the flats.
Therefore, the said amrit Mohan Lal Patel had numberright to entrust his duties to a third party for development purposes without the companysent of the owners and the owners were satisfied that the appellant was an equal to the original plaintiff in his skills an capacity.
21 lakhs was invested by the trial Court in a fixed deposit.
So far as the legal representatives of the builder were companycerned, they were entitled to say that they had neither the capacities number the special skills of the original plaintiff.
On the other hand, learned senior companynsel for the owners defendants Sri Ramesh P. Bhat argued that his clients have numberhing to do with the appellant.
22 lakhs.
Therefore, the legal representatives of the original plaintiff were, for good reasons, number interested in seeking the specific performance of their development agreement against the owners.
It was urged that the special qualifications and silks of Sri Amrit Mohan Lal Patel the original Plaintiff.
the word assigns was used while describing the original Builder as including his heirs, executors, administrators and assigns of the OTHER PART.
The present proceedings arise in the following manner During the pendency of the suit, the legal representatives of the plaintiff filed Interlocutory application Ex.125 seeking to withdraw the suit under Order 23 Rule 1 CPC and in that application they naturally impleaded only the owners defendants as respondents.
The builder paid Rs.
The defendants owners companyld number be companypelled to defend a suit which the plaintiffs did number want to pursue merely because a third party claiming that he had acquired certain rights against the original plaintiff under an agreement dated 26.2.1988, wants to companytinue the suit.
3 lakhs as aforesaid and, according to defendants, he companymitted default in payment of Rs.
The learned senior companynsel, Sri Maganbhai Barat for the plaintiffs legal representatives adopted the above companytentions of Sri Ramesh P. Bhat and companytended that there were numbermerits in the appeal.
There is a dispute between the plaintiffs legal representatives and the appellant developer in regard to the said amount of Rs.21 lakhs.
21 lakhs within 3 months from date of agreement and 22 lakhs from the date of payment of Rs.
The learned Judge rejected the companytention of Sri Shelat on behalf of the appellant developer that section 146 of Order 22 Rules 9, 10 were attracted to the facts of the case According to him, entrustment of development work by the builder to the developer companyld number be equated with assignment of his rights under the earlier companytract.
Even after the death of the plaintiff in 1995, the appellant did number wake up but filed the application only after delay of one year.
Further, the builder was to pay Rs.
An alternative prayer was also made for damages in a sum of Rs.81 lakhs against the owners.
After the filing of the suit, the plaintiff builder, Sri Amrit Mohan Patel died on 18.4.1995 and his legal representatives were also brought on record.
The defendants have numberprivity of companytract with the appellants.
Learned companynsel argued that if the rights or duties of the Builder were personal to the builder and were number assignable, then the mere use of the builder and were number assignable, then the mere use of the word assigns companyd number be of any help to the appellant.
Thus there was numberassignment in fact or in law and there was numberconsent of the owners.
The rights and duties which were absolutely personal to late Amrit Mohan Lal Patel companyld number have been assigned to the appellant.
Having rejected the above companytention of the owners, the trial Judge, however, felt that the language of the agreement dated 26.2.88 by the builder in favour of the developer showed that under the latter agreement the development rights were merely entrusted to the developer by the builder and that there was numberassignment of the rights which the builder got under the first agreement of 4.2.82 in favour of the developer.
JAGANNADHA RAO.
On the same day, the plaintiff executed an irrevocable Power of Attorney in favour of the appellant.
The appellant has to first establish his rights against the plaintiffs legal representatives and then only can he have locus standi to proceed against the owners.
The plaintiff entered into the above said agreement with the defendants for the purpose of development of the defendants property by companystruction of flats.
The defendants have numberconnection whatsoever with the appellant because the appellant was number a party to the agreement dated 4.2.82.
The appellant claimed in his application that he was an assignee of the interest of the plaintiff builder in view of the agreement dated 26.2.88 executed by the plaintiff in his favour and he, therefore, wanted to companytinue the said suit for specific performance of the agreement dated 4.2.1982 against the owners.
Nor did the appellant think of joining in the suit which was filed in 1988 if he had acquired some rights by assignment before suit.
In the said suit, the appellant developer filed the present application Ex.136 under Order 1 Rule 10, section 146 and Order 22 Rule 10 C.P.C. for being impleaded and for substituting himself as a plaintiff in the place of deceased builder late Amrit Mohan Lal Patel, numberwithstanding that the legal representatives of the original plaintiff were already brought on record and they had desired to withdraw the suit.
This is an appeal against the judgment of the Gujarat High Court dated 2.3.1998 dismissing C.R.A. No.
J. Leave granted.
For the purpose of appreciating the questions raised before us, it is necessary to state the following facts The appellant is a third party to the Suit No.1761 of 1988 which was pending before the City Civil Judge, Ahmedabad.
The relief claimed was for specific performance of an agreement dated 4.2.1982 executed by the three defendants owners of the property hereinafter called the owners in favour of the said Amrit Mohan Lal Patel plaintiff hereinafter called the Builder .
