B.R. Gavai, J
1. This appeal challenges the judgment dated 17th October 2008 passed by the learned Division Bench of the High Court of Judicature, Andhra
Pradesh at Hyderabad in Letters Patent Appeal No. 26 of 1999, thereby partly allowing the appeal filed by the present appellants.
2. Facts in brief giving rise to the present appeal are as under:
The defendant is the owner of the suit property. The defendant executed an agreement of sale in favour of the plaintiff for sale of the suit property.
The total consideration was fixed at Rs.45,315/-. The plaintiff paid an amount of Rs.15,000/- by way of Demand Draft dated 7th July 1978 as advance
payment. The defendant addressed a letter to the plaintiff on 13th October 1978 stating therein that, she was ready to execute the sale deed and that
she was coming to Hyderabad the week thereafter for the said purpose. The said communication was responded to by the plaintiff on 20th October
1978, requesting to confirm whether the necessary permission from the Competent Authority (hereinafter referred to as the “ULC Authoritiesâ€)
under the Urban Land (Ceiling and Regulation) Act, 1976 (for short “ULC Actâ€) to sell the suit property had been obtained or not. Immediately
thereafter, the plaintiff purchased stamp papers on 23rd October 1978. On 8th December 1978, the defendant applied to the Secretary to Government
of Andhra Pradesh, Revenue Department for granting exemption under Section 20 of the ULC Act for selling the suit property. Another
communication was addressed by the plaintiff on 30th December 1978, requesting the defendant to inform him as soon as the requisite permission
under the ULC Act has been obtained. On 3rd March 1980, the defendant addressed a communication to the plaintiff stating therein that the
concerned official had promised her to do the needful.
3. On 12th April 1982, the defendant addressed a communication to the plaintiff stating therein that the requisite permission from the ULC Authorities
could not be obtained and therefore, she had cancelled the agreement of sale dated 29th July 1978. The defendant had also enclosed a Demand Draft
of Rs. 15,000/- for the purpose of refund of advance amount. The plaintiff replied to the defendant vide communication dated 2nd May 1982 that, the
contract was binding and returned the said Demand Draft. He reiterated that he was always ready to make the payment and execute the sale deed. It
was also contended by him that because of the spiralling price rise, the defendant was going back on the promise. The defendant, on 2nd June 1982
addressed a letter to the plaintiff, stating therein that, she was forfeiting the advance payment of Rs.15,000/- since the plaintiff had not claimed the
refund within 90 days from the date of the agreement of sale. Thereafter, there were certain other communications between the parties.
4. The Government of Andhra Pradesh, vide G.O. Ms. No. 161 dated 7th February 1984, granted exemption to the defendant under the provisions of
Section 20 of the ULC Act. After coming to know about the same, on 19th February 1984, the plaintiff issued a legal notice to the defendant for
execution of the sale deed in pursuance of the agreement of sale dated 27th July 1978. Since the defendant did not respond, the plaintiff filed a suit
bearing OS No. 139 of 1984 before the trial court seeking specific performance of the agreement of sale dated 29th July 1978. The trial court, vide
judgment and decree dated 29th April 1988, decreed the suit directing the defendant to execute the sale deed within 2 months from the date of the
judgment and decree.
5. Being aggrieved thereby, the defendant (since deceased) through legal representatives filed an appeal being Appeal No. 1415 of 1998 before the
High Court. The learned Single Judge of the High Court, vide judgment dated 24th September 1998, allowed the appeal and dismissed the suit of the
plaintiff. Being aggrieved thereby, the plaintiff filed an appeal being LPA No.26 of 1999 before the Division Bench of the High Court. The learned
Division Bench of the High Court, vide impugned judgment dated 17th October 2008, denied the relief to the plaintiff for specific performance.
However, it held that the plaintiff was entitled to get the refund for the advance payment of Rs.15,000/- along with the accrued interest or a sum of
Rs.3,00,000/- in all. Being aggrieved thereby, the plaintiff has approached this Court.
6. We have heard Shri C. Nageswara Rao, learned Senior Counsel appearing on behalf of the appellants and Shri Sridhar Potaraju, learned counsel
appearing on behalf of the respondents.
7. Shri Rao submitted that the learned Single Judge of the High Court has erred in reversing the well-reasoned judgment and decree passed by the trial
court. He further submitted that the Division Bench of the High Court also erred in upholding the judgment passed by the learned Single Judge denying
specific relief. The learned Senior Counsel submitted that the findings of the learned Single Judge as well as the Division Bench of the High Court are
based upon misinterpretation of evidence. He submitted that the learned Single Judge and the Division Bench have, through their own interpretation,
imported a condition which is not in existence.
