JUDGMENT
P.S. Narayana, J.
1. S.A.M.P. No. 2971/2007 is filed praying for permission of this Court to formulate the substantial questions of law in the present Second Appeal.
2. The appellant filed the present application praying for the formulation of the substantial questions of law arising in the present Second Appeal. In view of the facts and circumstances explained, this Court is inclined to order the said application and accordingly the same is hereby ordered.
3. The following substantial questions of law arise for consideration in this Second Appeal:
(a) Whether Ex.A-5 dated 15-12-1974 constituted a legal offer (proposal) made to the appellant/plaintiff for out-right sale of the suit plot at Rs. 10/- per sq. yard to him and whether an agreement is formed by the compliance of the conditions in such offer (proposal)?
(b) Whether the scheme evolved by the 1st respondent/1st defendant on its formation from 1-1-1974 constitutes an open offer and the appellant/ plaintiff is entitled to the allotment of the suit plot on the out right sale basis by complying with the conditions of such offer?
(c) Whetherthe said scheme disentitles the holder of adjoining industrial unit alone as ineligible for the allotment if he is in arrears of rents, if any, for the adjoining industrial unit?
(d) Whether there is any other legally formed agreement with others in order to impede the allotment to the appellant/plaintiff and if so with whom and with regard to which subject matter?
4. Sri Natraj Sharma, the learned Counsel representing the appellant having pointed out to the su hstantial questions of law formulated had taken through the respective pleadings of the parties, the evidence available on record and made elaborate submissions on the aspect of offer and acceptance and proposal and acceptance. The learned Counsel also had taken this Court through the contents of Ex.A-5 and Ex.A-6 as well and made certain submissions in relation to the named officer Rajaratnam. The 2nd defendant is a person and not a firm. The conditions of acceptance had been complied with. When the offer was not withdrawn, it may have to be taken that the contract is complete. When once the acceptance is received it would amount to completion of the contract. The findings relating to readiness and willingness to pay the balance of consideration also had been argued in elaboration. The defendants had not repudiated the contract at any point of time and it is not known whether any steps had been taken in that direction. The Counsel also pointed out to certain relevant provisions of the Indian Companies Act, 1956 as well in this regard. The sketch had not been produced and it is pertinent to note the said document is in their custody and the non-production thereof should enure to the benefit of the appellant in this regard. The Judgment of the first appellate Court is not of much help inasmuch as all the aspects had not been taken into consideration. No relief had been prayed for as against the 2nd defendant and the 2nd defendant is just a proforma defendant. The Counsel also further explained the findings recorded by the Court of first instance and also the findings recorded by the appellate Court and how this Second Appeal filed is perfectly maintainable in the facts and circumstances of the case. The Counsel also relied upon several decisions to substantiate his submissions.
5. On the contrary, Sri Sreedhar Reddy and Simhardi, representing the respondents had taken this Court through the respective pleadings of the parties and the evidence available on record and would Municipality (sic. maintain) that even if the contents of Ex.A-5 to be taken into consideration, it cannot be said to be a concluded contract. The learned Counsel also explained how the suit was decreed and how two Appeals were preferred and the Appeals were allowed and how only one Second Appeal had been preferred and in the light of the same, the Counsel would maintain that this Second Appeal cannot be maintained since the Decree and Judgment made in the other Appeal had attained finality inasmuch as no Appeal had been preferred as against the said Decree and Judgment. The Counsel also pointed out to the relief of specific performance and also the alternative relief prayed for and the findings recorded in the Common Judgment had been pointed out. The Counsel would lay emphasis on the aspect that when there is no concluded contract, the other aspects need not be adverted to. The Counsel pointed out to the contents of Ex.A-5 and also Ex.A-19 and further relied upon certain decisions in this regard.
6. Heard the Counsel on record and perused the oral and documentary evidence available on record, the findings recorded by the Court of first instance and also the findings recorded by the appellate Court.
7. The appellant herein, Ramesh G. Makhija, is the unsuccessful plaintiff. 1st respondent is the A.P. Industrial Infrastructure Corporation Ltd, Hyderabad. 2nd respondent is shown as M/s. Electrical Accessories represented by Sri Kacham Bhadraiah. 3rd respondent Kacham Laxminarayana s/o. K. Bhadraiah is brought on record by an order made by this Court in C.M.P. No. 550/2007 dated 28-2-2007.
8. For the purpose of convenience, the parties hereinafter would be referred to as shown in the suit O.S. No. 91/80 on the file of I Additional Subordinate Judge, Warangal.
9. The plaintiff filed the suit praying for the relief of specific performance of contract of sale of the suit plot described in the plaint schedule and the plaint plan as against the 1st defendant and in the alternative for declaration that the plaintiff is entitled to allotment of the suit plot of the 1st defendant and also to direct the 1st defendant to execute and register proper conveyance of sale relating to the said plot. It was averred in the plaint as hereunder.
