1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 634 of 1991
1. Ambadas Khanderao Hagvane
age : 39 yrs, Occu : Mechanic
R/o. At : Vihitgaon,
Taluka and District : Nashik.
2. Devidas Khanderao Hagvane
Age : 30 yrs., Occu : Service,
R/o. At : Vihitgaon,
Taluka and District Nashik.
3. Bhandudas Khanderao Hagvane
Age : 31 yrs., Occu : Service,
R/o. At : Vihitgaon,
Taluka and District : Nashik
4. Tulshiram Khanderao Hagvane
Age : 22 yrs, Occu : Service,
R/o. At : Vihitgaon,
Taluka & District : Nashik
5. Sou. Januda Namdeo Rahane
Age : 35 yrs. Occu : Houshold,
R/o. At : Poona Road,
Bankar Mala, Nashik. ... Appellants.
(Orig. Defendants)
V/s.
1. Shaikh Razaq Shaikh Yakub
Age : 51, Occu : Business,
::: Downloaded on - 09/06/2013 13:54:14 :::
2
R/o. At : Nashik.
2. Shaikh Rafiq Shaikh Yakub
Age : 31, Occu. : Business,
R/o. At : Nashik. ... Respondents.
(Orig. Plaintiffs)
Mr. C.P. Deogirikar with Mr. A.V. Anturkar for the Appellants.
Mr. G.R. Agrawal i/b. R.M. Agrawal for Respondent Nos. 1 and 2.
CORAM : J.H. BHATIA, J.
ig DATE : 25th SEPTEMBER 2008
ORAL JUDGMENT :-
This appeal is filed by the Original Defendants challenging
the decree passed by the Joint Civil Judge, Junior Division, Nasik in
Regular Civil Suit No.174 of 1984 in favour of the
Plaintiff/Respondents and confirmed by the learned 6th Additional
District Judge, Nasik while dismissing Regular Civil Appeal No.31 of
1986 filed by the Defendants.
2. Admitted facts are that Original Defendant No.5 Khanderao
::: Downloaded on – 09/06/2013 13:54:14 :::
3
was owner of the land Survey No.24/12 admeasuring 30 Gunthas
situated at Mauje Vihitgaon, Taluka Nashik which is now part of
Municipal Corporation, Nashik. Defendant No.5 Khanderao had got
the land mutated in the nature of his four sons, who are Defendant
Nos.1 to 4. The Plaintiffs, who are brothers interse, filed suit for
specific performance of contract against the Defendants. According
to them the Defendants had agreed to sell the suit land to them for
consideration of Rs.15,000/- and amount of Rs.6,000/- was paid as
earnest money and balance amount was to be paid at the time of
executiion of sale deed. Accordingly, an agreement for sale was
executed on 17.7.1978. As per terms of the contract the Defendants
were to obtain permission for sale under Urban Land Ceiling Act as
well as under Section 63 of the Bombay Tenancy and Agricultural
Lands Act (Tenancy Act, in brief). According to the Plaintiffs, the cost
of obtaining the permission from both the Competent Authorities was
to be borne by the Defendants while cost of getting the sale deed
registered would be borne by the Plaintiffs. Permission under the
Urban Land Ceiling Act was obtained on 24.8.1978. However, the
::: Downloaded on – 09/06/2013 13:54:14 :::
4
Defendants did not take any steps to secure permission under
Section 63 of the Tenancy Act and thus, they committed breach of the
contract. The Plaintiffs firstly issued firstly public notice and
thereafter, they issued notice to the Defendants in the year 1983.
However, the Defendants avoided and finally refused to execute sale
deed. The Plaintiffs contended that they have been always ready and
willing to perform their part of the contract, that is to pay the balance
amount and to get the sale deed executed, however, the Defendants
were not ready. Therefore, they filed the suit for specific performance
of the contract. Alternatively, they also contended that if the decree
for specific performance cannot be granted, the amount of Rs.6,000/-
be directed to be refunded by the Defendants with interest thereon.
