2008 Supreme(Bom) 1388

IN THE HIGH COURT OF BOMBAY
J.H. BHATIA, J.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Ambadas Khanderao Hagvane - Appellant
Vs.
Shaikh Razaq Shaikh Yakub - Respondent
SECOND APPEAL NO. 634 of 1991
Decided On: 25-09-2008

Headnote:Specific Relief Act, 1963 - Section 20 - Limitation Act, 1963, Article 54 - Suit for specific performance of contract - Limitation for - Period for performance specified in agreement - Subject to condition - To obtain permission for sale from competent authority - As long as permission not secured, period of completing transaction automatically get extended - Land owners not filed application for grant of permission before competent authority - Suit not barred by limitation. - Under Article 54 of the Limitation Act for a suit for specific performance of contract, the period of limitation is three years and when the date of performance is fixed, the period of limitation begins to run from that day and when no such date is fixed, the period of limitation begins to run when the plaintiff has knowledge of refusal of performance. In the present case, the period was specified in the agreement. In view of the terms of the contract noted above, it is clear that the parties had agreed that the sale transaction should be completed within six months i.e. by 17.1.1979 but this period was subject to condition of obtaining permission for sale from the competent authorities under both the Acts. If the permission would have been obtained within that period, the transaction was to be completed on or before 17.1.1979 and in that case the period limitation would begin to run from 17.1.1979 and would come to an end on 17.1.1982. Admittedly, the permission under Section 26 of Urban Lands Ceiling Act was obtained by 30th August, 1978 i.e. well within time. However, permission under Section 63 of the Tenancy Act was not obtained. There is nothing to show that the defendants had filed any application before the competent authority for obtaining their permission. As per the terms of the contract it was the responsibility of the defendants so obtain that permission and then both parties were to complete the sale transaction. As the defendants had failed to move an application for permission under Section 63 of the Tenancy Act, naturally, the permission was not secured and as long as that permission was not secured, the period for completing the transaction would automatically get extended under the terms of the contract. Mr. Deogirikar, counsel for the defendants/appellants vehemently contended that it was the responsibility of the plaintiffs to approach the competent authority under Section 63 and to obtain permission. However, he could not point out any legal provision under which the application for that permission to be made only by the purchaser of the land. The application could be moved by either of the party and as per terms of the contract it was responsibility of the defendants to secure the permission. It means it was their responsibility to file an application before the competent authority for obtaining permission under Section 63 of the Tenancy Act. Mr. Deogirikar contended that it was necessary for the competent authority to be satisfied that the permission could be granted under the provisions of Section 63 of the Tenancy Act and the relevant rules and unless the purchasers appeared before that authority with necessary evidence, the competent authority could not come to the conclusion that the plaintiff deserve that permission. However, in Court’s considered opinion, if the application would have been filed by the defendants, the plaintiff could be called upon to appear before the competent authority and to produced necessary oral and documentary evidence to satisfy the concerned authority that under the provisions of law and rules they could be allowed to purchase the land. Unless the application was made, that stage would not come. The defendants failed to perform their part of the contract by filing the application before the competent authority to secure that permission. In view of these circumstances, it must be held that the suit was not barred by limitation.

       United Commercial Bank Officers Employees’ (Discipline and Appeal) Regulations, 1976 - Section 26 - Bombay Tenancy and Agricultural Lands Act, 1948, Section 63 - Specific performance of agreement of sale - Suit filed for specific performance of agreement to sale - Earnest money deposited-defendant rejected execution of sale agreement - Submitted the receiving of earnest money in view of loan - Civil Court passed decree of specific performance - Appeal preferred against order - Rejected and confirmed order of Civil Court and directed defendant to secure permission under Section 63 of Tenancy Act - Appeal against the confirmation order of 6th Additional District Judge - Held - Defendant failed to prove defendant No. 5 had obtained loan and not entered agreement to sale - Defendant failed to perform their part of contract - Defendant shall execute the sale-deed - Appeal dismissed. - Both the Courts below have given concurrent findings that the defendants had entered into an agreement to sell the suit land to the plaintiffs for consideration of Rs. 15,000/- and they had received amount of Rs. 6,000/- as earnest money and they had executed an agreement for sale. Both the Courts below also held that the defendants were to obtain necessary permission under Section 26 of the Urban Land Ceiling Act and under Section 63 of the Bombay Tenancy and Agricultural Land Act from the competent authorities before executing sale-deed. Both the Courts below found that permission under Section 26 of the Urban Land Ceiling Act was obtained by the defendant on 30th August, 1978, only the permission under Section 63 of Tenancy Act not obtained. There is a concurrent finding of fact from both the Courts below that the defendants had failed to prove that defendant No. 5 Khanderao had obtained loan of Rs. 6,000/- from Haroon Seth and that he had not entered into any agreement for sale with the plaintiffs. There is no material on record to show that the concurrent findings of facts on these points are either per se wrong or perverse in view of the oral or documentary evidence on record and therefore, no substantial question of law can be raised in respect of these findings.

