PRATIMA CHOWDHURY v. KALPANA MUKHERJEE & ANR.

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A respondent no. 1 is estopped from challenging her stand."

(ix) It was argued before the Co-operative Tribunal, that when the lease and license agreement came to an end, Partha Mukherjee wrote a letter to Colgate Palmolive India Limited informing it of the termination of the lease and license 8 agreement by asserting, that "Landlady refunded back the security deposit of Rs.60,000/-". Factually, Partha Mukherjee had deposited the above amount of Rs.60,000/-, in the Calcutta office of Colgate Palmolive (India) Limited. It was argued before the Co-operative Tribunal, that the use of the expression C "landlady" by Partha Mukherjee, was indicative of the fact that the transfer of flat no. 5D had actually not taken place. According to the. Co-operative Tribunal, the aforesaid argument was not acceptable because in the eyes of Colgate Palmolive (India) Limited, Pratima Chowdhury was a landlady and D accordingly it was not required that Partha Mukherjee should inform Colgate Palmolive (India) Limited, that Pratima Chowdhury had transferred flat no. 5D to the name of his mother Kalpana Mukherjee.

E Based on the aforesaid findings recorded by the Co- operative Tribunal, both the appeals were allowed. The impugned award passed by the Tribunal dated 5.2.1999 in Dispute Case No. 29/RCS of 1995-96 was set aside. Accordingly, the dispute raised by Pratima Chowdhury was F dismissed.

23Copy pinpoint23. Dissatisfied with the common order passed by the Co- operative Tribunal dated 16.5.2002, vide which Appeal nos. 14 of 1999 and 29 of 1999 were disposed of, the petitioner invoked the civil revisional jurisdiction of the High Court at G Calcutta (hereinafter referred to as, the High Court). During the course of deliberations before the High Court, Pratima Chowdhury assailed the findings recorded by the Co-operative Tribunal on various aspects of the matter. The High Court in its deliberations traced.the sequence of facts in the background H of the _facts ..as were examined by the Arbitrator, as also, the

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& ANR. [JAGDISH SINGH KHEHAR, J.] Co-operative Tribunal. No new facts were taken into consideration. The High Court adjudicated upon the matter vide an order dated 14.2.2006, whereby Civil Order nos. 3039 and 3040 of 2002 were jointly disposed of. The different perspectives and angles within the framework of which the High Court examined the controversy, are being briefly narrated hereunder:-

(i} The High Court excluded various facts taken into consideration by the Arbitrator. For excluding certain facts from consideration, the view of the High Court was, that the factual position introduced by Pratima Chowdhury by filing a rejoinder before the Arbitrator, could not be taken into consideration. The consideration of the High Court was recorded in the impugned order dated 14.2.2006, as under:-

"After service of copy of the written statement, the plaintiff before the learned Arbitrator filed a rejoinder thereby attempting to introduce certain facts. But the learned Tribunal observe(!i that there could be no scope for filing of such rejoinder either under the Code of Civil Procedure or under the West Bengal Co-Operative Societies Rules." E

In fact, on the instant aspect of the matter the High Court, adopted as correct the following observations recorded in the order passed by the Co-operative Tribunal:- --__

"It has to be clearly stated that under no provision_ of law F the plaintiff can be allowed to submit a rejoinder to the written statement of the defendant and the facts introduced in the rejoinder were illegally taken note of by the Ld. Arbitrator and whatever evidence she introduced to translate that rejoinder cannot be legally accepted." G

(ii} The High Court was of the view, that the stance adopted by Pratima Chowdhury was impermissible under the principle of, justice and equity, the doctrine of fairness, as also, the doctrine of estoppel. This aspect of the matter came to be H

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A examined in the following manner:-

"After due consideration of all relevant facts and materials it appears that there could be very little scope for the society to recall its stand just because after about three years, Pratima Chwodhury decided otherwise. In fact B resolution of the dated 14.2.1993 was forwarded to the Deputy Registrar, Co-operative Societies with recommendation for transfer of flat and shares in favour of Kalpana Mukherjee .~s far back as on 10.3.1993. It appears that the De1:l1uty Registrar, Co-operative c Societies, asked for certain document on 26.7.1993, which were submitted by the society on 22.9.1993. Thereafter, membership of Kalpana Mukherjee in place of Pratima Chowdhury was approved. Thus, backing out by Pratima Chowdhury after about three years of her own consistent request for transfer in favour of Kalpana Mukherjee and her request to C.E.S.C. to transfer electric meter, cannot have any support in the eyes of law. Pratima Chowdhury also did not bother to intimate Kalpana Mukherjee while requesting the society for necessary action in view of her change of mind. This is against the doctrine of fairness. Lord Dening in his book, The Discipline of Law, 7th Reprint, page 223, observed:

"It is a principle of justice and of equality. It comes to this, when a man by his words or conduct has led another to believe that he may safely act on the faith of them - and the other does act on when it would be unjust or inequitable for him to do so."

In the words of Dixon, J.:- G "The principle upon which estoppel in pais is founded is that the law should not permit an unjust departure by a party from an assumption of fact which he has caused another party to adopt or accept for the purpose of their legal relations."

PRATIMA CHOWDHURY v. KALPANA MUKHERJEE & 709 ANR. [JAGDISH SINGH KHEHAR, J.] The said principle was further stretched to the following extent:- ·

"At any rate, it applies to an assumption of ownership or absence of ownership. This gives rise to what may be called proprietary estoppal. There are many cases where 8 he is not the owner, or, at any rate, is not claiming an interest therein, or that there is no objection to what the other is doing. In such cases, it has been held repeatedly that the owner is not to be allowed to go back on what he has led the other to believe. So much so that his own title C to the property, be it land or goods, has been held to limited or extinguished, and new rights and interest have been created therein. 'And this operates by reason of his conduct what he was led the other to believe even though he never intended it." D It may be said that even in absence of actual promise, if a person by his words or conduct, so behaves as to lead another to believe that he will not insist on his strict legal rights, knowing or intending that the other will act on that belief and he does so act, that again will raise an equity in favour of the other, and it is for a court to equity to say in what way the equity may be satisfied. An equity does not necessarily depend on agreement but on words or conduct. The Privy Council in V. Wellington Corporation observed that the Court must look at the circumstances in each case to decide in what way the equity can be satisfied."