3. The Defendants contested the suit by filing written
statement wherein they denied to have entered into any agreement
for sale with the Plaintiffs and to have received any amount from them
as earnest money towards the alleged transaction. They also denied
that they were to obtain any permission which would be necessary for
::: Downloaded on – 09/06/2013 13:54:14 :::
5
execution of sale deed. According to them, the market value of the
land was more than Rs.40,000/- and therefore, it was not possible for
them to enter into an agreement for sale of the suit land for meager
amount of Rs.15,000/-. According to them, Defendant No.5 was in
need of money to meet certain expenses and therefore, he
approached one Haroon Seth, who is said to be brother-in-law of the
Plaintiffs. Haroon Seth agreed to advance the amount however, he
wanted Defendant No.5 to execute some documents as security of
the said amount. Defendant No.5 received the amount of Rs.6,000/-
from Haroon Seth as a loan and also signed on blank paper, and
handed over the same to Haroon Seth. It was agreed that on
repayment of the amount, the said paper bearing signature of
Defendant No.5, would be returned to him. Later on, Defendant No.5
approached Haroon Seth and offered to repay the amount of
Rs.6,000/- and demanded the said signed document but Haroon Seth
avoided to receive the amount and to hand over the document saying
that he had to search out the said document and that when the
document would be traced out, he would return to him. Due to sharp
::: Downloaded on – 09/06/2013 13:54:14 :::
6
increase in the prices as a result of passage of time, Haroon Seth got
prepared the false deed of agreement in favour of the Plaiantiff and
they have filed the suit falsely misusing that document. It was further
contended that Defendant No.4 Tulshiram was a minor at the time of
alleged agreement and no permission was obtained from the
Competent Court for sale of his share in the suit property. By making
an amendment to the written statement, they also pleaded that the
land was a Patil inam land and could not be transferred without
obtaining necessary permission and without depositing 50% of the
market price of the land with the Government. On all these grounds,
the suit was contested. According to them, because of these
reasons, the suit is liable to be dismissed.
4. The Trial Court framed several issues and after the hearing
the evidence of both the parties, rejected the contentions of the
Defendants and passed the decree for specific performance of the
contract in favour of the Plaintiffs.
::: Downloaded on – 09/06/2013 13:54:14 :::
7
5. Being aggrieved by the Judgment and Decree passed by
the Trial Court, the Defendants preferred Regular Civil Appeal No.31
of 1986. The learned Appellate Court also rejecteed the contentions
of the Defendants that they had not entered into an agreement for
sale with the Plaintiffs; that they had not received earnest money and
that it was only a loan transaction between Defendant No.5 and
Haroon Seth. The Lower Appellate Court also came to the conclusion
that it was responsibility of the defendants to obtain necessary
permission for sale of the land under Urban Land Ceiling Act as well
as Tenancy Act. The learned Lower Appellate Court also rejected
the contention that the contract is not enforceable due to any
provision of Inam Abolition Act or the Tenancy Act. However, the
learned Appellate Court came to the conclusion that at the time of the
agreement for sale, Respondent No.4 Tulshiram was a minor and his
mother Housabai was not competent to enter into an agreement to
sell the share of the minor in the land. With this finding, the Appellate
Court modified the decree passed by the Trial Court and as a result of
the same, the decree was passed in favour of the Plaintiffs in respect
::: Downloaded on – 09/06/2013 13:54:14 :::
8
of 3/4th share of the suit land with direction to the Plaintiff to deposit
balance amount of Rs.5,250/- towards that share. The decree passed
by the Trial Court was set aside to the extent of 1/4th share of
Defendant No.4 in the suit land. The Appellate Court directed
Defendant Nos. 1 to 3 to secure the necessary permission under
Section 63 of the Bombay Tenancy and Agricultural Lands Act within
the period of three months for which the Plaintiffs would bear
expenses. The Appellate Court also directed that in case of
defendants failing to obtain permission, the Plaintiff would secure the
permission through the Court and thereafter, the sale deed could be
executed. Being aggrieved, the Defendants have filed this Second
Appeal.
6. Heard learned Counsel for both the parties. The Appeal
was admitted on 29.11.1991 by following order :-
“The nature of the suit transaction and the discretion
exercised raised substantial question of law.”
::: Downloaded on – 09/06/2013 13:54:15 :::
9
7. The Second Appeal can be admitted and heard only on the
substantial question of law which may be raised. As pointed out
above, at the time of admitting the appeal, substantial questions of
law were not formulated. Therefore, before formulating the questions
of law, it will be necessary to note down the admitted facts and
concurrent findings of facts given by the Courts below.
