Allahabad High Court
M/S Chaudhary Properties And 2 Others vs Laxmi Devi on 10 May, 2023
Author: Dinesh Pathak
Bench: Dinesh Pathak
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2023:AHC:100268 AFR Court No. - 10 Case :- SECOND APPEAL No. - 318 of 2023 Appellant :- M/S Chaudhary Properties And 2 Others Respondent :- Laxmi Devi Counsel for Appellant :- Ram Dayal Tiwari,Sr. Advocate Counsel for Respondent :- Rahul Mishra,Sanjay Mishra,Satendra Kumar Singh,Suresh Chandra Varma Hon'ble Dinesh Pathak,J.
1. Heard Shri M.D.Singh Shekhar, learned Senior Counsel assisted by Shri R.D.Tiwari, learned counsel for the appellant and Shri S.K.Verma and Shri S.K.Singh, learned counsel for the contesting respondents on admission of the instant appeal and perused the record placed on the Board.
2. Suit for mandatory injunction for issuing a direction against the defendants-appellants to execute the registered sale deed in favour of the plaintiff-respondent with respect to plot no. C-107 area 300 sq. yards situated in Ganga Vihar Colony (Pink City), Gram Sadullabad Pargana Loni, Tehsil and District Ghaziabad after receiving the balance amount of Rs. 252.70 and to declare the cancellation letter dated 7.10.2011 null and void filed on behalf of the plaintiff-respondent has concurrently been decreed by both the courts below. Having been aggrieved against the decreetal of suit, defendants-appellants have preferred the instant second appeal assailing the judgment and decree dated 17.1.2023 passed by the learned District Judge, Ghaziabad in Civil Appeal No. 117/19 affirming the judgment and decree dated 3.9.2019 passed by the Civil Judge (Senior Division)/Fast Track Court, Ghaziabad in Original Suit No. 601 of 2011.
3. Plaintiff-respondent came with the plea that the defendants-appellants have developed a colony in the name of Hal Ganga Vihar Colony (Pink City) in Village Sadullabad, Pargana Loni, Tehsil and District Ghaziabad in the year 1986 and advertised for allotment of several size of plots in the said colony. In pursuance of the advertisement, the plaintiff-respondent had applied for allotment of plot. Consequently, she has been allotted plot no. C-107 area 300 sq. yard @ Rs. 252.70 per sq. yard on 23.12.1987 after getting discount from the original proposed rate i.e. Rs. 266/- per sq. yard. Plaintiff-respondent has deposited money amounting Rs. 80,500/- on 5.1.1988. The defendants-appellants, by the letter dated 30.12.2008, has admitted the deposition of money amounting Rs. 83,000/- and further demanded Rs. 22,592/-. In pursuance thereto, the plaintiff-respondent has deposited more money amounting Rs. 51,350/-, than the demanded amount i.e. Rs.25,592/-, on 28.1.2009. When the plaintiff-respondent has requested to execute the sale deed in light of the letter dated 30.12.2008, the defendants-appellants have deferred the execution of sale deed on the pretext of pendency of the Writ Petition No. 22445 of 2007 wherein use of land, which has been changed by the Ghaziabad Development Authority, was under challenge. Through letter dated 15.11.2009, the defendants-appellants have informed the final disposal of the aforesaid writ petition and also assured that the sale deed will be executed soon. Later on, dishonesty prevailed in the mind of the defendants-appellants who have started demanding more money whereas major part of the agreed amount has already been deposited by the plaintiff-respondent. A registered letter dated 12/13.1.2010 has been sent by plaintiff to defendants with a request to executed a registered sale deed in her favour. However, defendants-appellants are throughout avoiding to executed registered sale deed, therefore, suit for mandatory injunction has been filed against the defendants-appellants to execute the sale deed.
4. During pendency of the suit, defendants-appellants have issued a cancellation letter dated 7.10.2011 informing the plaintiff-respondent qua cancellation of allotment of plot made in her favour. Plaintiff-respondent has tried to persuade defendants-appellants to withdraw the said cancellation letter and execute sale deed, however the defendants-appellants turned a deaf ear, therefore, the plaintiff-respondent has moved an amendment application seeking ancillary relief to declare the cancellation letter dated 7.10.2011 null and void.