(iii} The High Court expressly approved the manner in which the controversy had been examined by the Co-operative Tribunal, by taking into consideration the past relationship between the parties, and the souring of the relationship between the two spouses, i.e., Partha Mukherjee and Sova Mukherjee. Having examined the dispute in the aforesaid prospective, the High Court observed as under:- H

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A "On behalf of the petitioner it was also submitted that the learned Tribunal failed to appreciate the findings of the -learned Arbitrator arrived at after proper appreciation of the evidence in the said proceeding. The learned Tribunal seem to be in agreement.with the view that the document B dated 13.11.1992 cannot be called as a proper and complete document of transfer. The learned Tribunal, thereafter explored as to whether such a document is at all necessary for effecting transfer of an apartment by a member to another person. Relying upon the letters dated c 29.6.1992 and 11.11.1992 and quite rightly, without attempting to read more than what meets the eyes, the learned Tribunal held that Pratima Chowdhury by such letters, expressed her desire to transfer the flat in favour of her nominee Kalpana Mukherjee. This was quite relevant in the context of relationship between two families arising D out of the marital tie. It cannot be said that the learned Tribunal was not at all justified in observing that in the backdrop of the present case, payment of consideration could not be the decisive factor."

E {iv) On the subject of passing of consideration, the High Court principally accepted the view propounded by the Co- . o_perative Tribunal. The High Court made the following observations on the issue of consideration:-

p "The learned Tribunal appears to have considered the aspect relating to transfer of flat in proper perspective. Nothing could be placed before this Court so as to justify brushing aside of the observation of the learned Tribunal that "neither the Act nor the rule rules out transfer by gift or will. But the Rule does not provide the manner of G transfer, nor does it mandate that transfer has to be effected by any of the modes necessary as provided for in the Transfer of Property Act. The transferee has to be · an allottee or a re-allottee."

-H On perusal of the impugned judgment, it is found that

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& ANR. [JAGDISH SINGH KHEHAR, J.] the learned Tribunal referring to Rule 201 (3) of the West A Bengal Co-operative Societies Rule, 1974 and relevant Rule of 1987 observed that the question of payment of consideration money is primarily and purely a matter between the transferor and the transferee. It was held that "deletion of the Rule 201 (3) from the present Rule of 1987 B clearly fortifies the position of the society which effected transfer on the repeated request of the respondent no. 1 in full compliance with the provisions of the Act and the Rules. This being so, for a transferee to hold possession is required the certificate of allotment, not a deed of c conveyance from the transferor"."

Significantly enough the learned Tribunal mentioned about the manner in which Pratima Chowdhury got the flat from the original member, Smt. lndrani Bhattacharya and wondered as to how then there could be any grievance in regard to the transfer by the said Pratima Chowdhury in favour of Kalpalan Mukherjee. The story of giving money to Partha Mukherjee by way of loan could not be established to the satisfaction of the judicial conscience of the learned Tribunal and for reasons as mentioned in the impugned judgment, the learned Tribunal did not choose to brush aside the assertions made on behalf of Kalpana Mukherjee that shares amounting to Rs.4,29,000/ - were transferred in favour of Pratima Chowdhury. ·. Controversy relating to alleged non-payment of consideration money, in the facts and circumstances of the present case, were not seen to have nay legs, to stand upon."

Having recorded the aforesaid findings, the High Court in its conclusion recorded the following observations:-

"But, as observed earlier, the judgment and order under challenge does not· seem to be suffering from any such infirmity or jurisdictional error, which calls for or justifies any interference by this Court." H

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A Based on the analysis of the controversy in the manner summarized hereinabove, the High Court dismissed the challenge raised by Pratima Chowdhury by a common order dated 14.2.2006. The common order passed by the Co- operative Tribunal dated 16.5.2002, and the common order B passed by the High Court dated 14.2.2006 were assailed by Pratima Chowdhury by filing Special Leave to Appeal (Civil) no. 15252 of 2006.

2,4. Leave granted.

25Copy pinpoint25. The factual narration recorded by us, the circumstances taken into consideration by the Arbitrator, and the Co-operative Tribunal, as also, the analysis of the High Court have all been detailed hereinabove. Suffice it to state, that there were no further facts besides those already referred to hereinabove, which were brought to our notice during the course of hearing. It is also not necessary for us to record the submissions advanced at the hands of the learned counsel for the rival parties. All that needs to be mentioned is, that the same submissions as were put forward by the respective parties hitherto before, came to be addressed before this Court as well. We shall, therefore, venture to examine the veracity of the propositions advanced on behalf of the rival parties by compartmentalizing the submissions advanced before us under different principles of law. We would thereupon record our final conclusions.

26Copy pinpoint26. First and foremost, it surprises us that Co-operative Tribunal, as also, the High Court excluded from consideration, the factual position expressed in the rejoinder filed by the appellant (before the Arbitrator). In excluding the aforesaid factual position, the Co-operative Tribunal and the High Court did not rely on any provision of law nor was any reliance placed on any principle accepted and recognized in legal jurisprudence. It is not a matter of dispute, that after Kalpana Mukherjee and the Society were permitted to file written replies before the Arbitrator, the rejoinder filed thereto on behalf of

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& ANR. [JAGDISH SINGH KHEHAR, J.] Pratima Chowdhury, was permitted to be taken on record. It is A not in contention, that in the written replies filed before the Arbitrator, Kalpana Mukherjee had adopted inter alia the stance, that consideration was paid to Pratima Chowdhury in lieu of the transfer of flat no. 5D to her name, even though the documents relied upon by the rival parties, expressed otherwise. B A number of documents not mentioned in the Dispute Case filed by Pratima Chowdhury were also relied upon by Kalpana Mukherjee. Pleadings between the parties could be considered as complete, only after Pratima Chowdhury was permitted to file a rejoinder (in case she desired to do so). She actually filed c a rejoinder which was taken on record by the Arbitrator. Both parties were permitted to lead evidence, not only on the factual. position emerging from the complaint filed by Pratima Chowdhury and the written replies filed in response thereto (by Kalpana Mukherjee, and the Society), but also, the factual position highlighted by Pratima Chowdhury in her rejoinder affidavit It is, therefore, not on the basis of the pleadings of the parties, but also on the basis of the evidence led in support of the aforesaid pleadings, that the Arbitrator had recorded his findings in his award dated 5.2.1999. We are therefore of the view, that the Arbitrator had acted in accordance with law, and therefore the exclusion from consideration, of the factual position asserted by Pratima Chowdhury in her rejoinder, by the Co- operative Tribunal and the High Court was wholly unjustified .. The factual narration by Pratima Chowdhury, could not be excluded from consideration, while adjudicating upon the rival claims between Pratima Chowdhury and Kalpana Mukherjee. The instant aspect of the decision of the High Court, is therefore liable to be set aside, and is accordingly set aside. Just the instant determination, would result in a whole lot of facts which were not taken into consideration by the adjudicating authorities, becoming relevant. Despite that, we feel, that remanding the matter for a denovo consideration, would place a further burden on the parties. Having heard learned counsel at great length, we shall settle the issues finally, here and now. H