8. Admittedly, the suit land originally belonged to Defendant
No.5 Khanderao. However, before the suit transaction, he had got
the land mutated in the names of his 4 sons, who are Defendant Nos.
1 to 4. Defendant No.4 Tulsiram was aged 12 years when the alleged
agreement took place in 1978 and on his behalf, the agreement was
signed by his mother as a guardian. In fact, in the presence of the
father i.e. Defendant No.5 Khanderao, the mother could not be legal
guardian of defendant. Admittedly, no permission was obtained from
the District Court for the purpose of sale of the property belonging to
Defendant No.4. In view of this, the lower Appellate Court refused
::: Downloaded on – 09/06/2013 13:54:15 :::
10
specific performance of contract to the extent of 1/4th share of
Defendant No.4 and passed the decree in respect of 3/4th share
belonging to Defendant Nos.1 to 3, who were themselves signatories
of the agreement. The Plaintiffs have also preferred cross objections
in respect of dismissal of their suit to the extent of 1/4th share of
Defendant No.4. I find that the Trial Court had not given any reason
on this aspect and the Appellate Court has given valid reasons while
refusing specific performance to the extent of 1/4th share of
Defendant No.4. Therefore, I find no substance in the cross objection
and therefore, the cross objection is liable to be rejected.
9. Both the Courts below have given concurrent findings that
the defendants had entered into an agreement to sell the suit land to
the Plaintiffs for consideration of Rs.15,000/- and they had received
amount of Rs.6,000/- as earnest money and they had executed an
agreement for sale. Both the Courts below also held that the
defendants were to obtain necessary permission under Section 26 of
the Urban Land Ceiling Act and under Section 63 of the Bombay
::: Downloaded on – 09/06/2013 13:54:15 :::
11
Tenancy and Agricultural Lands Act from the Competent Authorities
before executing sale deed. Both the Courts below found that
permission under Section 26 of the Urban Land Ceiling Act was
obtained by the defendants on 30th August 1978. Only the
permission under Section 63 of Tenancy Act was not obtained. There
is a concurrent finding of fact from both the Courts below that the
Defendants had failed to prove that Defendant No.5 Khanderao had
obtained loan of Rs.6,000/- from Haroon Seth and that he had not
entered into any agreement for sale with the Plaintiffs. There is no
material on record to show that the concurrent findings of facts on
these points are either per se wrong or perverse in view of the oral or
documentary evidence on record and therefore, no substantial
question of law can be raised in respect of these findings.
10. The learned Counsel for the Defendants/Appellants
contended that as per the terms of the alleged contract, the sale deed
was to be executed within six months from 17.7.1978 when the
agreement was entered into and the last date for execution of sale
::: Downloaded on – 09/06/2013 13:54:15 :::
12
deed was 17.1.1979 and the permission was to be obtained from both
the authorities under the Urban Land Ceiling Act as well as Tenancy
Act within the said period. The Plaintiffs were bear the expenses of
obtaining permission as well as to execute the sale deed. The
Plaintiffs took a stand later on that they were not liable to bear the
expenses of obtaining permission and therefore, no steps were taken
for the purposes of obtaining the permission under Section 63 of the
Tenancy Act and as a result, permission was not obtained within the
period. The suit was filed on 17.2.1984 and thus, the suit is barred by
limitation. The learned Counsel also contended that because of the
said stand taken by the Plaintiff in respect of expenses of obtaining
permission, it must be held that they were not ready and willing to
perform their part of the contract. Decree for specific performance
could not be passed with condition to obtain permission under
Tenancy Act. It is further contended that the Defendants are the
small cultivators holding a small piece of land. If the decree for
specific performance is granted, they would be deprived of their land.
Further, value of the land has increased many folds from the year
::: Downloaded on – 09/06/2013 13:54:15 :::
13
1978 to 2008. If the discretion is used in favour of the Plaintiffs in
granting the decree for specific performance, the defendants would be
put to great financial loss and therefore, it will not be in the interest of
justice to pass a decree for specific performance in the favour of
Defendants to the Plaintiffs.
