IMPORTANT POINT
Where the tranferer as to ask for a permission for sale, it could no be held that such a permission from authority was a condition precedent for passing a decree for specific performance of contract.

Headnote:Specific Relief Act, 1963 — Section 16 — Suit for specific performance of agreement to sell suit plot — Suit decreed by trial court & upheld by High Court— Appeal — Contention that there was impediment on transfer as transfer was prohibited by DDA, agreement could not have be enforced by a decree — DDA had granted a lease of a big plot of land in favour of Co-operative house building Society & Society had granted sub-lease in favour of its members — It vendor had agreed to sell the property which could be only with sanction of some government authority, Court had jurisdiction to order the vendor to apply to authority within a specified period of sanction was forth coming to convey to the purchaser within certain time — Permission from authority in the case was not a condition precedent for grant a decree for specific performance — No interference was warranted — However considering long passage of time, as suggested by respondent, a further sum, of Rs. 5 lacs directed to be paid to appellant.
       Held : The Privy council in Motilal v. Nanhelal, AIR 1930 P.C. 287, laid down that if the vendor had agreed to sell the property which can be transferred only with the sanction of some government authority, the court has jurisdiction to order the vendor to apply to the authority within a specified period, and if the sanction is forthcoming, to convey to the purchaser within a certain time. This proposition of law was followed in Mrs. Chandnee Widya Wati Madden v. C.L. Katial, (AIR 1964 SC 978), and R.C.Chandiok v. Chuni Lal Sabharwal (AIR 1971 SC 1238). The Privy Council in Motilal’s case (supra) also laid down that there is always an implied covenant on the part of the vendor to do all things necessary to effect transfer of the property regarding which he has agreed to sell the same to the Vendee. Permission from the Land and Development Officer is not a condition precedent for grant of decree for specific performance. High Court relied upon its decision in Mrs. Chandnee Widya Madden v. Dr. C.L. Katil (supra) and Maharo Saheb Shri Bhim Singhji v. Union of India (AIR 1961 SC 234) to substantiate the conclusive. In Mrs. Chandnee Widya (supra) this Court confirmed the decision of the Punjab and Haryana 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 not a bar to the Court passing a decree for that relief. The same is the position in the recent case. If after the grant of the decree of specific performance of the contract, the Land and Development Officer refused 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.
       (Para 12)
       Held : In Ramesh Chandra Chandiok and Anr. v. Chuni Lal Sabharwal (dead) by his legal representatives and Ors. (AIR 1971 SC 1238) it was held that proper form of decree in a case like the instant one would be to direct specific performance of the contract between defendant and the plaintiff and to direct the subsequent transferee to join in the conveyance so as to pass on the title residing in him. This is because defendant no. 2 son of defendant no.1 cannot take the stand that he was a transferee without notice. Admittedly, he is son of defendant no.1. The view in Ramesh Chandra’s case (supra) was a reiteration of earlier view, in Durga Prasad and Anr. v. Deep Chand and Ors. (AIR 1954 SC 75). This Court has repeatedly held that the decree can be passed and the sanction can be obtained for transfer of immovable property and the decree in such would be in the way the High Court has directed. (See Motilal Jain v. Ramsai Devi (Smt.) and Ors. (2000 (6) SCC 420), Nirmala Anand v. Advent Corporation (P) Ltd. and Ors. (2002 (5) SCC 481), (2004 (6) SCC 537), Aniglase Yohanna v. Ramlatha and Ors. (2005 (7) SCC 534)].
       (Para 13)
       Held : Above being the position we find no merit in this appeal. However, considering the long passage of time it was suggested to respondent no.1 that he could pay an additional sum to the appellant. Learned counsel for the respondent left the quantum to be decided by this Court. To a similar effect was the suggestion of learned counsel for the appellant. Considering the background facts, we direct that as a matter of good gesture, let the respondent pay a sum of rupees five lakhs to the appellant within a period of four months from today.
       The appeal is dismissed subject to the aforesaid observations. (Para 14)

