IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 09.06.2010 CORAM: THE HON'BLE MR.JUSTICE V.PERIYA KARUPPIAH A.S.No.296 of 2000 Sri.N.Krishnaswamy .. Appellant / Plaintiff Vs. 1.M/s.Pioneer Engineering Corporation, represented by its Managing Partner, Sri.K.Subbiah 2. Rajah Sir Muthiah Chettiar Charitable and Educational Trust, represented by its Managing Trustee, Vaidya subramaniya Iyer. .. Respondents/Defendants Prayer:- Appeal filed under Section 96 of the Civil Procedure Code against the Judgment and Decree of the learned V Assistant City Civil Judge, City Civil Court, Chennai in O.S.No.3570 of 1986, dated 25.11.1989. For Appellant : Mr.V.Raghavachari For Respondent-1 : Mr.V.Srivatsan For Respondent-2 : No appearance J U D G M E N T
This appeal has been preferred by the aggrieved plaintiff against the judgment and decree passed by the lower Court dated 25.11.1989.
The plaintiff before the lower Court is the appellant and the defendants are the respondents herein.
2. The brief facts of the case of the plaintiff before the lower Court would be as follows:-
2(1) The first defendant M/s.Pioneer Engineering Corporation represented by Managing Partner Sri Subbiah, was carrying on business at No.44, St.Mary’s Road, Alwarlpet, Madras-18.
2(2) The second defendant Raja Sir Muthiah Chettiar Charitable and Educational Trust was represented by its Managing Trustee Vaidya Subramaniya Iyer, residing at “Nava Suja Trust”, Raja Annamalaipuram, Madras-28. The address for service of all notices and processes on the above named defendants are as set forth above. The plaintiff states that he entered into an agreement of sale on 21st day of November 1975 with the first defendant, M/s. Pioneer Engineering Corporation, a registered partnership firm represented by the Managing partner, K.Subbiah, carrying on business at No.44, St.Mary’s Road, Alwarpet, Madras-18, in and by the said agreement of sale the first defendant revised layout (Layout No.189/1975). The plaintiff craves leave to refer to the averments contained in the agreement of sale dated 21.12.1975 entered into between him with the first defendant and annexed herewith as document No.1 as part and parcel of this plaint. The plaintiff submits that the first defendant had already entered into an agreement of sale on 19.12.1972 for the purchase of all the plots of land in R.S.No.4288/5 (Part) of the extent of 21 Grounds or thereabouts situated within the Sub-Registrar District of Mylapore from the Raja Muthiah Chettiar Charitable and Educational Trust represented by its Managing Trustees for the purpose of forming a layout and selling the same as house sites. The first defendant formed a layout of the said property and have got approval of revised layout No.189/75 submitted on 06.11.1975. It was only subsequent thereto the plaintiff herein entered into an agreement for the purchase of Plot No.42 in the above layout, measuring an extent of one ground and 1630 sq.ft. or thereabouts and bounded on the North by 30′ layout road, East by Plot No.43, South by Plot No.43 and West by Plot No.4 and morefully described in the schedule annexed to the plaint and as shown in the plan showing the proposed revised layout No.18/67 Mayor Ramanathan Chettiar Nagar and Annexe Layout in Block No.94 R.S.No.4285 (Part R.S.428 (Part) R.S.No.4287 (Part) and Rs.4288 (Part) in South Beach Road, Raja Annamalaipuram, Madras.
2(3) The plaintiff is filing Photostat copy of the layout revised plan annexed herewith as Document No.2. The plaintiff states that he was furnished with typed copies of complete records and documents of title concerning the above layout and it was on that basis, subsequent to his agreement of sale of Plot No.42 in the aforesaid layout, he got his plan ready showing the proposed dwelling house in Plot No.42 of Major Ramanathan Chettiar Nagar and Annexe Layout in Block No.94, South Beach Road, Madras 28 on 04.12.1975 prepared by a Chartered Civil Engineer.