5. The defendants-appellants, though admitted the allotment of plot no. C-107 area 300 sq. yards in favour of plaintiff-respondent and deposition of money amounting Rs.80,500/- as well, however, raised dispute with respect to rate of plot and bonafide at the part of the plaintiff-respondent. It is averred in the written statement that plaintiff-respondent has deposited money amounting Rs.80,500/- on 5.1.1988 accepting the rate of plot @ Rs. 550/- per sq. yard. The defendants-appellants have disputed the genuineness of letter dated 30.12.2008 for which they have filed Original Suit No. 572 of 2010 to declare it as null and void. In the written statement defendants-appellants have mentioned the issuance of letter dated 7.10.2011 as well which has been sought to be declared as null and void by moving an amendment application. The defendants-appellants have questioned the locus of the plaintiff-respondent to file a suit and maintainability of the plaint as well under Order 7 Rule 11 C.P.C. and under Section 41 of the Specific Relief Act.
6. Learned Trial court has framed as many as 9 issues and after careful discussion of the evidence on record came to the conclusion that the defendants-appellants are under obligation to perform their part to complete the agreement. In deciding issue Nos. 1 and 8, the trial court has observed that oral agreement between the parties, with respect to execution of the sale deed, is evident from the allotment letter darted 23.12.1987 and the admission made at the part of the defendants-appellants to receive money amounting Rs. 80,500/- paid on 05.01.1988. In deciding issue No. 2, learned trial court has observed against defendant that cause of action arose to file suit. Issue No. 4 with regard to non-maintainability of suit under Section 41 of the Specific Relief Act and issue no. 5 with regard to bars of the suit under Order 7 Rule 11 C.P.C. have been decided in negative. The trial court, in deciding issue No. 9, has given a definite finding that the plaintiff-respondent is entitled for declaratory injunction against the alleged cancellation letter dated 7.10.2011. First appellate court, on appeal being filed on behalf of defendants, has formulated as many as four points for determination and affirmed the judgment and decree passed by trial court.
7. Assailing the judgment and decree passed by the courts below, learned Senior Counsel for the defendants-appellants has confined his argument with respect to the maintainability of the suit on three folds submission; (a) that, there was no written agreement between the parties, therefore, suit for mandatory injunction to get the sale deed executed in favour of the plaintiff-respondent is not maintainable in the eyes of law inasmuch as no cause of action arose and the plaintiff-respondent has got no locus to file a suit; (b) that, the suit for mandatory injunction to get the sale deed executed amounts a suit for specific performance of contract, therefore, decree to execute the sale deed cannot be passed without returning definite finding with respect to readiness and willingness at the part of the plaintiff-respondent and (c) that, time is the essence for specific performance of contract, therefore, the suit filed on behalf of the plaintiff-respondent to execute a sale deed, in light of the allotment order dated 10.12.1987, is barred by prescribed period of limitation, therefore, it should be dismissed on the ground of laches. In support of his submissions, learned counsel for the defendants-appellants has relied upon the judgment passed by the Hon'ble Supreme Court in the case of Atma Ram vs. Charanjeet Singh reported in (2020) 3 SCC 311.
8. Per contra, learned counsel for the plaintiff-respondent has vehemently opposed the submissions as advanced by the learned counsel for the defendants-appellants and contended that in absence of written agreement inked between the parties, suit for specific performance of contract is not maintainable, therefore, there is no question of considering the readiness and willingness at the part of the plaintiff-respondent under the provisions as enunciated under Section 16 of the Specific Relief Act. It is further contended that issuance of allotment letter dated 23.12.1987 from the defendants-appellants and acceptance of fund amounting Rs.80,500/- dated 5.1.1988 at their part explicitly establishes the valid oral agreement took place between the parties, therefore, the defendants-appellants cannot withdraw themselves from the obligation at their part of the agreement. It is next contended that under Section 39 of the Specific Relief Act, the Court is competent in its discretion to grant an injunction for performance of certain acts to prevent the breach of an obligation. It is also contended that in absence of any written agreement, time factor cannot be taken as an essence of the oral agreement took place between the parties, therefore, in the given circumstances, there is no question to consider the point of limitation in filing the suit. Learned counsel for the plaintiff-respondent has made emphasis on the judgement dated 11.1.2021 passed by coordinate Bench of this Court in Second Appeal No. 439 of 2020; M/s Chowdhary Properties and two others vs. Vipin Bahadur and Another wherein identical matter has been decided by this Court against the M/s Chowdhary Properties and others, who are also the defendants-appellants in the instant Second Appeal in hand. In aforesaid Second Appeal No. 439 of 2020, suit was filed on similar set of facts wherein plaintiff (in the said suit) was allotted plot no. A-74 in the colony known as Pink City.
