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Friday, September 18, 2020

Suit for specific performance - after amendement of Sec.10 specific performance is not the discretion of the court - specific performance can be given for the rest of property if any difficult was arose for the agreed property under Sec,12 of SRA

Suit for specific performance - after amendement of Sec.10 specific performance is not the discretion of the court - specific performance can be given for the rest of property if any difficult was arose for the agreed property under Sec,12 of SRA

A contractee who frustrates a contract deliberately by his own wrongful acts cannot be permitted to escape scot free. After having entered into an agreement for sale of 300 Sq. yards of land, with her eyes open, and accepted a major part of the consideration (Rs.45,000/- out of Rs.75,000/-) it does not lie in the mouth of the Vendor to contend that the contract should not have specifically been enforced in part, in respect of the balance 200 sq. yards meters of the suit land which the Vendor still owned.

After the amendment of Section 10 of the S.R.A., the words “specific performance of any contract may, in the discretion of the Court, be enforced” have been substituted with the words “specific performance of a contract shall be enforced subject to ...”. The Court is, now obliged to enforce the specific performance of a contract, subject to the provisions of sub-section (2) of Section 11, Section 14 and Section 16 of the S.R.A. Relief of specific performance of a contract is no longer discretionary, after the amendment.

The plea of bar under Order II Rule 2 of the CPC is a technical plea which has to be pleaded and satisfactorily established. In R. A. Oswal v. Deepak Jewellers and Ors. 3 , this Court held that if the plea of bar under Order II Rule 2 is not taken, the Court should not suo moto decide the plea.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.3574 OF 2009

B. SANTOSHAMMA & ANR. ….Appellants

Versus

D. SARALA & ANR. …..Respondents

WITH

CIVIL APPEAL NOS. 3575-3577 OF 2009

J U D G M E N T

Indira Banerjee, J.

These appeals are against a common judgment and order

passed by the High Court of Judicature of Andhra Pradesh at

Hyderabad dismissing the appeals being A.S. Nos.892 of 1994, 893 of

1994, 894 of 1994 and 1785 of 1994 and inter alia confirming the

judgment and decree of the Trial Court in O.S.No.20 of 1993 and OS

No. 91 of 1993 and the decree of dismissal by the Trial Court of the

Suit being O.S.No.92 of 1993.

2. The Appellant No.1, in Civil Appeal No. 3574 of 2009, B.

Santoshamma, hereinafter referred to as the ‘Vendor’, wife of the

Appellant No.2 in the said appeal, B. Darshan Reddy, purchased 300

square yards of land, in survey No. 262 of Hayathnagar Village and

Taluk in Ranga Reddy District, hereinafter referred to as the ‘suit

land’, from one D. Tanesha, under a registered sale deed dated 20th

August, 1982.

3. After about ten days, the Vendor allegedly entered into an oral

agreement with the proforma respondent in the said appeal, P. Pratap

Reddy, for sale of 100 sq. yards out of the suit land in his favour, for a

total consideration of Rs.3000/-, out of which Rs.2,500/- was paid in

advance. The Vendor claims to have delivered possession of the said

100 sq. yards to Pratap Reddy on the date of the oral agreement

itself.

4. On or about 20th January, 1984, the alleged oral agreement

between the Vendor and Pratap Reddy was allegedly reduced into

writing, upon payment of the balance consideration of Rs.500/-. The

Vendor and her husband allegedly agreed to execute the sale deed

on an auspicious day, after consulting the family priest.

5. On 21st March, 1984, the Vendor entered into an agreement

with the contesting respondent in Civil Appeal No. 3574 of 2009, Smt

D. Sarala, hereinafter referred to as the Vendee, for sale of the suit

land to the Vendee, for a total consideration of Rs.75,000/-, out of

which Rs.40,000/- was paid by the Vendee to the Vendor in advance.

The Vendor claims to have informed the Vendee of the oral

agreement with Pratap Reddy, which had been reduced to writing on

20th January, 1984. The Vendor and her husband Darshan Reddy

contend that the Vendor had also specifically informed the Vendee

that the Vendor had received the sale consideration for 100 sq. yards

from Pratap Reddy, and had delivered possession of 100 sq. yards of

land to him.

6. The Vendor has alleged that she specifically requested the

Vendee to incorporate a clause with regard to the earlier agreement

with Pratap Reddy in the sale agreement between the Vendor and the

Vendee. However, the Vendee assured the Vendor that she would get

the earlier agreement with Pratap Reddy cancelled as her husband

knew Pratap Reddy well and had already spoken to Pratap Reddy.

According to the Vendor, the Vendee represented to the Vendor, that

there was no need for the Vendor to get any clearance from Pratap

Reddy as the Vendee and her husband had been assured by Pratap

Reddy that no difficulty would be created by him.

7. On or about 25 May, 1984, that is, about two months after

execution of the sale agreement with the Vendee, the Vendor

executed a registered deed of conveyance transferring 100 sq. yards

of the suit land in favour of Pratap Reddy. The Vendor and her

husband Darshan Reddy, as also Pratap Reddy, have alleged that the

Vendee had tried to interfere with Pratap Reddy’s possession of 100

sq. yards of the suit land.

8. On or about 20th June, 1984, the Vendor allegedly issued

notice to the Vendee contending that the agreement of sale dated

21st March, 1984 was conditional upon clearance from Pratap Reddy

in view of the earlier agreement of the Vendor with Pratap Reddy for

sale of 100 sq. yards of the suit. The purported notice, if any, was

issued after execution of the registered deed of conveyance, for sale

of 100 sq. yards of the suit land in favour of Pratap Reddy.

9. On 22nd June, 1984, the Vendor’s husband, Darshan Reddy,

lodged a complaint with the Station House Officer, Hayathnagar,

alleging that the original sale deed of the suit land in favour of the

Vendor in respect of the suit land had been stolen from his residence,

alongwith other documents.

10. By a letter dated 28th June, 1984, the Vendee replied to the

notice, contending that the document had been handed over by the

Vendor to the Vendee. Sometime thereafter, the Vendee filed a suit

being O.S.No.222 of 1984 in the Court of the Principal Subordinate

Judge, Rangareddy District, for specific performance of the

agreement of sale dated 21st March, 1984. In the said suit, the

Vendee, being the plaintiff, claimed delivery of possession of 300 sq.

yards of land from the Vendor. Pratap Reddy was not impleaded

defendant in the said suit for specific performance of the Agreement

dated 21.3.1984. Later the Vendee filed an application being

I.A.No.44 of 1989 for impleading Pratap Reddy, pursuant to which an

order dated 5th April, 1989 was passed whereby Pratap Reddy was

added as defendant No.3 in the said suit.

11. In the meanwhile, in 1985, Pratap Reddy filed a suit being

O.S.No.190 of 1985 in the court of the Principal District Munsif,

Hyderabad East and North, seeking a decree of perpetual injunction

restraining the Vendee from interfering with his possession over 100

sq. yards of the suit land.

12. In the suit filed by Pratap Reddy, it was alleged that he was

not aware of any agreement of sale between the Vendor and the

Vendee in respect of the suit land or of payment of Rs.40,000/- to the

Vendee in terms thereof.

13. It is the case of Pratap Reddy, that even if the Vendee had

entered into any agreement as alleged with the Vendor, there could

be no question of sale of 100 sq. yards of the suit land earlier agreed

to be sold to Pratap Reddy, and actually sold to Pratap Reddy by a

registered deed of conveyance dated 25.5.1984.

14. The Vendee also filed a suit being O.S.No.401 of 1985 against

Pratap Reddy in the Court of Principal District Munsif, Hyderabad for a

declaration that the agreement between the Vendor and Pratap

Reddy with regard to 100 sq. yards was null and void. The Vendor

was not impleaded as party to the said suit.

15. On or about 19th July, 1989, the Vendor and her husband

Darshan Reddy filed their Written Statement in O.S.No.222 of 1984

subsequently renumbered as O.S.No.20 of 1993 being the suit for

specific performance of the sale agreement between the vendor and

the Vendee, which is hereinafter referred to as the suit for specific

performance. Pratap Reddy also filed his written statement in the

suit for specific performance. The three suits have, from time to

time, been renumbered.

16. The suit for specific performance, which had been transferred

to the Additional District Court of Rangareddy District and

renumbered O.S.No.20 of 1993, was clubbed for hearing along with

Suit No.190 of 1985, renumbered as O.S.No.91 of 1993 and

O.S.No.702 of 1991 renumbered as O.S.No.92 of 1993.

17. The Trial Court framed the following issues in the suit being

O.S No.20/1993, that is the suit for specific performance:

“1. Whether the plaintiff (sic the Vendee) was put in

possession of the suit plot admeasuring 300 sq. yards?

2. Whether the suit agreement of sale was subject to the

clearance of any agreement of sale of 100 sq. yards out of

the suit plot in favour of one Sri. P. Pratap Reddy?

3. Whether the sale of 100 sq. yards out of the suit plot to

Sri. P. Pratap Reddy is true and binding on the plaintiff.(sic

the Vendee)

4. Whether the suit is bad for non-joinder of necessary

parties?

5. Whether the defendants (Sic the Vendor) committed

breach of contract of sale?

6. Whether plaintiff is entitled to the specific performance of

the suit agreement of sale?

7. To what relief?”

An additional issue was framed as to whether 3rd defendant, that is

Pratap Reddy, was a bona fide purchaser of 100 square yards of the

suit land.

18. In O.S.No.91/1993, being the suit for injunction filed by Pratap

Reddy, the Trial Court framed the following issues:

“1.Whether the plaintiff (sic Pratap Reddy) is entitled to

perpetual injunction as prayed for?

2. To what relief?”

The following additional issue was also framed:

“Whether the plaintiff (sic Pratap Reddy) is entitled to the

declaration and possession sought?”

