Calcutta High Court
Smt. Anjali Das vs Bidyut Sarkar on 22 July, 1991
Equivalent citations: AIR1992CAL47, (1992)1CALLT166(HC), 96CWN485, AIR 1992 CALCUTTA 47, (1992) 1 CALLT 166 (1992) CAL WN 485, (1992) CAL WN 485
ORDER MonoranjanMallick,J.
1. These two appeals arise out of the same judgment and decree passed by the Subordinate Judge, 2nd Court, Alipore in T.S. No. 246/81 and T. S. No. 123/84 tried analogously by the learned trial Judge under the order of High Court, Calcutta. The facts of these two suits may be briefly stated as follows :--
2.One Bidyut Sarkar has filed the T.S. No. 246/81 before the learned trial Judge alleging that he is the owner of the flat in suit. He agreed to sell the same to one Smt. Anjali Das, the defendant in February, 1980 for a consideration of Rs. 48,800/- subject to the permission being granted by Vidyasagar Samabaya Abasan Samity Limited a registered Co-operative Society under which the plaintiff was holding the flat in suit. In spite of his sincere attempts, both the plaintiff and the defendant failed to obtain necessary permission from the said Samity. As such, the Agreement dated 7-4-80 was cancelled. Meanwhile, the defendant was allowed by the plaintiff to stay in the suit flat as licensee. The Samity objected to such illegal occupation if the defendant and asked the plaintiff to get it vacated by the defendant. The plaintiff then asked the defendant to quit and vacate by a letter dated 10-8-81 but the defendant failed and neglected to quit and vacate the same. The plaintiff has, therefore, filed this suit for recovery of possession of the fiat in suit from the defendant and for damages and compensation for use and occupation of the flat. The defendant, Anjali Das contested the suit contending, inter alia, that the defendant entered into agreement for sale with the plaintiff to purchase the fiat in question for Rs. 1,10,000/- and at the suggestion of the plaintiff's father the agreement as well as the Deed of Conveyance was agreed to show the consideration money to be Rs. 48,800/-, that the defendant agreed to the said suggestion on condition that he would be in possession of the suit flat immediately on payment of Rs.61,206/- by way of earnest money, that the defendant paid the said amount to the plaintiff and the plaintiff delivered possession of the flat in suit to the defendant on 7-4-80. The defendant was entitled to get the specific performance of the agreement for sale and he not being a licensee is not liable to be evicted from the suit flat.
3. During the pendency of the above suit Anjali Das, the defendant in the above Title Suit has filed Title Suit No. 123 of 1984 the suit for for specific performance of contract against Bidyut Sarkar alleging that she was all along ready and willing to perform her part of contract but the defendant failed and neglected to do so and that the demand notice was issued to the defendant to get the Sale Deed executed and registered and as the defendant did not execute and register the sale-deed in spite of such notice, the plaintiff has filed the suit for specific performance of contract.
4. The defendant, Bidyut Sarkar contested the suit disputing the claim of the plaintiff that the consideration money was Rupees 1,10.000/- and reiterated that the consideration money of flat in suit in question was fixed at Rs. 48,800/-. The defendant also denied to have received the earnest money of Rupees 61,200/-. His case is that agreement stood cancelled for want of necessary permission from the Samity and the defendant, therefore, revoked the licence granted to the plaintiff and the plaintiff is, therefore, neither entitled to get the specific performance of contract nor to continue to be in occupation of the suit premises.
4A. The learned trial Judge on considering the evidence adduced by both the parties has decreed the T.S. No. 246/81 and dismissed the T.S. No. 123/84.
5. Being aggrieved by and dissatisfied with the judgment and decree passed in the above two suits, Smt. Anjali Das, the defendant in T.S. No. 246/81 and the plaintiff in T.S. No. 123/84 has preferred the two appeals which have also been heard analogously by this Bench.
6. On behalf of the appellant it is urged that the learned trial Judge has come to the erroneous findings which are sustainable in law.
Following points have been raised by the appellant -
1) The learned trial Judge erroneously held that the appellant cannot lead oral evidence to substantiate his case that the consideration money for sale of the flat was for Rupees l,00,000/-and Rs. 61,200/- was paid on 7-4-81 and the said evidence varying the terms of the written agreement dated 7-4-1980 is hit by Section 92 of the Evidence Act.
2) The learned trial Judge should have held that the appellant paid Rs. 61,200 / - on 7-4-81 to the respondent and the appellant in terms of the agreement for sale entered into possession of the flat in suit and she cannot be held to be licensee and is entitled to the protection from eviction under S. 53A of the Transfer of Property Act till she could obtain the specific performance of the contract.
3) The learned trial Judge erroneously held that the agreement is a contingent contract or that it is immoral or that it is vague and unenforceable.
4) The learned trial Judge should have held that the appellant being all along ready and willing to perform her part of the contract, the contract for sale is specifically enforceable subject to the permission being given by the Co-operative Society and such contract is not a contingent contract in view of several decisions of the Supreme Court and the Court can grant the decree subject, however, to the permission being obtained from the Cooperative Society.