9. Having considered the rival submissions advanced by the learned counsel for the parties and perusal of record, it reveals that the defendants are the colonizers, who have advertised widely to sell their plots carved out in the colony known as 'Pink City'. Attracting to the advertisement, plaintiff has proceeded to allot the plot C-107, area 3 square yards and, accordingly, deposited the money. Facts with respect to the allotment of the plot in favour of the plaintiff, vide allotment letter dated 23.12.1987, and receiving money amounting Rs. 80,500/- on 5.1.1988, have been admitted by the defendants. However, the defendants have raised dispute qua rate of plot to be Rs. 550/- per square yard in place of Rs. 252.70 paise per square yard as claimed by plaintiff, which was agreed upon between the parties after concession from the original rate i.e. at the rate of Rs. 266/- per square yard. There is also dispute with regard to default in the payment of consideration amount. As per the plaintiff case, she has deposited entire money even more than required as demanded by the defendants, vide letter dated 3.12.2008, whereas, on the other hand defendants has disputed the payment of entire money and blamed to the plaintiff for default in payment.
10. In the given circumstances of the present case, it is evident that the proposal made on behalf of the defendant with respect to the allotment of plot in the colony known as 'Pink City' has been accepted by the plaintiff and in furtherance thereof, the plaintiff has deposited the money on 23.12.1987 amounting to Rs. 2,500/- (paper No. 8C) and after accepting said amount, the defendant/coloniser (promissor) has issued allotment letter on the same day i.e. 23.12.1987 to allot the plot No. C-107 admeasuring area 300 square yards in favour of the plaintiff, who, in turn, has deposited money on 5.1.1988 amounting Rs. 80,500/- (paper No. 9-C). At later stage, the defendants have issued a letter dated 30.12.2008 (paper No. 10-C) demanding additional amount of Rs. 22,592/-. In pursuance thereof, the plaintiff has deposited Rs. 51,350/- on 28.1.2009. In this view of the matter, the existence of concluded oral agreement taken place between the parties cannot be denied. The aforesaid proposition of law has carefully been considered by the learned trial court while deciding the issue No. 1 and 8. There is no case of any party that formation of concluded oral agreement was result of misrepresentation or undue influence or without free will, therefore, formation of contract under Section 10 read with Section 2 (e) and (h) of Contract Act cannot be denied. Learned trial court has held the valid relationship of transferor and transferee between the parties. In support of its finding, he has relied upon the following cases:
(i) Badri Prasad Vs. State of Madhya Pradesh and another, AIR 1970 Supreme Court 706,
(ii) Brij Mohan and others Vs. Smt. Sugra Begum and others (1990) 4 SCC 147 and
(iii) Aloka Bose and others Vs. Parmatma Devi and others (2009) 2 SCC 582.
11. I am convinced with the findings returned by the trial court who has decided the case after considering the evidence on record in right perspective, which has appropriately been affirmed by the first appellate court, that there was an existence of concluded oral agreement between the parties, which is enforceable in the eye of law.