2(4) The plaintiff was also furnished with the true copy of the resolution passed by the trustees of Raja Muthiah Chettiar Charitable and Educational Trust at their meeting held on 07.11.1975 at 10 A.M. at Chettinad House, Raja Annamalaipuram, Madras-28 approving the action of Raja Sir Muthiah Chettiar of Chettinad, Managing Trustee, in entering into an agreement of sale relating to R.S.No.4288/5, South Beach Road, Santhome, Madras with M/s. Pioneer Engineering Corporation and authorising Raja Sir Muthiah Chettiar, Managing Trustee, to execute sale deed or deeds on behalf of the trust, relating to R.S.No.4288/5, South Beach Road, Santhome Madras property in favour of purchaser or purchasers.
2(5) The plaintiff was also furnished with the copy of the acknowledgment of the competent authority, Urban Land Ceiling, Mylapore for the transfer of the vacant land by way of sale, comprising one ground and 1630 sq.ft. in survey number and sub-division number in R.S.No.4288/5, Part, Madras Agglomeration in Mylapore Village, TCN, Mylapore District to Thiru. N.Krishnamoorthy, the plaintiff.
2(6) The plaintiff applied for housing loan of Rupees One lakh and five thousand rupees to the Madras Refineries Limited, who sent all the relevant document of title for preparation of required mortgage deed and registration deed to their Advocate Sri K.P.Adiga in and by their letter dated 09.01.1976. He also got a letter and obtained certificate from the Madras Refineries Ltd., ‘Employees’ Provident Fund in regard to the sanctioning of advance of Rs.9,400/- on 07.04.1977 for the purchase and registration of Plot No.42 and R.S.No.4288/5, Mayor Ramanathan Chettiar Annexe, South Beach Road, Madras-28. He had also obtained the legal opinion from Sri.K.P.Adiga approving the title of the first and second defendants in regard to the sale of Plot No.42, and the legal report given by Sri. K.P.Adiga, Advocate, Madras dated 03.01.1976 is filed herewith. The plaintiff states that the Regional Manager, Life Insurance Corporation Limited asked for getting coverage of Employees under the group scheme to enable them to disburse the sanction loan.
2(7) The plaintiff has paid Rs.100/- on 26.08.1975 2) Rs.2,247/- on 04.09.1975 towards second installment advance 3) Rs.3,000/- on 08.12.1975 4) Rs.1,000/- on 27.12.1975 and 5) Rs.2,000/- on 10.01.1976 for purchase of Plot No.42, M.R.C. Annexe Layout to first defendant.
2(8) The plaintiff was always ready and willing to complete the sale transaction and pay the balance of sale consideration as per the agreement of sale dated 21.11.1975. The plaintiff states that he was informed by the first defendant M/s. Pioneer Engineering Corporation that they would complete the sale transaciton, immediately when the transfer application filed by the second defendant before the Assistant Commissioner, Urban Land Ceiling on 22.09.1978 is approved. The plaintiff states that he was expecting the first and second defendants to complete the sale transaction immediately after getting the approval of the Assistant Commissioner of Urban Land Ceiling, Madras.
2(9) Since the first defendant has refused to perform the contract from the date of agreement, plaintiff having waited patiently for about 8 years, caused lawyer’s notice dated 08.04.1986 to the Assistant Commissioner, Urban Land Ceiling and to the defendants 1 and 2 and they acknowledged the receipt of the above notice, but they have not sent any reply thereto nor expressed their willingness and readiness to complete the sale transaction.
2(10) The plaintiff put to his great hardship and serious loss by reason of undue delay caused by defendants 1 and 2 in executing the sale deed in favour of the plaintiff. The plaintiff submits that he is unable to put up any construction on Plot No.42, by reason of the fact that he cannot get the approval of the building plan, without getting the registration of the sale deed in his favour. The plaintiff submits that as the defendants have not executed the sale deed in his favour he is obliged to institute the present suit for specific performance of agreement of sale executed by the first defendant on 21.11.1975. The first defendant is bound to execute the sale deed on receipt of balance of sale consideration of Rs.28,595/-.