11. In view of the above arguments advanced by the learned
Counsel for the Defendants/Appellants, following substantial
questions of law may be formulated :-
(i) Whether the Courts below, in the face of the pleadings
and evidence, committed error in holding that the suit was within
limitation ?
(ii) Whether the Courts below, in face of documentary and
oral evidence and the pleadings, committed error in holding that the
Plaintiffs were always ready and willing to perform their part of the
contract ?
::: Downloaded on – 09/06/2013 13:54:15 :::
14
(iii) Whether the Courts below committed error in using
discretion in favour of the Plaintiffs while granting the decree for
specific performance of the contract ?
(iv) Whether the Courts below committed error in passing
the decree for specific performance subject to obtaining permission
under Section 63 of the Bombay Tenancy and Agricultural Lands
Act ?
12. To appreciate the arguments advanced on behalf of the
Appellants and the counter arguments advanced on behalf of the
Respondents/Plaintiffs, it will be necessary to state the terms of the
agreement between the parties. The agreement for sale reveals that
the Defendants had agreed to sell the suit land for consideration of
Rs.15,000/- and they had received amount of Rs.6,000/- as earnest
money at the time of executing the agreement for sale and the
balance amount of Rs.9,000/- was to be paid by the Plaintiffs to the
::: Downloaded on – 09/06/2013 13:54:15 :::
15
Defendants at the time of execution of sale deed before the sub-
Registrar. The period of completing the transaction was fixed to be
six months from 17.7.1978 to 17.1.1979. It also provides that as a
land was situated within the area of Municipal Corporation, Nashik, it
was necessary to obtain permission from the competent authority
under the Urban Lands Ceiling Act and after obtaining that
permission, further permission would be required to be taken from
Assistant Collector, Nashik under Section 63 of the Tencancy Act. It
is specifically provided that the vendors, i.e. the defendants were to
secure the permission at the cost of the plaintiffs. It further provided
that after obtaining permision under Section 63 of the Tenancy Act,
the sale deed would be executed. In case, the above referred both
the permissions could not be secured within the specified period, the
period for execution of sale deed could be extended till both the
permissions were obtained and further by period of one month
beyond the date of obtaining the permission.
13. Under Article 54 of the Limitation Act for a suit for specific
::: Downloaded on – 09/06/2013 13:54:15 :::
16
performance of contract, the period of limitation is three years and
when the date of performance is fixed, the period of limitation begins
to run from that day and when no such date is fixed, the period of
limitation begins to run when the Plaintiff has knowledge of refusal of
performance. In the present case, the period was specified in the
agreement. In view of the terms of the contract noted above, it is
clear that the parties had agreed that the sale transaction should be
completed within six months i.e. by 17.1.1979 but this period was
subject to condition of obtaining permission for sale from the
competent authorities under both the Acts. If the permission would
have been obtained within that period, the transaction was to be
completed on or before 17.1.1979 and in that case the period of
limitation would begin to run from 17.1.1979 and would come to an
end on 17.1.1982. Admittedly, the permission under Section 26 of
Urban Lands Ceiling Act was obtained by 30th August 1978 i.e. well
within time. However, permission under Section 63 of the Tenancy
Act was not obtained. There is nothing to show that the defendants
had filed any application before the competent authority for obtaining
::: Downloaded on – 09/06/2013 13:54:15 :::
17
their permission. As per the terms of the contract it was the
responsibility of the defendants to obtain that permission and then
both the parties were to complete the sale transaction. As the
defendants had failed to move an applicaion for permission under
Section 63 of the Tenancy Act, naturally, the permission was not
secured and as long as that permission was not secured, the period
for completing the transaction would automatically get extended under
the terms of the contract. Mr. Deogirikar, learned Counsel for the
defendants/appellants vehemently contended that it was the
responsibility of the Plaintiffs to approach the competent authority
under Section 63 and to obtain permission. However, he could not
point out any legal provision under which the application for that
permission to be made only by the purchaser of the land. The
application could be moved by either of the party and as per terms of
the contract it was responsibility of the defendants to secure the
permission. It means it was their responsibilithy to file an application
before the competent authority for obtaining permission under Section
63 of the Tenancy Act. Mr. Deogirikar contended that it was
::: Downloaded on – 09/06/2013 13:54:15 :::
18
necessary for the competent authority to be satisfied that the
permission could be granted under the provisions of Section 63 of the
Tenancy Act and the relevant rules and unless the purchasers
appeared before that authority with necessary evidence, the
competent authority could not come to the conclusion that the
plaintiffs deserve that permission. However, in my considered
opinion, if the application would have been filed by the defendants,
the Plaintiffs could be called upon to appear before the competent
authority and to produce necessary oral and documentary evidence to
satisfy the concerned authority that under the provisions of law and
the rules they could be allowed to purchase the land. Unless the
application was made, that stage would not come. The defendants
failed to perform their part of the contract by filing the application
before the competent authortiy to secure that permission., In view of
these circumstances, it must be held that the suit was not barred by
limitation.