12. So far as non-existence of written agreement between the parties is concerned, as submitted by the learned counsel for the appellants in his first submission, I am of the considered view, as discussed in preceding paragraph, that there is no legal requirement under the law for written document to enforce the agreement which took place between the parties. Agreement can be oral and same is enforceable provided formation of the contract is with free will. Hon'ble Supreme Court in the matter of Brij Mohan and others (supra) has clearly observed in paragraph 20 of its judgment as follows:-
"There is no requirement of law that an agreement or contract of sale of immovable property should only be in writing. However, in a case where the plaintiffs come forward to seek a decree for specific performance of contract of sale of immovable property on the basis of an oral agreement alone, heavy burden lies on the plaintiffs to prove that there was consensus ad idem between the parties for a concluded oral agreement for sale of immovable property. Whether there was such a concluded oral contract or not would be a question of fact to be determined in the facts and circumstances of each individual case. It has to be established by the plaintiffs that vital and fundamental terms for sale of immovable property were concluded between the parties orally and a written agreement if any to be executed subsequently would only be a formal agreement incorporating such terms which had already been settled and concluded in the oral agreement." (Para 20)
12. Same view was pronounced by Hon'ble Supreme Court in the matter of Aloka Bose (supra). In paragraph Nos. 16, 17 and 18 of the judgment, it has been held as follows:-
"An agreement of sale comes into existence when the vendor agrees to sell and the purchaser agrees to purchase, for an agreed consideration on agreed terms. It can be oral. It can be by exchange of communications which may or may not be signed. It may be by a single document signed by both parties. It can also be by a document in two parts, each party signing one copy and then exchanging the signed copy as a consequence of which the purchaser has the copy signed by the vendor and a vendor has a copy signed by the purchaser. Or it can be by the vendor executing the document and delivering it to the purchaser who accepts it. (Para 16) Considering Section 10 of the Contract Act, 1872 and the proviso thereto, no attention has been drawn to any law applicable in the State concerned at the relevant time, which requires an agreement of sale to be made in writing or in the presence of witnesses or to be registered. Therefore, even an oral agreement to sell is valid. If so, a written agreement signed by one of the parties, if it evidences such an oral agreement will also be valid. In India, an agreement of sale signed by the vendor alone and delivered to the purchaser, and accepted by the purchaser, has always been considered to be a valid contract. In the event of breach by the vendor, it can be specifically enforced by the purchaser. There is, however, no practice of the purchaser alone signing an agreement of sale.".
(Paras 17 and 18)
13. Having considered the pleading of the parties and dictum of Hon'ble Apex Court, as cited above, it cannot be said that oral agreement instituted is not enforceable and suit for mandatory injunction to get the sale deed executed on behalf of plaintiff is not maintainable. Plaintiff, being a bonafide purchaser, has paid Rs. 2,500/- + 80,500/- to dependants, who in turn have accepted said amount and issued allotment letter dated 23.12.1987, however, later on they have refused to execute sale deed. Therefore, cause action arisen compelling the plaintiff to institute a civil suit to protect her legal rights. As such, I found no force in the first submission advanced by learned counsel for the defendants/appellants.
14. So far as the second submission advanced by the learned counsel for the appellant treating the suit as suit for specific performance of contract and requirement of finding on readiness and willingness, is concerned, written statement evince that defendants have not taken such plea in their written statement. They have simply disputed the rate of land and pleaded default in payment of demanded money at the part of the plaintiff. However, in the given circumstances, conduct of the parties explicitly indicates their intention to enter into an agreement for the purposes of sale and purchase of the plot in question. Proposal made by the defendants (promissor), through advertisement was accepted by the plaintiff/purchaser (promisee) creates the formation of contract between them. Even in absence of a written document, the plaintiff cannot be deprived of to protect her rights which occurred after accepting the proposal made by the promissor and she has acted upon in pursuance of that proposal. Though, in my opinion, in the absence of any written agreement between the parties explaining the specific terms and conditions the ingredients as required under Section 16 (c) of Specific Relief Act qua readiness and willingness at the part of the plaintiff to perform her part of contract cannot be ascertained, intention of the plaintiff to purchase the allotted land is explicit by her conduct when she had hurriedly deposited the money and obtained the allotment order in her favour and, according to the plaintiff, she has made full payment. As per the pleadings made by the parties, execution of the sale deed was hampered due to pendency of the writ petition being Writ Petition No. 22445 of 2007. Vide letter dated 15.11.2009, the defendants have informed the plaintiff qua decision dated 26.10.2009 in the said writ petition. Even assuming for the sake of arguments that the courts below have not given any finding with respect to the readiness and willingness, I am of the considered view that, prima facie, bonafides of the plaintiff in performing her part of oral contract cannot be denied considering the last payment made by her in pursuance of demand letter dated 30.12.2008 and registered notice dated 12/13.9.2010 sent to defendants to execute registered sale deed qua allotted plot. It is explicitly evident that the last price fixed by the defendants was 1,11,150/- whereas against the said amount, the plaintiff has already deposited money amounting Rs. 1,34,350/-. As per the case of the plaintiff, she is ready to pay the remaining amount, if any, for the purposes of execution of the sale deed, therefore, due diligence and boanfides at the part of the plaintiff cannot be denied in this matter.