10. The plaintiff is a qualified Mechanical Engineer and a leading entrepreneur having obtained his B.E. (Mechanical) from Gujarat University in 1962 and commenced his industry in 1962 on taking the Unit (F.9., F. 10) in the industrial Estate, Warangal from the then Assistant Estate Engineer of the Industrial Estates, under the Industries Department of the Government of Andhra Pradesh. The plaintiff developed his industry by his own dint of hard work and ability into a multi-industrial unit in the manufacture of (1) splints and veneers for matches and match boxes; (2) plywood chair seats and chair backs, (3) Black boards and flush doors. The plaintiff had not only fabricated and installed some of his own machinery but also fabricated and supplied plywood hot press on order from M/s. Godavari Plywoods Limited which otherwise would have consumed large amount of foreign exchange. The plaintiff was the only person favoured and financed by the Bank under the Technocrat scheme. The plaintiff hails from a family with industrial experience from Larkana of Sind (Pakisthan). His dealings with the Industrial Estate authorities were always fair and straight forward on account of which the 1st defendant conveyed the present unit (F.9, F.10) in the Industrial Estate on outright sale to the plaintiff a the first person in the said Estate. Originally, the Government of Andhra Pradesh established the Industrial Estate in Warangal for the development of small scale industries which was purely under the control and ownership of the Government. The units were allotted to the industrial entrepreneurs on lease and subsequently evolved a scheme to convey the constructed units to the same persons subject to certain conditions. Thereafter the 1st defendant was formed as a Corporation fullyowned by the Government with effect from 1-1-1974 and consequently transferred the entire estate, the assets, rights, obligations and everything to the 1st defendant. However, until a separate officer from the 1st defendant was appointed, the Assistant Director, Industries and Commerce Department, Warangal was incharge of the affairs relating to the Industrial Estate, Warangal. The 1st defendant had not only followed the scheme evolved by the Government for the conveyance of the constructed units, but also evolved a scheme for the conveyance of vacant plots in Estate of the industrialists alone on sale. In accordance with the scheme for the conveyance of the vacant plots, the 1st defendant laid down the following terms and conditions and preference according to which the vacant plots in the Estate can be conveyed without favour or discrimination. The essential terms and conditions and preference are:
(a) that the cost of the land in the plot shall be Rs. 10/- per sq. yard on actual measurement, which the 1st defendant later revised the rate from 1-4-1980 at Rs. 15/- per sq. yard applying the same only to those who enter into the transaction after the said day;
(b) that the vacant plots cannot be sold to any person other than an industrialist or an entrepreneur proposing to start the industry immediately;
(c) that the 1st defendant shall allot and convey the vacant plot firstly to the entrepreneur who is having his units in the Estate adjoining the plot and need the same from expansion and secondly to the entrepreneurs having units in the same Estate and thirdly to outsiders;
(d) that if prospective purchaser is a new entrepreneur he shall on allotment commence the construction within six months and complete within 18 months of allotment the entire construction fully in accordance with the previously approved plans;
(e) formal agreement with the 1st defendant is not a pre-condition for the conclusion of the transaction (contract);
(f) the non-observance of the conditions shall automatically render the transaction cancelled.
It was further pleaded that the plaintiff is having the need of vacant plot adjoining his unit (F.9, F.10) in the Estate right from 1963 and requested the Assistant Estate Engineer as long back as on 24-6-1963 to permit him to use the adjoining vacant plot for the existing industry. The Director of Industries and Commerce Department granted permission and required the plaintiff to pay ground rent and he is accordingly using the plot. It was further pleaded that the plaintiff was in the need of adjoining plot since 1963 when his industry was only in the manufacture of splints and veneers. The industry had been expanding since then and the needs of the plaintiff for the vacant plot is also growing since then. The needs of the plaintiff were well known to the Assistant Estate Engineer when the Estate was under the Government and thereafter to the 1st defendant since the time it constituted. The available vacant plot is described in the suit schedule and the suit plan submitted along with the piaint and therefore the vacant plot which is adjoining the unit petition of in the Industrial Estate, Warangal is termed a plot No. 15 by the 1st defendant and thereafter referred to as the suit plot. During the time when the Industrial Estate of the 1st defendant was under the control of the Assistant Director of Industries and Commerce Department, Warangal, the plaintiff was offered the suit plot for sale in writing at Rs. 10/- per sq. yard by the said Assistant Director through letter dated 15-12-1974 and signed by the Assistant through letter dated 15-12-1974 and signed by the Assistant Director on 18-12-1974. The plaintiff conveyed his acceptance immediately on 23-12-1974. A proforma was enclosed with the letter of offer from the Assistant Director which was designated by him as application and such proforma was also delivered by the plaintiff after filling the same duly. The Assistant Director was incharge during the transitory period and the plaintiff was therefore given the option to pay the entire amount or pay an advance of Rs. 500/- after the management was taken over by the officer employed by the defendant. It was further pleaded that the contract for sale of the suit plot was concluded even though the payments could not be received by the Assistant Director due to administrative inconvenience. Subsequently the plaintiff expressed his intention to pay the entire amount, but the said Assistant Director received a sum of Rs. 500/- alone. The 1st defendant appointed and posted an Industrial Development Officer at the Industrial Estate, Warangal. The plaintiff approached him several times explaining the whole matter and the plaintiff was always assured that he had the first priority for the plot and that he was also offered the said plot in 1974. However, in order to have a record separately with the I.D.O. he asked the plaintiff on 23-5-1975 to give another proforma. He was also asked to deposit Rs. 500/- in cash and give a postal order for Rs. 5/-. Accordingly the plaintiff deposited the cash amount, delivered the postal order and also the proforma duly filled to the I.D.O. along with a covering letter on 26-5-1975. The I.D.O. who is the representative of the 1st defendant found that the plaintiff alone is entitled to obtain the suit plot and accordingly assured the plaintiff. The plaintiff was and had always been ready and willing to perform all his obligations and was always ready and willing to bear all expenses of stamps and registration charges and had been eagerly waiting for the 1st defendant to make proper measurements and in such event the plaintiff was also prepared to help in the measurements and preparations of plans. The 1st defendant had not taken measurements and ascertained the area for calculating the total price. The plaintiff took the measurement of the suit plot according to which he submits the suit plan. The total area came to 1279 sq. yards and accordingly the price of the land is Rs. 12,790/- However, if the 1st defendant disputes the measurements and the actual area of the suit plot, the plaintiff is and had always been ready and willing to pay the price according to the measurements actually taken by the 1st defendant. The plaintiff was always ready and willing to pay the said amount of Rs. 12,790/- or such amount a might be calculated according to the actual measurements taken by the 1st defendant. The attitude of the I.D.O., Warangal became hostilel and accordingly he started to create troubles to the plaintiff. He went to the extent of making out imaginary