19. In Original Suit No.92 of 1993, being the suit for declaration,

filed by the Vendee against Pratap Reddy, the following issues were

framed:

“1. Whether the suit is bad for non-joinder of parties?

2. Whether the plaintiff (sic Vendee) is entitled to

declaration as prayed for?

3. Whether the defendants are entitled to exemplary costs

of Rs.3,000/-?

4. To what relief?”

20. By a common judgment and decree dated 30th March, 1994,

the learned District Judge, Rangareddy disposed of all the three suits.

The suit for specific performance was allowed, in part, holding that

the Vendee, was not entitled to seek specific performance of the

agreement in respect of 100 sq. yards covered by the sale deed

dated 25th May, 1984, but entitled to relief of specific performance in

respect of the remaining 200 sq. yards of the suit land. The Vendee’s

suit for declaration against Pratap Reddy was dismissed for nonjoinder of the Vendor.

21. Since Exhibit A-1, being the sale agreement dated 21st March,

1984 between the Vendor and the Vendee showed that the sale

consideration for 300 sq. yards land was fixed at Rs.75,000, which

meant that the price fixed per sq. yard was Rs.250/-, the Court held

that the Vendee had to pay Rs.50,000/- to the Vendor, towards sale

consideration. As the Vendee was found to have paid Rs.40,000/-

under Ex.A1 and a further Rs.5,000/- under the receipt being Ex.A3,

the Trial Court effectively held that the Vendee was liable to pay a

further sum of Rs.5,000/- to the Vendor. The Vendee was directed to

deposit Rs.5,000/- in Court towards the balance sale consideration

payable by her, on or before 15th April, 1994, whereupon the Vendee

would have to execute a sale deed in respect of 200 sq. yards from

out of the suit land, in favour of the Vendee. In case of failure to

deposit Rs.5,000/- in Court within the time stipulated, the suit would

stand dismissed.

22. Being aggrieved, by the judgment and order referred to

above, the Vendor filed an appeal in the High Court, against the

judgment and decree in the suit for specific performance being O.S. of

1993 which was numbered as A.S. 1785 of 1994. The Vendee also

filed three appeals being A.S. No.892 of 1994 against the judgment

and decree in O.S.No.91 of 1993, an appeal being A.S.No.893 of 1994

against the judgment and decree in O.S.No.20 of 1993 and an appeal

being A. S. No.894 of 1994 against the judgment and decree in

O.S.No.92 of 1993.

23. By a common judgment and order dated 7th September 2006,

which is under appeal in this Court, the High Court inter alia dismissed

all the appeals that is A.S. Nos.892, 893, 894 filed by the Vendee and

A.S. No.1785 of 1994 filed by the Vendor and confirmed the judgment

passed by the Trial Court. While the appeal being C.A. No.3574 of

2009 has been filed by the Vendor, the three appeals being C.A. Nos.

3575-3577, have been filed by the Vendee.

24. Mr. Gowtham appearing on behalf of the appellant in C.A.

3574 of 2009 being the Vendor submitted that the agreement dated

21st March, 1984 between the Vendor and Vendee was liable to be

cancelled as the Vendee had defaulted in making payment of the

balance amount within the time stipulated in the said agreement.

25. Mr. Gowtham argued that there was a clause in the agreement

dated 21.3.1984 executed by and between the Vendor and the

Vendee, in terms whereof the Vendor agreed to register the sale deed

in favour of the Vendee, within 45 days from the date of the said

agreement, subject to receipt of the full consideration amount within

4.5.1984. Mr. Gowtham submitted that full payment was not made

within the aforesaid date. The appellants after waiting for 20 more

days, executed and registered a sale deed in favour of Pratap Reddy

in respect of 100 square yards of land.

26. Mr. Gowtham argued that the sale agreement was conditional

upon cancellation of the prior agreement with Pratap Reddy. It was

argued that the Vendee, who knew of the pre-existing agreement

between the Vendor and Pratap Reddy, had assured the Vendor that

she and/or her husband had already spoken to Pratap Reddy, to get

the agreement between the Vendee and Pratap Reddy cancelled.

27. Mr. Gowtham emphatically argued that the agreement dated

21.3.1984 was a composite agreement for sale of 300 sq. yards of

land for a lump sum consideration of Rs.75,000/-. Since it was not

possible to sell 300 sq. yards to the Vendee as per the sale

agreement, the sale agreement became infructuous and incapable of

specific performance. There was no scope for sale of 200 sq. yards of

land at a reduced consideration.

28. Mr. Gowtham argued that there could be no question of any

decree of specific performance of the agreement dated 21.3.1984 in

favour of the Vendee, in the absence of readiness and willingness on

the part of the Vendee to perform her obligations under the

agreement.

29. The Vendor and her husband Darshan Reddy contended that

they had not refused to execute the registered sale deed as alleged.

It was the contesting respondent who had failed to bring about a

settlement with Pratap Reddy as agreed, and had also failed to pay

the balance consideration within the time stipulated in the

agreement. Time being of essence to the agreement, it could not be

specifically enforced.

30. The Vendor and her husband Darshan Reddy also asserted that

the Vendee was also not ready to pay the balance sale consideration

and had sought further time for payment on the ground that he did

not have the money. The suit for specific performance was thus, not

maintainable. In any case, the agreement for sale of 300 sq. yards of

land to the Vendee was incapable of performance, since the appellant

did not have 300 sq. yards of land.

31. The Vendor and her husband Darshan Reddy have

categorically denied that they had delivered possession of 300 sq.

yards of land to the Vendee. They have asserted that the Vendee had

taken possession of 200 sq. yards of land, 100 sq. yards having been

transferred to Pratap Reddy.

32. Mr. Radhakrishnan appearing on behalf of the Vendee argued

that the Vendee should have been granted specific performance of

the agreement dated 21.3.1984 in its entirety. The Court should have

set aside the purported sale deed in respect of 100 sq. yards of land

in favour of Pratap Reddy and directed the Vendor to sell the entire

suit property comprising 300 sq. yards to the Vendee.

33. Mr. Radhakrishnan argued that the purported sale agreement

of the Vendor with Pratap Reddy was not genuine. It is difficult to

believe that the Vendor would, within 11 days from purchase of 300

sq. yards of land (the suit land), enter into an agreement for sale of

100 sq. yards out of the suit land.

34. Mr. Radhakrishnan further argued that the execution and

registration of the sale deed in favour of Pratap Reddy in respect of

100 sq. yards of land, was in any case, subsequent to the Agreement

dated 21.3.1984 between the Vendor and the Vendee.

35. Mr. Radhakrishnan emphatically argued that the agreement

dated 21.3.1984 was for sale by the Vendor, to the Vendee of 300 sq.

yards for a consideration of Rs.75,000/-, pursuant to which possession

of the entire 300 sq. yards of land was delivered to the Vendee. This

has, of course, been denied by the Vendor.

36. Refuting the contention advanced by the Vendee, of want of

readiness and willingness on the part of the Vendee, to perform her

obligations under the Agreement dated 21.3.1984, Mr. Radhakrishnan

further argued that, the fact that the Vendee had paid Rs.40,000/- to

the Vendor on the date of execution of the sale agreement itself, apart

from Rs.5,000/- which the Vendee had admittedly paid to Darshan

Reddy (husband of the Vendor), demolishes the contention of the

Vendor. These payments towards part consideration were duly

acknowledged.

37. Mr. Radhakrishnan pointed out that on 30.4.1984 the Vendee

approached the Vendor and her husband with the balance amount of

Rs.30,000/- and requested them to register the sale deed, but the

Vendor and her husband refused to receive the amount and instead

requested the Vendee to make the payment by Demand Draft.

38. According to the Vendee, the Vendee obtained a Demand

Draft No.463961 dated 4.5.1984 for Rs.30,000/- from Canara Bank,

but the Vendor did not accept the same. On 25.5.1984 the Vendee

issued a legal notice. Receipt of the legal notice was duly

acknowledged by the Vendor and her husband. A further legal notice

was issued by the Vendee on 12.8.1984. In the meanwhile, by a letter

dated 20.6.1984 in reply to the legal notice of 25.5.1984, the Vendor

admitted receipt of Rs.45,000/-, but claimed that the agreement was

subject to the Vendee securing the approval of Pratap Reddy, to end

the earlier agreement between the Vendor and Pratap Reddy, for

transfer of 100 sq. yards of land to Pratap Reddy.

39. Mr. Radhakrishnan concluded his arguments with the

submission that the Vendee had not delayed performance of her

obligations under the agreement dated 21.3.1984. Within 30.4.1984

the entire consideration was tendered but unfortunately not accepted

by the Vendor with ulterior intent of resiling from her obligations

under the said argument to transfer the suit property to the Vendee.

By 4th May, 1984, that is within 47 days from the date of the

agreement dated 21.3.1984 the Vendee was ready with a Demand

Draft for the balance Rs.30,000.

40. Mr. Navare appearing on behalf of Pratap Reddy submitted

that the Appeals are all liable to be dismissed. First of all, on the date

on which the Vendee filed the suit for specific performance of the

agreement against the Vendor and her husband, she was aware of the

registered sale deed executed by the Vendor in favour of Pratap

Reddy, in respect of 100 sq. yards of land. Yet the Vendee filed a suit

against the Vendor and her husband, for specific performance of the

agreement in which Pratap Reddy was not impleaded defendant.

There was no challenge to the sale deed in favour of Pratap Reddy.

41. Mr. Navare argued that the Vendee filed a second suit against

Pratap Reddy for a declaration that the sale deed executed by the

Vendor in his favour was void, without impleading the Vendor.

42. Mr. Navare pointed out that as late as on 5.4.1989, the Vendee

filed an application for impleading Pratap Reddy as defendant in her

suit for specific performance filed in 1984. The Vendee only added

Pratap Reddy. There was no amendment either in the pleadings or in

the prayers. The reliefs claimed by the Vendor in the suit for specific

performance were thus barred by limitation, as against Pratap Reddy

in the absence of any clarification by the Trial Court, as required under

Section 21 of the Limitation Act, 1963.

