LexNANDKISHORE LALBHAI MEHTA versus NEW ERA FABRICS PVT. LTD. & ORS.
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[2015] 7 S.C.R. 631 NANDKISHORE LALBHAI MEHTA v. NEW ERA FABRICS PVT. LTD. & ORS. (Civil Appeal No.1148 of 2010) JULY08, 2015 [RANJAN GOGOi AND R.K. AGRAWAL. JJ.) A B Specific performance: Sale of suit property by respondent subject to consent of Labour Union -Appellant- c buyers paid earnest money as per the agreement to the respondents-buyers - Labour Union refused to give the consent for sale of the suit property- Respondent informed this fact to the appellant that the agreement stood cancelled and that they would return the amount - Appellant waived D the condition of obtaining the consent of labour but still agreement did not materialize- Suit for specific performance by appellant- Single judge of High Court decreed the suit- Division Bench set aside the decree - On appeal, held: In the plaint filed by appellant, specific case was pleaded by E appellant that the Labour Union colluded with the respondents - However, at the time of leading the evidence, case was made out that Labour Union agreed to the proposed sale on certain conditions offered by respondent - Such evidence could not be allowed to be led in the absence of pleadings in F the plaint - Since there was new plea or a/legation of fact inconsistent with the previous pleadings of the parties, steps ought to have been taken by appellant to amend the plaint which was not done - As the Labour Union did not give its G consent to the proposed sale, agreement for sate could not have been performed and had ceased - Appellant is only entitled to refund of the amount along with interest @ 18% per annum stipulated therein. H 631 632 SUPREME COURT REPORTS [2015] 7 S.C.R. A Dismissing the appeals, the Court HELD: 1. In the plaint filed by the appellant, the plea set up was that at the instigation of the defendants and in collusion with them, the Mill Mazdoor Sabha has B refused to give its permission to the sale of the mill premises of Defendant No. ·1 to the plaintiff. It was not a case set up by the appellant that the Mill Mazdoor Sabha had agreed to the proposed sale on certain conditions offered by the respondents. In view of the settled C position of law, fresh pleadings and evidence which is in variation to the original pleadings cannot be taken unless the pleadings are incorporated by way of amendment of the pleadings. The Division Bench of the High Court was perfectly justified in holding that unless D the plaint is amended and a specific plea is taken that the Mill Mazdoor Sabha had agreed for the proposed sale on certain terms and conditions offered by the respondents, the two letters viz., Exh Nos. P-27 and P- 28 could not have been taken into consideration at all. E Further, it was the case of the appellant that the said two letters were given by the former Director of Respondent No. 1. He was not produced as a witness so as to establish that these tw<;> letters were in fact given by the F Mill Mazdoor Sabha. Further, in the statement of PW-2, he has only stated that the letter must have ben sent by the Mill Mazdoor Sabha and the post-script might have been written by Mr. Pathak as it bears his signature. He had not stated that it was written in his presence. Mere G identifying the signature of Mr. Pathak would not prove the contents of the said letter which was being relied upon by the appellant. Even if the two letters viz., Exh. Nos. P-27 and P-28 are taken into consideration, from a reading of the said letters, it appears that the contents H are contradictory of one another. In the letter dated NANDKISHORE LALBHAI MEHTA v. NEW ERA FABRICS 633 PVT. LTD. & ORS. 05.12.1977 (Exh. P-27), the Mill Mazdoor Sabha had A demanded an option to provide alternate empk>yment and to pay full compensation to those workers who do not want alternate employment as per the law. In the note below the said letter, a mention was made that a proposal was given to pay 60 per cent compensation B which was not acceptable. In the earlier part of the letter dated 10.01.1978 (Exh. P-28), it was specifically mentioned that they do not agree to the proposed sale and the matter be treated as closed. However, in the note, it was mentioned that they are agreeable to the proposal C given in the discussion and to the proposed sale. Letter dated 10.01.1978 is contradictory to the earlier part of the letter, and therefore, the Division Bench rightly disbelieved these two letters. [Paras 27 to 29] (686-
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