15. The third submissions, as advanced by the learned counsel for the appellant qua limitation in filing the suit, is unfounded as well. In the given circumstances of the present case, as discussed above, there is no-existence of a written document reciting the condition of time limit/period qua execution of sale deed, which is admitted to both the parties, therefore, particular period/time limit, prima facie, cannot be said to be an essence for the agreement and same cannot be ascertained in the absence of written terms and conditions. In this peculiar circumstances, the law of limitation to file suit for mandatory injunction cannot be said to be applicable in the instant matter. Relying upon the case of Atma Ram (supra) learned counsel for appellant has tried to submit that even if the suit was filed for the mandatory injunction and the same has been treated as a suit for specific performance of contract, therefore, in that eventuality, amendment of plaint was required under Order 6 Rule 17 CPC, and the limitation would be considered from the date of amendment carried out in the plaint for the purpose of competence of the suit. There is no doubt qua proposition of law that specific time, in case, prescribed under the terms and conditions of the contract took place between the parties, same shall be the relevant date for enforcement of the contract and law of limitation will apply accordingly. It is also settled that where the amendment relates to the limitation of filing the suit, the limitation will be reckoned considering the date of amendment in the pleading which shall be relevant date for the purposes of deciding the competence of the suit which was required to be filed within the prescribed period of limitation. Such amendment bears on law of limitation and is exception to the doctrine of relation back. In the cited case, as relied upon by the learned Senior Advocate, suit was filed for mandatory injunction to direct the respondent to execute the documents of transfer of property in question after receiving balance sale consideration and, accordingly, Court's fee was paid by the plaintiff. It appears that the said suit was filed on the basis of an agreement dated 12.10.1994 which had taken place between the parties. Respondents have filed written statement denying the pleading made by the plaintiff including the execution of the agreement. He has also questioned the maintainability of the suit in the form in which it was filed. During the pendency of the said suit, the defendant has moved an application with respect to the maintainability of the suit on the ground that the suit is not maintainable for the enforcement of specific performance of contract of sale. Learned trial court has disposed of said application holding that suit was in fact one for specific performance of agreement to sale and the technical objection regarding the maintainability could be overcome by directing the plaintiff to pay the requisite court's fee and, accordingly, the trial court has directed the plaintiff to cure the defect by depositing the court fee. In pursuance of the said order, the plaintiff has deposited the court fee. In this backdrop of the case, Hon'ble Supreme Court has held that in the event of suit for specific performance, the plaintiff ought to have submitted the requisite court fee of the value on the basis of the sale consideration mentioned in the agreement. It is further observed that, in case, the suit is only for the mandatory injunction then the recourse is open for the plaintiff to seek an amendment under Order 6 Rule 17 of the CPC. It is further observed that law of limitation will, accordingly, be applicable. The relevant paragraph No. 7, 8 and 9 of judgment Atma Ram (supra) relied upon by the learned Senior Advocate for the appellant is quoted hereinbelow:
7. As a matter of fact, if the suit was actually one for specific performance, the petitioner ought to have at least valued the suit on the basis of the sale consideration mentioned in the agreement. But he did not. If the suit was only for mandatory injunction (which it actually was), the only recourse open to the petitioner was to seek an amendment under Order 6 Rule 17 CPC. If such an application had been filed, it would have either been dismissed on the ground of limitation (K. Raheja Constructions Ltd. v. Alliance Ministries) or even if allowed, the prayer for specific performance, inserted by way of amendment, would not have been, as a matter of course, taken as relating back to the date of the plaint (Tarlok Singh v. Vijay Kumar Sabharwal, Van Vibhag Karamchari Griha Nirman Sahkari Sanstha Maryadit v. Ramesh Chander). Therefore, a short-cut was found by the petitioner-plaintiff to retain the plaint as such, but to seek permission to pay deficit court fee, as though what was filed in the first instance was actually a suit for specific performance. Such a dubious approach should not be allowed especially in a suit for specific performance, as the relief of specific performance is discretionary under Section 20 of the Specific Relief Act, 1963.
8. It may be true that the approach of the High Court in non-suiting the petitioner-plaintiff on the ground of limitation, despite the original defect having been cured and the same having attained finality, may be faulty. But we would not allow the petitioner to take advantage of the same by taking shelter under Section 149 CPC, especially when he filed the suit (after more than three years of the date fixed under the agreement of sale) only as one for mandatory injunction, valued the same as such and paid court fee accordingly, but chose to pay proper court fee after being confronted with an application for the dismissal of the suit. Clever ploys cannot always pay dividends.