Under the order of the Division Bench the Vidya Sagar Samabaya Abasan Samity Ltd. has been added as a respondent in this appeal and the said Samity through its Secretary has filed a supplementary affidavit and has expressed his ignorance as to in what capacity the appellant is occupying flat in suit since 17-4-81 and he is not aware what is her status. He, however, intimates that the Commissioner, Sanchaita Investment has issued the letter dated 19-4-84 addressed to the respondent Bidyut Sarkar asking him not to sell or transfer the flat in suit and also directed the Society also not to permit and register any further transfer.
7. Both the appellant and the respondent No. 1 has urged before us that the order of attachment issued by the Commissioner, Sanchaita Investment has since been withdrawn by the Commissioner and there is no such attachment in force.
8. At the time of the hearing the learned Advocate appearing for the respondent No. 2 has urged that the Society will abide by whatever decision the Court will take in accordance with law.
The respondent No. 1 contests both the appeals.
The respondent No. 1 takes the following points -
(1) The appellant cannot succeed in the suit for eviction and is liable to be evicted unless she can establish some right to be in possession of or title to the flat suit. Her case is that she has been given possession in pursuance of contract for sale and if she fails her relief for specific performance she is liable to be evicted.
(2) The agreement between the parties is a contingent contract inasmuch as the same contemplated that to make the contract effective approval and/ or sanction by the Cooperative Society must be obtained and in view of Sections 31 and 32 of the Contract Act, 1872 when the Society did not approve the sale the agreement has failed.
(3) The contract having been cancelled by the respondent same is no longer enforceable.
(4) The contract itself being uncertain and vague the Court cannot specifically enforce such contract.
(5) No explanation has been given as to why the agreement was not enforced so long and the delay will defeat the equitable relief.
(6) The doctrine of part performance of contract is not available to the appellant.
(7) The appellant could not lead evidence that the agreement for sale was for Rupees 1,10,000/- and the appellant paid Rupees 61,200/- to the Respondent on 7-4-80 as the same could have the effect of varying the terms of the written agreement for sale.
(8) Moreover, there is no satisfactory evidence that the appellant paid Rs. 61,200/- to the respondent No. 1 on 7-4-80 as sought to be proved.
9. That the respondent entered into an agreement for sale of the flat in suit with the appellant Smt. Anjali Das is an admitted fact. It is an admitted fact that the respondent being a member of the Vidyasagar Sambaya Abasan Samity, a registered Co-operative Society the sale was to be completed only with the approval of the said registered Society.
10. The dispute between the parties is in the matter of the total consideration money fixed and as to the nature of the contract. The case of the respondent is that the contract was a contingent contract and the fulfilment hereof is dependant upon the contingency of the third party namely, the Co-operative Society in the matter of the granting of the approval and when such approval has been refused the contract in view of the provision of Ss. 31 and 32 of the Indian Contract Act has become unenforceable and the respondent has therefore cancelled the contract. It is further the case of the respondent that the appellant being in urgent need of accommodation was given possession of flat in suit on 8-4-1980 for occupying the flat as licensee and as the Society refusing approval asked the respondent to get the appellant vacated from the flat in suit. The respondent issued the notice upon the appellant to quit and vacate and she having refused, has brought this T.S. No. 246 of 1981 and is entitled to get back possession of the flat in suit and the learned trial Judge was, therefore, quite justified in granting the respondent decree and as the contract has become unenforceable, the learned trial Judge has rightly dismissed the suit for specific performance of the contract. It is also contended that Sec. 53A of the Transfer of Property Act is not applicable to this case and even if it be conceded that the appellant was given possession in terms of the contract in writing the specific performance having became impossible of performance the appellant has no legal right to continue in possession.
11. We would first decide as to what were the exact terms of the contract for sale of the flat in suit and as to whether the contract is a contingent contract or not and if so, whether the contingency has failed resulting in the contract becoming unenforceable. We would also consider as to whether the possession was delivered to the appellant in terms of the agreement for sale or not.
12. As regards the dispute regarding the terms of the contract the main dispute is as to the amount of consideration.
13. According to appellant the consideration agreed upon was Rs. 1,10,000/ -, that on 7-4-80 Rs. 61,200/- was paid as earnest money to the respondent at the residence of the appellant in presence of his parents that the respondent and his father who negotiated in sale with the appellant wanted to show the consideration as Rs. 48,800/- and prepared the document dated 7-4-80 to that effect himself and no receipt was granted regarding the payment of Rs. 61,200/- but the said payment having been made to the respondent in presence of his parents, the key of the flat was handed over to her, who after taking possession of the flat made necessary repairs and started occupying it since 17-4-80 and has been continuing such possession in such capacity and her possession is protected under S. 53A of the Transfer of Property Act and till she gets specific performance of the contract which she is entitled to get under the law with the approval of the Co-operative Society she is entitled to remain in possession. It is also the case of the appellant that though initially the Society has refused to admit her to the membership the Society but has supplied the form of membership subsequently which she has duly filled in and submitted with the Society and the Society has also kept his name in the waiting list in terms of their bye-laws and the case of the respondent that the contract has become unenforceable is not correct. It is also the case that the contract is not a contingent contract and is still enforceable with the approval of the Society and the Society in all probabilities will give the approval as she has necessary qualifications to be admitted as a member of the Society under the relevant provisions of the bye-laws of the Society and the contract is, therefore, specifically enforceable and as the appellant was all along ready and willing to perform her part of the contract the learned trial Judge has illegally refused specific performance on illegal grounds.