14. Mr. Anturkar, who also argued on behalf of the defendants
::: Downloaded on – 09/06/2013 13:54:15 :::
19
after completion of arguments by Mr. Deogirikar, vehemently
contended that if the conduct of the Plaintiffs and their stand is looked
into in the face of the terms of the contract, it would appear that they
were not willing to perform their part of the contract. The learned
Counsel pointed out that in the notice dated 25.11.1983 issued by the
plaintiffs through their Advocate to the defendants, they had
contended that the defendants had to bear the costs of obtaining
permission and in the plaint also the plaintiffs had pleaded that the
defendants had to bear cost of obtaining permission. He pointed out
that this stand taken by the plaintiffs in the notice and in the plaint was
contrary to the specific term of the contract that the defendants would
secure the permission at the costs of the plaintiffs i.e. the purchaser.
Mr. Anturkar contended that this indicated that the plaintiffs were not
willing to bear the cost of obtaining permission and if it is so, it must
be held that they were not ready and willing to perform their part of
the contract. It is true that this stand taken by the plaintiffs, in the
said notice which was issued before filing the suit as well as in the
plaint, is contrary to the specific terms of the contract in respect of the
::: Downloaded on – 09/06/2013 13:54:15 :::
20
cost of obtaining the permission. However, it is material to note that
in the reply to that notice or in the written statement filed by the
defendants, while they had denied the contract and they had
contended that it was the loan transaction between Defenant No.5
Khanderao and Haroon Seth, they had not specifically contended that
as per the terms of the contract the plaintiffs were to bear the cost of
obtaining permission and as they were not willing to bear that cost,
the permission could not be obtained. If they would have taken such
a stand, they would be perfectly justified but it appear that while
denying the whole agreement and all the pleadinga of the plaintiffs in
their statement generally, they did not take any specific plea in
respect of the cost of taking permission. It appears that on this
aspect even the plaintiff was not challenged in the cross examination,.
The Trial Court came to the specific finding that the Plaintiffs were
always ready and willing to perform their part of the contract. It is
material to note that in the appeal memo filed before the lower
Appellate Court as well as in the appeal memo of the Second Appeal
filed before this Court, no ground has been taken in respect of the
::: Downloaded on – 09/06/2013 13:54:15 :::
21
costs of obtaining permission. The learned lower Appellate Court
simply noted that the Trial Court had come to the conclusion that the
plaintiffs had been always ready and willing to perform their part of the
contract. It appears that as this finding was not challenged before the
Appellate Court, the Appellate court did not consider this apsect at all.
This ground was not taken in the appeal memo nor there is nothing on
record to show that this ground was raised even at the time of
arguments before the lower Appellate Court. As pointed out earlier,
the Second Appeal was admitted on merely observing that the nature
of the suit transaction and the discretion exercised, raised substantial
questions of law. It must be persumed that the questions of law
would be only those which were actually raised in the grounds taken
by the Appellant in the appeal memo but the appeal memo clearly
shows that the Appellant did not raise this ground and for the first time
this arguments was advanced before this Court by Mr. Anturkar. In
view of the conduct of the defendants in not challenging the findings
of the Trial Court about the readiness and willingness of the Plaintiffs
either before the first Appellate Court or before this Court on this
::: Downloaded on – 09/06/2013 13:54:15 :::
22
specific ground, in my considered opinion it is too late for the
defendants to raise this ground. The Plaintiffrs had paid the earnest
amount of Rs.6,000/-. As per the terms of the contract, after
obtaining the permission from the competent authorities the
defendants were to inform the plaintiffs and thereafter, the sale deed
to be executed and registered. The defendants never approached the
competent authorities under Section 63 of the Tenancy Act and
therefore, the question of even bearing the cost never arose nor it
was the stand of the defendants that they could not approach the
competent authority for that permission because the plaintiffs were
not willing to bear that expenditure. It is possible that if they would
have replied the notice issued by the Plaintiffs, pointing out the
contradiction in their stand and the terms of the agreement, the
Plaintiffs would have rectified their stand and there would be no
difficulty about the bearing of the cost of the sale. In view of this, I am
unable to accept the contentiion of the learned Counsel for the
defendants that the Plaintiffs were not ready and willing to perform
their part of contract.