       Under Article 54 of the Limitation Act for a suit for specific performance of contract, the period of limitation is three years and when the date of performance is fixed, the period of limitation begins to run from that day and when no such date is fixed he period of limitation begins to run when the plaintiff has knowledge of refusal of performance. In the present case, the period was specified in the agreement. In view of the terms of the contract noted above, it is clear that the parties had agreed that the sale transaction should be completed within six months i.e. by 17.1.1979 but this period was subject to condition of obtaining permission for sale from the competent authorities under both the Acts. If the permission would have been obtained within that period, the transaction was to be completed on or before 17.1.1979 and in that case the period of limitation would begin to run from 17.1.1979 and would come to an end on 17.1.1982. Admittedly the permission under Section 26 of Urban Lands Ceiling Act was obtained by 30th August, 1978 i.e. well within time. However, permission under Section 63 of the Tenancy Act was not obtained. There is nothing to show that the defendants had filed any application before the competent authority for obtaining their permission. as per the terms of the contract it was the responsibility of the defendants to obtain that permission and then both the parents were to complete the sale transaction. As the defendants had failed to move an application for permission under Section 63 of the Tenancy Act, naturally, the permission was not secured and as long as that permission was not secured, the period for completing the transaction would automatically get extended under the terms of the contract. Counsel for the defendants/appellants vehemently contended that it was the responsibility of the plaintiffs to approach the competent authority under Section 63 and to obtain permission. However, he could not point out any legal provision under which the application for that permission to be made only by the purchaser of the land. The application could be moved by either of the party and as per terms of the contract it was responsibility of the defendants to secure the permission. It means it was their responsibility to file an application before the competent authority for obtaining permission under Section 63 of the Tenancy Act. Counsel for the defendants appellant contended that it was necessary for the competent authority to be satisfied that the permission could be granted under the provisions of Section 63 of the Tenancy Act and the relevant rules and unless the purchasers appeared before that authority with necessary evidence, the competent authority could not come to the conclusion that the plaintiffs deserve that permission. However, if the application would have filed by the defendants, the plaintiffs could be called upon to appear before the competent authority and produce necessary oral and documentary evidence to satisfy the concerned authority that under the provisions of law and the rules they could be allowed to purchase the land. Unless the application was made, that stage would not come. The defendants failed to perform their part of the contract by filing the application before the competent authority to secure that permission. In view of these circumstances, it must be held that the suit was not barred by limitation.

       The counsel for the defendants/appellants vehemently contended that the consideration for the suit transaction was only Rs. 15,000/- and a meager amount of Rs. 6,000/- was paid as per the terms of the agreement. The counsel contended that the relief of specific performance of the contract is discretionary and in view of the facts that the defendants are poor persons, holding a small piece of land and further, the prices of land have increased manifold and therefore, it will not be in the interest of justified to grant decree for specific performance. It is contended that if 30 years after the agreement, the defendants are required to executed that sale-deed as per the priced fixed in the years 1978, they would be practically deprived of their property. Counsel for the plaintiff vehemently contended that merely because long time has lapsed in the litigation, that decree for specific performance cannot be refused to the plaintiff because they were not at fault. It is pointed out that the plaintiffs were required to file the suit because the defendants had taken a false stand of loan transaction. The suit was filed in 1984 and it was decreed on 9.8.1985 i.e. within almost one and a half years. Against that decree the defendants had preferred an appeal and that appeal was decided on 6th June, 1991, confirming the decree for specific performance in respect of 3/4th share. That judgment was challenged in the present appeal and this appeal is pending for last about 17 years. All this period has been lost only because the defendants filed the appeal. He also relied upon number of authorities in support of his contention that normally the decree for specific performance of the contract should be granted unless there are specific circumstances against the same.

       Taking into consideration all the circumstances, Court does not find any substance in the appeal. However, as per the statement made by the counsel for the plaintiffs/respondent, they shall deposit the balance amount of consideration of Rs. 5,250/- and in addition to that, further amount of Rs. 5,00,000/- before the trial Court within two months from this date. The counsel for the plaintiff/respondents made a statement that the necessary permission under Section 63 of the Tenancy Act has been already granted by the competent authority on an application made by the Court Commissioner in exemption of the decree. If the permission is already obtained, within one month after depositing the amount, the defendant Nos. 1 to 3 shall execute the sale-deed as per the decree passed by the first appellate Court. In case, the permission under Section 63 is not get granted, the defendant Nos. 1 to 3 shall approach the competent authority within two months from this date to secure permission for sale of the land under Section 63 of the Tenancy Act, under intimation to the plaintiffs. The sale-deed shall be executed after the permission is granted. After execution and registration of sale-deed, the defendant Nos. 1 to 3 shall be at liberty to withdraw the amount deposited with the trial Court.