1991 (1) TMI 454 - HC - Indian Laws

Summary

Issues Involved:
1. Specific Performance of Agreement to Mortgage
2. Consideration for the Agreement
3. Non-joinder of Necessary Parties
4. Transferability of Interest in a Co-operative Housing Society

Summary:

1. Specific Performance of Agreement to Mortgage:
The appellant-plaintiff, State Bank of India, sought specific performance of an agreement to mortgage executed by the respondent-defendant, the wife of the debtor, Vallabhdas L. Thakkar. The trial court dismissed the suit, holding that the agreement was without consideration and that the interest in the flat in a co-operative housing society was incapable of being transferred or mortgaged. The High Court reversed this decision, stating that an agreement to create a mortgage is specifically enforceable when the lender has advanced the money, as per Section 14(3)(a)(i) of the Specific Relief Act.

2. Consideration for the Agreement:
The trial court held that the agreement was without consideration. However, the High Court found that the advances made to the principal debtor (the husband) constituted sufficient consideration for the wife to offer the security. The court cited Section 127 of the Contract Act, which states that anything done for the benefit of the principal debtor is sufficient consideration for the surety. The court also noted that forbearance to sue the principal debtor constituted valid consideration.

3. Non-joinder of Necessary Parties:
The trial court held that the suit was bad for non-joinder of the principal debtor. The High Court disagreed, stating that the suit was for specific performance of the agreement to mortgage and no relief was claimed against the husband. Therefore, the husband was neither a necessary nor a proper party to the suit.

4. Transferability of Interest in a Co-operative Housing Society:
The trial court held that the flat in a co-operative housing society could not be mortgaged. The High Court reversed this, citing the Supreme Court's judgment in Ramesh Shah v. H.J. Joshi, which held that the right to occupy a flat in a co-operative housing society is transferable and can be mortgaged.

Conclusion:
The High Court quashed and reversed the trial court's judgment, decreeing the suit in favor of the appellant-plaintiff. The respondent-defendant was directed to execute and register the legal mortgage within six months, failing which an officer of the court would execute it on her behalf. The suit and appeal were allowed with costs.