714 SUPREME COURT REPORTS [2014] 2 S.C.R. .

27Copy pinpoint27. The Co-operative Tribunal in its order dated 16.5.2002 had invoked the principle of estoppal, postulated in Section 115 of the Indian Evidence Act. The High Court affirmed the conclusions drawn by the Co-operative Tribunal. In addition to the above principle, the High Court invoked the principles of equity and fairness. Insofar as the latter principles are concerned, we shall delve upon them after examining the contentions of the rival parties, as equity and fairness would depend upon the entirety and totality of the facts. The above aspect can therefore only be determined after dealing with the intricacies of the factual circumstances involved. We shall, however, endeavour to deal with the principle of estoppal, so as to figure whether, the rule contained in Section 115 of tbe Indian Evidence Act could have been invoked, in the facts and circumstances of the present case. Section 115 of the Indian 'D Evidence Act is being extracted hereinabove:- "115. Estoppal.- When one person has, by his declaration, act-or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his E representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.

Illustration F A intentionally and falsely leads B to believe that certain land belongs to A, and thereby induces B to buy and pay for it. The land afterwards becomes the property of A, and A seeks to set aside the sale on the ground that, at the time of the sale, he had no title. He must not be allowed to prove his want of title."

It needs to be understood, that the rule of estoppal is a doctrine based on fairness. It postulates, the exclusion of, the truth of the matter. All, for the sake of fairness. A perusal of the above provision reveals four salient pre conditions before invoking the

PRATIMA CHOWDHURY v. KALPANA MUKHERJEE & 715 ANR. [JAGDISH SINGH KHEHAR, J.] rule of estoppal. Firstly, one party should make a factual representation to the· other party. Secondly, the other party should accept and rely upon the aforesaid factual representation. Thirdly, having relied on the aforesaid factual representation, the second party should alter his position. Fourthly, the instant altering of position, should be such, that it would be iniquitous to require him to revert back to the original position. Therefore, the doctrine of estoppal would apply only when, based on a representation by the first party, the second party alters his position, in such manner, that it would be unfair to restore the initial position. In our considered view, none of c the ingredients of principle of estoppal contained in Section 115 of the Indian Evidence Act, can be stated to have been satisfied, in the facts and circumstances of this case. Herein, the first party has made no representation. The second party has therefore not accepted any representation made to her. 0 Furthermore, the second party has not acted in any manner, nor has the second party altered its position. Therefore, the question whether the restoration of the original position would be iniquitous or unfair does not arise at all. Even if consideration had passed from Kalpana Mukherjee to Pratima Chowdhury, E on the basis of the representation made by Pratima Chowdhury, we could have accepted that Kalpana Mukherjee had altered her position. In the facts as they have been presented by the rival parties, especially in the background of the order passed by the Arbitrator, that no consideration had passed in lieu of the transfer of the flat, and especially in the F background of the factual finding recorded by the Co-operative Tribunal and the High Court, that passing of consideration in the present controversy was inconsequential, we have no hesitation whatsoever in concluding, that the principle of estoppal relied upon by the Co-operative Tribunal and the High G Court, could not have been invoked, to the detriment of Pratima Chowdhury, in the facts and circumstances of the present case. Insofar as the instant aspect of the matter is concerned, the legal position declared by this Court fully supports the conclusion drawn by us hereinabove. In this behalf, reference H

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A may be made, firstly, to the judgment rendered by this Court in Kasinka Trading vs. Union of India, (1995) 1 SCC 274, wherein this Court noticed as under:-

"11. The doctrine of promissory estoppel or equitable estoppel is well established in the administrative law B of the country. To put it simply, the doctrine represents a principle evolved by equity to avoid injustice. The basis of the doctrine is that where any party has by his word or conduct made to the other party an unequivocal promise or representation by c word or conduct. which is intended to create legal relations or effect a legal relationship to arise in the future. knowing as well as intending that the representation. assurance or the promise would be acted upon by the other party to whom it has been made and has in fact been so acted upon by the other party. the promise. assurance or representation should be binding on the party making it and that party should not be permitted to go back upon it. if it would be inequitable to allow him to do so. having regard to the dealings, which have taken place or are intended to take place between the parties."

(emphasis is ours)

F The above sentiment recorded in respect of the principle of estoppel was noticed again by this Court in Monnet /spat & Energy Ltd. vs. Union of India & Ors., (2012) 11 SCC 1, wherein this Court expressed its views in respect of the principle of estoppel as under:- G "289. As we have seen earlier, for invoking the principle of promissory estoppel there has to be a promise, and on that basis.the party concerned must have acted to its prejudice." H (emphasis is ours)

PRATIMA CHOWDHURY v. KALPANA MUKHERJEE &717 ANR. [JAGDISH SINGH KHEHAR, J.] The ingredients of the doctrine of estoppal in the manner A expressed above were also projected in H.S. Basavaraj (D) by his LRs. & Anr. Vs. Canara Bank & Ors., (2010) 12 SCC 458, as under:-

"30. In general words, estoppal is a principle applicable 8 when one person induces another or intentionally causes the other person to believe something to be true and to act upon such belief as to change his/ her position. In such a case, the former shall be estopped from going back on the word given. The principle of estoppal is, however, only applicable in C cases where the other party has changed his position relying upon the representation thereby made."

(emphasis is ours) D

As already noticed hereinabove, none of the ingredients of estopp,el can be culled out from the facts and circumstances of the present case. In view of above, we hereby set aside the determination by the Co-operative Tribunal, as also the High E Court, in having relied on the principle of estoppal, and thereby, excluding the pleas/defences raised by Pratima Chowdhury to support her claim.