2(11) The plaintiff is ready and willing to deposit the aforesaid amount into Court to show his bonafides and readiness and willingness to perform his part of the obligation under the agreement of sale dated 21.11.1975. The plaintiff submits and he is given to understand that there can be no valid legal objection for transfer of Plot No.42, M.R.C.Layout and annexe, Santhome, Madras-28, since the layout has been approved by the Corporation of Madras and since third parties have already obtained the sale deed from M/s.Pioneer Engineering Corporation and they have also put up construction on their Plots.
2(12) Therefore, that it is not open to the first or the second defendant to refuse to execute the sale deed in favour of the plaintiff herein merely because no orders have been passed by Assistant Commissioner, Urban Land Tax. It is to be presumed that no sanction is necessary under Tamil Nadu Urban Land Ceiling, Madras since the property belongs to Charitable and Educational Trust which is public in its nature and character and which caters to the educational needs of the public.
2(13) The plaintiff submits that therefore, he is entitled to get decree for specific performance on the basis of agreement of sale entered into between him and the first defendant on 21.11.1975. The plaintiff states that he has not abandoned his rights under the agreement nor has he waived his rights thereunder.
2(14) The delay caused in execution of the registered sale deed by the first defendant is entirely and solely due to the first defendant and he submits that time is not of the essence of the contract in the case of contract of sale of immovable properties. The plaintiff states that therefore his claim for specific performance of the agreement of sale of the schedule mentioned property executed by the first defendant on 21.11.1975 is not barred by limitation.
2(15) The plaintiff states that the defendants cannot deny the validity of the agreement of sale deed dated 21.11.1975 and they are estopped from denying the existence or validity the agreement of sale deed 21.11.1975 and they are bound to perform their part of their agreement dated 21.11.1975.
2(16) The plaintiff values the relief for purposes of Court fee and jurisdiction at Rs.36,942/- representing the sale consideration under the sale agreement dated 21.11.1975 and pays Court fee of Rs.2,771.75 thereon under Section 5.42 of Tamil Nadu Court Fees Act. The plaintiff therefore prays judgment and decree against the defendants 1 and 2 by directing the execution of the sale deed in regard to Plot No.42 in revised layout, M.R.C.Layout, Santhome Madras-28 and in default of execution of sale deed by defendants 1 and 2, directing the sale deed to be executed by this Court in favour of the plaintiff at the cost of defendants 1 and 2.
To award costs of the suit against the defendants.
To grant such further or other reliefs as the Court may deem fit and proper and pass such further or other orders and thereby render justice.
3. The contentions raised by the first defendant in the written statement would be as follows:-
3(1) The first defendant submits that except those that are specifically admitted by him, to be true and correct, the first defendant denies all the averments and allegations contained in the plaint and puts the plaintiff to strict proof of all the averments in the plaint.
3(2) The first defendant is not a firm now. By a deed of dissolution dated 9th day of December 1985 the firm was dissolved as and from 30.11.1985 and Sri.K.Subbiah, the Managing Partner of the firm has taken over the business as sole proprietor. The defendant submits that it is true that an agreement of sale was entered into between the plaintiff and this defendant on 21.11.1975 as stated in paragraph 3 of the plaint. The defendant admits that having entered into an agreement of sale with the owners of the property into convenient housing sites, obtained the necessary sanction from the authorities for laying out the property into housing sites. The defendant admits the averments made in paras iv and vi of the plaint.
3(3) The defendant is not aware of the averments made in para vii of the plaint; nor is the defendant concerned with what the plaintiff did to raise funds for purchasing the property. This defendant submits that this defendant requested the plaintiff to pay the sale consideration and finalise the deal as early as possible, since there was an apprehension that a Ceiling Act would be passed by the State Legislature. The defendant requested the plaintiff to get the sale deed executed and registered before the Government enacted any law fixing the Ceiling limit. In fact several other persons, who had entered into an agreement to purchase plots, paid the sale consideration and got the deeds of sale executed in their favour. The plaintiff, for reasons best known to him, did not pay the consideration and got the deed of sale before the Act was passed. In spite of the defendant’s repeated requests, the plaintiff did not finalise the transaction. The Urban Ceiling Act came into force on 03.08.1976 and this defendant could not execute and register any sale deed with respect to vacant sites. This defendant was prevented from discharging the contract due to frustration and reasons beyond the defendant’s control. The defendant could not execute the sale deed in favour of the plaintiff because he did not pay the consideration as per the agreement of sale before the Tamil Nadu Urban Ceiling Act came into force and it is not granted the exemption sought for yet. The plaintiff was also informed of the defendant’s legal disability to execute and register the sale deed.
