BHASKAR BHATTACHARYA

( 1. ) THIS First Appeal is at the instance of an unsuccessful plaintiff in a suit for specific performance of contract and is directed against the judgment and decree dated April 28, 2004 passed by the learned Civil Judge, Senior Division, at Gondal, District- Rajkot, in Special Civil Suit No. 168 of 1996 by which the learned trial Judge dismissed the suit filed by the plaintiff with costs.

( 2. ) BEING dissatisfied, the plaintiff has come up with the present appeal.

( 3. ) THE case made out by the appellant in the plaint may be summed up thus:

[a]. THE plaintiff is a Company registered under the Companies Act, 1956. For the progress of the activities of the Company, the appellant wanted to purchase some agricultural land in the village of Shahpar to establish an industry. THE defendant told the plaintiff that he wanted to sell his land situated in that area and as such, it was decided by the parties to enter into an agreement for sale.

[b]. THE defendant had told the plaintiff that the agricultural land bearing survey No. 272/1 measuring Acre 8 "

17 gunthas was owned by him in his absolute ownership and consequently, a contract to sell the said land to the plaintiff for Rs.62,76,625/- had taken place between the parties on November 1, 1994.

[c]. By way of earnest money, the plaintiff paid a sum of Rs.15, 51,551. 51 paise and the written agreement of sale mentioned above was registered in the Sub-Registrar's office at Gondal on November 1, 1994.

[d]. According to the said agreement, the sale-deed was required to be executed within a month after the plaintiff had acquired the required permission from the Deputy Collector and the defendant got the Income Tax Clearance Certificate.

[e]. According to the plaintiff, it was at all material time ready and willing to perform its part of the contract but the defendant had concealed some material facts about his ownership and by notice dated March 9, 1996 intimated the plaintiff that the said agreement of sale was voidable and consequently, revoked the agreement by informing that the contract stood cancelled.

[f]. According to the plaintiff, it had acquired the necessary permission from the Government but on the contrary, the defendant had not obtained the required permission under the provisions of the Income Tax Act, and as the price of the land, which was the subject-matter of the agreement of sale, was increasing day-by-day, the defendant was trying to transfer the said land to some other third-party at a higher price. Hence, the plaintiff was entitled to a decree for specific performance of the contract. THE plaintiff also prayed for recovery of possession pursuant to the agreement and recovery of Rs.62, 76,625/- as the amount of damages for the breach of agreement, with interest.

( 4. ) THE said suit was contested by the defendant by filing Written Statement thereby denying the material allegations made in the plaint, and the defence of the defendant may be epitomized thus:

[a]. As the plaintiff did not come before the Court with clean hands, it was not entitled to the equitable relief prayed for in the suit.

[b]. THE agreement was frustrated because of the plaintiff's inaction and inability to perform its part of the contract.

[c]. THE plaintiff had no financial capacity to pay the huge amount of Rs.2,69,00,000/- to the Gujarat Small Industries Corporation. [d]. Time was the essence of the contract and due to the inability on the part of the plaintiff to perform its part of the contract, the contract was cancelled.

[e]. According to the order dated December 18, 1995, the permission granted by the Deputy Collector, Rajkot to the plaintiff was valid only for six months and as such, according to the contract executed between the parties, they were required to execute a registered sale-deed within June 17, 1996 but the plaintiff was not in a position to purchase the land within the said period for its financial deficiency.

[f]. As the plaintiff had failed to make pay