arrears of rent for the existing units (F.9, F.10) to the tune of Rs. 42,130-12 with a view to deny the plaintiff the opportunity of purchasing the unit (F.9,F.10) and also the suit plot. The arrears if any relating to the Unit is in fact irrelevant for the sale of plot and even so the 1st defendant found that the figures given by the I.D.O. Warangal were not true and conveyed the Unit already to the plaintiff. It was further pleaded that the I.D.O. Warangal played wanton mischief for the reasons best known to him. The I.D.O. Warangal demanded the payment of half the amount of his imaginary arrears of rent relating to the Unit in order to consider the allotment of the suit plot through his letter dated 17-6-1975. The said demand itself is without authority or sanction from the 1st defendant and it is not only illegal but also mischievous. The plaintiff clarified the matter and the 1st defendant had not raised any question with the plaintiff about the concluded nature of the contract of sale. The plaintiff noticed Sri Kancham Bhadraiah meddling with the irrigation channel belonging to the Government. The channel is adjacent to the suit plot and suspecting the bona fides of the defendants, issued a notice personally by registered post on 10-5-1979 to the 1st defendant on its address at the head office Hyderabad and through I.D.O. Warangal. The 1st defendant was clearly intimated about the concluded nature of the contract for sale of the suit plot and also requested to inform whether the 1st defendant offered the same plot for sale to the 2nd defendant or which the 2nd defendant made any offer to purchase the same plot, whether any application was made or amount deposited by the 2nd defendant or whether any undue preference was shown to the 2nd defendant. The plaintiff had also demanded the 1st defendant to measure the plot and intimate the total balance amount payable towards the price of the suit plot. The plaintiff expressed his readiness and willingness to do everything on his part and also required the 1st defendant and execute a proper conveyance to complete its part of the contract. The notice was served both at the address of the 1st defendant and it was found that the plaintiff’s claim cannot be refuted. However, the 1st defendant is unwilling to put his willingness in writing till now. The plaintiff sent reminders on 12-6-1976 and on 19-7-1979 but there was no response in writing. Sri Kancham Bhadraiah appears to have access and influence to gain undue favour even though it is a firm which had no unit in the Industrial Estate, Warangal. Even the type of its proposed undertaking is not the one that can be properly called as an industry at all. In fact it had no place of business of factual existence. The 2nd defendant cannot be called an industrial entrepreneur in its true spirit. The plaintiff was surprised when the 1st defendant allowed Sri Kacham Bhadraiah to meddle with the channel and visit the suit plot with no ostensible purpose. The 1st defendant had not intimated anything about its dealing with the 2nd defendant in spite of notice dated 10-5-1979 and the reminders and hence the plaintiff was constrained to file the suit and seek appropriate reliefs for specific performance.
11. The 1st defendant filed written statement with the following averments:
It was averred that the 1st defendant had not entered into any contract with the plaintiff on any day for the sale of suit plot and as such the question of specific performance of contract as claimed in the suit does not arise. The date, time and place, the parties to the contract, the document or documents constituting the contract, the terms and conditions thereof and the alleged breach of obligation had not been set out any where in the plaint with any degree of clarity which itself shows the speculative character of the suit. It was further averred that the allegations made in para-5 of the plaint are not true. The plaintiff did not and’ does not heed the suit plot (10) expansion of his existing industry. The sheds allotted to him are not fully utilized by him so far. He was never entitled to any allotment, preferential or otherwise of the suit plan. The suit plot had been numbered as plot bearing No. 115. As to para-6 of the plaint, it was averred that there was no offer as such. The plaintiff himself stated that he had not made any payment in respect of the proposed allotment. There was no agreement at all, much less a concluded contract. The plaintiff did not satisfy the requirements entitling him to the allotment. The question of a blanket offer without conditions is inconceivable in view of the policy of allotment detailed in the said para. The plea of concluded contract pleaded is falsified by the plaintiff’s own averments in para-7 of the plaint. As to paras 7 and 8 of the plaint, it was averred that the plaintiff had submitted the prescribed application form with the E.M.O. and application fee for considering his case for allotment on 26-5-1975. The Industrial Development Officer could neither assure him of any allotment nor had he so assured the plaintiff of any allotment of the plot. Further it was averred that it is also not true to say that the I.D.O. found the plaintiff alone to be entitled to the allotment. The I.D.O., Warangal had through his letter No. 12/75 dated 17-6-1975 demanded the plaintiff to pay at least 50% of the arrears due by his existing units F.9 and F.10 as a condition precedent to consider his request for allotment of the adjoining plot for expansion of his industry. The arrears outstanding by June 1975 were Rs. 42,130-12. Measurements of the vacant land does not arise and the plaintiff is not entitled to enter upon and measure the adjacent land without any allotment to him and he cannot be measuring it and make out a case for allotment treating his own measurement as constituting a contract. No such measurements were made by the plaintiff to the knowledge of the 1st defendant. The question of the plaintiff’s readiness and willingness to pay the price of the suit plot does not arise as there was no allotment to him and there was no contract with him by the 1st defendant to convey the plot to him. The measurements said to be made by the plaintiff are not binding on the 1st defendant and are also factually incorrect. As to paras 9 to 12 of the plaint, it was averred that it is ridiculous to plead that the payment of arrears due to the 1st defendant from the plaintiff in respect of his existing sheds is irrelevant for the purpose of allotting additional land to him and that too on preferential basis. There is no point in saying that the attitude of the I.D.O. was hostile to the plaintiff. He was bound to follow the norms laid down by the Corporation as stated earlier in the matter of recommending the allotments. The I.D.O. had in fact forwarded the application of the plaintiff to the Central Office of the Corporation along with the application of the 2nd defendant even though the plaintiff did not make payment of even the 50% of arrears demanded of him as a condition for considering his application. The 2nd defendant duly applied for allotment of plot in question depositing the E.M.O. and application fee on 15-5-1975 proposing to start industry for manufacture of wooden accessories for electrical wiring which was unique in the Individual Estate, Warangal. The Assistant Director of Industries and Commerce, Warangal had recommended the case of the 2nd defendant stating that the scheme was sponsored during the intensive campaign held in May 1975. He pointed out that the plaintiff was a habitual defaulter in respect of payments in respect of his existing units. The Central Office after careful verification of the application of the plaintiff and the 2nd defendant allotted the plot toe the 2nd defendant for starting his proposed venture under the name and style of M/s. Laxmi Electrical Accessories through letter No. DW/ D. 4/14007/75 dated 1-8-1975 of the Deputy Development Officer, A.P.I.I.C. Limited, Hyderabad and it was followed by a contract concluded with the party on 26-8-1975 on which date physical possession of the plot was also delivered to the 2nd defendant. The notice issued by the plaintiff does not constitute cause of action nor does it save limitation. The plaintiff has no cause of action and the suit is hopelessly barred by limitation even otherwise.
