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Gujarat High Court
Judgename :D.C.Srivastava
GUNVANTLAL RATANCHAND - Appellant
Versus
RAMESHBHAI P.PATEL - Respondent
First Appeal1879 of 1984
Decided On : 09/13/2000
The appeal succeeds in part only. The judgement and decree of the Trial Court is confirmed with the modification that the plaintiffs are entitled to recover Rs. 20,000/- as earnest money from all the respondents together with interest at the rate of 12% p.a. from the date of the suit till realisation.
[Para 40]
(b) Specific Relief Act, 1963 (Central Act 47 of 1963) - Sec. 12 - Specific performance of agreement to sell - Merely because appellants are ready and willing to perform their part of agreement specific performance cannot be granted as the permission to alienate was refused, and subsequent legislative changes do not entitle for decree.
Court is of the view that the plaintiffs are not entitled to decree for specific performance of the agreement to sell merely because of their readiness and willingness to perform their part of the contract. The contract has become determinable, hence, no decree for specific performance can be granted. Further in view of bar of Sec. 63 of the Bombay Tenancy and Agricultural Lands Act, no decree for specific performance of the agreement could be granted. Subsequent events, namely, legislative changes also do not entitle the plaintiffs to a decree for specific performance and lastly it is inequitable to grant a decree for specific performance on the facts and circumstances of the case.
[Para 36]
(c) Specific Relief Act, 1963 (Central Act 47 of 1963) - Refund of earnest money - Agreement to sell was entered between defendant- respondents 1 to 7 and defendant-respondents 8 to 12 - Earnest money for sale to appellant was received by defendants 8 to 12 - Whether recovery could be effected only from defendants 8 to 12 only - Held, since the earnest money was also received by defendant 1-7 from defendants 8 to 12, the refund could be effected against all the defendants.
The defendants who are executants of first agreement to sell dated 17.11.1972 also received earnest money from the defendant Nos. 8 to 12 in two installments of Rs.2,000/- and Rs.5,000/-. As such, the Trial Court was in error in refusing to grant the decree for refund of earnest money against the respondent Nos. 1 to 7. The decree for refund of earnest money amounting to Rs.20,000/- together with interest at the rate of 12% p.a. shall be joint decree against the respondents and in case the plaintiffs proceed to execute this decree against the respondent Nos. 1 to 7, these respondents will be entitled to proceed against the respondent Nos. 8 to 12 for the recovery of the balance amount. The decree is against all these respondents and the respondent Nos. 8 to 12 shall be jointly and severally responsible.
[Para 37]
(d) Contract Act, 1872 (Central Act 9 of 1872) - Sec. 73 - Damages for breach of contract - Specific performance of contract refused on ground of statutory bar - Being not the case of breach of contract - Sec. 73 will not apply - No evidence shown as to amount of compensation - Abrupt claim cannot be accepted.
It is not a case of breach of contract, hence, Sec. 73 of the Indian Contract Act will not apply. More over in view of absence of specific evidence as to what compensation should be awarded to the plaintiffs, their abrupt claim for Rs.75,000/- cannot be accepted.
[Para 38]
(e) Civil Procedure Code, 1908 (Central 5 Act of 1908) - Order 41 Rule 27 - Filing of additional evidence - In appeal - Document or affidavit without an application under the CPC satisfying all its ingredient cannot be permitted to be taken on record as additional evidence in appeal.
Mere tender of such document or affidavit does not amount that it has been admitted as additional evidence unless an application under Order 41 Rule 27 of CPC is moved and ingredients of the said Order are satisfied and the permission of the Court of the Court is obtained for filing additional evidence, the appellant cannot as of right file additional evidence in appeal. Even by moving an application under Order 41 Rule 27 of CPC the appellant cannot be permitted to file additional evidence as of right. Such additional evidence can be accepted only on three grounds mentioned in Order 41 Rule 27 of CPC.