43. Mr. Navare further submitted that, there being no prayer

against Pratap Reddy in the suit for specific performance, Pratap

Reddy would not be bound to join the original owner, in execution of

the deed of conveyance in favour of the Vendee. In support of his

submission Mr. Navare cited Durga Prasad and Anr. v. Deep

Chand and Ors.

1. AIR 1954 SC 75

44. Mr. Navare submitted that the Vendee chose not to challenge

the registered sale deed in favour of Pratap Reddy or to seek any

relief against Pratap Reddy in the Suit for Specific Performance.

Failure to make any such prayer amounted to relinquishment of the

claim to such relief, in view of Order II Rule 2 of the Code of Civil

Procedure (CPC).

45. Mr. Navare submitted that the second suit filed by the Vendee

is bad for non-joinder of the Vendor. A registered sale deed executed

by the Vendor cannot be declared void in her absence.

46. Mr. Navare concluded that the second suit was also hit by

Order II Rule 2, and was thus barred under the law. In any case, the

second suit filed by the Vendor was only for a declaration and there

was no prayer for any consequential relief. The second suit was thus

hit by Section 34 of the Specific Relief Act, 1963.

47. Mr. Navare finally referred to Section 50(1) of the Registration

Act, 1908 set out hereinbelow for convenience:

“(1) Every document of the kinds mentioned in clauses (a),

(b), (c), and (d) of section 17, sub-section (1), and clauses

(a) and (b) of section 18, shall, if duly registered, take effect

as regards the property comprised therein, against every

unregistered document relating to the same property, and

not being a decree or order, whether such unregistered

document be of the same nature as the registered

document or not.”

48. Referring to Section 50, Mr. Navare argued that a registered

sale deed with respect to a property will take effect over any

unregistered document, with respect to the same property.

49. Mr. Navare submitted that Pratap Reddy had also filed a suit

for declaration and possession being O.S. No.190/1985. All 3 suits

were clubbed together and heard together. However,

(i) consolidation of 3 suits does not convert 3 suits into one

action.

(ii) Consolidation of suits is for practical reasons such as,

saving costs, time and efforts of the parties,

convenience of the parties, avoiding repetitive

exercises in 3 suits and avoiding conflict of judgment in

the 3 suits. However, the 3 suits consolidated/clubbed

together retain their separate identity. In support of his

argument Mr. Navare cited Mahalaxmi Coop.

Housing Society Ltd. and Ors. v. Ashabhai

Atmaram Patel (D) thr. Lrs. and Ors.

50. Mr. Navare emphatically argued that the right which have

accrued to Pratap Reddy, as a result of defective suits filed by the

Vendee, cannot stand abrogated by consolidation of the suits. There

is no provision in the CPC which permits a party to be deprived of

such accrued, right because of defects in the suit.

51. Mr. Navare submitted that the bar of the second suit under

Order II Rule 2 of the CPC is not a defect of a technical nature. The

2. (2013) 4 SCC 404 [41]

mandate of Order II Rule 2 requiring the Vendor to claim all reliefs in

respect of the same cause of action arising out of one suit, is a

provision of a substantive nature, and not of a technical nature. It is

based on legislative policy.

52. Mr. Navare argued that although, no objection of bar under

Order 2 Rule 2 of CPC was raised in the suit, by Pratap Reddy, that

does not make any difference for the following reasons:

(i) Order II Rule 7 requires only objection as to mis-joinder

of causes of action, to be taken at the earliest

opportunity, before issues are settled, and otherwise

such objection is deemed to be waived.

(ii) Similarly, Section 21 of the CPC specifically provides

that, any objection as to the place of suing must be

raised at the earliest opportunity, before issues are

settled and the same cannot be raised in Appellate or

Original Court for the first time.

(iii) Legislature has specifically clarified the cases where the

raising of an objection is necessary. There is no

provision in the CPC with respect to objection under

Order II Rule 2. The maxim “Expressum

facitcessaretacitum” (Express mention of one thing

excludes the other) squarely applies here.

(iv) There is a bar of Law prescribed by Order II Rule 2

against the second suit. It is a kind of bar contemplated

under Order VII Rule 11 (d). The power of the Court

under Order VII Rule 11(d) is in the following words “the

Plaint shall be rejected...” Thus, it casts an obligation on

the Court to reject the same. Irrespective of whether an

objection is raised by the defendant in the suit or not,

the consequence must follow.

53. Mr. Navare concluded that this Court might decline to invoke

jurisdiction under Article 136 of the Constitution, even if an impugned

order is illegal. This Court should certainly not invoke its jurisdiction

under Article 136 to reverse the judgment, thereby effectively

validating the second suit, although it is barred by Order II Rule 2 of

CPC. The Appeal should therefore be dismissed.

54. It is not in dispute that the Vendor agreed to sell the entire

suit land comprising 300 square yards to the Vendee for a

consideration of Rs.75,000/-. The agreement dated 21.3.1984 is

admitted by the Vendor.

55. It is also not in dispute that the Vendee paid Rs.40,000/- to the

Vendor on the date of the agreement itself and also paid a sum of

Rs.5,000/- to the Vendor’s husband, which was duly acknowledged.

56. The defence of the Vendor that the Vendee was unable and/or

unwilling to perform her obligations under the agreement dated

21.3.1984 has been rejected by the Trial Court, as also the Appellate

Court, that is, the High Court.

57. The finding of the Trial Court, affirmed by the High Court that

the Vendee was ready and willing to perform her obligations under

the agreement dated 21.3.1984, which is based on evidence and

supported by cogent reasons, is unexceptionable as discussed

hereinafter.

58. The contention of the Vendor, that the agreement dated

21.3.1984 was subject to the condition that the Vendee would get the

earlier agreement between the Vendor and Pratap Reddy cancelled,

cannot be accepted for the following reasons:

(i) The agreement dated 21.3.1984, which is in writing does

not incorporate any such condition.

(ii) It is incredible that the Vendor, who knew Pratap Reddy, to

whom she had, as per her own assertion, agreed to sell

100 square yards of land, should proceed on the basis of

an alleged assurance of the Vendee, that Pratap Reddy

would relinquish his rights under the earlier agreement

between the Vendor and Pratap Reddy, without

ascertaining from Pratap Reddy, whether Pratap Reddy

was actually ready to relinquish his rights under the said

earlier agreement with her.

(iii) Pratap Reddy has denied knowledge of the agreement

between the Vendor and the Vendee.

(iv) Within a month and a few days from the date of execution

of the agreement between the Vendor and the Vendee,

after the Vendee tendered full consideration, the Vendor

executed a registered deed of conveyance in favour of

Pratap Reddy, without any prior intimation to the Vendee,

and without giving the Vendee any opportunity to

persuade Pratap Reddy to abrogate his earlier agreement

with the Vendor.

59. It is well settled that the onus of proof lies on the party who

makes an allegation. It was for the Vendor to establish that the

agreement dated 21.3.1984 was subject to the condition as alleged

by the Vendor, that the Vendee and/or her husband would negotiate

with Pratap Reddy to get his earlier agreement with the Vendor

cancelled. The Vendor failed to discharge her onus of proving that

there was such a condition in the agreement dated 21.3.1984. The

Trial Court and the High Court rightly did not believe the Vendor.

60. The effective concurrent finding of the High Court and the Trial

Court, that the Vendee had been ready and willing to perform and

had in fact performed her obligations under the Agreement dated

21.3.1984, is also unexceptionable for the following reasons:

(i) As observed above, the Vendee paid Rs.40,000/- out of the

total consideration of Rs.75,000/- on the date of execution

of the Agreement dated 21.3.1984 itself.

(ii) It is not disputed that the Vendee paid a further Rs.5,000/-

to the Vendor’s husband against a receipt.

(iii) It is the Vendor’s own case that in terms of the Agreement

dated 21.3.1984, the full consideration was to be paid

within 45 days. The Vendee’s claim that she tendered

Rs.30,000/- on 30.4.1984 was not disputed by the Vendor in

her legal notice/letter dated 20.6.1984.

(iv) In any case the Vendee obtained Demand Draft No.463961

dated 4.5.1984 for Rs.30,000/- in favour of the Vendor

towards balance consideration, within 47 days from the

execution of the Agreement dated 21.3.1984.

(v) It is well settled that time is not of essence to agreements

for sale of immovable property, unless the agreement

specifically and expressly incorporates the consequence of

cancellation of the agreement, upon failure to comply with a

term within the stipulated date.

61. The concurrent findings of the High Court and the Trial Court

that the Vendee was ready and willing to perform and had performed

her obligations under the Agreement dated 21.3.1984, which as

observed above, are based on evidence and sound reasons, do not

call for interference of this Court.

62. It is true that the Trial Court had directed the Vendor to pay

the balance of Rs.5,000/- on or before 15.4.1994, failing which the

suit for specific performance would stand dismissed. However, any

time granted by the Court at its discretion, can always be extended

by the Court.

63. In any case, the Vendor had filed an appeal against the decree

in the suit for specific performance. The Vendee, who had been

litigating for about 10 years by April, 1994 and had already paid

Rs.45,000/- over 10 years ago, but not got the suit land, could not be

expected to put in more money, until the decree assumed finality,

upon disposal of the appeal.

64. Since there was an appeal of the Vendor pending, the failure

of the Vendor to put in Rs.5,000/- within the time stipulated by Court,

wold not, in itself, disentitle the Vendor to the relief of specific

performance. It was for the Court to decide whether or not to extend

the time for payment of Rs.5,000/-. The Appellate Court rightly

expressed its discretion in favour of the Vendee.