28Copy pinpoint28. The admitted factual position in the present controversy, in our considered view, is absolutely clear and F unambiguous. Had the different adjudicating authorities taken into consideration the undisputed factual position, there ought not to have been much difficulty in resolving the difficulty. We shall highlight a few relevant admitted facts which crossed our mind while' hearing the matter and whilst recording the order:- G

(i) The reason for transferring flat no. 50 indicated in the letters dated 11.11.1992 and 13.11.1992 was on account of the close relationship between Pratima Chowdhury and H

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A Kalpana Mukherjee, which was expressed by observing " ... my nominee Kalpana, a close rel13_tive of mine ... ". As a matter of fact, there was no close relationship between Pratima Chowdhury and Kalpana Mukherjee. Pratima Chowdhury, is indicated to have been living in Bombay and never visiting B Calcutta. Kalpana Mukherjee is a resident of Calcutta, who was in employment at Calcutta, and had started to reside with her son Partha Mukherjee, after he moved to Calcutta alongwith his wife Sova Mukherjee. There was no direct relationship between Pratima Chowdhury and Kalpana Mukherjee. Pratima c Chowdhury's niece Sova Mukhrjee was married to Partha Mukheijee, son of Kalpana Mukherjee. The only relationship that can be assumed, is of aunty and niece, between Pratima Chodhury and Sova Mukherjee. If on account of love and affection, for her niece, Pratima Chowdhury desired to transfer 0 flat no. 50 which she had purchased for a consideration of Rs.4 lakhs, she would have done so by transferring it to the name of her niece Sova Mukherjee. Affinity to Sova Mukherjee, and the love, affection and welfare of Sova Mukherjee, would not extend to a gesture of the nature under reference, i.e., by way of transfer of immovable property, of substantial value, without consideration, to the mothe.r in law of Sova Mukherjee. Therefore, factually the expression of close relationship between Pratima Chwodhury and Kalpana Mukherjee depicted in letters dated 11.11.1992 and 13.11.1992 are on the face of it, false and incorrect. It is, therefore, improper for the adjudicating authorities to have accepted the factum of close relation~hip of the parties, in so far as, the transfer of flat no. 50, is concerned.

(ii) There is hardly any justification for having accepted another important factual position depicted in the letters dated G 11.11.1992 and 13.11.1992. In this behalf, our reference is to the fact that flat no. 50 was sought to be transferred by Pratima Chowdhury to Kalpana Mukherjee, without consideration. First and foremost, the aforesaid factual position is not acceptable on account of the statement of Kalpana Mukherjee herself. In H

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& ANR. [JAGDISH SINGH KHEHAR, J.] the written reply filed before the Arbitrator, Kalpana Mukherjee A took the express stance, that Pratima Chwodhury had transferred flat no. 50 to her name, by accepting a consideration of Rs.4,29,000/-. Sbe further asserted.,that the aforesaid consideration had passed from Kalpana Mukherjee to Pratima Chowdhury through Partha Mukherjee. According to B Kalpana Mukherjee, Partha Mukherjee transferred shares in his name valued at Rs.4,29,000/-, to the name of Pratima Chowdhury. Per se therefore, even Kalpana Mukherjee denied the factual position indicated in the above letters, whereby flat no. 50 was transferred from the name of Pratima Chowdhury, c to that of Kalpana Mukherjee.

(iii) The letters dated 11.11.1992 and 13.11.1992 expressly recorded, that the factual position narrated in the above letters was on account of "compliance with the rules regulating such transfer, and also, for avoiding future complications".· In view of the factual position noticed in the foregoing paragraphs, it is apparent, that false facts were being recorded for compliance with the rules and regulations, as also, for avoiding future complications. One would have appreciated the recording of consideration in lieu of the transfer of property from the name of Pratima Chowdhury to that of Kalpana Mukherjee, to avoid future complications, rather than withholding the same. It is clearly not understandable, what kind of complications were being avoided. Expressing the above factual position in the letters under reference, makes the whole transaction suspicious, mistrustful and possibly fraudulent too. In the absence of any relationship, the party benefiting from the letters dated 11.11.1992 ·and 13.11.1992, would have successfully avoided all complications merely by incorporating consideration, which was to pass from Kalpana Mukherjee to the transferee Pratima Chowdhury. If consideration was to pass, and had actually passed, it is·difficult to understand why the parties would say, that the transaction did not involve passing of consideration. It is therefore clear, that all the ingredients of H

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A letter dated 11.11.1992 and 13.11.1992 are shrouded in suspicious circumstances. One is prompted to record herein, that it was not legitimately open to the parties to record in the letters under reference, that flat no. 50 was being gifted by Pratima Chowdhury to Kalpana Mukherjee, on account of lack B of proximity between the parties. The transfer of the said property by one to the other, by way of gift, would obviously have been subject to judicial interference, as the same would at least prima facie, give the impression of dubiety. It was therefore, that Kalpana Mukherjee hastened to adopt a different factual c position in her written reply before the Arbitrator. (iv) It is relevant to mention, that in the written statement filed by Kalpana Mukherjee (before the Arbitrator) the stand adopted by ,her was, that a consideration of Rs.4,29,000/- had passed from her to Pratima Chowdhury, by way of transfer of D shares (standing in the name of her son, Partha Mukherjee) to the name of Pratima Chowdhury. In this behalf it would be relevant to notice, that the documents of transfer executed between Pratima Chowdhury and Kalpana Mukherjee were dated 11.11.1992 and 13.11.1992. Based thereon, the Board. E of Directors of the Society, in its meeting held on 14.2.1993, resolved to accept the resignation of Pratima Chowdhury. It was further resolved, to accept the membership of Kalpana Mukherjee in her place. On the date of execution of the documents under reference, as also on the date of passing of the resolution by the Board of Directors of the Society, Partha Mukherjee did not have any shares in his name. The shares which Partha Mukherjee acquired, and which Kalpana Mukherjee claims to have been transferred in lieu of consideration (to the name of Pratima Chowdhury), were shown to have been acquired on or after 8.9.1993. The dates of acquisition of the said shares, as were recorded in the order passed by the Arbitrator, which position has not been disputed before us, are as follows:-

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& ANR. [JAGDISH SINGH KHEHAR, J.] "COMPANY'S NAME NO. OF SHARES ACQUIRED A

Tata Chemicals Ltd. 50 nos. 8.9.93

Tata Chemicals Ltd. 450 nos. 27.10.93

Siemens 50 nos. 2.8.93 B

Indian Aluminium 500 nos. 4.3.94

l.T.c~ Hotels 100 nos. acquired with Mr. H.P. Roy 4.4.94" c It is therefore apparent, that Partha Mukherjee did not even have the shares referred to by the transferee Kalpana Mukherjee, in his name, when the transfer documents were executed on 11.11.1992 and 13.11.1992, or even on 14.2.1993 D when the Board of Directors of the Society, passed the transfer resolution. The above shares are shown to have been transferred to the name of Pratima Chowdhury on 16.12.1994. Well before 16.12.1994, even according to the stance adopted by Kalpana Mukherjee, Pratima Chowdhury had executed all E t_be transfer documents. It is therefore difficult to accept, that the parties had agreed to pass on consideration by transfer of shares, which were not even owned by Kalpana Mukherjee (through Partha Mukherjee) on the date of transfer of flat no. 5D from Pratima Chowdhury to Kalpana Mukherjee. In sum and F substance therefore, on undisputed facts, the stance adopted by Kalpana Mukherjee in the written statement filed by her before the Arbitrator, is shown to be false. This aspect of the matter would bring out a legitimate query, namely, why should Kalpana Mukherjee have adopted a false stance, contrary to the expressed position in the letters dated 11.11.1992 and G · 13.11.1992. This further exposes, the suspicious nature of the transfer transaction.