3(4) The defendant admits the payments made by the plaintiff. But he has committed a breach of the contract by not paying the sale consideration within time as per the agreement of sale. Since the plaintiff has committed breach of contract, he is not entitled to any relief by way of specific performance. The defendant does not admit the statement made in para IX of the plaint. In spite of repeated requests of the defendant, the plaintiff prolonged the payment of consideration and has committed a breach of contract. The defendant admits the averments made in paragraph X of the plaint. The defendant submits that the Government has not yet accorded exemption and the defendant is not in a position to execute the sale deed.
3(5) The defendant does not admit the statements made in paragraph XIV to XVIII of the plaint. The plaintiff has not adhered to the terms of the agreement of sale and due to that he has forfeited his right to demand specific performance of the contract. In spite of repeated requests made by the defendant to the plaintiff to pay the balance of sale price and get the deed of sale executed in his favour before the expected Ceiling Act, the plaintiff did not comply with the request of the defendant. The plaintiff cannot now compel the defendant to sell the property since he has committed a breach of contract.
3(6) Several other persons who had entered into an agreement with the defendant, purchased the property at the request of the defendant. The plaintiff delayed the matter and the expected enactment came into force. The defendant could not execute the deed of sale due to the embargo placed by the Urban Ceiling Act.
3(7) It has applied to the Government for exemption and the Government has not, despite repeated reminders and requests granted the exemption sought for by the defendant. The defendant is not able to execute the sale deed because of the Urban Ceiling Act. The defendant further submits that the plaintiff has forfeited his rights to claim specific performance because he did not pay the price within time as specified in the contract of sale.
The plaintiff cannot compel the defendant to sell the property described in the plaint to him. The suit is frivolous and should be dismissed with costs.
4. The contentions raised by the second defendant in the written statement would be as follows:-
4(1) There is no privity of contract between him and the plaintiff and as such the plaintiff is not entitled to any relief as against the defendant.
4(2) It is true that the defendant entered into an agreement with the first defendant for sale of property comprising the suit item in 12th December, 1974. Under the agreement, the second defendant is entitled to sell the property as a whole or in part to the first defendant or his nominee when called upon to do so. In any event, the contract came to an end on 06.12.1975 as mentioned in para 4 of the agreement.
4(3) The first defendant is not entitled to call upon the defendant to sell any portion of the property after that date. The defendant is not concerned with what happened between the plaintiff and the first defendant and all the allegations in regard to the same are irrelevant so far the defendant is concerned. The defendant was not called upon by the first defendant to execute any document to sell in favour of the plaintiff and as such there is no cause of action against the defendant to plaintiff.
The defendant prays that the suit may be dismissed with costs so far as the defendant is concerned.
5. The lower Court had framed relevant issues and entered trial. The lower Court had thus examined the plaintiff as PW1 and admitted Exs.A1 to A17 on the side of the plaintiff and examined DW1 on the side of the first defendant and no documents were produced on the side of the defendant. After, appraising the evidence adduced before the lower Court, the lower Court had come to a conclusion of dismissing the suit with costs. The aggrieved plaintiff has preferred the present appeal.
6. Heard Mr.V.Raghavachari, the learned counsel for the appellant/plaintiff. No argument was advanced on the respondents’ side since there was no appearance for the respondents.
7. On perusal of the pleadings, evidence adduced before the lower Court, the judgment and decree passed by the lower Court, the grounds raised in the appeal memo and on hearing the arguments of the learned counsel for the appellant, the following points were found emanated for consideration in this appeal.
1. Whether the plaintiff was not ready and willing to perform his part of the contract within the relevant time ?
2. Whether the plaintiff is entitled for specific performance as prayed for by him against the defendants ?
3. Whether the defendants are disabled from executing the sale deed by virtue of the enforcement of Urban Land Ceiling Act ?