65. The question is, whether as argued by Mr. Gowtham, the High

Court erred in affirming the common judgment of the Trial Court

under appeal before the High Court, whereby the Trial Court allowed

the suit for specific performance in part, holding that the Vendee was

entitled to relief of specific performance in respect of 200 square

yards of land covered by the Agreement dated 21.3.1984 (that is,

less 100 sq. yards sold to Pratap Reddy by a registered deed of

conveyance dated 25.4.1984), at a reduced consideration of

Rs.50,000/-, since the agreement dated 21.3.1984 was a composite

agreement for sale of 300 sq. yards of land at a lump sum

consideration of Rs.75,000/-.

66. While Mr. Gowtham has argued that the Courts should not at

all have allowed specific performance of the Agreement dated

21.3.1984, Mr. Radhakrishnan has argued that the conveyance in

favour of Pratap Reddy should have been adjudged and declared a

nullity, and the suit for specific performance allowed in full, by

directing the execution and registration of a Deed of Conveyance, in

respect of the entire suit land.

67. The relief of specific performance of an agreement, was at all

material times, equitable, discretionary relief, governed by the

provisions of the Specific Relief Act 1963, hereinafter referred to as

S.R.A. Even though the power of the Court to direct specific

performance of an agreement may have been discretionary, such

power could not be arbitrary. The discretion had necessarily to be

exercised in accordance with sound and reasonable judicial principles.

68. Section 10 of the S.R.A. as it stood prior to its amendment

with effect from 1.10.2018 provided:-

“10. Cases in which specific performance of contract

enforceable.- Except as otherwise provided in this Chapter,

the specific performance of any contract may, in the

discretion of the court, be enforced-

(a) when there exists no standard for ascertaining

actual damage caused by the non-performance of

the act agreed to be done; or

(b) when the act agreed to be done is such that

compensation in money for its non-performance

would not afford adequate relief.

Explanation.- Unless and until the contrary is proved, the

court shall presume-

(i) that the breach of a contract to transfer immovable

property cannot be adequately relieved by

compensation in money; and

(ii) that the breach of a contract to transfer movable

property can be so relieved except in the following

cases:-

(a) where the property is not an ordinary article of

commerce, or is of special value or interest to the

plaintiff, or consists of goods which are not easily

obtainable in the market;

(b) where the property is held by the defendant as the

agent or trustee of the plaintiff.”

69. After amendment with affect from 1.10.2018, Section 10 of

the S.R.A. provides:

10. Specific performance in respect of contracts.-

The Specific performance of a contract shall be enforced

by the court subject to the provisions contained in subsection (2) of section 11, section 14 and section 16.

70. After the amendment of Section 10 of the S.R.A., the words

“specific performance of any contract may, in the discretion of the

Court, be enforced” have been substituted with the words “specific

performance of a contract shall be enforced subject to ...”. The Court

is, now obliged to enforce the specific performance of a contract,

subject to the provisions of sub-section (2) of Section 11, Section 14

and Section 16 of the S.R.A. Relief of specific performance of a

contract is no longer discretionary, after the amendment.

71. An agreement to sell immovable property, generally creates a

right in personam in favour of the Vendee. The Vendee acquires a

legitimate right to enforce specific performance of the agreement.

72. It is well settled that the Court ordinarily enforces a contract in

its entirety by passing a decree for its specific performance.

However, Section 12 of the Specific Relief Act carves out exceptions,

where the Court might direct specific performance of a contract in

part. Section 12 of the Specific Relief Act, 1963 is set out

hereinbelow for convenience.

12. Specific performance of part of contract.-(1)

Except as otherwise hereinafter provided in this section the

court shall not direct the specific performance of a part of a

contract.

(2) Where a party to a contract is unable to perform the

whole of his part of it, but the part which must be left

unperformed by only a small proportion to the whole in

value and admits of compensation in money, the court may,

at the suit of either party, direct the specific performance of

so much of the contract as can be performed, and award

compensation in money for the deficiency.

(3) Where a party to a contract is unable to perform the

whole of his part of it, and the part which must be left

unperformed either-

(a) forms a considerable part of the whole, though

admitting of compensation in money; or

(b) does not admit of compensation in money,

he is not entitled to obtain a decree for specific

performance; but the court may, at the suit of other party,

direct the party in default to perform specifically so much of

his part of the contract as he can perform, if the other party-

(i) in a case falling under clause (a), pays or has paid

the agreed consideration for the whole of the

contract reduced by the consideration for the part

which must be left unperformed and a case falling

under clause (b), [pays or had paid] the consideration

for the whole of the contract without any abatement;

and

(ii) in either case, relinquishes all claims to the

performance of the remaining part of the contract

and all right to compensation, either for the

deficiency or for the loss or damage sustained by him

through the default of the defendant.

(4) When a part of a contract which, taken by itself, can

and ought to be specifically performed, stands on a separate

and independent footing from another part of the same

contract which cannot or ought not to be specifically

performed, the court may direct specific performance of the

former part.

Explanation.- For the purposes of this section, a party to a

contract shall be deemed to be unable to perform the whole

of his part of it if a portion of its subject matter existing at

the date of the contract has ceased to exist at the time of its

performance.

73. Where a party to the contract is unable to perform the whole

of his part of the contract, the Court may, in the circumstances

mentioned in Section 12 of the S.R.A., direct the specific performance

of so much of the contract, as can be performed, particularly where

the value of the part of the contract left unperformed would be small

in proportion to the total value of the contract and admits of

compensation.

74. The Court may, under Section 12 of the S.R.A. direct the party

in default to perform specifically, so much of his part of the contract,

as he can perform, provided the other party pays or has paid the

consideration for the whole of the contract, reduced by the

consideration for the part which must be left unperformed. In this

case the Vendee had apparently tendered the full consideration

within the time stipulated in the Agreement dated 21.3.1984, that is,

within 45 days or if not 45, within 47/48 days from the date of its

execution.

75. As observed above, the Vendee admittedly paid Rs.40,000/-

from out of the total consideration of Rs.75,000/- on the date of

execution of the agreement, a further sum, of Rs.5,000/- sometime

thereafter, which was duly acknowledged and also offered to pay the

balance Rs.30,000/- within 30.4.1984 that is, within 45 days from the

date of execution of the contract, which the Vendor did not accept. A

Demand Draft for equivalent amount of Rs.30,000/- was obtained

from Canara Bank on 4.5.1984, that is the 47th day of the execution of

the agreement.

76. Admittedly, a major portion of the full consideration, that is,

Rs.45,000/- had already been paid by the Vendor to the Vendee and

the Vendor had been ready to and had offered to pay the entire

balance consideration to the Vendor. However, the Vendor purported

to sell 100 square yards of the suit land to Pratap Reddy by executing

a registered deed of conveyance in his favour.

77. As argued by Mr. Navare, a registered deed of conveyance

takes effect, as regards the property comprised therein, against every

unregistered deed relating to the same property as provided in

Section 50 of the Registration Act.

78. The Vendee claimed specific performance of the agreement

dated 21.3.1984 in its entirety, and sought execution and registration

of a deed of conveyance in respect of the entire suit land comprising

300 square yards, but without impleading Pratap Reddy to whom

ownership of 100 square yards of land had been transferred by a

registered deed of conveyance.

79. A transferee to whom the subject matter of a sale agreement

or part thereof is transferred, is a necessary party to a suit for specific

performance. Unfortunately, the Vendee omitted to implead Pratap

Reddy. By the time she filed an application to implead Pratap Reddy,

in 1989, the suit for specific performance of the agreement dated

21.3.1984 had become barred by limitation as against Pratap Reddy.

80. Under the Limitation Act 1963 the period of limitation for filing

a suit for specific performance is three years from the date fixed for

performance of the contract, or if no date is fixed, then three years

from the date on which the Vendee is put to notice of refusal to

perform the agreement (Item No.54 in Part II of the Schedule to the

Limitation Act 1963).

81. Section 21 of the Limitation Act provides:

21. Effect of substituting or adding new plaintiff or

defendant.- (1) Where after the institution of a suit, a new

plaintiff or, defendant is substituted or added, the suit shall,

as regards him, be deemed to have been instituted when he

was so made a party:

Provided that where the court is satisfied that the

omission to include a new plaintiff or defendant was due to

a mistake made in good faith it may direct that the suit as

regards such plaintiff or defendant shall be deemed to have

been instituted on any earlier date.

(2) Nothing in sub-section (1) shall apply to a case

where a party is added or substituted owing to assignment

or devolution of any interest during the pendency of a suit or

where a plaintiff is made a defendant or a defendant is

made a plaintiff.

82. The Vendee was put to notice of the refusal of the Vendor to

execute the agreement dated 21.3.1984, by the Vendor’s letter/legal

notice dated 20.6.1984. Any suit for specific performance would be

time barred by June/July 1987. Moreover, it is a matter of record that

the Vendee knew of the registered deed of conveyance in favour of

Pratap Reddy, when she instituted the suit in 1984.

83. The Vendee neither amended her pleadings in the plaint nor

amended the prayers. Pratap Reddy was simply added defendant.

The Court adding Pratap Reddy as defendant in the suit for specific

performance, did not make any direction in terms of the proviso to

Section 21(1) of the Limitation Act, that the suit against Pratap Reddy

be deemed to be instituted at any earlier date. There could therefore

be no question of any relief against Pratap Reddy in the suit for

specific performance.

84. The Vendee did not implead the Vendor as defendant in her

later suit (Original Suit No.401 of 1985, renumbered Original Suit

No.92 of 1993) inter alia for a declaration that the Deed of

conveyance executed by the Vendor in favour of Pratap Reddy was

null and void. The suit has rightly been dismissed for non joinder of

the Vendor as defendant. There could be no question of a document

being adjudged null and void without impleading the executant of the

document, as defendant.