12. The 2nd defendant filed separate written statement with the averments as referred to hereunder:-
It was averred that as to the contents of paras 4 to 6 of the plaint, the suit plot was never enjoyed by the plaintiff for any purpose whatsoever. The plaintiff did not even fully utilize the two units allotted to him and hence there is no question of the plaintiff using the suit plot or any other vacant space. To the knowledge of the 2nd defendant the plaintiff never contracted or made any endeavour to purchase the suit plot and the same was never utilized by the plaintiff in any manner whatsoever. On learning that the suit plot is available for allotment to a new entrepreneur, the 2nd defendant applied for the allotment of the same, depositing the required E.M.D. and the application fee proposing to start industry for the manufacture of wooden accessories for electrical wiring. Further, such an industry is unique in whole of Warangal Individual Estate. The application of the 2nd defendant was also recommended by the Assistant Director of Industries and Commerce, Warangal. The said recommendation was accepted by the Central Office and the suit plot was allotted to the 2nd defendant through letter No. D/D.4/140075/ 75 dated 1-8-1975 of the Deputy Development Officer, A.P.I.I.C. Limited, Hyderabad. Through the said letter, the terms and conditions of allotment of the suit plot were proposed and the same were accepted by the 2nd defendant. Thereafter, contract was concluded between the parties and the same written statement reduced into writing on 26-8-1975. The 2nd defendant paid the total sale consideration to the 1st defendant in accordance with the terms and conditions of allotment. On 26-8-1975 the 2nd defendant was placed in actual and physical possession of the suit plot and the 2nd defendant is in actual possession of the same till today as owner and purchaser thereof. It was further averred that the main channel of Bhadri tank used to pass through the suit plot covering the suit plot on its three sides. Due to the said channel, the suit plot became a big water pool and was not in a fit condition to be used for making any construction thereon. Therefore, immediately after taking possession of the suit plot the 2nd defendant approached the P.W.D. authorities with a request to divert the channel to one side of the plot and for the construction of pucca channel to avoid inundation of the suit plot. The P.W.D. authorities stating that there is no allotment of funds for the said purpose permitted the 2nd defendant through letter dated 27-9-1975 to construct such a channel with the funds of the 2nd defendant. Accordingly, the 2nd defendant constructed a pucca 4′ wide channel by constructing two pucca stone walls of 2′ to 2½ width and 8′ height by spending not less than Rs. 20,000/-. After the construction of the said channel, the 2nd defendant got the suit plot filled the leveled by dumping several lorry loads of morum by spending about Rs. 15,000/-. Therefore, the 2nd defendant collected material for the construction of the required sheds at the suit plot. During all this period the plaintiff never objected to the exercise of ownership rights by the 2nd defendant over the suit plot. On account of the recent hike in the prices of vacant plots, the plaintiff became greedy and with a view to knock off the suit plot, he filed the suit. As a matter of fact, there is absolutely no merit in the plaintiff’s suit. The 2nd defendant further averred that he purchased the suit plot bona fide for valuable consideration and he had also spent huge amounts for leveling and for making the suit plot usable. Hence, the rights of the 2nd defendant to the suit plot deserve to be protected. The 2nd defendant did not receive any notice as alleged by the plaintiff. The 2nd is in actual and physical possession of the suit plot as its allottee and hence the plaintiff has no right to question the authority of the 2nd defendant in respect of the enjoyment of the suit plot. The plaintiff has no cause of action of file the suit and hence the same is not maintainable. Even according to the plaint allegations neither the area of the land claimed is definite nor the price payable is ascertained and hence the suit is not tenable on this point also. The suit is hopelessly barred by time and hence the suit is liable to be dismissed in limini.
13. On the strength of these pleadings, the following Issues were settled before the Court of first instance:
1. Whether there was a concluded contract for the sale of suit plot at Rs. 10/- per square yard in favour of the plaintiff?
2. Whetherthe defendant No. 1 evolved a scheme for conveyance of vacant plots in estate, to the Industrialists alone on sale, and whether the plaintiff is entitled to sale of the suit plot on the terms as pleaded by him in para-4 of the plaint?
3. Whether I.D.O. acted mala fide?
4. Whether the second defendant is entitled to preference in sale of the suit plot and if so whether he has satisfied the conditions and terms of allotment and also scheme for allotment?
