S.B. Sinha, J.@mdashThis first appeal at the instance of the plaintiff arises out of a judgment and decree dated 23-12-1983 passed by Shri D. N. Pathak, Special Sub-Judge, Ranchi in Title Suit No. 102 of 1982 whereby and whereunder the said learned Court dismissed the plaintiff-appellant''s suit for specific performance of an agreement of sale dated 28-11-1980.
2. The facts of the case lie in a very narrow compass.
3. Allegedly the plaintiff and the defendant No. 1, who was admittedly the owner of the disputed land as described in schedule ''A'' of the plaint entered into an agreement on 28-11-1980 whreby and whereunder the defendant No. 1 agreed to sell 4 kathas of land.
In terms of the said agreement allegedly an application for permission to sell the aforementioned land purported to be under Sections 26 and 27 of the Urban Land (Ceiling and Regulation) Act, 1976 was filed and the said application was rejected.
5. The defendants however, alleged that another application for permission was filed by the plaintiff without their knowledge and the plaintiff manipulated the matters in this regard and obtained a purported sanction of the competent authority. It is admitted that in relation to the said purported agreement of sale dated 28-11-1980, the plaintiff served a notice upon the defendant No. 1 through his advocate. The defendant No. 1 upon receipt of the aforementioned notice, replied to the plaintiffs advocate alleging therein that the said purported application was a forged document.
The defendant further brought the said matter to the notice of the Dy. Commissioner, Ranchi with a prayer to start a complaint case against the plaintiff for forging the signature of defendantNo. 1. Upon the said application a case being case No. 15 of 1982-83 was initiated wherein notice was issued to the plaintiff to show cause and the said case is stili pending.
6. According to the defendant as the competent authority refused to grant permission, the purported agreeement dated 28-11-1980 has lost its force.
7. On the basis of the aforementioned pleadings of the parties the following issues were framed:--
"1) Is the suit as framed maintainable?
2) Has the plaintiff got valid cause of action or right to sue?
3) Is the plaintiff entitled to get the decree for specific performance of the contract of sale as claimed by him in this suit for the suit lands?
4) To what other relief or reliefs, if any, is the plaintiff entitled?"
8. The learned trial Court while deciding issue No. 2 held that the plaintiff is guilty of forging the signature of the defendant No. 1 in the aforementioned purported application for grant of permission before the authorities concerned.
9. The learned Court below, therefore, dismissed the plaintiff-appellant''s suit in view of the aforementioned findings.
10. Admittedly, a dispute existed between the parties with regard to the rate at which the defendant No. 1 agreed to sell the properties in question to the plaintiff.
11. According to the plaintiff the rate was fixed at Rs. 4,000/- per katha and as such the entire consideration amount which was to be paid by him to the defendant No. 1 was Rs. 16,000/- and out of the said amount the plaintiff tendered a sum of Rs. 5,000/- to the defendant No. 1 which was accepted by her.
According to the plaintiff he was all along ready and willing to perform his part of contract and in fact tendered the sum of Rs. 11,000/- in terms of the agreement. The plaintiff further deposited a sum of Rupees 11,000/- in the Court.
On the other hand, according to the defendant the price of the land which was fixed between the parties for selling the same by the plaintiff to the defendant No. 1 was at the rate of Rs. 10,000/- per katha.
12. From a perusal of Ext. 2 that is the agreement dated 28-11-1980, however, it appears that neither the said consideration amount nor the rate of the said land per katha has been mentioned therein. It has, however, been mentioned in the said agreement that the plaintiff has paid a sum of Rs. 5,000/ - by way of advance to the defendant No. 1.
13. It is, therefore, clear that the agreement itself which is sought to be specifically enforced does not contain any stipulation fixing the amount of consideration which was agreed to by and between the parties of the suit.
Section 25 of the Contract Act provides that an agreement without consideration is void. However, in any event from the pleadings of the parties as also the evidences adduced by them, it is evident that the parties were not ad idem with regard to the essential terms and conditions of the agreement so far as the same related to the quantum of consideration payable by the plaintiff in favour of the defendant No. 1 is concerned.
14. In terms of Section 29 of the Indian Contract Act a contract becomes void if the terms and conditions thereof are uncertain.
15. It is a well settled principle of law that if a consideration is not fixed for an agreement, the same will only amount to an agreement to agree and not a binding contract.
16. The agreement dated 28-11-1980 (Ext. 2) which was sought to be specifically enforced having not contained any stipulation with regard to amount of consideration which was required to be passed from the plaintiff to the defendant No. 1, the same was not enforceable. If the parties had agreed to pay some consideration at a future date, the modification of the agreement was required to be done by reason of another agreement.
Admittedly neither any separate agreement was entered into by and between the parties of the suit nor the parties were ad idem with regard to the amount of consideration relating to the aforementioned agreement for sale dated 28-11-1980.
17. In this situation, in my opinion, the said purported agreement dated 28-11-1980 was void and thus was not enforceable in a suit for specific performance of contract.
18. Further in any event as the plaintiff was found guilty of forging the signature of the defendant No. 1 in the application for permission filed before Additional Collector, Ranchi in terms of the Urban Land (Ceiling and Regulation) Act, 1976, in my opinion, the plaintiff is also not entitled to any decree for specific performance of contract in equity.
19. However, the learned counsel for the defendant, when questioned, as to why the defendant shall not refund the advance amount of Rs. 5,000/- to the plaintiff, very fairly agreed to refund the said amount and in fact during course of hearing Mr. R.C.P. Shah, learned counsel appearing on behalf of the defendant-respondent handed over a sum of Rs. 5,000/- to Shri B. P. Tetarbe, learned counsel appearing on behalf of the plaintiff-appellant in Court which was accepted by Mr. Tetarbe.
20. In this view of the matter, in my opinion, there is no merit in this appeal which is dismissed.
21. However, in the facts and circumstances of the case, the parties shall bear their own costs also.
22. Before parting with the case, it must be mentioned that in view of the dismissal of the suit the plaintiff is entitled to take back the sum of Rs. 11,000/- which he has deposited efore the learned Court below.