85. The suit for specific performance being time barred against

Pratap Reddy, and the suit against Pratap Reddy also having been

dismissed for non joinder of the Vendor, there could be no question

of nullifying the rights that had accrued to Pratap Reddy, pursuant to

the Deed of Conveyance dated 25.4.1984 executed by the Vendor

transferring 100 sq. yards of the suit land to Pratap Reddy. Moreover,

there was apparently an agreement in writing executed between the

Vendor and Pratap Reddy on or about 25.01.1984 before execution of

the agreement between the Vendor and the Vendee.

86. Since title in respect of 100 square yards had passed to Pratap

Reddy and the suit for specific performance was barred by limitation,

the Trial Court was constrained to decree the suit for specific

performance in part, and direct that a Deed of Conveyance be

executed in respect of the balance 200 square yards of the suit land,

under the ownership and control of the Vendor.

87. Section 12 of the SRA is to be construed and interpreted in a

purposive and meaningful manner to empower the Court to direct

specific performance by the defaulting party, of so much of the

contract, as can be performed, in a case like this. To hold otherwise

would permit a party to a contract for sale of land, to deliberately

frustrate the entire contract by transferring a part of the suit property

and creating third party interests over the same.

88. Section 12 has to be construed in a liberal, purposive manner

that is fair and promotes justice. A contractee who frustrates a

contract deliberately by his own wrongful acts cannot be permitted to

escape scot free.

89. After having entered into an agreement for sale of 300 Sq.

yards of land, with her eyes open, and accepted a major part of the

consideration (Rs.45,000/- out of Rs.75,000/-) it does not lie in the

mouth of the Vendor to contend that the contract should not have

specifically been enforced in part, in respect of the balance 200 sq.

yards meters of the suit land which the Vendor still owned. It is

patently obvious that the Vendor did not disclose any earlier

agreement to the Vendee, as discussed above. The agreement in

writing dated 21.3.1984, does not bear reference to any earlier

agreement, as noted above.

90. Instead of awarding damages in respect of the part of the

contract which could not be enforced and/or in other words damages

for breach of agreement to sell the entire suit land, the Trial Court

reduced the total consideration by 1/3rd of the agreed amount, in lieu

of damages, as one third of the area agreed to be sold to the Vendee

could not be sold to her. The total price agreed upon being

Rs.75,000/- for the entire suit land, comprising 300 square yards, the

agreed price works out to Rs.25,000/- for 100 square yards and/or

Rs.2,500/- per square yard. The Trial Court very fairly reduced the

consideration by Rs.25,000/-, being the price of 100 square yards of

land computed proportionally, in lieu of damages. The Vendor can

have no legitimate reason to complain.

91. Since we have upheld the dismissal of Suit No.92/1993 filed by

the Appellant against Pratap Reddy, it is not really necessary to go

into the question of whether the said suit was barred under Order II

Rule 2 of the Civil Procedure Code as contended by Mr. Navare. It is

true that, the clubbing of suits for hearing them together and

disposal thereof by a common judgment and order is for practical

reasons. Such clubbing together of the suits do not convert the suits

into one action as argued by Mr. Navare. The suits retain their

separate identity as held in Mahalaxmi Coop. Housing Society

Ltd. and Ors. v. Ashabhai Atmaram Patel (supra). The clubbing

together is done for convenience, inter alia, to save time, costs,

repetition of procedures and to avoid conflicting judgments.

92. We are, however, unable to agree with Mr. Navare’s argument

that the Court is under an obligation to reject the subsequent suit,

irrespective of whether objection of bar under Order II Rule 2 of the

CPC was raised or not.

93. The plea of bar under Order II Rule 2 of the CPC is a technical

plea which has to be pleaded and satisfactorily established. In R. A.

Oswal v. Deepak Jewellers and Ors.

, this Court held that if the

plea of bar under Order II Rule 2 is not taken, the Court should not

suo moto decide the plea. Moreover, in Dalip Singh v. Mehar

Singh Rathee and Ors.

, this Court held that the plea cannot be

raised before this Court if not raised in the High Court.

94. We find no such infirmity in the judgment and order of the

High Court under appeal, confirming the judgment and order of the

Trial Court, that calls for interference of this Court. The High Court

has rightly dismissed the appeals from the judgment of the Trial

Court.

95. These appeals are, therefore, dismissed.

.......................................J.

[ UDAY UMESH LALIT ]

..….…..............................J.

[ INDIRA BANERJEE ]

NEW DELHI

SEPTEMBER 18, 2020

3. (1999) 6 SCC 40 [42]

4. (2004) 7 SCC 650

When the appellant failed to file an appeal with in 45 days after receiving the certified copies on or before 02/02/2020 /18/03/2020 and without waiting for free copy of the orders, now he can not fall back that from the date of supply of free copy and due to Covid , his appeal on 20/07/2020 is within time

When the appellant failed to file an appeal with in 45 days after receiving the certified copies on or before 02/02/2020 /18/03/2020 and without waiting for free copy of the orders, now he can not fall back that from the date of supply of free copy and due to Covid , his appeal on 20/07/2020 is within time

“421. Appeal from orders of Tribunal

(1) xxxx

(2) xxxx

(3) Every appeal under subsection (1) shall be filed within a

period of fortyfive days from the date on which a copy of the

order of the Tribunal is made available to the person aggrieved

and shall be in such form, and accompanied by such fees, as

may be prescribed:

Provided that the Appellate Tribunal may entertain an

appeal after the expiry of the said period of fortyfive days from

the date aforesaid, but within a further period not exceeding

fortyfive days, if it is satisfied that the appellant was prevented

by sufficient cause from filing the appeal within that period.”

Therefore, it is true, as contended by the appellants, that

the period of limitation of 45 days prescribed in Section 421(3)

would start running only from the date on which a copy of the

order of the Tribunal is made available to the person aggrieved.

It is also true that under Section 420(3) of the Act read with Rule

50, the appellants were entitled to be furnished with a certified

copy of the order free of cost.

Therefore if the appellants had chosen not to file a copy

application, but to await the receipt of a free copy of the order in

terms of Section 420(3) read with Rule 50, they would be

perfectly justified in falling back on Section 421(3), for fixing the

date from which limitation would start running. But the

appellants in this case, chose to apply for a certified copy after 27

days of the pronouncement of the order in their presence and

they now fall back upon Section 421(3).

Despite the above factual position, we do not want to hold

against the appellants, the fact that they waited from 25.10.2019

(the date of the order of NCLT) upto 21.11.2019, to make a copy

application. But atleast from 19.12.2019, the date on which a

certified copy was admittedly received by the counsel for the

appellants, the period of limitation cannot be stopped from

running.

From 19.12.2019, the date on which the counsel for the

appellants received the copy of the order, the appellants had a

period of 45 days to file an appeal. This period expired on

02.02.2020.

By virtue of the proviso to Section 421(3), the Appellate

Tribunal was empowered to condone the delay upto a period of

period of 45 days. This period of 45 days started running from

02.02.2020 and it expired even according to the appellants on

18.03.2020. The appellants did not file the appeal on or before

18.03.2020, but filed it on 20.07.2020. It is relevant to note that

the lock down was imposed only on 24.03.2020 and there was no

impediment for the appellants to file the appeal on or before

18.03.2020. To overcome this difficulty, the appellants rely upon

the order of this Court dated 23.03.2020.

Assumptions :- Any finding given on assumption is liable to be set aside

Assumptions :-

Any finding given on assumption is liable to be set aside

when he had no knowledge of agreement entered into between the defendant No.1 and defendant No.2, that aspect required appropriate consideration.

However, the Courts below have on the contrary concluded that the defendants No.1 and 2 being of the same village, the defendant No.2 would have knowledge of the agreement entered into by the defendant No.1 in favour of the plaintiff.

Such conclusion is only an assumption and there is no evidence with regard to the knowledge of defendant No.2 even if he was from the same village.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 760 OF 2020

(Arising out of SLP (Civil) No.10949 of 2019)

Sukhwinder Singh .…Appellant(s)

Versus

Jagroop Singh & Anr. …. Respondent(s)

J U D G M E N T

A.S. Bopanna,J.

Leave granted.

2. The appellant herein was the defendant No.2 in Case

No.915 of 16.11.2004/17.04.2015. The respondent No.1

herein was the plaintiff in the suit. The respondent No.2

herein was the defendant No.1 therein. The parties will

be referred to in the rank assigned to them in the suit for

the purpose of convenience and clarity. The plaintiff

instituted the suit seeking for decree of possession by

way of specific performance of the Agreement of Sale

Page 1 of 17

dated 03.01.2004 executed by defendant No.1 in favour

of the plaintiff agreeing to sell the land measuring 3

Kanals 4 Marlas comprised of Khewat No.36/35

Khatauni No.91, Rect. No.63 Killa No.2/2 (34), situated

in village Dulla Singh Wala, Tehsil and District Ferozpur.

3. The case of the plaintiff was that the property was

agreed to be sold for the total consideration of

Rs.1,40,000/. Towards the said amount the plaintiff

had paid the sum of Rs.69,500/ as earnest money. The

plaintiff had further prayed in the suit to set aside the

Sale Deed dated 11.06.2004 executed by the defendant

No.1 in favour of the defendant No.2 since according to

the plaintiff the same was null and void and did not bind

the plaintiff. In the alternative, the plaintiff had sought

for a decree to recover a sum of Rs.1,40,000/ of which

Rs.69,500/ had been paid as earnest money while the

remaining sum of Rs.70,500/ was sought as damages.

The defendants at the first instance had failed to appear

and contest the suit. Accordingly, the Trial Court by its

judgment dated 14.06.2007 had decreed the suit.

Page 2 of 17

4. Though the defendant No.1 did not make out any

grievance thereafter, the defendant No.2 who was the

purchaser of the property filed a petition under Order 9

Rule 13 of the Civil Procedure Code in Misc. Application

No.46 of 23.02.2011 seeking that the ex parte decree be

set aside and the suit be restored for consideration.

