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TMI Blog1989 (5) TMI 323X X X X Extracts X X X X X X X X Extracts X X X X ..... of Land and Development Officer, New Delhi, is communicated to the plaintiff by defendant No. 6. he balance amount of ₹ 55,000.00 was payable at the time of registration of the sale deed before the Sub Registrar, Delhi/New Delhi. It is common case of the parties that a sum of ₹ 10,000.00 was paid by plaintiff to defendants as recorded in agreement dated 19.12.1976. The further case of the plaintiff is that he approached defendant No. 6 and requested him to fix time and date for payment of Rs. l,65,000.00 and for delivery of possession by defendants to the plaintiff but inspire of promising to do so defendant No. 6 has been putting of the plaintiff on one pretext or the other. plaintiff also says that he approached defendant No. 6 personally at Jaipur and requested him to fix date and time for receiving payment and delivery of possession but defendant No. 6 failed to do so though he had promised that he will do it in the near future. Thereupon, plaintiff served a telegraphic notice through his advocate on defendant No. 6 calling upon him to receive sum of ₹ 1,65,000.00 and deliver vacant possession of the property to him within three days next of the said telegram ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oposed in Paras 6 and 7 of the proposed amendment. The said proposed paragraphs 6 7 read as under :- 6. That the receipt of earnest money was executed on 19th December 1976. A few days thereafter the plaintiff sent a typed draft of the agreement to sell wherein the sale price was shown to be ₹ 2,00,000.00 instead of ₹ 2,65,000.00 . The defendant No. 6 pointed out on telephone the inconsistency to the plaintiff whereupon the plaintiff's answer was that his books of account had only ₹ 2,00,000.00 and the balance of ₹ 65,000.00 he will pay from the unaccounted money. The defendant No. 6 protested but the plaintiff insisted on this mode of payment. The defendant No. 6 reiterated his stand in his letter dated 21.2.197. When the broker of the plaintiff expressed his desire to visit Jaipur, even then the defendant No. 6 repeated his insistence in his letter dated 19.4.77 that nothing less than ₹ 2,65,000.00 will be acceptable as consideration for the sale. The aforesaid proposal of the plaintiff disentitles the plaintiff of the relief of specific performance both under the law and equity because he has neither acted nor come with clean hands. 7. That ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issues were framed: (1)Whether the suit in the present form is maintainable ? Opp (2) If issue No. I is decided in favor of the plaintiff, whether the plaintiff is not entitled to the relief claimed because of the provisions of section 27 of the Urban Land (Ceiling Regulation) Act, 1976, and also for want of permission from Land Development Officer, New Delhi ? OPDs. (3) Whether the plaintiff has committed breach of the contract as alleged in paras 8 and 9 of the written statement. If so to what effect ? OPDs. (4) Whether the plaintiff has been ready and willing and is still ready and willing to perform his part of the contract ? OPP. (5) In case if specific performance is refused to the plaintiff whether he is entitled to damages in the alternative. If so, to what amount ? OPP. (6) Relief. (5) On 15.7.80 the following additional issues No. 5A was framed : 5A: Whether the agreement to sell is void and in-operative in view of the reasons stated in preliminary objection No. 4 of the amended written statement dated 12th February 1980. (6) Besides examining his brother Sh. Padam Singh Jain (Public Witness -3) Sh. Sushil Kumar (Public Witness -1), an employee from Andhr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the parties that a sum of ₹ 10,000.00 was paid to defendant No. 6 for and on behalf of defendants I to 5 It is recorded in Ex. PW2/1 that this sale is subject to permission of the Laud and Development Officer, New Delhi There is also no dispute that the sale price was settled at ₹ 2,t-5,000.00 in Ex. PW2/1. It is stated that we undertake to give possession (vacant) of the said house to Sh. Ajit Prasad Jain soon after he pays a sum of Rs. I 65.000.00 (Rupees One lakh sixty five thousand only) to Sh. G.D. Widhani on our behalf, the balance shall be paid in two Installments to Sh. G.D. Widhani-first of ₹ 35,000.00 (Rs. Thirty five thousand only) within 15 days of the date on which the permission of Land and Development Officer, New Delhi, is communicated to Mr. Ajit Prasad Jain by Shri G. D. Widbanion our behalf and second Installment of the balance of ₹ 55,000/.- (Rs. Fifty five thousand only) at the time of registration of the sale deed before the Sub Registrar, Delhi/New Delhi. (10) The main defense raised by the defendants is as incorporated in Para 9 of the written statement dated 12.2.80. The substance of the averments made in the said paragraph is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come to Delhi on 7th or 8th February 1977 and give possession after taking out his goods from the house but he did not turn up. Defendant was requested to give possession of the house and receive the money. Letter Ex. PW2/8 records about the visit of the plaintiff to Jaipur and request was made to defendant to write actual date of his coming to Delhi so that plaintiff can get the bank draft ready in his name. Ex. PW2/3, PW2/5, PW2/7 and PW2/9 are the certified of posting in respect of letters Ex. PW2/2, PW2/4, PW2/6 and PW2/8. (14) On the other hand, defendants have placed on record copy of the four letters stated to have been written by defendant No 6 to the plaintiff. The said letters are Ex. DW1/2 dated 27.12,76), DW1/4 (dated 21.2.77), Ex. DW1/7 (dated 8.4.77) and Ex.DW1/7 (dated 28.4.77). it is claimed by defendants that these four letters were sent under certificate of posting. Ex. DW1, 3, DW1/5, DW1/8. In Ex. DW1/2 request has been made to the plaintiff to send draft agreement. By Ex. DW1/4 defendant has thanked the plaintiff for sending draft agreement to sell and in this letter the story of unaccounted sum of ₹ 65,000.00 has been put forth. It is also recorded in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reply