The main legal point established is that a purchaser can compel specific performance once the vendor has acquired title, and a contract for sale of immovable property is not void under Section 23 of the Contract Act, 1872, if the restriction no longer exists at the time of filing the suit.

ANIL KSHETARPAL, J.

The plaintiff-appellant is in the regular second appeal against the judgment and decree passed by the learned first appellate court, reversing the judgment and decree passed by the learned trial court.

2. This Court has heard the learned counsel for the parties and gone through the photocopy of the record produced by the learned counsel for the parties, correctness whereof is not being disputed.

3. In the considered opinion of this Court, following substantial questions of law arise for consideration of this Court:-

(i) Whether the intended purchaser can compel the intended vendor/seller to specifically enforce the contract in view of the provisions of Section 13 of the Specific Relief Act, 1963 (`the 1963 Act’ for short) after the intended seller has obtained the perfect title or not?

(ii) Whether a contract for sale of immovable property in violation of term of the allotment letter would be covered as void contract within the meaning of Section 23 of the Contract Act, 1872 (`the 1872 Act' for short)?

FACTS

3. It would be necessary to note few facts.

4. The defendant-respondent was allotted Plot No.1252, Sector-28, Panchkula, vide allotment letter dated 25.5.2000. As per clause 5 of the allotment letter, no sale, transfer, gift-deed or mortgage of the plot was permitted for a period of 10 years from the date of allotment letter. The defendant entered into an agreement to sell with the plaintiff on 19.12.2002. for a sale consideration of Rs.37,000/-. Plaintiff was also made liable to pay remaining amount, whatever was due, to the allotment authority, i.e. Haryana Urban Development Authority (`HUDA’ for short). Agreement to sell is signed between the parties. It was further agreed that Rs.34,000/- has been paid as earnest money and balance amount of Rs.3,000/- would be paid on the target date, i.e. 26.12.2002 and original documents would be handed over by the defendant to the plaintiff. It is the case of the plaintiff that on 26.12.2002, all the original documents like allotment letter, receipt of payment were handed over by the defendant to the plaintiff and balance amount of Rs.3,000/- was paid.

5. The concurrent finding of the courts below and the facts came on record are that it is the plaintiff who paid all the instalments and kept on communicating/dealing with the HUDA. The last payment was made on 15.6.2009, vide receipt Ex.P2. All the receipts including original allotment letter, agreement to sell etc. have been produced by the plaintiff.

6. The defendant admitted the execution of the agreement to sell. However, he pleaded that the plot was allotted to him in the category meant for economic weaker section and there is 10 years’ restriction/embargo on the sale of the plot as per allotment under such category. The defendant further took the stand that the plaintiff did not pay the remaining balance of Rs.3000/- and it is the defendant who has paid all the installments and conveyance deed in his favour has been executed on 20.10.2009. He further asserted that possession of the plot was delivered to him and he has raised some construction thereon.

7. The learned trial court, after noticing all the facts, decreed the suit filed by the plaintiff for possession by way of specific performance of the agreement to sell, whereas the learned first appellate court has chosen to reverse the decree for possession by way of specific performance of the agreement to sell and ordered refund of the amount paid by the plaintiff within a period of one month along with interest @8% per annum, failing which, interest would be payable @10% per annum.

8. Now, the stage is set for considering the substantial questions of law, which are as under:-

Question No.1

“Whether the intended purchaser can compel the intended vendor/seller to specifically enforce the contract in view of the provisions of Section 13 of the Specific Relief Act, 1963 (`the 1963 Act’ for short) after the intended seller has obtained the perfect title or not?”

Sec