Since the said petition was filed with delay, an

application under Section 5 of the Limitation Act was

filed seeking condonation of delay. The Trial Court

having considered the same through its decision dated

07.08.2012 dismissed the application seeking

condonation of delay, consequently the petition under

Order 9 Rule 13 of Civil Procedure Code was also

dismissed as barred by Limitation. The defendant No.2

claiming to be aggrieved preferred Civil Revision

No.5332/2012 (O&M) before the High Court of Punjab

and Haryana at Chandigarh. In the said Revision

Petition filed under Section 115 of Civil Procedure Code

read with Article 227 of the Constitution of India, the

High Court had concurred with the decision of the Trial

Court and dismissed the Revision Petition through its

Page 3 of 17

decision dated 12.09.2012. The defendant No.2 had

carried the same before this Court in Civil Appeal

No.1406/2015. This Court on taking into consideration

that the defendant No.2 who was the appellant in the

said Civil Appeal is to be provided an opportunity to

contest the suit, had allowed the appeal by order dated

02.02.2015 subject to payment of Rs.1,50,000/ as cost.

Leave to file the written statement in the suit was also

granted. Pursuant thereto the defendant No.2 having

paid the cost, filed the written statement and the suit was

proceeded in accordance with law. Pursuant thereto the

impugned judgments are passed which are assailed

herein.

5. Mr. Rahul Gupta, the learned counsel for the

appellant contends that the defendant No.2 is the

bonafide purchaser without notice of the alleged

agreement between the plaintiff and defendant No.1. He

contends that the entire transaction was entered into in a

bonafide manner and the Sale Deed having been

registered, the defendant No.2 was put in possession of

Page 4 of 17

the suit schedule property as far back as on 11.06.2004.

Nearly 16 years have passed by and the defendant No.2

has carried out considerable improvement to the property

and is residing in the house constructed therein. In that

view, at this juncture if the specific performance as

sought by the plaintiff is ordered, greater hardship will be

caused to the defendant No.2. It is pointed out that the

plaintiff had made the alternate prayer for refund of the

earnest money and damages which if considered would

serve the ends of justice. The learned counsel contends

that even to secure leave to file the written statement and

defend the suit the defendant No.2 has already parted

with the sum of Rs.1,50,000/ in addition to the sale

consideration that was paid to defendant No.1. In that

circumstance, the compensation if any, is a matter to be

considered by this Court as the grant of specific

performance is not a rule and this Court has the

discretion to decline specific performance in view of the

provisions contained under Section 20 of the Specific

Relief Act. It is also his contention that though the

defendant No.1 has not contested the suit, there was an

Page 5 of 17

obligation on the plaintiff to establish his case which has

not been effectively done by proving the readiness and

willingness. The learned counsel would contend that

though all the three Courts have held against the

defendants, the nonconsideration of the relevant facts

would amount to a concurrent error committed by the

Courts. It is, therefore, contended that the judgment and

decree be set aside and the right accrued to the

defendant No.2 under the Sale Deed dated 11.06.2004 be

protected.

6. Shri Mahendra Kumar, learned counsel for the

plaintiff/respondent No.1 would seek to sustain the

judgment passed by the Courts below. It is contended

that all the three Courts have concurrently held against

the defendants and the reversal of the same is not

warranted. It is his case that the plaintiff had entered

into an agreement of sale and had also paid the part sale

consideration of Rs.69,500/. The suit at the first

instance was decreed on 14.06.2007 and the plaintiff had

pursuant to the decree deposited the balance sale

Page 6 of 17

consideration of Rs.70,500/ on 03.08.2007. The learned

counsel contends that though the date for execution of

the Sale Deed was stipulated as 15.06.2004, the Sale

Deed was executed by the defendant No.1 in favour of

defendant No.2 on 11.06.2004 so as to defeat the right of

the plaintiff. It is contended that the defendant had

connived with each other in that regard and, therefore,

the same cannot be considered as a bonafide transaction.

The learned counsel further contends that though an

alternate prayer was made in the suit for the payment of

damages as indicated therein, the property in question is

highly valuable and as such the plaintiff should have the

benefit of the appreciation as well. It is, therefore,

contended that the appeal is liable to be dismissed.

7. In the above background, it is seen that the

contention of the plaintiff in the suit was that the

defendant No.1 had agreed to sell the suit schedule

property through the Agreement dated 03.01.2004 and

the plaintiff had paid a sum of Rs.50,000/ on the said

date and a further sum of Rs.19,500/ on 29.02.2004.

Page 7 of 17

Thus, in all a sum of Rs.69,500/ was paid as earnest

money. The date for execution of the Sale Deed was

stipulated as 15.06.2004 on which date the balance sale

consideration of Rs.70,500/ was to be paid. The plaintiff

contended that he was ready and willing to complete the

transaction and as such on 15.06.2004 i.e. the stipulated

date, the plaintiff appeared in the office of SubRegistrar

with the balance sale consideration and other expenses.

According to the plaintiff the defendant did not turn up

but the plaintiff got his presence marked by moving an

application. It is only subsequently the plaintiff came to

know that the defendant No.1 had executed a Sale Deed

dated 11.06.2004 in favour of the defendant No.2 in

respect of the very suit property. It is in that light the

plaintiff had sought further relief as noted above.

8. The defendant No.2 who had availed the

opportunity granted by this Court and filed written

statement on payment of cost had denied the execution of

the agreement to sell and the receipt of earnest money.

The defendant No.2 relying on the Sale Deed dated

Page 8 of 17

11.06.2004 contended that having purchased the

property he is in possession and enjoyment of the same.

The defendant No.2, therefore, sought for dismissal of the

suit. The Trial Court framed as many as seven issues for

its consideration based on the pleadings. The plaintiff

examined himself as PW1 and also examined the

witnesses as PW2 to PW4. The documents at Exhibits P1

to P9 were marked. The defendant No.2 examined

himself as DW1 and examined two witnesses as DW2 and

DW3. The Trial Court with reference to the said evidence

has decreed the suit. The Lower Appellate Court has reappreciated the material on record and concurred with

the Trial Court. The High Court though was examining

the Second Appeal where limited scope for reappreciation

of the evidence is available, it is noticed that the High

Court has not even adverted to the basic requirements to

arrive at its conclusion. Be that as it may, considering

that the suit in question was filed seeking for specific

performance, the consideration to that effect as made by

the Trial Court and endorsed by the Lower Appellate

Page 9 of 17

Court as also the High Court will have to be noticed

cumulatively.

9. The suit being the one for specific performance of

the contract on payment of the balance sale

consideration, the readiness and willingness was required

to be proved by the plaintiff and was to be considered by

the Courts below as a basic requirement if a decree for

specific performance is to be granted. In the instant case

though the defendant No.2 had denied the agreement as

also the receipt of the earnest money, the same would not

be of consequence as the agreement claimed by the

plaintiff is with the defendant No.1 and the contention of

the defendant No.2 to deny the same is without personal

knowledge on that aspect. However, even in the absence

of the defence put forth, the plaintiff was required to

prove his readiness and willingness and that aspect of

the matter was to be considered by the Courts below. In

the present case though the plaintiff examined himself as

PW1, as also PW2 and PW3, the document writer, and

the witness to the agreement who stated with regard to

Page 10 of 17

the execution of the agreement, the evidence to prove the

readiness and willingness with regard to the resources to

pay the balance sale consideration is insufficient. In the

absence of denial by the defendant No.1, even if the

payment of Rs.69,500/ and the claim by the plaintiff of

having gone to the office of SubRegistrar on 15.06.2004

is accepted, the fact as to whether the plaintiff had

notified the defendant No.1 about he being ready with the

balance sale consideration and calling upon the plaintiff

to appear before the SubRegistrar and execute the Sale

Deed was required to be proved. From among the

documents produced and marked as Exhibit P1 to P9

there is no document to that effect, more particularly to

indicate the availability of the balance sale consideration

as on 15.06.2004 and as on the date of filing the suit.

Despite the same, merely based on the oral testimony of

PW1, the Courts below have accepted the case put forth

by the plaintiff to be ready and willing to complete the

transaction.

Page 11 of 17

10. Instead of arriving at an appropriate conclusion on

that aspect, the Trial Court while answering the issues

No.1 and 2 has concluded that the amount of sale

consideration has already been paid and the fact that the

Civil Suit has been filed by the plaintiff are sufficient to

establish that the plaintiff remained ready and willing to

perform his part of the contract. On the other hand, it is

noticed that what had been paid as on the date of filing

the suit was only the earnest money and the balance

amount was deposited only on 03.08.2007 after the suit

was decreed at the first instance on 14.06.2007 and not

as on the date of filing the suit. Hence the concurrent

conclusion reached by all the three Courts is an apparent

error, the correction of which is necessary. It is no doubt

true that as on the date of decision for the second time

after restoration, the amount had been deposited which

is not the same as having deposited or paid prior to or at

the time of filing the suit. Even if the amount had been

deposited as on the date of filing the suit, the readiness

and willingness with possession of the sale consideration

as on 15.06.2004 was necessary to be proved, which has

Page 12 of 17

not been done. Hence, in our opinion the Courts below

have not appropriately considered this aspect of the

matter.