4. Whether the judgment and decree passed by the lower Court are liable to be set aside and is the appeal allowable ?
5. To what relief the appellant is entitled for ?
8. The learned counsel for the appellant/plaintiff would submit in his argument that the execution of sale agreement on 21.11.1975 was admitted and the plaintiff has paid a sum of Rs.8347/- on various occasions and the balance sum of Rs.28,595/- alone was liable to be paid and the plaintiff was ready to pay the said amount to the first defendant and get the sale deed executed, but the first defendant was not executing the sale deed whereas he had executed several sale deeds in the year 1976 with 3rd parties. He would further submit in his argument that the plaintiff was all along willing to pay the said balance amount and get the sale deed executed in his favour. He would further submit in his argument that the second defendant could not evade from executing the sale deed since he had agreed with the first defendant to execute the sale deed to whom the first defendant contracted and the liability of the first defendant will also bind the second defendant to execute the sale deed in favour of the plaintiff. He would also submit in his argument that when the plaintiff approached the first defendant for execution of sale deed, he informed the plaintiff that they would complete the sale transaction immediately when the transfer application filed by the second defendant before the Assistant Commissioner, Urban Land Ceiling on 22.09.1978, is approved and having believed the words in the year 1978, the plaintiff patiently waited for Court orders to which nothing was improved and therefore, he had necessarily sent notices to the Assistant Commissioner, Urban Land Ceiling and the copies have been marked to the defendants and the plaintiff can no longer wait for the said execution of sale deed by the defendants and therefore, the suit filed by the plaintiff is liable to be decreed. He would further submit in his argument that the reasoning of the lower Court that the agreement was in-capable of performance due to the frustration of said agreement cannot be true as the cause of action survives till the Assistant Commissioner, Urban Land Ceiling has given the transfer in favour of the plaintiff’s or no objection for the said transfer on the basis of the agreement of sale. He would further submit in his argument that the agreement which was perfectly in order and was not denied by the defendant and it should have been held against the defendant for the execution of sale deed in pursuance of the said agreement. He would further submit in his argument that the plaintiff was wrongly found guilty of laches since the contract of sale could be executed only after the permission granted by the Assistant Commissioner, Urban Land Ceiling and since the Assistant Commissioner did not grant the permission within the time, it has to be deemed that permission has been granted and the defendants are to be directed by the Court to execute the sale deed in pursuance of the said agreement. He would also submit in his argument that the suit was not barred by the law of limitation since it has to be construed that the first defendant had within the time allowed by law, had informed the plaintiff that only after obtaining the permission from the Assistant Commissioner, Urban Land Ceiling, the sale deed can be executed and hence the limitation will not apply to the present case. For that, he had relied upon the judgment of Hon’ble Apex Court reported in 2009 (3) SCALE-159 in between Azhar Sultana Vs.B.Rajamani and others, for the principle that a reasonable time mentioned in the agreement would be a time reasonable in the ordinary circumstances of each case. Therefore, he would submit that even though, the time limit has been fixed in the original agreement Ex.A2, for 6 months which was subsequently agreed to be en-larged by the first defendant till the permission is obtained from the Assistant Commissioner, Urban Land Ceiling Act, through the submission of Ex.A11 application by the second defendant, the time limit for the present suit agreement will not expire until the permission is granted. Therefore, he would submit in his argument that the suit was not barred by the law of limitation. He would further submit in his argument that Article 54 of the Limitation Act, is applicable for specific performance and accordingly, whether the date fixed for performance or no date is fixed, the plaintiff has noticed that the date when performance is refused would be the starting point of limitation and so far this case is concerned, the defendants have not refused the execution of sale deed and therefore, the suit claim is within time. He would further submit in his argument that the findings of the lower Court are contrary to Article 54 and are liable to be set aside. He would also draw the attention of the Court that the notice was not replied by the defendants and thereby they have not refused the claim for specific performance, therefore, the limitation is available as per Judgment of this Court made in 1998(2) CTC-613 in between N.Saraswathi Ammal Vs.Jayaram Rao and 2 others. He would further submit in his argument that the plaintiff was always ready and willing to perform his part of the contract in time and it should be seen that it was the defendants who had not executed the sale deed on the ground of declaration made under the Tamil Nadu Urban Land Ceiling and Regulation Act, which is not sustainable. The evidence of the plaintiff that he was ready to pay the balance amount, is not controverted and therefore, there is no impediment for the Court to grant the relief of specific performance. He would further submit in his argument that the proprietor of the first defendant is the competent person to depose and the witness who was examined as DW1 was not a competent witness and therefore, adverse inference has to be drawn against the first defendant. He would therefore, request the Court to set aside the judgment and decree passed by the lower Court in denying the specific performance of the contract and to allow the appeal.
