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2023 (2) TMI 1187 - BOMBAY HIGH COURTSuit for specific performance - privity of contract or not - plaintiffs were non-suited on the ground that the defendant had agreed to sale the suit property to the plaintiffs only upon formation of Co-operative Housing Society of the tenants in the suit property and, so far as plaintiff No. 6, there was no privity of contract between plaintiff No. 6 and the defendant - HELD THAT:- There is no evidence to indicate that Girgaum Griha Nirman Mandal was registered as a society when the representations were made by plaintiff Nos. 1 to 5. Nor there is evidence to demonstrate that at any subsequent point of time Girgaum Grihanirman Mandal came to be registered as the Cooperative Society of the sitting tenants in the suit property - The situation which thus obtains is that when the offer was made the plaintiffs knew that all of them were not the tenants of the tenements in the suit property. Secondly, they were aware that Girgaum Griha Nirman Mandal was not a society, much less of the sitting tenants in the suit property. There is an essential distinction between a fraud or misrepresentation as to the character of the instrument and contents thereof. In the case at hand, the defendant was fully aware of the character of the transaction and the jural relationship sought to be established thereunder. The defendant knew that the property was to be conveyed. However, the misrepresentation was as to the entity for whom the offer was made and in whose favour the sale was to be effected. Thus, the defendant was within its rights in avoiding the agreement as its consent was vitiated by misrepresentation. Consequently, it would be unwarranted to delve into the considerations which are germane for determining the exercise of discretion to grant the specific performance of a contract - the Court is not precluded from ordering the refund of the consideration. Absence of prayer does not constitute an impleadment for granting said relief for a substantive reason. The question as to how the defendant had dealt with the said amount ought not preclude the Court from awarding interest. It is more so for the status of the defendant as a public sector enterprise. To this extent, the appeal deserves to be allowed.
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