2017 (12) TMI 1709 - SC - Indian Laws

Specific Performance in relation to the agreement - bar created by Section 31 of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act - HELD THAT - Validity and enforceability of the agreement in question is concerned it was rightly held by the High Court to which we concur that the agreement in question is not hit by Section 48 of the Maharashtra Co-operative Society Act inasmuch as the agreement to sell in itself does not create any interest in the land nor does it amount to sale under Section 54 of the T.P. Act. It only enables the intending buyer to claim specific performance of such agreement on proving its terms. In other words there lies a distinction between an agreement to sell and sale. The latter creates an interest in the land once accomplished as defined under Section 54 of the T.P. Act. It was also rightly held on facts to which we concur that since the dues of the Land Development Bank were repaid the question of applicability of Section 48 did not arise. We therefore find no ground to disagree with this factual finding. This being a finding of fact it could not be disturbed in second appeal and was binding on the High Court. It was more so when the first Appellate Court had recorded its finding by appreciating the entire evidence on record. We therefore find no ground to disagree with this finding of the High Court. Time limitation - HELD THAT - It was rightly held by the High Court to which we again concur that firstly it was neither raised before the Trial Court and nor before the first Appellate Court; and secondly it being a mixed question of law and fact the same could not be examined for the first time in second appeal by the High Court. We agree with the finding of the High Court calling for no interference. Appeal dismissed - decided against Revenue.

Summary

Issues:
1. Validity and enforceability of the agreement under Section 48 of the Maharashtra Co-operative Society Act.
2. Readiness and willingness of the plaintiff for specific performance.
3. Limitation period for the suit.
4. Applicability of Section 31 of the Act to the agreement.

Validity and Enforceability of the Agreement:
The respondent filed a suit for specific performance of agreements to purchase a share of land from the appellants. The High Court held that the agreement was not void under Section 48 of the Maharashtra Co-operative Society Act as it did not create any interest in the land. The Court distinguished between an agreement to sell and a sale, stating that the former enables specific performance but does not create an interest in the land. Additionally, since the dues of the Land Development Bank were repaid, Section 48 did not apply. The Supreme Court concurred with this finding, upholding the High Court's decision.

Readiness and Willingness of the Plaintiff:
The High Court found that the plaintiff had shown readiness and willingness to perform the contract, a factual finding binding on the Court in the second appeal. The Court upheld this decision, stating that the first Appellate Court had considered all evidence and reached a valid conclusion. The Supreme Court agreed with this finding, emphasizing that readiness and willingness being factual matters could not be disturbed in a second appeal.

Limitation Period for the Suit:
Regarding the limitation issue, the High Court held that since it was not raised before the Trial Court or the first Appellate Court, it could not be examined in the second appeal. The Supreme Court concurred with this decision, stating that the High Court's finding on limitation was valid and did not warrant interference in the appeal.

Applicability of Section 31 of the Act:
The appellants raised a plea regarding the applicability of Section 31 of the Act for the first time in the Supreme Court appeal. The Court noted that this plea was not raised in previous proceedings and emphasized that a party must lay the foundation for such challenges in the pleadings. As the plea was neither raised nor considered earlier, the Supreme Court did not allow the appellants to raise it for the first time in the appeal. The Court found no merit in the submissions made by the appellants and dismissed the appeal accordingly.