8. Shri Sridhar, on the contrary, submitted that the learned Single Judge as well as the Division Bench of the High Court has concurrently held that the
conduct of the plaintiff was not such which entitled him for specific relief. He further submitted that no interference is warranted in the present
appeal.
9. The learned Single Judge, while reversing the judgment and decree passed by the trial court, has relied on Clauses 3 and 5 of the agreement of sale
dated 29th July 1978, which read thus:
“3. The sale deed shall be executed within three months from the date of this agreement or within one month from the date of receipt of intimation
from 'the vendor' stating that the necessary permission from the concerned authority under Urban Land Celling Act is obtained or within such further
period as mutually agreed upon on payment of the balance of consideration. If the balance of consideration is not paid within the stipulated period of
agreed period rendering it difficult for 'the vendor' to execute the sale deed, this agreement of sale shall stand cancelled.
4. ….
5. That 'the vendor' shall obtain permission for alienation under Urban Land Ceiling Act or any other Act as early as possible but not later than 75
days from the date of this agreement and 'the vendor' shall be sole responsible for obtaining the above permission, 'the purchaser' shall be entitled to
get back the advance paid after 75 days from the date of the agreement, but not later than 90 days under any circumstances.â€
10. Upon interpretation of the aforesaid clauses, the learned Single Judge of the High Court came to a conclusion that a reading of the said clauses
made it clear that the parties intended that that the permission should be obtained by the defendant within 75 days. It held that in the event the
permission was not obtained by the defendant within the stipulated time, the plaintiff was entitled to get back his advance money. It has found that
under the agreement of sale, even for the said purpose, the limit of 90 days was fixed. After the said period of 90 days, the plaintiff was not even
entitled to get back the advance money and the defendant was entitled to forfeit the same.
11. The learned Single Judge further found that the conduct of the parties to the contract was also significant. It found that both the parties tried to get
the exemption from the Government of Andhra Pradesh under Section 20 of the ULC Act for about a year after the agreement of sale dated 29th
July 1978. It is further to be noted that though the defendant had communicated to the plaintiff on 12th April 1982 that, since the requisite permission
from the ULC Authorities could not be obtained and as such, she had cancelled the agreement, the plaintiff did not file any proceeding against the
defendant. It was only after a period of almost 2 years when the defendant obtained the permission after cancellation of the earlier agreement, the
plaintiff chose to file the suit.
12. In the case of K.S. Vidyanadam and Others v. Vairavan (1997) 3 SCC 1, this Court has held that the court should look at all the relevant
circumstances including the time limit(s) specified in the agreement and determine whether its discretion to grant specific performance should be
exercised. It has been held that in case of urban properties, the prices have been rising sharply. It has been held that while exercising its discretion, the
court should bear in mind that when the parties prescribe certain time limit(s) for taking steps by one or the other party, it must have some significance
and that the said time limit(s) cannot be ignored altogether on the ground that time is not the essence of the contract.
13. Taking into consideration the fact that the agreement of sale provided that in the event the permission was not obtained within 75 days, the
purchaser shall be entitled to get back his advance money paid after 75 days but not later than 90 days under any circumstances, the findings of the
learned Single Judge cannot be said to be erroneous. After the defendant terminated the agreement on 12th April 1982 stating therein that since the
permission from the ULC Authorities could not be obtained, she had cancelled the agreement of sale, the plaintiff did not take any step till 19th
February 1984. Only after the ULC permission was granted on 7th February 1984, the plaintiff had issued a legal notice to the defendant on 19th
February 1984.
14. The Division Bench of the High Court, after elaborately discussing the terms and conditions stipulated in the agreement of sale, also agreed with
the view taken by the learned Single Judge.
15. Though, the Division Bench of the High Court denied the relief for specific performance to the plaintiff, it has directed the respondents-defendants
to refund the advance amount of Rs.15,000/- along with accrued interest or a sum of Rs.3,00,000/- in all.
16. We do not find any reason to differ with the concurring judgments passed by the learned Single Judge as well as the Division Bench of the High
Court denying a decree for specific performance. However, taking into consideration the facts and circumstances and an undisputed position that the
defendant had, in fact, received an amount of Rs.15,000/- as early as 1978, we direct the respondents-defendants to pay an amount of Rs.15,00,000/-
to the appellants-plaintiffs. The said amount shall be paid within a period of 3 months from the date of this judgment.
17. In the result, the appeal is allowed in the aforesaid terms. Pending application(s), if any, shall stand disposed of in the above terms. No order as to
costs.