5. Whether the 1st defendant accepted the concluded nature of contract with plaintiff and estopped from denying the same?
6. Whether the defendant No. 1 had power to demand payment of 50% of arrears due in respect of F.9 and F.10 units already under the occupation of the plaintiff to enable the D-1 to consider the allotment of adjoining plot for expansion of plaintiff’s industry?
7. Whether the plaintiff is ready and willing to perform his part of the contract?
8. To what relief?
On behalf of the plaintiff, the plaintiff examined himself as P.W.1 and deposed in relation to the averments made in the plaint. Further, Exs. A-1 to A-33 were marked. On behalf of the defendants, D.W. 1 and D.W. 2 were examined and Exs.B-1 to B-28 were marked. Ex.C-1, the report of the Commissioner dated 18-9-1982 also had been marked. The Court of first instance recorded reasons in detail and came to the conclusion that there was proposal and acceptance and the same to be taken as concluded contract and the plaintiff always has been ready and willing to perform his part of the contract and ultimately decreed the suit for specific performance. Aggrieved by the same, M/s. Laxmi Electrical Accessories, represented by Kancham Bhadraiah, preferred A.S. No. 4/89 and the A.P.I.I.C. Limited, Hyderabad represented by its Secretary preferred A.S. No. 10/89 as against the aforesaid Decree and Judgment on the file of II Additional District Judge, Warangal. The appellate Court by a Common Judgment, formulated the following Points for determination at para-8 of the Judgment:
1. Whether there was a concluded contract between the plaintiff and the 1st defendant for purchase and sale of the. suit plot located in the Industrial Estate, Warangal, in otherwords, whether Ex.A-5 tetter sent on behalf of the defendant-Corporation is an offer itself and if accepted in accordance with the terms of it gives rise to a concluded contract for sale and purchase of the suit plot?
2. Whether the scheme evolved by the 1st defendant Corporation in allotment of vacant sites in the Industrial Estate, Warangal and other industrial estates in the Andhra Pradesh State, would give a preferential right to the plaintiff to be allotted with the suit plot against the 2nd defendant?
The appellate Court proceeded to discuss all the Points commencing from paras 9 to 18 and ultimately allowed both the Appeals setting aside the Decree and Judgment made by the I Additional Subordinate Judge, Warangal in O.S. No. 91/80. Aggrieved by the same, the present Second Appeal is preferred as against the Decree and Judgment made in A.S. No. 10/89 on the file of II Additional District Judge, Warangal. Though it is a Common Judgment, it is pertinent to note that as against the other Appeal A.S. No. 4/89 filed by M/s. Laxmi Electrical Accessories, no Second Appeal as such had been preferred. Elaborate submissions were made on this preliminary objection whether the Second Appeal as such can be maintained since when two Appeals had been preferred as against the Decree and Judgment of the Court of first instance and when only one Second Appeal had been preferred as against the Decree and Judgment made in one such Appeals only, in the light of the finality being attained to the Decree drafted in the other Appeal A.S. No. 4/89, this Appeal can be maintained at all. Strong reliance was placed on Narhari v. Shanked wherein two Appeals were preferred against the Decree of the trial Court by two sets of the defendants and the appellate Court allowed both the appeal and dismissed the plaintiffs suit by one judgment and ordered a copy of the judgment to be placed on the file of the other connected appeal and two Decrees were prepared and the plaintiff preferred two appeals and one of the appeals was time barred and on the principle of Section 11 of the Code of Civil Procedure, it was observed:
It was not necessary to file two separate appeals in this case. The question of res judicata arose only when there were two suits. As there was one suit and both the decrees were in the same case and based on the same judgment and the matter decided concerned the entire suit the principle of res judicata did not apply.
14. Reliance also was placed on Pallapothu Narasimha Rao and Anr. v. Kidanbi Radha Krishnamacharyulu wherein it was held that where a person had been added as proforma respondent and no relief had been claimed against him, the dismissal order for non-payment of batta against him would not constitute res judicata.
15. It is no doubt true that when different parties prefer Appeal as against the same Decree and Judgment and when Second Appeals are to be preferred as against such Decrees and Judgments, though all these Appeals arise out of the Common Judgment of the Court of first instance, it would be always desirable to prefer Second Appeals as against the Decrees which would be made in those separate Appeals irrespective of the fact that all these Appeals would arise out of the same Decree and Judgment of the Court of first instance.
16. It is no doubt true that the suit filed by the appellant/plaintiff had been decreed by the Court of first instance and it is also not in controversy that two Appeals had been preferred and a Common Judgment was delivered and it is also not in controversy that separate Decrees had been drafted. It is also true that in the eye of Law, the Decree made in A.S. No. 4/89 had attained finality since no Appeal had been preferred as against the said Decree. But however, certain submissions were made that the 2nd defendant being only a proforma party, even if the suit was not further prosecuted even before the Court of first instance, the same would not seriously alterthe situation. In the light of the fact that this objection is purely a technical objection and a hair-splitting argument, this Court is not inclined to dismiss the Second Appeal on the said ground.
17. The whole issue revolves around Ex.A-5 and the same reads as hereunder:
Government of Andhra Pradesh Department of Industries
From
Sri P.V. Rajarathnam, B.Sc, H.D.C.,
Assistant Director of Indis,
Commerce & Export Promotion,
Warangal.
To
M/s. Mahbubia Industries,
F.9& F.10, Industrial
Estate, Warangal.
No. 5213/1/74, dated 15-12-1974
Sir,
Sub:- Use of space near irrigation channel adjacent to F. 10 unit -Regarding.
Ref:- Your letter dated 30-10-1974.