9. Coming to the second aspect revolving around Section 16(c), a look at the judgment of the trial court would show that no issue was framed on the question of readiness and willingness on the part of the petitioner-plaintiff in terms of Section 16(c) of the Specific Relief Act, 1963. The fact that the petitioner chose to issue a legal notice dated 12-11-1996 and the fact that the petitioner created an alibi in the form of an affidavit executed before the Sub-Registrar on 7-10-1996 (marked as Ext. P-2) to show that he was present before the Sub-Registrar for the purpose of completion of the transaction, within the time stipulated for its performance, was not sufficient to conclude that the petitioner continued to be ready and willing even after three years, on 13-10-1999 when the plaint was presented. No explanation was forthcoming from the petitioner for the long delay of three years, in filing the suit (on 13-10-1999) after issuing a legal notice on 12-11-1996. The conduct of a plaintiff is very crucial in a suit for specific performance. A person who issues a legal notice on 12-11-1996 claiming readiness and willingness, but who institutes a suit only on 13-10-1999 and that too only with a prayer for a mandatory injunction carrying a fixed court fee relatable only to the said relief, will not be entitled to the discretionary relief of specific performance."
16. The facts and circumstances of the cited cases are distinguishable from that of the given circumstances in the case in hand. In the present matter, terms and conditions of the agreement are not taken down in the nature of document, however, the oral agreement between the parties is concluded by their conduct. Issuance of allotment letter and acceptance of sale consideration at the part of defendant/colonizer (promissor) is sufficient to prove the formation of contract between the parties. There is nothing on the record to prove that the time was essence of the agreement as the same has not been specified any where. In case in hand, there is no judicial order to treat/convert the suit for mandatory injunction in the suit for specific performance of contract nor the plaint has been modified/corrected by moving any amendment application or by submitting the court fee treating it to be a suit for specific performance of contract, therefore, in my opinion, there is no case of incompetence of suit being barred by prescribed period of limitation. More so, Writ Petition No. 22445 of 2007 was decided on 26.10.2019, thereafter, plaintiff has sent registered notice dated 12/13.9.2010 to the defendants requesting them to execute sale deed qua allotted plot and file suit within three years i.e. on 12.3.2011. Therefore, suit cannot be treated to be filed beyond prescribed period of limitation from the date when cause of action arose.
17. While filing the instant appeal, the appellant has formulated as many as 12 substantial questions of law as averred at the bottom of the memo of appeal. For ready reference, they are quoted hereinbelow:
"A. Whether the courts below illegally granted the relief of specific performance of contract in suit in which the relief was sought for the mandatory injunction without amendment of any relief in the suit which was simple suit of mandatory injunction?
B. Whether, courts below have committed manifest illegality treating the suit of mandatory injunction as a suit for relief of specific performance of contract and granted the relief?
C. Whether, the suit of the plaintiff-respondent was not maintainable and the plaint is liable to be rejected under Order-VII Rule 11 of C.P.C.?
D. Whether, suit of the plaintiff respondent for the relief which was granted by courts below was barred by limitation the court below had failed to consider that allotment of the plot was alleged to have done on 23.12.1987 and suit being O.S. 601 of 2011 was filed on 17.3.2011 after 24 years?
E. Whether the relief of specific performance of the contract suit was barred by limitation even though the court below decreed the suit granting relief of specific performance of the contract in the suit for mandatory injunction?
F. Whether, there was no agreement to sell registered or unregistered in between the parties nor any concluded enforcement contract even though the courts below decreed the suit for specific performance of the contract which is liable to be set-aside?
G. Whether on 1.1.1977 amendment had taken place in Section 54 of the transfer of the property Act and 17(2) of the Registration Act by which agreement to sell regarding the agricultural property are require to be registered document in the present no registered or unregistered agreement even though the court below decreed the suit of mandatory injunction treating the same as suit for specific performance of the contract hence judgment and decree passed by courts below is liable to be set-aside?
H. Whether, in the suit of plaintiff-respondent no relief could be granted as per provision of Section 41-E and 41H of the Specific Relief Act but the court below had not consider the said aspect of the matter as such the judgment and decree passed by courts below is liable to be set-aside?
I. Whether, courts below had committed gross illegality the valuation of the disputed plot as Rs. 266 per sq. gaj while valuation settled Rs. 550/- per sq. gaj at the time of booking of plot in the year 1987 and no evidence was produced by the plaintiff-respondent about the valuation even though the courts below in arbitrary manner held the valuation Rs. 266/- per sq. gaj?.