::: Downloaded on – 09/06/2013 13:54:15 :::
23
15. The learned Counsel for the defendants also contended
that the agreement for sale itself could not be entered into without
obtaining permission. It is difficult to accept this contention. Section
63 of the Tenancy Act provides that no sale (including sales in
execution of a decree of a Civil Court or for recovery of arrears of land
revenue or for sums recoverable as arrears of land revenue) gift,
exchange or lease of any land or interest therin, or no mortgage of
any land or interest therein, in which the possession of the mortgaged
property is delivered to the mortgagee shall be valid in favour of
person who is not an agriculturist without obtaining necessary
permission from the Collector. Of course, certain conditions in
Section 63 as well as in the rules there under, have to be satisfied
before the Collector may grant the permission. The sale of the land to
non-agriculturist shall not be valid without obtaining permission. The
sale does not take place unless the sale deed is executed. Agreement
of the sale and the sale cannot be equated. The agreement clearly
states that the sale transaction was to be completed only after
::: Downloaded on – 09/06/2013 13:54:15 :::
24
obtaining necessary permission under Section 63. Therefore, the
agreement could not be invalid. The Courts below passed the decree
for specific performance subject to condition of obtaining necessary
permission under Section 63 and directed the Defendants to obtain
that permission as per the terms of the contract. It is difficult to find
any fault with the conditional decree passed by the Courts below. It
goes without saying that if the competent authority refuses the
permission under Section 63 the sale deed cannot be executed. Mr.
Agarwal, learned Counsel for the Plaintiffs rightly relied upon Balu B.
Zarole V/s. Shaikh Akabar (AIR 2001 Bombay 364) wherein the
learned Single Judge of this Court held in the similar circumstances
that the decree for specific performance granted subject to sanction of
Collector is not improper. This authority is squarely applicable to the
facts of the present case. Therefore, it cannot be held that the
conditional decree passed by the Court subject to obtaining
permission of the authority under Section 63 of the Tenancy Act is not
valid.
::: Downloaded on – 09/06/2013 13:54:15 :::
25
16. The learned Counsel for the defendants/appellants
vehemently contended that the consideration for the suit transaction
was only Rs.15,000/- and a meager amount of Rs.6,000/- was paid as
per the terms of the agreement. The learned Counsel contended that
the relief of specific performance of the contract is discretionary and in
view of the facts that the defendants are poor persons, holding a
small piece of land and further, the prices of land have increased
manifold and therefore, it will not be in the interest of justice to grant
decree for specific performance. It is contended that if 30 years after
the agreement, the Defendants are required to execute the sale deed
as per the price fixed in the year 1978, they would be practically
deprived of their property. Mr. Agarwal, learned Counsel for the
Plaintiffs vehemently contended that merely because long time has
lapsed in the litigation, the decree for specific performance cannot be
refused to the plaintiffs because they were not at fault. It is pointed
out that the plaintiffs were required to file the suit because the
defendants had taken a false stand of loan transaction. The suit was
filed in 1984 and it was decreed on 9.8.1985 i.e. within almost one & a
::: Downloaded on – 09/06/2013 13:54:15 :::
26
half year. Against that decree the Defendants had preferred an
Appeal and that Appeal was decided on 6th June 1991, confirming
the decree for specific performance in respect of 3/4th share. That
judgment was challenged in the present appeal and this appeal is
pending for last about 17 years. All this period has been lost only
because the defendants filed the Appeals. He also relied upon
number of authorities in support of his contention that normally the
decree for specific performance of the contract should be granted
unless there are specific circumstances against the same. He also
contended that merely because the prices are increased, the decree
cannot be refused now. In support of this, he placed reliance upon
Mrs. Chandnee Widya Vati Madden V/s. Dr. C.L. Katial (AIR 1964
S.C. 978), P.S. Ramkrishna Reddy V/s. M.K. Bhagyalakshmi (AIR
2007 S.C. 1256), P.C. Varghese V/s. Devaki Amma Balambik Devi
(AIR 2006 S.C. 145), P. D’
souza v/s. Shondrilo Naidu (AIR 2004
S.C. 4472) and Gobind Ram V/s. Gian Chand (AIR 2000 S.C.