11. Further, in a circumstance where the defendant

No.2 had contested the suit and had put forth the

contention that he was a bonafide purchaser without

notice and through his evidence had deposed that he

had no knowledge of agreement entered into between the

defendant No.1 and defendant No.2, that aspect required

appropriate consideration. However, the Courts below

have on the contrary concluded that the defendants No.1

and 2 being of the same village, the defendant No.2 would

have knowledge of the agreement entered into by the

defendant No.1 in favour of the plaintiff. Such

conclusion is only an assumption and there is no

evidence with regard to the knowledge of defendant No.2

even if he was from the same village. In addition, the

Lower Appellate Court has concluded that since the

defendant No.1 has not caused appearance in spite of

notice having been issued and he not being examined as

Page 13 of 17

a witness it could be gathered that there is connivance

amongst the defendants to defeat the rights of the

plaintiff. Such assumption is also not justified since the

defendant No.2 had purchased the property for a

consideration under a registered document and the

defendant No.2 was also put in possession of the

property. In that circumstance the defendant No.1 who

had lost interest in the property, if had not chosen to

appear and defend the suit the same cannot be a

presumption of connivance in the absence of evidence to

that effect.

12. In the background of the above consideration, the

plaintiff in any event was not entitled to a decree for

specific performance and possession of the property

against the defendant No.1. In the circumstance the

declaration of the Sale Deed dated 11.06.2004 executed

by the defendant No.1 in favour of the defendant No.2 to

term the same as null and void as claimed by the plaintiff

also did not arise. Despite the said position what is

necessary to be taken note is that the sale in favour of

Page 14 of 17

the defendant No.2 was on 11.06.2004 i.e. subsequent to

the date of the suit agreement dated 03.01.2004. Despite

holding that the defendant No.2 is a bonafide purchaser,

what cannot be lost sight is that the defendant No.1 had

received a sum of Rs.69,500/ from the plaintiff as far

back as on 03.01.2004. That apart if the transaction was

concluded at that stage the plaintiff would have been

entitled to the benefit of the land. Even as per the

ground at (Para x) raised by the defendant No.2 in this

appeal, it would indicate that there has been

considerable appreciation in the market price. Though in

the normal circumstance the return of the advance

received and the compensation for denial of the property

was to be paid by the defendant No.1, as noted, the

defendant No.1 having lost interest in the property has

not appeared in the instant proceedings nor is there any

material to indicate that he has benefited from the

appreciation since even as per the contention of the

plaintiff he has sold the property for a lesser price. In

that situation the plaintiff cannot be left ‘high and dry’. If

that be the position the defendant No.2 who has

Page 15 of 17

benefited from the property will have to repay the

advance and compensate the plaintiff in the peculiar

facts of the instant case. In that circumstance the

defendant No.2 (the appellant herein) is required to be

directed to pay a sum of Rs.3,50,000/ only which is

inclusive of the advance amount of Rs.69,500/ to the

plaintiff (the respondent No.1 herein) in full quit of all

claims. The said amount is also to be directed to be paid

by the defendant No.2 to the plaintiff within a period of

three months failing which the same should carry

interest at 12% per annum till payment. The plaintiff

should also be entitled to withdraw the amount of

Rs.70,500/ stated to have been deposited by him before

the Trial Court.

13. In view of the above, the following order:

i) The appeal is allowed in part. The judgment

and decree dated 24.07.2015 passed in Case No.

915 of 16.11.2004/17.04.2015 and affirmed by the

Lower Appellate Court as also the High Court to

the extent of granting the relief of specific

performance is set aside.

Page 16 of 17

ii) The judgment and decree dated 17.04.2015 in

Case No. 915 shall stand modified, and the

appellant defendant No. 2 is directed to pay a

sum of Rs.3,50,000/ only to the plaintiff within

three months.

iii) If the amount is not paid within the time

stipulated the same shall carry interest at 12% per

annum thereafter.

iv) The plaintiff shall be entitled to withdraw the

amount of Rs.70,500/ lying in deposit before the

Trial Court with the interest accrued, if any.

v) In the facts and circumstances, the parties to

bear their own costs.

Pending application, if any, shall stand disposed of.

……………………….J.

(R. BANUMATHI)

……………………….J.

(A.S. BOPANNA)

New Delhi,

January 28, 2020

Page 17 of 17

Thursday, September 17, 2020

Deficiency in the stamp duty on deed dated 21.04.2005 and passed an order dated 22.09.2008 holding the deed to be a Gift Deed and determined a deficiency of stamp duty to the extent of Rs.1,28,09,700/- and imposed penalty of ten times to the tune of Rs.12,80,97,000/-. - the liablity can not be escaped even by the subsequent purchaser.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3194OF 2020

(ARISING OUT OF SLP(C) NO.7990 OF 2020)

M/S. MSD REAL ESTATE LLP ...APPELLANT(S)

VERSUS

THE COLLECTOR OF STAMPS & ANR. ...RESPONDENT(S)

J U D G M E N T

ASHOK BHUSHAN,J.

Leave granted.

2. This appeal has been filed against the judgment of

the High Court of Madhya Pradesh at Indore dated

10.06.2020 by which the writ petition filed by the

appellant challenging the notice dated 04.06.2020

issued by Additional Tehsildar (Recovery), District

Indore as well as notice dated 04.06.2020 issued by

Building Officer, Zone No.09, Municipal Corporation

Indore has been dismissed.

3. Brief facts giving rise to this appeal are:

The property in question in this appeal is Lantern

Hotel having Municipal No.28, Yeshwant Niwas Road,

Indore with regard to which a Deed of Assent was

executed on 21.04.2005 by the Trustees of Private

Trust, namely, H.C. Dhanda Trust. H.C. Dhanda executed

Will dated 26.10.2002. The Collector of Stamps issued

notice stating that there is deficiency in the stamp

duty on deed dated 21.04.2005 and passed an order dated

22.09.2008 holding the deed to be a Gift Deed and

determined a deficiency of stamp duty to the extent of

Rs.1,28,09,700/- and imposed penalty of ten times to

the tune of Rs.12,80,97,000/-. H.C. Dhanda Trust filed

writ petition in the High Court challenging order dated

22.09.2008 which was dismissed on 30.03.2017. An SLP(C)

Diary No.30539 of 2017 was filed by the Trustees of

H.C. Dhanda Trust against the judgment of the Madhya

Pradesh High Court dated 30.03.2017 in which this Court

passed following interim order dated 10.11.2017:

“Issue notice, returnable in six weeks,

limited to the quantum of penalty that has been

imposed by the Collector (Stamps).

Subject to the condition that stamp duty

is paid within a period of one month, there

shall be stay of the order qua the penalty.”

4. The Trustees of H.C. Dhanda Trust could not deposit

the stamp duty, this Court made it clear by order dated

22.04.2019 in SLP(C) Diary No.30539 of 2017 that no

interim order is operating as on date. An amount of

Rs.1,28,09,700/- was deposited through a Treasury

Challan dated 07.11.2019 which was the amount of stamp

duty on behalf of Jogesh Dhanda son of late Shri H.C.

Dhanda.

5. The appellant, M/s. MSD Real Estate LLP by a

Registered Sale Deed dated 27.11.2019, purchased the

property in question, Lantern Hotel from the Trustees

of the Trust of Jogesh Dhanda and Ishan Dhanda. The

appellant applied for development permission and vide

letter dated 18.11.2019 the appellant was granted

permission for construction. Application for mutation

was filed by the appellant in the Municipal

Corporation. The appellant also deposited

Rs.2,92,20,794/- property tax under protest, mutation

in the name of the appellant was also made against the

property in question.

6. On 20.11.2019 the appellant along with Jogesh

Dhanda submitted an application to Collector of Stamps

regarding stamp duty and penalty imposed upon Lantern

Hotel, Indore situate at Municipal No.28, Yeshwant

Niwas Road, Indore. Along with letter the appellant

submitted six post dated cheques totaling

Rs.12,80,97,025/-. A notice dated 04.06.2020 was issued

by Addl. Tehsildar (Recovery) for depositing an amount

of Rs.8,80,97,095/-, outstanding amount towards the

penalty. On 04.06.2020 itself another letter was issued

by the Office of Municipal Corporation, Indore

regarding application received from the appellant for

permission of building construction. The application

for building permission was rejected by notice dated

04.06.2020. Aggrieved by the aforesaid two notices

dated 04.06.2020 Writ Petition No.8145 of 2020 was

filed by the appellant. In the writ petition the

appellant has challenged notice dated 04.06.2020 issued

by the Addl. Tehsildar(Recovery) as well as order dated

04.06.2020 of the Office of Municipal Corporation,

Indore. The appellant also prayed for direction to

restraint the respondents from giving effect to their

impugned orders and from taking any coercive/penal

action against the appellant.

7. Learned Single Judge by its order dated 10.06.2020

dismissed the writ petition. Learned Single Judge held

that the appellant being subsequent purchaser is liable

to pay the penalty amount. Learned Single Judge noticed

that there being no interim order in SLP(C) Diary No.

30539 of 2017 pending in this Court he was liable to

pay the penalty amount. The High Court also took the

view that payment of penalty by post dated cheques

cannot be approved by the High Court. Insofar as notice

dated 04.06.2020 issued by the Municipal Corporation,

the High Court took the view that at that time no

interference was called for and after payment of

penalty amount in toto, the appellant would be free to

apply afresh for building permission again whereafter

the Municipal authorities are directed to reconsider

the application for building permission. With the above

discussion, the writ petition was dismissed. Aggrieved

by the judgment of the High Court, the appellant has

filed this appeal.

8. This appeal arising out of SLP(C)No.7990 of 2020

was filed on 24.06.2020.

9. During the pendency of this appeal order dated

26.07.2020 has been issued by the Municipal

Corporation, Indore as well as order dated 25.07.2020

and 28.07.2020 has been issued by the Municipal

Corporation, Indore. The Municipal Corporation also

issued letter dated 27.07.2020 to the Sub-Divisional

Officer, Revenue, Indore requesting him to remove all

encroachment on Municipal property and to handover

possession of the land in question to the Municipal

Corporation. The appellant by means of I.A.No.72517 of

2020 has prayed for stay the aforesaid orders and

notices and has prayed for other reliefs consequent to

the notices and orders issued as referred to in

aforesaid IA. Counter-affidavit has also been filed by

the Municipal Corporation, Indore to which Rejoinderaffidavit has also been filed. On 07.07.2020 while

issuing notice this Court passed the following order:

“Issue notice.