(v) On the subject of transfer of shares from the name of Partha Mukherjee to the name of Pratima Chowdhury, which, H

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A according to Kalpana Mukherjee constituted passing of . consideration to Pratima Chowdhury (in lieu of the transfer of flat no. 50). Pratima Chowdhury had adopted the stance, that the transfer of the above shares was on account of return of loans extended by Pratima Chowdhury to Partha Mukherjee. s. Insofar as the instant aspect of the matter is concerned Pratima Chowdhury had asserted, that after the transfer of Partha Mukherjee from Calcutta to Bombay in the year 1993, he gave up his employment with Colgate Palmolive (India) Limited, and started a business of aluminium products with one R.K. Sen, c at Bombay. To help Partha Mukherjee with his above business venture, Pratima Chowdhury had (on the asking of Partha! Mukherjee) paid a sum of Rs. 2 lakhs by way of cheque, to Bharat Aluminium Company Limited, for supply of raw materiali; to Partha Mukherjee's business venture. It was also pointed out, that Partha Mukherjee had also taken a loan for a sum of Rs. 0 1,50,000/- for the same purpose from Bani Roy (sister of Pratima Chowdhury). It was also asserted, that Sova Mukherjee had similarly extended loans, by making payments through cheque to Partha Mukherjee. The Arbitrator had accepted the above assertion of Pratirna Chowdhury. For the· above determination, the Arbitrator had placed reliance, on documentary and o·ral evidence, produc.ed by Pratima . Chowdhury. The instant factual aspect of the matter was totally overlooked by the Co-operative Tribunal, as well as, by the High Court. Keeping in view the factual position depicting in paragraph (iv) above, we have no doubt in our mind, that there was substance in the determination of the Arbitrator, specially on account of the fact that transfer of shares from the name of Partha Mukherjee to the name of Pratima Chowdhury came to be effected, well after the transfer of flat no. 50 to the name of G Kalpa11a Mukherjee. For the above reason as well, the findings of fact recorded by the Co-operative Tribunal as well as by the High Court, are bound to be considered as having been recorded without taking into consideration all the material and relevant facts. · H

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& ANR. [JAGDISH SINGH KHEHAR, J.] (vi) The fact that Pratima Chowdhury had addressed a A letter to the Secretary of the Society, dated 28.2.1995, for withdrawal of her earlier letter dated 11.11.1992, is not in dispute. It is also not a matter of dispute, that at the time when Pratima Chowdhury addressed the above letter, neither the transfer of membership, nor the transfer of the flat, had assumed B finality. The transfer of membership, as also the transfer of the flat, would assume finality only upon the approval of the same by the Deputy Registrar, Co-operative Societies. The factual position emerging from the record of the case reveals, that the Society sought the approval of the Deputy Registrar, Co- c operative Societies for the transfer of membership, as also, flat no. 5D to the name ot Kalpana Mukherjee on 13.3.1995. Undoubtedly, Pratima Chowdhury had sought revocation, before the transfers under reference had assumed finality. It is in the above background, that one needs to evaluate the reply 0 of the Society dated 10.4.1995. Through the letter dated 10.4.1995, Pratima Chowdhury was informed, that the Society had no authority to look into the matter, after the resolution of the Board of Directors dated 2.4.1995. We find the above explanation, untenable. It was imperative for the Society to have examined the withdrawal letter dated 28.2.1995, ·the matter cer:tainly had not been concluded. Well after the withdrawal letter, the Society by its notice dated 16.4.1995 had intimated its members, about the resolution dated 2.4.1995. The matter was, therefore, pending authoritative conclusion. Thus viewed, it was not justified for the Society to deny consideration of the withdrawal letter dated 28.2.1995. Acceptance or rejection on merits is another matter, but non-consideration is not understandable. The instant non-consideration clearly invalidates the resolution passed by the Society. G (vii) On 22.3.1995, Pratima Chowdhury addressed a letter to the Deputy Registrar, Co-operative Societies, imploring him to take appropriate action, by considering the ·withdrawal letter dated 28.2.1995. We are surprised, that the Deputy Registrar, Co-operative Societies adopted the same stance, as was H

p. 724 Copy page pinpoint

A adopted by the Society. When the letter dated 22.3.1995 was addressed to the Deputy Registrar, Co-operative Societies, it had not yet granted approval to the recommendations made by the Society. The receipt of the letter dated 28.2.1995, by the Society (as also the receipt of the letter dated 22.3.1995, by B the Deputy Registrar, Co-operative Societies) is not in dispute. It is imperative for us therefore to conclude, that the decision taken by the Deputy Registrar, Co-operative Societies was, without reference to the withdrawal letter dated 28.2.1995 (which was enclosed with the letter dated 22.3.1995 addressed c to the Deputy Registrar, Co-operative Societies). The determination by the Deputy Registrar, Cooperative Societies, canno.t therefore be treated as a valid and legitimate consideration. Acceptance or rejection on merits is another matter, but non-consideration is just not understandable. The instant non-consideration clearly invalidates the approval 0 granted by the Deputy Registrar, Co-operative Societies.

