Paripoornan, J. - (1.) Special leave granted. I. A. Nos. 5 and 6 of 1997 to implead M/s. Kamal Construction Co. (a partnership firm) as additional respondent in the appeals, are allowed.
(2.) There are three appellants in these appeals. Appellant No. 1 is a firm wherein appellant Nos. 2 and 3 are partners. Appellants were original plaintiffs in Suit No. 133/89 in the High Court of Bombay. These two appeals are preferred against judgment and orders dated 10-7-1996 passed by a Division Bench of the Bombay High Court in Civil Appeal Nos. 464/96 and 513/96, dismissing the appeals. The first respondent was originally the first defendant. Respondent Nos. 1(a) to 1(d) are his legal heirs. Respondent Nos. 2 and 3 are co-owners of the property in question. Respondent No. 4 is M/s. Kamal Construction Co. (a firm).
(3.) Original defendant No. 1 Indubhushan M. Obhan, died pending the suit. He owned and possessed 1/3rd undivided share in the property measuring 20569. 51 sq. mts. situate in Kanjur village, Kurla Taluk, Bombay. The other two coowners are his brothers. Indubhushan was adjudicated as an insolvent on 29-7-1971. Evidently, this aspect seems to have been published in the Gazette and also in the newspapers. On 9-5-1988. While Indubhushan was still an undischarged insolvent, an agreement for sale of the suit property was entered into between the plaintiffs in the suit and the said Indubhushan. Under the said agreement, the plaintiffs seem to have been deposited a sum of Rs. 7 lacs with Indubhushan, towards the sale of the share in the property owned by Indubhushan. Stating that Indubhushan, the first defendant committed breach of the said agreement and has also started construction work on the land agreed to be sold to the plaintiffs, suit No. 133/89 was laid in the High Court of Bombay by the appellants herein claiming the following reliefs: (a) to declare that there is a valid, subsisting and binding agreement between the appellants and the first defendant, as contained in the agreement dated 9-5-1988; (b) that the properties be properly partitioned by metes and bounds in three separate parts and one plot marked in red colour be allotted to the appellants; (c) that the defendants in the suit (Indubhushan and his two brothers) be ordered to specifically perform the said agreement; (d) in the altermative, the defendants be ordered to pay a sum of Rs. 2 crores; (e) in the alternative, a decree may be passed against the first defendant for recovery of a sum of Rs. 7 lacs with 18% interest per annum; (f) that upon failure of the defendants to pay the said amount, the property may be sole to the appellants to the extent of the share owned by the first defendant; etc. (It may be mentioned that defendant Nos. 2 and 3 are the brothers of Indubhushan - the first defendant). It appears that Indubhushan had initiated proceeding by taking notice of motion for annulment of his insolvency. While so, the first defendant - Indubhushan died on 22-4-1989. The proceeding initiated for annulment of insolvency proceedings was withdrawn by his counsel. The appellants took out chamber summons 769/89 in the suit to bring on record respondent Nos. 1 to 4 therein, as defendants 1 (a) to 1(d) (respondents 1(a) to 1(d) in the present appeals), in place of deceased defendant No. 1 as his legal heirs and also to appoint guardian for the minors respondents 2 to 4 and add respondent No. 5 - the official assignee of the High Court of Bombay as party defendant No. 4 in the suit. Prayer to amend the plaint in terms of the draft amendment mentioned in the schedule containing the above prayers was also specified. The Chamber summons is dated 21-7-1989. The above chamber summons came up for hearing and disposal before Variava, J. on 2-2-1990. It seems the suit was not posted to that day. After hearing counsel for the parties, the learned Judge passed the following order on 2-2-1990: "Suit to enforce agreement entered into by defendant No. 1, who was an insolvent. Till date leave of insolvency Court not obtained. Clear that agreement is void and unenforceable and suit not maintainable. Amendments seek to convert this suit. In my view, cannot be allowed to this. Chamber summons dismissed. No order as to costs." (Emphasis supplied) The appellants (plaintiffs in the suit) filed appeal No. 413/91 against the aforesaid order of the learned single Judge of the High Court of Bombay dated 2-2-1990, before a Division Bench. The Division Bench summarily dismissed the appeal by its judgment and order dated 9-7-1991. The result of the above proceedings is that the suit (No. 133/89) stood abated against Indubhushans (estate) legal heirs.;