With reference to the letter cited, I have to inform you that the Industrial Estate is now under the administrative control of A.P. Industrial Infrastructure Corporation, Hyderabad. The Corporation is allotting the plots on outright sale @ Rs. 10/- sq. yard. If you are interested in purchasing the above land, please send your consent along with application (copy of specimen enclosed) accompanying bank draft for Rs. 500/- towards Earnest Money Deposit and a postal order for Rs. 5/-towards application fee.
Yours faithfully,
(Sd/-) Rajarathanm,
Assistant Director
Elaborate submissions were made whether it can be taken as a binding contract or a concluded contract and whether the plaintiff is having a right to enforce such alleged agreement. Incidentally, Section 2(24) and 2(30) dealing with definitions of ‘manager’ and ‘officer’ and Section 46 dealing with Form of contracts under the Indian Companies Act, 1956 also had been referred to.
18. In Har Bhajan Lal v. Har Charan Lal and Anr AIR 1925 Allahabad 539:
A young boy ran away from his father’s home. The father eventually issued a pamphlet, offering a reward in these terms: “Anybody who finds trace of the boy and brings him home, will get Rs. 500.” The plaintiff was at the dharmashala of a railway station, there he saw a body, over-heard part of a conversion, realized that the body was the missing boy and promptly took him to the Railway Police Station where he made a report and sent a telegram to the boy’s father saying that he had found his son.
In the aforesaid circumstances, it was held that the hand-bill was an offer open to the whole world and capable of acceptance by any person who fulfilled the condition and that the plaintiff substantially performed the condition and he was entitled to the amount offered.
19. Strong reliance was placed on a decision of the Apex Court in Kollipara Sriramulu (dead) by his legal representative v. T. Aswatha Narayana (dead) by his legal representative and Ors. wherein it was held at para-3 as hereunder:
We proceed to consider the next question raised in these appeals, namely whether the oral agreement was ineffective because the parties contemplated the execution of a formal document or because the mode of payment of the purchase money written statement not actually agreed upon. It was submitted on behalf of the appellant that there was no contract because the sale was conditional upon a regular agreement being executed and no such agreement was executed. We do not accept this argument as correct. It is well established that a mere reference to a future formal contract will not prevent a b’nding bargain between the parties. The fact that the parties refer to the preparation of an agreement by which the terms agreed upon are to be put in a more formal shape does not prevent the existence of a binding contract. There are, however, cases where the reference to a future contract is made in such terms as to show that the parties did not intend to be bound until a formal contract is signed. The question depends upon the intention of the parties and the special circumstances of each particular case. As observed by the Lord Chancellor (Lord Cranworth) in Ridawav v. Wharton (1857) 6 HLC 238 at p. 263, the fact of a subsequent agreement being prepared may be evidence that the previous negotiation, did not amount to a concluded agreement, but the mere fact that persons wish to have a formal agreement drawn up does not establish the proposition that they cannot be bound by a previous agreement. In Von Hatzfeldt-Wildenburg v. Alexander (1912) 1 Ch. 284 at p.288, it was stated by Parker, J as follows:
It appears to be well settled by the authorities that if the documents or letters relied on as constituting a contract contemplate the execution of a further contract between the parties, it is a question of construction whether the execution of the further contract is a condition or term of the bargain or whether it is a mere expression of the desire of the parties as to the manner in which the transaction already agreed to will in fact go through. In the former case there is no enforceable contract either because the condition is unfulfilled or because the law does not recognize a contract to enter into a contract. In the letter case there is a binding contract and the reference to the more formal document may be ignored. In other words, there may be a case where the signing of a further formal agreement is made a condition or term of the bargain and if the formal agreement is not approved and signed there is no concluded contract.
In Rossiter v. Miller (1878) 3 AC 1124 Lord Cairns said:
If you find out an unqualified acceptance subject to the condition that an agreement is to be prepared and agreed upon between the parties and until that condition is fulfilled no contract is to the raise ten you cannot find a concluded contract.
In Currimbhoy and Co. Ltd. v. Creet the Judicial Committee expressed the view that the principle of the English law which is summarized in the judgment of Parker. J., in (1912) 1 Ch.284 was applicable in India. The question in the present appeals is whether the execution of a formal agreement was intended to be a condition of the bargain dated July 6, 1952 or whether it was a mere expression of the desire of the parties for a formal agreement which can be ignored. The evidence adduced behalf of the respondent No. 1 does not show that the drawing up of a written agreement was a pre-requisite to the coming into effect of the oral agreement. It is therefore not possible to accept the contention of the appellant that the oral agreement was ineffective in law because there is o execution of any formal written document. As regards the other point, it is true that there is no specific agreement with regard to the mode of payment but this does not necessarily make the agreement ineffective. The mere omission to settle the mode of payment does not affect the completeness of the contract because the vital terms of the contract like the price and area of the land and the time for completion of the sale were all fixed. We accordingly hold that Mr. Gokhale is unable to make good his argument on this aspect of the case.
20. Reliance also was placed on Raja of Vizianagaram v. Maharaja of Jeypore wherein it was held that though the actual figure of the rent had not been determined, if there is no uncertainty regarding the way in which it should be fixed throughout the lease there would be a binding lease.