3106). In all these cases, it was held that merely because of the
lapse of time, if there was escalation of prices, the decree for specific
::: Downloaded on – 09/06/2013 13:54:15 :::
27
performance cannot be refused unless the purchaser was taking
undue or unfair advantage. It may be noted that in the case of
Gobind Ram V/s. Gian Chand, in January 1973 an agreement for
sale of immovable property had taken for consideration of Rs.16,000/-
and amount of Rs.1,000/- was paid as earnest money, balance
amount was to be paid at the time of sale deed. In 1976, the suit was
decreed and the Plaintiff was directed to pay the balance amount.
When the appeal was before the High Court, the High Court directed
the Respondent/Plaintiff to pay further sum of Rs.1,00,000/- to
compensate the vendors. When the matter finally went to the
Supreme Court, Their Lordships directed the purchasers to deposit
further sum of Rs.3,00,000/- in addition to the agreed price so that the
vendors could be substantially compensated though he could not get
the full market price of that value. In the present case, the decree has
been passed only in respect of 3/4th share. Thus, the value of the
3/4th land as per the terms of the contract is only Rs. 11,250/-, out of
which an amount of Rs.6,000/- was paid at the time of agreement,
therefore, the lower Appellate Court directed the Plaintiffs to pay
::: Downloaded on – 09/06/2013 13:54:15 :::
28
balnce amount of Rs.5,250/-. It may be noted that when the learned
Counsel for the defendants vehemently argued about the price
escalation and the financial loss to which the defendants whould be
put to, the learned Counsel for the plaintiffs/respondents after
obtaining instructions from his clients made a statement that the
plaintiffs are willing to deposit further amount of Rs.5,00,000/- in
addition to the balance amount of consideration. In my considered
opinion, this offer is substantial and now inspite of the balance
amount of Rs.5,250/-, the defendants would be paid further amount of
Rs.5,00,000/-. It is possible that the price of the land today may be
much more than the amount offered. As the agreement had taken
place in 1978 and not in 2008, the Defendants cannot expect the
market price of the land prevailing in the year 2008, particularly, when
the delay has been caused by the defendants themselves and not by
the above plaintiffs.
17. Taking into consideration all the circumstances, I do not find
any substance in the Appeal. However, as per the statement made
::: Downloaded on – 09/06/2013 13:54:15 :::
29
by the learned Counsel for the Plaintiffs/Respondents, they shall
deposit the balance amount of consideration of Rs.5,250/- and in
addition to that, further amount of Rs.5,00,000/- before the Trial Court
within two months from this date. The learned Counsel for the
Plaintiffs/Respondents makes a statement that the necessary
permission under Section 63 of the Tenancy Act has already granted
by the competent authority on an application made by the Court
Commissioner in exemption of the decree. If the permission is
already obtained, within one month after depositing the amount, the
defendant Nos. 1 to 3 shall execute the sale deed as per the decree
passed by the First Appellate Court. In case, the permission under
Section 63 is not yet granted, the Defendant Nos. 1 to 3 shall
approach the competent authority within two months from this date to
secure permission for sale of the land under Section 63 of the
Tenancy Act, under intimation to the Plaintiffs. The sale deed shall be
executed after the permission is granted. After execution and
registration of sale deed, the Defendant Nos.1 to 3 shall be at liberty
to withdraw the amount deposited with the Trial Court.
::: Downloaded on – 09/06/2013 13:54:15 :::
30
18. The Defendants shall co-operate the Plaintiffs in securing
that permission.
19. The Appeal is disposed of accordingly.
(J.H. BHATIA, J.)
::: Downloaded on – 09/06/2013 13:54:15 :::