9. I have given anxious thoughts to the arguments advanced by the learned counsel for the appellant. The pleas in the written statement and the evidence adduced on the defendant side have also been perused. It has become appropriate to apply the arguments of the appellant as well as the defence raised by the defendants on point wise.
Point Nos. 1 to 3:
10. As per pleadings and evidence adduced on either side, the suit agreement dated 21.11.1975 entered into between the plaintiff and the first defendant in respect of the suit property was admitted. The payment of a sum of Rs.8347/- made on several occasions by the plaintiff to the first defendant was also admitted and the balance amount to be paid in order to complete the sale transaction was to an extent of Rs.28,595/- is also admitted. The said agreement of sale was produced as Ex.A2. In the said agreement it has been categorically agreed that the said agreement was subject to the approval of the purchaser’s counsel. The counsel for the plaintiff Mr.Adiga, has approved the title of the defendants 1 and 2 and accordingly, the agreement was enforceable in between the plaintiff and the defendant. The time limit fixed in between parties is laid down in clause-7 of Ex.A2, accordingly, it was fixed at 6 months from the date of the agreement. The said time limit would be over by 21.5.1976. According to the evidence of PW1 he was ready and willing to perform his part of the contract throughout. However, he has not sent any notice informing his readiness and willingness to the defendants 1 and 2.
11. Per contra, the evidence of DW1, who is the Administrative Officer of the first defendant, would go to show that there was no letter written by plaintiff informing the first defendant that he would pay the balance amount. He would also speak to the effect that the plaintiff was not financially well to pay the amount and get the sale deed executed within the said time. Admittedly, 18 sale deeds have been executed during the said period and the plaintiff had not come with money to have the sale deed executed at that time. The plaintiff had waited for nearly 10 years and had issued Ex.A1 along with a copy of notice issued to the Assistant Commissioner, Urban Land Ceiling Act, in Ex.A12.
12. Whether the contentions of the first defendant that he could not get the sale deed executed by the second defendant in favour of the plaintiff as per the agreement Ex.A2 in view of the promulgation of Urban Land Ceiling and regulation Act, 1976. Admittedly, the said Act was promulgated and it was enforced on 03.08.1976 and thereafter, it has become necessary that exemption should have been obtained by the second defendant for executing a sale deed in favour of the plaintiff. However, the time limit fixed in the agreement of sale in Ex.A2 was till 21.05.1976, which date is more earlier than the enforcement of the Urban Land Ceiling Act, on 03.08.1976. If really the plaintiff had got money in hand during the said period, he would have insisted the first defendant to execute the sale deed as per Ex.A2. But, it was not done so by the plaintiff. He has also not explained on what reason the sale deed could not be executed during the said period, prior to the enforcement of the Urban Land Ceiling and Regulations Act, on 03.08.1976. It is for the plaintiff to prove that he was ready and willing to perform his part of the contract as per the terms and conditions of the agreement in Ex.A2 throughout. But in this case, the plaintiff does not discharge his burden.
