1.Heard submissions at the Bar from learned counsel for respective parties.
2. This appeal is filed at the instance of original plaintiff challenging the judgment and order dated 11.3.1998 passed in Regular Civil Appeal No.24 /1990 by learned 8th Additional District Judge, Nagpur.
3. The plaintiff had instituted Regular Civil Suit No. 450 /1987 in the Court of Civil Judge, Junior Division, Katol praying for declaration of his ownership of the plot and possession and consequent injunction. The suit was dismissed. The dismissal of the suit was challenged by Regular Civil Appeal No.24/1990 in the District Court Nagpur. The said appeal was dismissed.
4. The facts in brief are that : the plaintiff had instituted suit on the ground that defendantsociety had promised and agreed to give one plot to the plaintiff when it purchased suit field Survey Nos. 102 and 103 situated at Kondhali, Tah.Katol, District Nagpur, under the registered sale deed dated 2.12.1980. The defendant Coop. Housing Society was formed for construction of the houses and the plaintiff was given a specific promise contained in the sale deed that one plot of the southwest corner of the proposed layout after sanctioned, will be given to the plaintiff as owners thereof. According to the plaintiff, the defendantsociety was to inform about sanctioned layout plan and plot number, area details etc. to the plaintiff. But defendant did not paid any heed to the plaintiff though reminded vide letters dated 24.3.1987 and 6.4.1987. The registered notice issued to this defendant on 3.4.1987 was also not replied by the defendant. Finally, the plaintiff had issued a registered notice dated 23.6.1987 to the Registrar, Cooperative Society, Pune and to the defendant; which were neither replied nor complied. Thus, the plaintiff was constrained to file suit to seek a decree of declaration in respect of Plot No. 7 at SouthWest corner of approved layout and relief of possession thereof and consequent mandatory injunction.
5. The Second Appeal was admitted on 8.9.1998 on the following substantial question of law :
(i) Whether in view of automatic acquisition of ownership by virtue of sale deed at Exh. 30, the suit of the plaintiff for declaration and possession was maintainable ?
(ii) Whether in view of sale deed at Exhibit 30, the plaintiff was bound in law to file the suit for specific performance of contract ?
(i) Yes, suit was maintainable;
(ii) The plaintiff was not bound to file suit for specific performance.
6. Learned counsel for appellant in support of the appeal contended that the plaintiff who was owner and possessor of agricultural fields S. Nos. .102 and 103 along with his brothers and mother, had sold it under registered sale deed dated 2.12.1980, in which the defendantsociety promised to give one plot of southwest corner without any monetary consideration to the plaintiff after necessary permission/sanction of layout. Thus, according to plaintiff, Plot No. 7 at southwest corner of the approved layout plan of defendant society belonged to the plaintiff as defendant had promised under the sale deed. It is contended that the defendant admitted the promise to give one plot to plaintiff; but after sanction of the lay out. According to defendantsociety unless and until the plot is not transferred to the plaintiff, he cannot become owner. It is, thus, contended that plaintiff's suit was not maintainable as it is not for specific performance of contract.
7. Learned counsel for appellant argued that the defendant was bound by the promise in writing. The doctrine of promissory estoppel is departure from the doctrine of consideration. In M/s Motilal Padampat vs. State of UP: AIR 1979 SC 621 the principle of promissory estoppel is invoked. One party by his conduct or words made to other a clear and unequivocal promise which is intended to create legal relations or effect legal relationship to arise in future and other party in fact acted upon it, the promise is binding on the party making it and he would not be entitled to go back upon it.
8. The principle would stop the respondentCooperative Housing society from backing out of its contractual obligation arising from a solemn promise made in writing to the appellant (ori.plaintiff). One may also make reference to Gujarat State Financial Corporation vs. Lotus Hotel Pvt. Ltd. (1983) 3 SCC 379. If a promise is made in expectation that it would be acted upon, the party making promise would not be allowed to back out of it and the Courts should insist that promise must be fulfilled. As held in Motilal Padampat's case ( supra) the principle can furnish cause of action. The applicability of the doctrine is not restricted to parties already contractually bound to one another or having preexisting legal relationship. The doctrine is not shackled by any consideration. Thus, it is not necessary to show existence of consideration for the applicability of the doctrine of 'Promissory Estoppel'. The principle must be applied to such case where injustice can be avoided only by enforcement of promise. It was not an agreement to sell to require a suit for specific performance thereof. In the present case, written promise which was unambiguous and certain was made by the defendantHousing society to the plaintiff. The society ought to have taken all the necessary steps to fulfill its solemn promise made to the plaintiff. The doctrine of promissory estoppel is developed to prevent injustice by moulding the relief if necessary for that purpose. The promise can be enforced by an injunction mandatory or preventive.
8. There was specific promise made in the sale deed.: ..................................................................................................... ......................................................................................................... ......................................................................................................... Thus, written promise was incorporated in sale deed to the effect that out of the sold field, and after the housing society lay out plots, one plot would be for seller No.2 ( plaintiff) without consideration and he would be owner of that plot. Therefore, conclusions by the Courts below appear erroneous and contrary to law, ignoring material evidence.
9. Applying the above principles to the case in hand, the plaintiff was entitled to own one plot without any consideration at the South west corner of layout when sanctioned for defendant's society. Both the Courts below appear to have ignored or overlooked the above wellsettled principle and grossly erred in dismissing the suit of the plaintiff, which resulted in injustice to the plaintiff.
10. It is duty of this Court to mould relief in the facts and circumstances of the case and to order the respondentsociety to put the plaintiff in possession of one southwest corner plot from the sanctioned layout without consideration and as promised in the sale deed. The promise gave rise to contractual and legal obligation needed to be discharged.
11. Hence, the impugned judgment and order dated 11.3.1998 passed by learned 8th Additional District Judge Nagpur in RCA No.24/1998 arising out of judgment and decree dated 12.12.1989 passed in RCS No. 350/1987 are set aside. Instead the suit is decreed as prayed so as to direct the defendant society to put the plaintiff in possession of one south west corner of the plot from sanctioned layout as owner thereof without consideration as promised in the sale deed. In the alternative, if decree cannot be executed for any reason, then the defendant shall pay market price of such plot as on the date of the suit to the plaintiff along with interest at the rate of 9 per cent per annum from the date of the suit till realization and costs of the suit. Appeal allowed accordingly.