(viii) The veracity of the execution of the documents dated 11.11.1992 and 13.11.1992 by Pratima Chowdhury, was also examined by the Arbitrator. In the above examination, the E Arbitrator arrived at the conclusion, that Pratima Chowdhury was in Bombay and not in Calcutta when the above documents were executed. The above finding was recorded on the basis of three witnesses produced on behalf of the complainant (before the Arbitrator). While rejecting the conclusion drawn by the Arbitrator, the Co-operative Tribunal overlooked the statements of the witnesses produced by Pratima Chowdhury, merely because the notary was an Advocate. The Co-operative Tribunal reasoned, that the statement of S.N. Chatterjee, an Advocate, had to be given more weightage, than the witnesses produced by Pratima Chowdhury. The above determination at the hands of the Co-operative Tribunal, besides being perverse, is also totally unacceptable in law. In the facts and circumstances of the present case, the statement of the notary should have been rejected and discarded, simply because the notary in his deposition had acknowledged, that he did not issue

p. 725 Copy page pinpoint

& ANR. [JAGDISH SINGH KHEHAR, J.] any notarial certificate in terms of Section 8 of the Notary Act. A In the absence of issuance of any such certificate, notarization of the document dated 13.11.1992 was clearly subject to suspicion. The conclusion drawn by the Co-operative Tribunal as also the High Court, to the effect that the document dated 13 ..11.1992 was executed at Calcutta, is therefore, based on B ' no evidence whatsoever. The fact that the document dated 13.11.1992 had not been executed in Calcutta, was also sought to be substantiated by showing, that the registration number of the Society was not depicted in the said letter, even though the said letter was shown to have been executed at the residence c of the Secretary of the Society. It was reasoned, that the Secretary of the Society would have supplied the aforesaid number, if the above document had been executed at his residence. Having rejected the credibility of the statement of S.N. Chatterjee {the notary), and having not accepted the fact D that the above document was executed at the residence of Anil Kumar Sil, the Secretary of the Society, we find no reason for not accepting the statements of the three witnesses produced by Pratima Chowdhury, to show that she {Pratima Chowdhury) wcis at Bombay on 11.11.1992, as well as, on 13.11.1992. E Herein again, the Cooperative Tribunal and the High Court, erred on the face of the record, by not taking into consideration material facts, available on the file of the ~ase.

{ix) In the background of the factual position emerging from the deliberations recorded hereinabove, it is also necessary to notice, that the Arbitrator had placed heavy reliance on the fact, that Kalpana Mukherjee had deposited rent on 21.10.1993 {payable to Pratima Chowdhury), into the account of Pratima Chowdhury, by herself, filling up the bank deposit voucher. Accordingly, the Arbitrator inferred, that the property in question, even to the knowledge of Kalpana Mukherjee, had not actually been transferred to her name by Pratima Chowdhury · {at least upto 21.10.1993). That was the reason, why Kalpana M~kherjee had continued to deposit rent for flat no. SD, into the account of Pratima Chowdhury upto 21.10.1993. Coupled with H

p. 726 Copy page pinpoint

A the aforesaid factual aspect, the Arbitrator placed great reliance on the letter dated 28.10.1993 addressed by Partha Mukherjee to Colgate Palmolive (India) Limited, wherein, he described Pratima Chowdhury as the "landlady". Undoubtedly, if the documents relied upon by Kalpana Mukherjee were genuine, B Partha Mukherjee would not have acknowledged the ownership of Pratima Chowdhury over flat no. 50 (on 28.10.1993). These aspects of the matter were totally overlooked by the Co- . operative Tribunal, as well as, by the High Court. These were vjtal facts, and needed to be examined, if the order passed by c the Arbitrator was to be interfered with. In the absence of such consideration, the findings of fact recorded by the Co-operative Tribunal and by the High Court, are bound to be considered as perverse. Since the factual position attributed to the actions of 21.10.1993 and 28.10.1993, which emanated and emerged from Kalpana Mukherjee and Partha Mukherjee respectively, 0 we are of the view that entire sequence of transfer, is rendered doubtful and suspicious.

(x) The determination of the Arbitrator, on the subjec.t of the transfer of the covered garage, to the name of Kalpana E Mukherjee was also overlooked by the Co-operative Tribunal, as well as, by the High Court. From the facts already narrated above, it is clear that Pratima Chowdhury, had one covered garage space also. Whilst reference was made about the details of the flat sought to be transferred, in the transfer documents, no reference was made to the covered garage space. Based on the letter dated 11.11.1992, and the document dated 13.11.1992, flat no. 50 was transferred to the name of Kalpana Mukherjee. The instant transfer however did not include the covered garage space. Thereafter, based on an agreement executed between Kalpana Mukherjee (on the one hand), and the Society (on the other), the said covered garage space was transferred to the name of Kalpana Mukherjee, on 25.4.1995. The said transfer was not at the behest of, or with the concurrence of Pratima Chowdhury. H Therefore, according to the view expressed by the Arbitrator,

PRATIMA CHOWDHURY v. KALPAN~ MUKHERJEE 727 & ANR. [JAGDISH SINGH KHEHAR, J.] the covered garage space, must be deemed to have never been A transferred to Kalpana Mukherje by its erstwhile owner. The Arbitrator also expressed the view, that the agreement dated 25.4.1995 could not have been executed without the participation of Pratima Chowdhury. The above factual position has not been disputed at the hands of Kalpana Mukherjee, B before this Court. The above reasoning, in our considered view, was fully justified. The instant aspect of the matter was also totally overlooked by the Co-operative Tribunal, as well as, by the High Court. For the above reason also, the findings of the fact, recorded by the Co-operative Tribunal and by the High c Court, are bound to be treated as perverse.

29Copy pinpoint29. For all the reasons recorded by us in foregoing sub- paragraphs, we are of the view that the Co-operative Tribunal as well as the High Court, seriously erred in recording their conclusions. We are satisfied in further recording, that the D Arbitrator was wholly justified in allowing the Dispute Case filed by Pratima Chowdhury, by correctly appreciating the factual and legal position.

30Copy pinpoint30. The Co-operative Tribunal as well as the High Court, E had invoked the principle of justice and equity, and the doctrine of fairness, while recording their eventual findings in favour of Kalpana Mukherjee. It is, therefore, necessary for us, to delve upon the above aspect of the matter. Before we venture ta examine the instant controversy in the above perspective, it is F necessary to record a few facts. It is not a matter of dispute, that for a long time Pratima Chowdhury had been residing at Bombay. She was residing at Bombay in the house of H.P. Roy and Bani Roy. Bani Roy, as stated above, is the sister of Pratima Chowdhury. H.P. Roy is a wealthy person. Partha G Mukherjee son of Kalpana Mukherje, is an engineering graduate from llT, Kharagpur. He also possesses the qualification of MBA, which he acquired from Ahmedabad. Originally Partha Mukherjee was employed as Sales Manager/ Regional Manager with Colgate Palmolive (India) Limited, at H -

SUPREME COURT REPORTS [2014] 2 S.C.R:

A Bombay. Partha Mukherjee married Sova Mukherjee (the daughter of H.P. Roy), whilst he was posted at Bombay in 1987. Soon after his marriage, Partha Mukherjee and Sova Mukherjee also started to live in the house of H.P. Roy (father- in-law of Partha Mukherjee). The evidence available on. the B record of the case reveals, that Pratima Chowdhury treated Sova Mukherjee as her daughter, and Partha Mukherjee as her son. In 1992; Partha Mukherjee was transferred from Bombay to Calcutta. Immediately on his transfer, Pratima Chowdhury accommodated him in flat no. 50. Subsequently, Colgate c Palmolive (India) Limited entered into a lease and licence agreement, in respect of flat no. 50 with Pratima Chowdhury, so as to provide residential accommodation to Partha Mukherjee (as per the terms and conditions of his employment). Obviously, Partha Mukherjee was instrumental in the execution of the above lease and licence agreement. In order to deposit 0 monthly rent payable to Pratima Chowdhury (by Colgate Palmolive (India) Limited), Partha Mukherjee opened a bank account in the name of Pratima Chowdhury, jointly with himself. He exclusively operated the above account, for deposits as well as for withdrawals. Not only that, the findings recorded by the E Arbitrator indicate that the letter dated 11.11.1992 written by Pratima Chowdhury was drafted by Partha Mukherjee. The aforesaid conclusion was drawn from the fact th.at the manuscript of the original was in the handwriting of Partha Mukherjee. All the above facts demonstrate, a relationship of F absolute trust and faith between Pratima Chowdhury and Partha Mukherjee. The aforesaid relationship emerged, not only on account of the fact that Partha Mukherjee was married to Sova Mukherjee (the niece of Pratima Chowdhury)! but also on account of the fact, that Partha Mukherjee and his wife Sova G Mukherjee soon after their marriage lived in the house of H.P. Roy (husband of the sister of Pratima Chowdhury). They resided together with Pratima Chowdhury till 1992, i.e., for a period of more than a decade, before Partha Mukherjee was transferred to Calcutta. In our considered view the relationship H between Partha Mukherjee and Pratima Chowdhury would

p. 729 Copy page pinpoint

& ANR. [JAGDISH SINGH KHEHAR, J.] constitute. a fiduciary relationship. Even though all the above aspects of the relationship between the parties were taken into consideration, none of the adjudicating authorities dealt with the controversy, by taking into account the fiduciary relationship between the parties. When parties are in fiduciary relationship, the manner of examining the validity of a transaction, specifically when there is no reciprocal consideration, has to be based on parameters which are different from the ones applicable to an ordinary case. Reference in this behalf, may be made to the decision rendered by this Court in Subhas Chandra Das Mushib vs. Ganga Prosad Das Mushib, AIR 1967 SC 878, c wherein this Court examined the twin concepts of "fiduciary relationship" and "undue influence". and observed as under:

"We may now proceed to consider what are the essential in- gredients of undue influence and how a plaintiff who seeks relief on this ground should proceed to prove his D case and when the defendant is called upon to show that the contract or gift was not induced by undue influence. The instant case is one of gift but it is well settled that the law as to undue influence is the same in the case of a gift inter- vivos as in the case of a contract. E

Under s. 16 1 of the Indian Contract Act a contract is said to be induced by u ue influence where the relations 1

subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other. This shows that the court trving a case of undue influence must consider tWo things to start with. namely. (1) are the relations between the donor and the donee such that the donee is in a position to dominate the will of the donor and (2) has the donee used that position to obtain an unfair advantage over the donor'?

Sub-section (2) of the section is illustrative as to when a person is to considered to be in a position to dominate the will of another. These are inter alia (a) where the donee H

p. 730 Copy page pinpoint

A holds a real or apparent.authority over the donor or where he stands in a fiduciary relation to the donor or (b) where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness, or mental or bodily distress. B Sub-section (3) of the section throws the burden of proving that a contract was not induced by undue influence on the person benefiting by it when two facto.rs are found against him. namely that he is in a position to dominate the will of another and the transaction appears on the face of it or c on the evidence adduced to be unconscionable.

The three stages for consideration of a case of undue influence were expounded in the case of Ragunath Prasad v. Sarju Prasad and others (AIR 1924 PC 60) in the following words :- "In the first place the relations between the parties to each other must be such that one is in a position to dominate the will of the other. Once that position is substantiated the second stage has been reached- namely. the issue whether the contract has been induced by undue influence. Upon the determination of this issue a third point emerges. which is that of the onus trobandi. If the transacuon appears to be unconscionable. then the burden of proving that the contract was not induced by • undue influence is to lie upon the person who was in a F position to dominate the will of the other."

(emphasis is ours)

The subject of fiduciary relationship was also examined by this Court in, Krishna Mohan Kut alias Nani Charan Kut vs. G Pratima Maity, (2004) 89 sec 468, wherein it was held as under:

" .....When fraud, mis-representation or undue influence is alleged by a party in a suit. normally. the burden is on him to prove such fraud. undue influence or mismpresentation. H

p. 731 Copy page pinpoint

& ANR. [JAGDISH SINGH KHEHAR, J.] But. when a person is in a fiduciary relationship with another and the latter is in a position of active confidence the burden of proving the absence of fraud. misrepresentation or undue influence is upon the person in the dominating position and he has to prove that there was fair play in the transaction and that the apparent is the real. in other words that the transaction is genuine and bona fide. In such a case the burden of proving the good faith of the transaction is thrown upon the dominant party. that is to say. the party who is in a position of active confidence. A person standing in a fiduciary relation to c another has a duty to protect the interest given to his care and the Court watches with jealously all transactions between such persons so that the protector may not use his influence or the confidence to his advantage. When the party complaining shows such relation the law presumes 0 everything against the transaction and the onus is cast against the person holding the position of confidence or trust to show that the transaction is perfectly fair and reasonable. that no advantage has been taken of his position. This principle has been engrained in Section 111 E of the Indian Evidence Act, 1872 (in short the 'Evidence Act'). The rule here laid down is in accordance with a · principle long acknowledged and administered in Courts of Equity in England and America. This principle is that he who bargains in a matter of advantage with a person who places confidence in him is bound to show that a F proper and reasonable use has been made of that confidence. The transaction is not necessarily void ipso facto, nor is it necessary for those who impeach it to establish that there has been fraud or imposition, but the burden of establishing its perfect fairness, adequacy and G equity is cast upon the person in whom the confidence has been reposed. The rule applies equally to all persons standing in confidential relations with each other. Agents, trustees, executors, administrators, auctioneers, and others have been held to fall within the rule. The Section H

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A requires that the party on whom the burden of proof is laid should have been in a position of active confidence where fraud is alleged, the rule has been clearly established in England that in the case of a stranger equity will not set aside a voluntary deed or donation, however, improvident B it may be, if it be free from the imputation of fraud, surprise, undue influence and spontaneously executed or made by the donor with his eyes open. Where an active confidential. or fiduciary relation exists between the parties. there the burden of proof is on the donee or those claiming through c him. It has further been laid down that where a person gains a great advantage over another by a voluntary instrument. the burden of proof is thrown upon the person receiving the benefit and he is under the necessity of showing that the transaction is fair and honest.