to the letters sent by plaintiff to him. It does appear that the plaintiff had sent the aforesaid four letters to defendant No. 6 which remained unreplied by defendant No. 6. The letters of the plaintiff fits in with the case of the plaintiff as disclosed in the telegram and the notice referred to above. (17) With regard to the case of the defendant that plaintiff was interested in giving unaccounted money, learned counsel for the defendants have placed strong reliance on a draft agreement marked XY. It is an unsigned document. plaintiff does not admit that he had sent draft agreement mark By to defendant No. 6. It is not the case of defendants that there was any covering letter with document mark XY. In document mark By the sale consideration stated is ₹ 2 lakhs. It is also stated in this document that ₹ 65,000.00 will be paid at the time of registration of the sale deed before the Sub Registrar and to that extent it would be contrary to agreement Ex.PW/1. It the plaintiff had to send this agreement mark By he will certainly not mention the amount payable at the time of registration of the sale deed as ₹ 65.000.00 knowing fully well that the defendants a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counsel for the defendants that plaintiff had no money to pay to the defendants. (19) It was next contended on behalf of the defendants that plaintiff was not ready and willing to perform his part of the contract in as much as be was not willing to sign the application and affidavit required to be submitted to the competent authority under Urban Land (Ceiling and Regulation) Act and to Land and Development Office. Defendants contend that plaintiff was only interested in taking possession of the property. It is further contended that possession could not be given to the plaintiff without permission from the Land and Development Office. (20) The defendants have not placed on record any document to show that for delivery of possession to the plaintiff it was necessary to obtain permission from Land and Development Office. It is also not stated in the agreement that possession will be delivered to the plaintiff only after getting permission from Land and Development Office. The defendants have not even produced the lease deed or copy thereof containing such a restriction. In the agreement Ex PW2/1 the defendants undertook to give vacant possession to the plaintiff soon after paym ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the execution of the agreement. Thus, it is obvious that defendant No. 6 did not make a for the right statement in this regard. (21) The permission from Land and Development Office is not a condition precedent for grant of decree for specific performance. In Mrs. Chandnee Widya Vati Madden v. Dr. C.L. Katial Ors. [1964]2SCR495 the Supreme Court confirmed the decision of the Punjab High Court holding that if the Chief Commissioner ultimately refused to grant the sanction to the sale the plaintiff may not be able to enforce the decree for specific performance of the contract but that was no bar to the court passing a decree for that relief. The same is the position in the present case. If after grant of the decree of specific performance of the contract the Land and Development Office refuses to grant permission for sale the decree-holder may not be in a position to enforce the decree but it cannot be held that such a permission is a condition precedent for passing a decree for specific performance of the contract. I may also notice that Section 27(1) of the Urban Land (Ceiling and Regulation) Act, in so far as it imposes a restriction on transfer of any urban or urban sable l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ff would have been out of pocket to the extent of ₹ 1,75,000.00 before getting possession. It is evident that plaintiff did his best to make the payment and take possession but defendants have been avoiding it. Defendants could have taken permission from the Land Development Office and on communication of it the plaintiff was required to make a further payment of ₹ 35,000.00 . The defendants cannot take advantage of their own wrong and then plead it to be an unfair advantage to the plaintiff. Thus, I find no merit in this ground as well, for exercising discretion to refuse the relief of specific performance to the plaintiff. (23) Let me examine the question of plaintiff being ready and willing to perform his part of contract from another angle also. To determine whether plaintiff was ready and willing to perform his part of the contract the sequence in which the obligations under the contract are to be performed have also to be taken into account. The sequence of obligations under Ex.PW2/1 are (1) Payment of ₹ 1, 65.000.00 (2) handing over of possession to the plaintiff; (3) communication of permission of Land and Development Office to plaintiff and payment o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot transfer or dispose of by sale, settlement or otherwise any Immovable property situate in India without prior permission of the Reserve Bank of India and as such the agreement to sell is void. In support of the contention that defendant No. 2 has acquired citizenship of German Democratic Republic reliance is placed on citizenship certificate dated 17.7.1970 (Ex.D6/1). It does appear from the said certificate that defendant No. 2 had acquired citizenship of German Democratic Republic but in my view that has no effect on the validity of the agreement in question. Section 31 of the Foreign Exchange Regulation Act on which reliance has been placed by the defendants only places a restriction on a foreign citizen on transfer or sale, mortgage, lease, gift, settlement or otherwise of any Immovable property situate in India except with the previous general or special permission of the Reserve Bank of India. The said provisions do not place any restriction on entering into agreement like Ex.PW2/1. The said provisions also do not place an absolute bar to the transfer or sale of any property and as such it cannot be said that the agreement itself will become void. It is well settled that a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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