J. Whether, as per the booking development charge is liable to be paid by the booking holder of the plot but the courts below have not considered this aspect of the matter as such judgment and order of the courts below is liable o be set-aside?
K. Whether, suit for specific performance can be decree without framing any issue and without deciding readiness and willingness as contemplated U/s 16 (C) of specific Relief Act?
L. Whether, booking of the plot was done on 23.12.1987 and suit was filed after 24 years on 17.3.2011 hence the suit was time barred and liable to be barred under Order VII Rule-11 C.P.C.?"
18. I have carefully considered all the substantial questions of law as formulated by the appellants which appears to be misconceived and non-substantial as emerges from the facts and circumstances of the present case. Considering the short submissions advanced by the learned Senior Advocate for the appellants in the light of the given circumstances of the present case, I am of the view that the courts below have rightly decreed the suit for mandatory injunction directing the defendants-appellants to execute the sale deed in favour of the plaintiff after receiving the money amounting Rs. 2,500/- and declared the cancellation letter dated 7.10.2011 to be null and void. Issuance of cancellation letter dated 7.10.2011 at subsequent stage during the pendency of the suit explicitly indicates the malafide intention of the defendants, who have deliberately taken such a step after institution of the suit just to avoid their obligation which they promised to be fulfilled at the time of allotment of the plot in question i.e. plot No. C-107 measuring area 300 square yards through allotment letter dated 23.12.1987. It would not be out of context to cite the provisions of Section 39 of Specific Relief Act, which is quoted hereinbelow:
"39. Mandatory injunctions.-When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the court is capable of enforcing, the court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts."
19. A simple reading of the provisions as enunciated under Section 39 of the Specific Relief Act connotes that the court may in its discretion grant mandatory injunction, when it is necessary to compel the performance of certain contracts which the court is capable of enforcing, to prevent the breach of an obligation and also to compel the performance of requisite act. Applying the aforesaid provision, in the given circumstances, it is explicit that the defendants are at the fault who are trying to avert their obligation to perform part of their contract, which was concluded between the parties. Appellants have received the consideration money, however, averted their part to execute the registered sale deed in favour of the plaintiff/respondent. In this backdrop of the case, the suit for mandatory injunction has rightly been filed by the plaintiff-respondent against the defendants-appellants and the courts below have rightly decreed the suit upholding the entitlement of the plaintiff for mandatory injunction and for the declaratory injunction as well declaring the cancellation letter dated 7.10.2011 null and void. Overall conduct of the plaintiff, from the date of depositing the money up to the date of sending the registered letter in the nature of notice, indicates the bonafide intention of the plaintiff to get the sale deed executed in her favour.
20. Moreover, the Court cannot oblivious as well to the judgment dated 11.1.2021 passed by the co-ordinate Bench of this Court in second appeal No. 439 of 2020 rendered in the similar facts and circumstances of the case wherein another plot No. A-74 situated in the 'Pink City' has been promised to be transferred by the present defendants/appellants. Suit filed on behalf of plaintiff (allottee) has concurrently been decreed by the trial court as well as first appellate court, and ultimately culminated in favour of the plaintiff by dismissing the second appeal filed on behalf of the defendant (colonizer) vide judgment dated 11.1.2021.
21. In this conspectus as above, I am of the considered view that the bonafide claim of the plaintiff cannot be denied on hyper technical grounds as tried to be submitted by the learned counsel for the appellants, whereas, they have failed to make out any substantial questions of law to entertain the instant second appeal against the judgment and decree, under challenge, passed by the courts below.
22. After careful consideration of the matter in hand, I failed to find out any substantial questions of law so as to interfere in the concurrent finding of fact returned by the courts below in exercise of second appellate jurisdiction under Section 100 CPC. It is settled that with respect to the questions of fact, the first appellate court is the last court of facts. At the second appellate stage, no second appeal under Section 100 CPC can be entertained without making out a substantial question of law. Submission as raised by the learned Senior Advocate for the appellant cannot be treated to be a substantial questions of law in the given circumstances of the present case.
23. Resultantly, the present writ petition, being devoid of merits and misconceived, is dismissed with no order as to the costs.
Order Date :- 10.5.2023 VR/vinay