21. There cannot be any doubt or controversy relating to several of the propositions which had been advanced by the parties. The principal question to be decided is whether in the facts and circumstances of the case, the findings recorded by the appellate Court relating to non-enforceability of the alleged contract be confirmed or to be disturbed. In other words, whether Ex.A-5 letter sent on behalf of the 1st defendant-Corporation is offer itself and if accepted in accordance with the terms, whether it would amount to a concluded contract of sale and whether the same can be enforced. Since the result of the matter would revolve around the said question, it is no doubt true that the appellate Court had concentrated on the contents of Ex.A-5 and recorded findings in detail and specifically referred to the wording employed in Ex.A-5 and came to the conclusion that this cannot be treated as a concluded contract and hence the same is unenforceable in a Court of law and on the strength of such document, the relief of specific performance cannot be granted. The contents of Ex.A-5 already had been referred to above and the same need not be repeated. It is no doubt true that Ex.A-1 to Ex.A-4 to some extent would make it clear that the plaintiff was having an intention to annex the vacant site located to the West of his Unit and the averments in the plaint had been deposed by P.W.1 and several documents also had been marked as Ex.A series and the said documents are as hereunder:
Ex.A-1 dt.24-6-1963 – Office copy of the letter addressed to Assistant Estate Engineer for allotment of Plot No. 15.
Ex.A-2/16-9-1963 – Letter from AEE informing P.W.1 for allotment of the place adjacent to the unit of P.W. 1.
Ex.A-3 dt. 15-7-1966 – Office copy of the letter submitting the non-judicial stamp papers for executing agreement for plot, acknowledged by the D-1 on office copy.
Ex.A-4 dt. 15-7-1966 – Office copy of agreement.
Ex.A-5 dt. 15-12-1974 – Officer made by the D-1 Corporation to sell the suit plot on outright sale basis @ Rs. 10/- per sq. yard.
Ex.A-6 dt. 23-12-1974 – Note made by the plaintiff on Ex.A-5 about the submission of E.M.D. amount.
Ex.A-7 dt. 25-5-1975 – Office copy of covering letter of plaint in second application.
Ex.A-8 dt. 26-5-1975 – Office copy of the second application submitted by the plaintiff.
Ex.A-9 dt. 26-5-1975 – Counter foil of the Postal order.
Ex.A-10 dt. 1-7-1966 – Application for hire purchase for units F-9 and F-10
Ex.A-11 dt. 14-12-1967 – Letter issued by D-1 to the plaintiff.
Ex.A-12 Dt. 12-1-1978 – Receipt showing the final payment
Ex.A-13 dt. 12-1-1978 – Plan of the Industrial Estate, Warangal
Ex.A-14 dt. 21 -5-1975 – Letter written by P.V. Rajaratnam to l.D.O.
Ex.A-15 dt. 21 -5-1975 – Letter written by Rajaratnam to l.D.O.
Ex.A-16 dt. 20-6-1975 – Handwritten draft of letter from D-1 to the plaintiff demanding for 50% arrears of the rent before the allotment of the suit plot.
Ex.A-17 dt. 30-6-1975 – Letter addressed to the D-1 Corporation by the I.D.O. Warangal, for the allotment of the suit plot to D-2 in preference to the plaintiff.
Ex.A-18 dt. 26-8-1975 – Plan showing the handover the suit plot to defendant No. 2
Ex.A-19 dt. 10-5-1979 – Office copy of the suit notice
Ex.A-20 dt. 12-5-1979 – Postal acknowledgement
Ex.A-21 dt. 12-5-1979 – Postal acknowledgement
Ex.A-22 dt. 12-6-1979 – Office copy of the reminder issued by P.W. 1
Ex.A-23 dt. 19-7-1979 – Office copy of the second reminder issued by the plaintiff
Ex.A-24 dt. 23-7-1979 – Postal acknowledgement of Ex.A-23
Ex.A-25 dt. 25-7-1979 – Postal acknowledgement of Ex.A-23
Ex.A-26 dt. 29-10-1974 – Receipt for rental arrears signed by Rajaratnam as Officer-in-charge
Ex.A-27 dt. January 1969 – Demand notice issued to the plaintiff demanding rent for January 1969
Ex.A-28 dt. 9-12-1975 – Communication regarding the unit F-9 with the enclosures to the plaintiff.
Ex.A-29 dt. 9-12-1975 – Communication regarding the Unit F-10 with the enclosures to the plaintiff.
Ex.A-30 dt. 23-11-1987 – Notice given by the plaintiff for production of the lease deeds
Ex.A-31 dt. 23-11-1962 – Certified copy of lease deed for F-10 unit
Ex.A-32 dt. 22-6-1976 – Circular issued by D-1 Corporation specifying order of preference in the allotment (marked by consent)
Ex.A-33 dt. – Photograph of the suit property
22. It is also true that the appellant/plaintiff also sent an agreement in terms suggested under Ex.A-2 and as can be seen from the events there was no follow up action in this regard. From the contents of Ex.A-5 it is also true that the appellant/plaintiff made a representation to the 1st defendant-Corporation to include the additional plot. In reply to the said representation, the Assistant Director of Industries sent the letter Ex.A-5 and on the strength of this letter several submissions were made in elaboration and the relevant provisions of the Indian Contract Act also had been strongly relied upon. The question is whether Ex.A-5 is really an offer or just an invitation to offer and the authority or the competence of the concerned officer who addressed the letter also had been made the ground of attack. On a careful reading of the letter Ex.A-5, it would be clear that the officer who had addressed the letter is not the competent authority either to expect or to allot the sites or the units in the industrial estate. Emphasis was laid on the word “consent” used in ExA-5 and the payments made also had been emphasized in elaboration in this regard. Exs.A-7 and A-9 also had been strongly relied upon. The contents of Ex.A-19 had been appreciated by the appellate Court and clear findings had been recorded that the stand taken by the appellant/plaintiff cannot be believed. G.O. Ms. Nos. 415, 417 also had been referred to.
23. No doubt certain submissions were made relating to the non-production of the G.Os. but it is pertinent to note that this is a suit for specific performance and the plaintiff may have to succeed or fail on the strength of his case. If the plaintiff is able to establish that this would amount to concluded contract or an enforceable contract, then, on the strength of it, a suit for specific performance may be maintainable. Even if it is to be taken as a lawfully concluded contract, always necessarily the relief of specific performance need not be granted. The Courts are expected to analyse the facts of a particular given case and are expected to exercise the discretion depending upon the facts and circumstances of a given case.