13. As regards the time limit for enforcement of Ex.A2 is concerned, no doubt it is true that it is attracted under the provisions enunciated under Article 54 of the Limitation Act. Time limit fixed in the agreement is 3 years from the date of agreement or from the date of refusal of the relief. As far as this case is concerned, the time limit fixed in Ex.A2 was 6 months which would be over by 21.05.1976. If the said 3 years period be reckoned, it would come up to 21.05.1979 only. Before the said date, the Urban Land Ceiling and Regulations Act, had come into force, and the second defendant also told the plaintiff to get exemption from the said Act by sending Ex.A11 application to the Assistant Commissioner, Urban Land Ceiling Act and that in the said application, he had asked for the permission to transfer the suit property. It is an admitted case that so far, the Assistant Commissioner has not passed any orders. The case of both parties would be that the properties comprised in the agreement Ex.A2 and other properties belonging to the second defendant are squarely attracted by the Urban Land Ceiling Act. Therefore, it is mandatory that before executing any sale deed, the permission or exemption of Assistant Commissioner, Urban Land Ceiling is necessary, but so far no permission or exemption has been granted by the Assistant Commissioner. The notice sent by the plaintiff in Ex.A12 would go to show that the necessary permission or exemption should have been granted by the Assistant Commissioner, Urban Land Ceiling in respect of the suit property and in default, it has been notified by the plaintiff to the Assistant Commissioner, Urban Land Ceiling that a writ would be filed before High Court for getting appropriate relief. Therefore, it is clear that unless the Assistant Commissioner, Urban Land Ceiling is ordering the exemption or permission or by the order of the Court to consider the request of the second defendant made in Ex.A11, the permission cannot be given by the Government under the said enactment to the second defendant to part with the said property. If the second defendant, through the first defendant, executed any sale deed to the plaintiff under the colour of the agreement Ex.A2, it would be amounting to violation of provision of Urban Land Ceiling and Regulation Act. Therefore, the enforcement through promulgation of Urban Land Ceiling Act, 1976 would frustrate the contract of agreement of sale as entered into between the plaintiff and the first defendant. So far, there is no document to show that any writ petition has been filed by the plaintiff to direct the Assistant Commissioner, Urban Land Ceiling, to give permission to the plaintiff for exempting the suit property to have the sale deed executed under Ex.A2 on the application filed by the second defendant. When there is no such order as informed in Ex.A12 passed, by the competent Court or the exemption has been given by the Assistant Commissioner, Urban Land Ceiling Act, the enforcement of Ex.A2 is not possible. Even before the enforcement of the Urban Land Ceiling Act, on 03.08.1976, there was ample time and opportunity for the plaintiff to perform his part of the contract but it was not done so. In the said circumstances, the plaintiff himself was found to be not ready and willing to perform his part of the contract prior to the introduction of Urban Land Ceiling and Regulations Act and after the said enactment promulgated, the agreement in Ex.A2 has been frustrated and it cannot be enforced in the Court of law. Therefore the judgment of the Hon’ble Apex Court as well as the judgment of this Court would squarely apply to the present case in respect of limitation points.
14. There is no dispute that the relief sought for by the plaintiff is not attracted by the law of limitation and it is within time. However, in view of the fact that the plaintiff was not ready and willing to perform his part of the contract till 03.08.1976, thereafter the effect of frustration on the promulgation of the said Act would make the agreement an impossible one and hence, it has become necessary for this Court to reject the claim of the plaintiff. Accordingly, except the point on limitation, the other points are decided against the plaintiff.
Point No.4:
15. In the foregoing points, it has been decided that the suit is not barred by the law of limitation but the plaintiff was found not ready and willing to perform his part of the contract till the enforcement of Urban Land Ceiling and Regulations Act and thereafter, the said Act has frustrated the suit agreement and therefore, the plaintiff was found not entitled to the relief of specific performance of the contract. In view of the said findings reached by this Court, the judgment and decree passed by the lower Court with regard to the claim of the plaintiff that it cannot be enforced are liable to be confirmed. Accordingly, the judgment and decree passed by the lower Court are confirmed and the appeal is liable to be dismissed. Accordingly, this point is decided against the appellant/plaintiff.
Point No. 5:
16. For the foregoing discussions held above, the judgment and decree passed by the lower Court are confirmed and the appeal is dismissed accordingly without costs.
In the result, the appeal is dismissed without costs.
09.06.2010
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V.PERIYA KARUPPIAH, J.,
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Pre-Delivery Judgment in
A.S.No.296 of 2000
09.06.2010