JUDGMENT

Dr. ARIJIT PASAYAT, J.—

1.Challenge in this appeal is to the judgment rendered by a Division Bench of the Delhi High Court dismissing the First Appeal filed by the appellants who were defendants in the suit filed by the respondents. The regular first appeal under Section 96 of the Code of Civil Procedure, 1908 (in short ‘the Code’) was directed against the judgment and decree passed by the Additional District Judge, Delhi, in Civil Suit no. 129/80. The trial court had decreed the suit of the plaintiff for specific performance of the agreement to sale directing the defendant-appellant to execute necessary sale-deed within a particular period. Defendants were asked to take necessary steps for completing necessary formalities towards execution of the sale-deed.

2.Background facts in a nutshell are as follows:

On 12.12.1979 plaintiff filed the suit claiming decree for specific performance of agreement to sell dated 24th March, inter alia, alleging that Delhi Development Authority had granted a lease of a big plot of land in favour of New Friends Cooperative House Building Society and the Society had granted sub lease in favour of its members. Durga Nath Sharma, defendant No.1 being one of the members of the Society was granted a sub lease with respect to plot No. 334 measuring 524 Sq. yards under sub lease dated 2.7.1974. The said defendant with a view to sell the said plot entered into an agreement with the plaintiff on 24.3.1978 at a fixed price of Rs.85,000/-. A sum of Rs.8,500/- was received by him towards part payment of the price, the balance was payable within 15 days after receipt of approval of building plan by Delhi Development Authority. The said defendant also agreed to execute necessary documents in favour of the plaintiff such as, (a) construction agreement (b) General and Special Power of Attorney, (c) Will, (d) Agreement to Sell and (e) any other necessary document. These documents were to be executed by the defendant no.1 in order to avoid possibility of complication in transfer of the plot to the plaintiff, although the intention of the defendant no.1 was to sell the plot to the plaintiff for which the necessary deal was struck. The plaintiff further alleged that he got a building plan prepared from an architect to suit his requirements, which was sent alongwith draft of the other documents with a covering letter dated 17.5.1978 to the defendant no.1. More documents were sent with another letter of the same date for signatures of defendant No.1. Both the letters were sent under registered cover and were duly received by the defendant no.1 but no reply was received. On 17.8.1978 another letter under registered cover was sent to the defendant no.1, which though received was not replied to by the said defendant. The plaintiff further alleged that the defendant no.1 appears to have changed his mind later on and in an attempt to wriggle out of the deal had fraudulently transferred the plot by way of gift in favour of his son (defendant No.2)/ appellant No.2 which the plaintiff alleged was not binding on him and for that reason appellant No.2 was impleaded in the suit. It is further alleged that on 29.8.1978 defendant no.1 wrote a letter to the plaintiff cancelling the agreement to sell and returned the amount of Rs.8,510/- by cheque which included bank collection charges. Since defendant No.1 could not have unilaterally cancelled the agreement which still subsisted, the plaintiff declined to accept the cheque and did not encash it. The plaintiff had always been ready and willing to perform his part of the contract and is still ready and willing to purchase the plot on payment of the balance price but defendant No.1 had unilaterally backed out. Therefore, plaintiff was left with no option except to send a notice on 17.8.1978 calling upon defendants to execute necessary sale deed. No steps were taken by the defendants and, therefore, the suit was filed.

3.The defendants contested the suit by filing a joint written s

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2007 Supreme(SC) 260

IMPORTANT POINTWhere the tranferer as to ask for a permission for sale, it could no be held that such a permission from authority was a condition precedent for passing a decree for specific performance of contract.

Cases Referred (8)

IMPORTANT POINT
Where the tranferer as to ask for a permission for sale, it could no be held that such a permission from authority was a condition precedent for passing a decree for specific performance of contract.