24. In the present case, the evidence of D.W. 1 and D.W. 2 is available on record. Exs.B-1 to B-28, relied upon by the respondents/defendants are as hereunder;
Ex.B-1 dt. 1-4-1975 onwards – Rental register for the year from 1-4-1975 to 31-3-1978
Ex.B-2 dt. – Entry on page No. 137 in Ex.B-1
Ex.B-3 dt. 13-5-1975 – Application filed by 2nd defendant for allotment of suit plot
Ex.B-4 dt. 1-8-1975 – Office copy of the letter in favour of 2nd defendant in respect of the suit plot
Ex.B-5 dt. 26-8-1975 – Agreement executed between defendants 1 and 2 regarding the suit plot along with the plaint
Ex.B-6 dt. 26-8-1976 – Xerox copy of temporary S.S.I. certificate of 2nd defendant industry, originally issued on 25-5-1975 with endorsement of renewed dated 26-8-1976
Ex.B-7 dt. – Project report (Scheme) of 2nd defendant industry
Ex.B-8 dt. 29-11-1978 – Office copy of the final notice from 1st defendant to 2nd defendant regarding the non-utilisation of the suit plot
Ex.B-9 dt. – Acknowledgement of Ex.B-8 by the 2nd defendant
Ex.B-10 dt. 5-7-1975 – Receipt issued by 1st defendant in token of payment of Rs. 500/- towards E.M.D.
Ex.B-11 dt. 1-8-1975 – Letter of allotment of the suit plot to the 2nd defendant
Ex.B-12 dt. 27-9-1975 – Letter given to D.W. 2 by the P.W.D. Irrigation Department for diverting the channel flowing through the suit plot
Ex.B-13 dt. 30-12-1976 – Letter from I.D.O. (D-1) to the Manager Guilts and Estate, A.P.S.I.D.C. Limited, Hyderabad for allotment of the plot to D.W. 2.
Ex.B-14 dt. 9-6-1976- Letter addressed by the 1st defendant to the Principal, I.T.I. Warangal, for construction of the compound wall
Ex.B-15 dt. 29-7-1976 – Permission issued by the R&B Department to the 2nd defendant for construction of the compound wall
Ex.B-16 dt. 22-3-1983 – Letter from Industrial Development Officer for erection of the Saw Mill by the defendant No. 2 in the suit plot
Ex.B-17 dt. 25-5-1975 -S.S.I. Certificate of the 2nd defendant renewed upto 24-11-1977
Ex.B-18 dt. 7-11-1974 – S.S.I. Certificate of another firm viz., (Kasam Bhadraiah Saw Mill.
Ex.B-19 dt. 24-3-1976 – Letter signed and issued to the plaintiff by Yellaiah Swamy
Ex.B-20 dt. 18-4-1981 – Letter addressed by the I.D.O. Warangal to the Law Officer of the defendant Corporation to supply certain documents.
Ex.B-21 dt. 5-12-1963 – Lease Deed of Unit No. F-9
Ex.B-22 dt. 23-11-1962 – Lease Deed of Unit No. F-10
Ex.B-23 dt. 9-9-1980 – Lette5 of I.D.O. informing about the seven different ledgers from 1963 pertaining to F-9 and F-10 rentals
Ex. B-24 dt. 26-5-1975 – Original letter addressed by the plaintiff to the I.D.O. Warangal
Ex.B-25 dt. 10-3-1977 – Final notice from I.D.O. (D-1) for the D-2 for noncompliance of the terms and conditions.
Ex.B-26 dt. 19-4-1977 – Final notice from I.D.O. (D-1) to the 2nd defendant for non-compliance of the terms and conditions and also the payment
Ex.B-27 dt. 7-10-1987 – Office copy of the letter addressed by the I.D.O. Warangal to the law Officer of the 1st defendant Corporation
Ex.B-28dt. 24-3-1983-Letter from I.D.O. to 2nd defendant about the triangular piece of 280 sq. yards.
25. Ex. C-1 is the report of the Commissioner. Elaborate submissions were made on the aspect that the appellate Court had not taken into consideration all the facts and circumstances and also had not answered almost all the Issues and formulated just cryptic Points and disposed of the matter without considering the whole factual matrix available on record.
26. It is no doubt true that the appellate Court, especially while reversing the Judgment and Decree of the Court of first instance may have to be more careful and cautious in recording findings in detail. This Court had given its anxious consideration to this aspect also and in all thoroughness had gone through the findings recorded by the appellate Court. In the light of the findings recorded by the appellate Court, this Court is thoroughly satisfied that the appellate Court declining the relief of specific performance in the facts and circumstances of the case, cannot be said to be either improper or unjust. Apart from this aspect of the matter, as can be seen from the substantial questions of law which had been framed and argued in elaboration, this Court is well satisfied that these are all factual issues, may be predominantly the interpretation of certain of the terms specified in Ex.A-5, in particular. Except the submissions recorded above, no other contentions had been advanced before, this Court by the Counsel on record.
27. On Careful analysis of all the factsand circumstances, since this Court is thoroughly satisfied with the findings recorded by the appellate Court while disposing of A.S. Nos. 4/ 89 and 10/89 respectively by a Common Judgment allowing the Appeals, absolutely there is no serious legal infirmity or illegality warranting interference by this Court in the present Second Appeal especially in the light of the parameters and the limitations imposed on this Court in respect of reappreciation of evidence under Section 100 of the Code of Civil Procedure. Accordingly, the Second Appeal shall stand dismissed. No order as to costs.