List along with Diary No.30539/2017.

Learned counsel for the petitioner submits

that towards the penalty amount Rs.6.8 crores

have already been encashed/paid and for rest of

the penalty amount post-dated cheques have

already been given. The petitioner undertakes

to ensure that all post-dated cheques are

cleared so that entire amount of penalty is

paid which 1 shall, however, be subject to the

order of this Court in the pending petition

i.e. Diary No.30539/2017.

In the meantime, impugned orders including

the auction proceeding shall remain stayed.”

10. We have heard Shri Kapil Sibal, learned senior

counsel appearing for the appellant. Shri Tushar Mehta,

learned Solicitor General has appeared on behalf of the

State. Shri Purushaindra Kaurav, learned Advocate

General, has appeared for Municipal Corporation,

Indore.

11. Shri Kapil Sibal submits that the action of the

Addl. Tehsildar (Recovery) asking for recovery of

amount of Rs.8,80,9725/- was unjustified. It is

submitted that the appellant after purchasing of the

property has deposited the amount of deficit stamp duty

as well as post dated cheques covering the entire

amount of penalty of Rs.12,80,97,025/- by letter dated

20.11.2019 which was accepted by the Collector Stamps

and letter dated 23.11.2019 was issued by the Collector

of Stamps that cheques of total amount has been

received and no stamp duty is outstanding. It is

submitted that by 04.06.2020 on which date notice was

issued by Addl. Tehsildar (Recovery) out of the

abovesaid cheques, two cheques of Rs.2 crores each have

already been encashed by the State Government. Shri

Sibal submits that subsequently he has also deposited

further amount and he has undertaken before this Court

to ensure that all cheques given by him towards penalty

amount shall be cleared.

12. Shri Sibal further submits that building permission

was granted to the appellant after being satisfied with

all necessary requirements which could not have been

cancelled by order dated 04.06.2020 by the Municipal

Corporation, Indore. He submits that the appellant was

committed to pay the entire amount of the penalty

which commitment was accepted by the Collector of

Stamps by letter dated 23.11.2019 and the action taken

for cancelling the building permission was unjustified.

Shri Sibal further submitted that in spite of the

interim order passed by this Court on 07.07.2020 by

which this Court has stayed the impugned orders and

auction proceedings by the Municipal Corporation, the

Municipal Corporation has issued several orders which

are malafide and illegal. The order dated 25.07.2020

passed by the Municipal Corporation of Indore

cancelling the mutation of the appellant on the ground

that proceeding is pending in this Court and by the

Collector regarding title of the property was wholly

unauthorized and illegal. The appellant having

purchased the property by registered sale deed, got

mutation of title in his name. He further submitted

that no proceeding is pending regarding title of

property as mentioned in the letter dated 25.07.2020.

He further submits that another order issued on

28.07.2020 by the Office-Commissioner Municipal

Corporation which mentions that Indore Municipal

Corporation has already sent letter to Sub-Divisional

Officer Revenue for putting up the application before

the competent officer for taking action under Section

4/5 of Madhya Pradesh Public Premises Eviction Act,

1974 for eviction is wholly illegal and unauthorised.

He submits that the house property No.28, Yashwant

Niwas Road, Indore was in the ownership of late Shri

H.C. Dhanda which was gifted by his Highness Maharaja

by order dated 22.04.1948 as free gift to late Shri

H.C. Dhanda being Minister in the Cabinet of his

Highness and right from 1948 late Shri H.C. Dhanda was

the owner in possession with regard to which

subsequently he created a Trust by his Will. He

submitted that property had been purchased by the

appellant by registered sale deed dated 23.11.2019 and

there is no question of Corporation or anyone else

claiming any title in the property, no determination of

title is pending in any Court of law and the

observation made by the Corporation in its letter that

determination of title is pending with the office of

District Collector is wholly malafide and unjustified.

He submits that subsequent letters and action taken by

the Corporation as well as by the State authorities are

only with the intent to harass the appellant and all

are actions are beyond their jurisdiction and deserve

to be set aside by accepting the IAs filed by the

appellant.

13. Shri Tushar Mehta, learned Solicitor General

appearing on behalf of the State submits that no error

was committed by the Addl. Tehsildar (Recovery) in

issuing recovery notice dated 04.06.2020 since the

interim order being not operating in SLP(C) Diary

No.30539 of 2017 the amount of penalty was outstanding.

He submits that there is no procedure or provision for

accepting the amount of penalty by post dated cheques

as it claimed by the appellant. Shri Mehta further

submits that amount of penalty being outstanding

against the property, mutation in the name of the

appellant against the property as well as building

permission has rightly been rejected. Shri Mehta

further submits that subsequent actions including the

notices and orders brought by the appellant by IA

No.72517 of 2020 are all actions which are subsequent

actions and has no relation to issues which have been

raised in this appeal. He submits that neither

subsequent actions, letters were part of the writ

petition nor they can be considered in this appeal. He

submits if so advised it is always open to take

appropriate proceeding if he is aggrieved by any action

subsequently taken after the decision of the writ

petition.

14. Shri Purushaindra Kaurav, learned Advocate General

appearing for the Corporation fairly submitted that it

is the appellant who are in possession of the property

in question. He submitted that notices and actions

taken by the Corporation and other authorities

subsequent to the decision of the writ petition cannot

be made subject matter of challenge in this appeal,

remedy of the appellant if any is elsewhere. He

supports the order of the Municipal Corporation by

which building permission earlier granted has been

cancelled.

15. We have considered the submission of the parties

and perused the record.

16. In pursuance of the order of the Collector dated

22.09.2008, Trustees of H.C. Dhanda Trust were liable

to deposit stamp duty as well as penalty. In SLP(C)

Diary No.30539 of 2017 the interim order granted by

this Court on 10.11.2017 having not been complied with

there was no interim order operating and the Trustees

of H.C. Dhanda Trust were liable to deposit the stamp

duty and penalty. Although deficiency of stamp duty was

deposited through the Treasury Challan dated 01.11.2019

but the penalty was not deposited and only post dated

cheques between dates 25.02.2020 to 25.05.2020 were

submitted on behalf of the appellant and Jogesh Dhanda.

The High Court has rightly observed that facility to

deposit the penalty by post dated cheques cannot be

approved and the appellant being subsequent purchaser

was liable to deposit the amount of penalty which was

outstanding against the property and which was subject

matter of the gift deed dated 21.04.2005. The High

Court has rightly not interfered with the order dated

04.06.2020 issued by the Addl. Tehsildar(Recovery)

demanding an amount of Rs.8,80,97,025/- which was

outstanding on the above date.

17. We by our order of the date passed in

10973 of 2020) allowing the appeals partly, held:

“In result the appeals are allowed the

order of the Collector of Stamps dated

22.09.2008 is modified to the extent that

penalty imposed of ten times of

Rs.12,80,97,000/- is modified into five times

penalty i.e. Rs.6,40,48,500/-. The appeals are

partly allowed to the above extent. “

18. The order of Collector dated 22.09.2008 having been

modified and the amount of penalty having been reduced

to the extent of half of the ten times penalty,

respondents are to take steps in compliance to the said

order. Shri Sibal has submitted that total deposit as

on date by the appellant towards the penalty is about

RS.8.8 crores. The issue of penalty as imposed by the

order of the Collector of Stamps dated 22.09.2008

having already been decided by order of even date in

10973 of 2020) all the parties are to act in accordance

with the said judgment.

19. Now, we come to order dated 04.06.2020 which was

under challenge in the writ petition before the High

Court by which the Municipal Corporation, Indore has

cancelled the building permission granted earlier was

rejected. The High Court while considering the

aforesaid by its judgment in paragraph 8 has held:

“8. So far as order dated 4.6.2020 issued by

the Building Officer of Indore Municipal

Corporation is concerned, at this stage, no

interference is called for as the petitioner

has failed to deposit the penalty amount and

this fact was suppressed in the application

submitted for building permission. After the

deposit of the stamp duty and the penalty, the

Municipal authorities are directed to

reconsider the application for building

permission.”

20. The above observation of the High Court amply

protects the rights of the appellant. In view of the

deposit made by the appellant towards the penalty, the

appellant is free to apply for building permission

which is to be considered by the Municipal Corporation

as observed by the High Court in its judgment and order

dated 10.06.2020. Nothing more is required to be said

about the order dated 04.06.2020 issued by the Office

of the Municipal Corporation.

21. Now, we come to the submission of Shri Sibal with

regard to orders and notices issued by the Municipal

Corporation and other State Authorities subsequent to

filing of this appeal. The orders and notices issued by

the Municipal Corporation and other State Authorities

which have been brought on record by the IA No.

72517/2020 are all subsequent actions which were not

subject matter of the writ petition before the High

Court and cannot be taken into consideration in this

appeal.

22. With regard to subsequent notices, actions and

orders, as noticed above, brought on record by IA noted

above the said issues cannot be entertained in this

appeal. We give liberty to the parties to seek such

remedy with regard to subsequent actions and orders as

permissible in law. The appeal is disposed of

accordingly.

.....................J.

( ASHOK BHUSHAN )

......................J.

( R. SUBHASH REDDY )

......................J.

( M.R. SHAH )

NEW DELHI,

SEPTEMBER 17, 2020.

LAW FOR ALL

LawforAll

advocatemmmohan

Just for legal information but not form as legal opinion

Friday, September 18, 2020

Suit for specific performance - after amendement of Sec.10 specific performance is not the discretion of the court - specific performance can be given for the rest of property if any difficult was arose for the agreed property under Sec,12 of SRA

Assumptions :- Any finding given on assumption is liable to be set aside

Thursday, September 17, 2020