D 13. In judging of the validity of transactions between persons standing in a confidential relation to each other, it is very material to see whether the person conferring a benefit on the other had competent and independent advice. The age or capacity of the person conferring the benefit and the nature of the benefit are of very great importance in such cases. It is always obligatory for the donor/beneficiary under a document to prove due execution of the document in accordance with law, even de hors the reasonableness or otherwise of the transaction, to avail of the benefit or claim rights under the document irrespective of the fact whether such party is the defendant or plaintiff before Court.

14. It is now well established that a Court of Equity, when a person obtains any benefit from another imposes upon the grantee the burden, if he wishes to maintain the contract or gift. of proving that in fact he exerted no influence for the purpose of obtaining it. The proposition is very clearly started in Ashburner's Principles of Equity, 2nd Ed., p.229, thus: H

PRATIMA CHOWDHURY v. KALPANA MUKHERJEE & 733 ANR. [JAGDISH SINGH KHEHAR, J.] "When the relation between the donor and donee A at or shortly before the execution of the gift has been such as to raise a presumption that the donee had influence over the donor. the court sets aside the gift unless the donee can prove that the gift was the result of a free exercise of the donor's will."" B

(emphasis is ours)

The above conclusions recorded by this Court, came to be reiterated recently in Anil Rishi Vs. Gurbaksh Singh, (2006) 5 sec 558. c

31Copy pinpoint31. While deciding the proposition in hand, we must keep in mind the law declared by this Court on the subject of fiduciary relationship. We will also proceed by keeping in mind, what we have already concluded in the preceding paragraph, i.e., that relationship between Partha Mukherjee and Pratima Chowdhury was a relationship of faith, trust and confidence. Partha Mukherjee was in a domineering position. He was married to Sova Mukherjee. Sova Mukherjee is the daughter of H.P. Roy. Pratima Chowdhury has lived for a very long time in the house of H.P. Roy. During that period (after his marriage) Partha Mukherjee also shared the residential accommodation in the same house with Pratima Chowdhury, for over a decade. In Indian society the relationship between Partha Mukherjee and Pratima Chowdhury, is a very delicate and sensitive one. F It is therefore, that Pratima Chowdhury extended all help and support to him, at all times. She gave him her flat when he was transferred to Calcutta. She also extended loans to him, when he wanted to set up an independent business at Bombay. These are illustrative instances of his authority, command and influence. Instances of his enjoying the trust and confidence of G Pratima Chowdhury include, amongst others, the joint account of Pratima Chowdhury with Partha Mukherjee, which the latter operated exclusively, and the drafting of the letters on behalf of Pratima Chowdhury. In such fact situation, we are of the view, that the onus of substantiating the validity and genuineness of H

p. 734 Copy page pinpoint

A the transfer of flat no. 50, by Pratima Chowdhury, through the letter dated 11.11.1992 and the document dated 13.11.1992, rested squarely on the shoulders of Kalpana Mukherjee. Because it was only the relationship between Partha Mukherjee and Pratima Chowdhury, which came to be extended to B Kalpana Mukherjee. The document dated 13.11.1992 clearly expressed, that the above transfer was without consideration. Kalpana Mukherjee in her written reply before the Arbitrator asserted, that the above transfer was on a consideration of Rs.4,29,000/-. The Arbitrator in his order dated 5.2.1999 c concluded, that Kalpana Mukherjee could not establish the passing of the above consideration to Pratima Chowdhury. The Cooperative Tribunal, as well as, the High Court, despite the factual assertion of Kalpana Mukherjee were of the view, that passing of consideration was not essential in determination of the genuineness of the transaction. We are of the view, that the 0 Cooperative Tribunal, as well as, the High Court seriously erred in their approach, to the determination of the controversy. Even though the onus of proof rested on Kalpana Mukherjee, the matter was examined by requiring Pratima Chowdhury to establish all the alleged facts. We are of the view, that Kalpana Mukherjee miserably failed to discharge the burden of proof, which essentially rested on her. Pratima Chowdhury led evidence to show, that she was at Bombay on 11.11.1992 and 13.11.1992. In view of the above, the letter dated 11.11.1992 and the document dated 13.11.1992, shown to have· been executed at Calcutta could not be readily accepted as genuine, for the said documents fell in the zone of suspicion, more so, because the manuscript of the letter dated 11.11.1992 was in the hand-writing of Partha Mukherjee. Leading to the inference, that Partha Mukherjee was the author of the above letter. It is therefore not incorrect to infer, that there seems to be a ring of truth, in the assertion made by Pratima Chowdhury, that Partha Mukherjee had obtained her signatures for executing the letter and document referred to above. We find no justification whatsoever for Pratima Chowdhury, to have transferred flat no. H

PRATIMA CHOWDHURY v. KALPANA MUKHERJEE & 735 ANR. [JAGDISH SINGH KHEHAR, J.] 50 to Kalpana Mukherjee, free of cost, even though she had A purchased the same for a consideration of Rs. 4 lakhs in the year 1987. Specially so, when she had no direct intimate relationship with Kalpana Mukherjee. By the time the flat was transferred, more than a decade had passed by, during which period, the price of above flat, must have escalated manifold. B Numerous other factual aspects have been examined by us above, which also clearly negate the assertions made by Kalpana Mukherjee. The same need not be repeated here, for reasons of brevity. Keeping in mind the above noted aspects, we are of the considered view, that invocation of the principle c of justice and equity, and the doctrine of fairness, would in fact result in returning a finding in favour-of Pratima Chowdhury, and not Kalpana Mukherjee.

32Copy pinpoint32. For the reasons recorded hereinabove, the instant appeal is allowed, the order dated 16.5.2002 passed by the D Co-operative Tribunal, and the order dated 14.2.2006 passed by the High Court, are hereby set aside. The determination rendered by the Arbitrator in his award dated 5.2.1999, is hereby affirmed. Kalpana Mukherjee is directed to handover the possession of flat no. 50 to Pratima Chowdhury, within one E month from today. The Society is also directed to retransfer the shares of the Society earlier held by Pratima Chowdhury, and the ownership rights of flat no. 50 to the name of Pratima Chowdhury, without any delay. F D.G. Appeal allowed.