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2018 Supreme(All) 977
ALLAHABAD HIGH COURT
BEFORE : SUDHIR AGARWAL AND SHASHI KANT, JJ.
M/s. DARVESH SAHKARI AVAS SAMITI ....Appellant
Versus
M/s. DOCTORS SAHKARI GRAH NIRMAN SAMITI LTD. ....Respondent
(First Appeal No. 81 of 2011, decided on 15th February, 2018)
Counsel :
Vineet Kumar Singh and H.N. Singh for the Appellant; Dinesh Mishra, Swapnil Kumar and A.K. Gupta for the Respondent.
Headnote:(A) Limitation Act, 1963 – Article 54 – Specific performance – Agreement to sale – Breach of agreement – Defendant appellant under agreement had to perform first of all development of land and after such development transfer 25% land to plaintiff – Defendant could have developed land and transferred 25% only when land remained with him – However entire land without development was transferred by defendant appellant under sale-deed to M/s A – Plaintiff got knowledge of aforesaid transfer in second week of August, 1991 and got a copy of aforesaid sale-deed and came to know that defendant appellant concealed terms and conditions of agreement from M/s A – And it was not made aware that defendant appellant was under a reverse contract of transfer of 25% of land after its development to plaintiff from whom entire land was purchased – Thus under purview of Article 54 of Act, 1963, limitation of three years to file suit for specific performance would commence from second week of August, 1991 – Once limitation expires there is no provision of revival or renewal by acknowledgment – Hence remedy to file suit for specific performance was not available and suit filed after more than 3 years barred by limitation. [Paras 22, 23 and 38]
(B) Contract Act, 1872 – Section 55 – Specific performance – Agreement to sale – Whether time was essence of contract – No specific date for performance of agreement mentioned since it provided that when land was to be developed only then occasion to transfer 25% of land to plaintiff would arise – It was not mentioned as to within what time appellant would develop disputed land – Thus there was no time or date fixed in agreement for its performance – Hence there could not have been any occasion to treat time as essence for performance of agreement. [Para 26]
(C) Specific Relief Act, 1963 – Section 16(C) – Agreement to sell – Specific performance – Readiness and willingness – Defendant appellant under agreement had to perform first of all development of land and after such development transfer 25% land to plaintiff – However entire land without development was transferred by defendant appellant under sale-deed to M/s A – When plaintiff filed earlier original suit of permanent injunction not to carve out plots from land in dispute because there was breach of agreement – Thereafter for more than 12 years there was no communication on part of plaintiff to defendant asking him to perform his part of contract and retransfer 25% of land – And also it did not give any other details – Thus requirement of showing readiness and willingness in manner it is required under Section 16(c) was not discharged by plaintiff. [Para 47]
Result; Appeal Allowed.
By the Court.—This is a defendant’s appeal filed under Section 96 of Code of Civil Procedure (hereinafter referred to as “CPC”) arising from judgment and decree dated 25.11.2010 passed by Sri Mangal Prasad, Additional District Judge, Court No. 3, Agra in Original Suit No. 234 of 2004, whereby it has decreed suit for specific performance of agreement for sale, dated 29.7.1988, and directed defendant-appellant to execute sale-deed and get it registered within two months, failing which plaintiff may get execution through Court.
2. Sri H.N. Singh, learned Senior Advocate assisted by Sri Vineet Kumar Singh, Advocate has advanced his submissions on behalf of defendant-appellant (hereinafter referred to as “Appellant”) while Sri Swapnil Kumar, Advocate has made his submissions on behalf of plaintiff-respondent (hereinafter referred to as “Plaintiff”).
3. Plaintiff-M/s Doctors Sahkari Grah Nirman Samiti Ltd., is a Society registered under Societies Registration Act, 1860 (hereinafter referred to as “Act, 1860”). Original Suit No. 234 of 2004 was instituted by Plaintiff through its Secretary, Dr. Prakash Narain Gupta in the Court of Civil Judge (Senior Division), Agra vide plaint dated 29.3.2004. Details of disputed land is given at the bottom of plaint and reads as under:
“25% Developed plot area of 1/2 of land out of following Khasra plots measuring an area of 2562 Sq. Yards, 1151/0-4-0, 1158/1-4-0, 1159/1-6-0, 1160/2-1-0, 1165/1-6-0, 1166/1-13-0, 1169/1-7-0, 1170/1-2-0, 1171/0-15-0, 1172/1-1-0, 1240/0-14-0, 1241/0-17-0, 1242/1-7-0, 1243/1-2-0, 1248/1-7-0, 1249/3-5-0, 1250/0-12-0, 1251/0-9-0, 1252/1-0-0, 1253/1-4-0, 1254/1-5-0, 1255/1-5-0, 1256/1-3-0 and 1259/1-0-0, total area 26 Bigha 17 Biswa situated at Village Basai Mustqil Tehsil and District Agra now a residential colony named as Rani Bagh/Niti Bah, mentioned as below:
(1) Plot numbers, purchased by Defendant No. Ajanta Sahkari Avas Samiti Ltd. vide sale-deed dated 18.9.1989 in Rani Bagh Colony.
(2) Plot numbers situated in Niti Bagh Colony as per correction deed dated 27-11-1992 executed by Ajanta Sahkari Avas Samiti Ltd. in favour of defendant.
73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 117, 121, 122, 151, 152, 153, 154, 155, 156 and 158 total 22 plots.”
4. Plaint case set up by Plaintiff is that Sri Abdul Aziz and Abdul Qadir, both, sons of Sri Mahboob Khan, and Smt. Salima Begum daughter of Smt. Jamila Begum were Bhumidhars of Khasra plot numbers detailed at the foot of plaint, sold and transferred their Bhumidhari rights in aforesaid land to Plaintiff vide three sale-deeds of same date, i.e., 10.8.1983, first executed by Sri Abdul Aziz, second executed by Sri Abdul Qadir and third executed by Smt. Salima Begum through her Power of Attorney Holder, Sri Abdul Qadir.
5. Appellant-M/s Darvesh Sahkari Avas Samiti Ltd., a Cooperative Housing Society, approached Plaintiff with a request to transfer half of disputed land in favour of Appellant. Plaintiff set out a condition that Appellant will develop land and thereafter transfer 25% of land to Plaintiff or any nominated member of Plaintiff Society on the principle of “no profit no loss” to which Appellant agreed. A registered sale-deed was executed between Plaintiff and Appellant on 29.7.1988. In the said sale-deed Vendors of Plaintiff also joined as part of sale consideration payable by Plaintiff to them was still unpaid. Appellant also executed an agreement to sell, dated 29.7.1988, duly registered, stipulating therein that after developing land in dispute, Appellant would transfer 25% thereof to Plaintiff on the principle of “no profit and no loss”. Remaining part of land was transferred by sale by Plaintiff to another Housing Society, i.e., M/s Kanhaiya Kunj Sahkari Avas Samiti Ltd. and had got a similar agreement to sell dated 29.7.1988 executed with said society in respect of 25% of developed land. Appell