[Para 20]
( 1 ) THE plaintiffs-appellants have filed this First Appeal against the judgement and decree dated 31st January 1984 of Civil Judge (SD), Narol, partly dismissing the suit of the plaintiffs-appellants for specific performance of the agreement to sell but partly decreeing the suit of the plaintiffs-appellants against the defendants nos. 8 to 12 directing them to refund the earnest money of Rs. 20,000. 00 received by them from the plaintiffs with interest at the rate of 12% per annum from the date of the suit till realisation. The suit of the plaintiffs-appellants was dismissed against the defendants nos. 1 to 7.
( 2 ) THE brief facts giving rise to this appeal are as follows:-
( 3 ) TWO plots bearing Nos. 236/2 and 234/2 admeasuring 7986 sq. yards are situated in village Bodakdev, Taluka Dascroi, District Ahmedabad. These plots were owned by Parshottam Babarbhai Patel. These plots were undivided joint hindu family property. Defendants Nos. 1 to 4 and deceased Parshottamdas Babarbhai Patel executed an agreement to sell in favour of the defendants nos. 8 to 12 on 29. 11. 1971. Tweleve months period was fixed for execution of the sale deed. Thus, the sale deed was to be executed by the defendants nos. 1 to 4 and Parshottamdas Babarbhai Patel before 29. 11. 1972. On the basis of the aforesaid agreement to sell the defendants nos. 8 to 12 in turn executed an agreement to sell in favour of the plaintiffs on 23. 5. 1972 and received Rs. 20,000. 00 as earnest money from the plaintiffs. The time limit for the execution of the sale deed was fixed up to 20. 11. 1972. Under the terms and conditions of the agremeent to sell the defendants were required to produce title clearance and were to obtain necessary permission under Section 63 of the Bombay Tenancy Act. Another condition in the agreement to sell was that the defendants were to execute the sale deed in favour of the plaintiffs or any person as desired by the plaintiffs. On 17. 11. 1972 a supplementary agreement was executed by Parshottamdas Babarbhai Patel and the defendants nos. 1 to 4 in favour of defendants nos. 8 to 12. According to this agreement the time limit for execution of the sale deed was fixed as 3 months after cessation of Gujarat Vacant Land in Urban Areas Prohibition Alienation Act, 1972. Under the terms and conditions of the agreement the defendatns were required to produce title clearance and were to obtain necessary permission under Sec. 63 of the Bombay Tenancy Act. Another condition in the agrement to sell was that the defendants were to execute the sale deed in favour of the plaintiffs or any person as desired by the plaintiffs. On 17. 11. 1972 a suppplementary agrement was executed by Parshottamdas Babarbhai and the defendants nos. 1 to 4 in favour of defendants nos. 8 to 12. According to this agreement the time limit for execution of the sale deed was fixed as 3 months after cessation of Gujarat Vacant Land in Urban Areas Prohibition Alienation Act, 1972. Similarly defendants nos. 8 to 12 executed agreement in favour of plaintiffs and extended the period for execution of the sale deed to two months after the provisions of the said Act ceased to remain in force vide agreement dated 8. 11. 1972. The said Act ceased to remain in force with effect from 12. 8. 1975. In this way, time limit given under the agreement dated 23. 5. 1972 stood extended up to 12. 10. 1975. Parshottam Babarbhai Patel expired on 26. 10. 1973. The defendants nos. 1 to 4 and 6 and 7 are children of said Parshottam Babarabhai Patel. The defendant no. 5 was the wiow of Parshottamdas Babarbhai Patel. In this way, according to the plaintiffs the transaction entered into by Parshottamdas Babarbhai Patel is binding upon the defendants nos. 1 to 7. After 12. 8. 1975 when the Gujarat Vacant Land in Urban Areas Prohibition Alienation Act, 1972 ceased to remain in force, the plaintiffs asked the defendants to execute the sale deed. The plaintiffs were ready and willing to perform t
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