14. The appellant has examined herself as D.W. 1 and her son D.W. 2 Nilotpal Das to prove her case that the agreement for sale of the flat in suit was for Rs. 1,10,000/- and the letter Ext. 5(a) dated 7-4-80 was written by the father of the respondent in which on his request the amount of consideration was purportedly written as Rs. 48,800/- after she had paid Rs. 61,200/- to the respondent in presence of the parents. Evidence has. also been laid to prove that prior to 7-4-80 the appellant encashed several fixed deposit amounts lying in banks and also sold ornaments procure the sum of Rs. 61,200/- to be paid to the respondent. Both P.W. 1 Bidyut Sarkar and his father P.W. 2 Baidyanath Sarkar have denied the said story of the consideration being fixed at Rs. 1,10,000/-and the receipt of Rs. 61,200/- on 7-4-80 and have stated that the consideration was for Rs.48,800/-.
15. Moreover, it is urged on behalf of the respondent No. 1 that the appellant is not entitled to lead oral evidence contrary to the express terms of the written agreement for sale evidenced by the letter dated 7-4-80, Ext. 5(a), and such oral evidence varying the terms of the written contract is inadmissible in evidence u/S. 92 of the Evidence Act. On behalf of the appellant Mr. Roy Chowdhury has urged that the agreement for sale was not wholly evidenced by Ext. 5(a) on 7-4-80 that the agreement for sale was entered into earlier verbally, that on the contract being so settled, both the parties applied before the Cooperative Society for giving approval to the agreement for sale on 27-2-1980 and that after Rs. 61,200/- was paid by the appellant to the respondent in presence of the parents on 7-4-80 the father of the respondent Mr. Baidyanath Sarkar had himself written the letter Ext. 5(a) and got the appellant's signature showing the consideration as Rs. 48,800/ -and did not agree to grant any receipt for the amount receipted but on such payment the key of the flat was handed over to the appellant.
16.It is an admitted fact that both the parties wrote to the Society for approval of the sale and for transfer of membership from the respondent to the appellant by two separate letters dated 27-2-80.
17. The respondent in his plaint in T.S. No. 246 of 1981 has also stated that the agreement was entered into sometimes in February, 1980. It is an admitted fact that a letter was prepared on 7-4-80 by Baidyanath Sarkar and the appellant thereafter signed at. That was according to the appellant after the appellant received the amount of Rupees 61,200/-.
18. Therefore, it is a case in which the agreement for sale was not evidenced by Ext. 5(a) alone. There was an oral agreement for sale after which both the parties wrote to the Society on 27-2-80. If the agreement was not finalised prior to that date there could not have been the writing of letters both by the appellant and the respondent on 27-2-80 to the Society for approval and for transfer of membership in favour of the appellant. Therefore, the agreement was partly oral and partly in writing. To such agreement there can be no bar of Section 92 of the Evidence Act. The appellant can prove as to what the exact terms of the said agreement was. The agreement for sale may be orally or in writing. It may be partly oral and partly in writing. When it is a case of the agreement being partly verbal and partly in writing bar of Sec. 92 cannot be attracted.
19. So, the appellant can lead evidence to prove the consideration was fixed at Rupees 1,10,000/-. The learned trial Judge did not accept the story mainly on the ground that the letter Ext. 5(a) shows otherwise and that even though the appellant produced sufficient proof that had procured the amount of Rs. 61,200/- to be paid to the respondent on 7-4-80 yet there being no receipt for payment of such money the story is not believable.
20. We are of the view that there are strong circumstances to make the story of the appellant very probable. The language of the letter Ext. 5(a) makes room for doubt as to whether Rs. 48,800/- mentioned therein was the full considerations money fixed. The relevant portion of the letter reads as follows :--
7th April, 1980.
Sri Bidyut Sarkar, T-3, Vidya Sagar Niketan, Vidya Sagar Samabay Abasan Samity Ltd., Salt Lake City, Calcutta--700064.
Dear Sir, Re : Flat No. T-3, Vidya Sagar Niketan.
Further to my application date 27-2-80 addressed to the Hony. Secretary, Vidya Sagar Sambay Abasan Samity Ltd., Salt Lake City, Calcutta-700 064 a copy of which handed to you I hereby agree and undertake to pay you the sum of Rs. 48,800/- (Rupees Forty eight thousand and eight hundred only) through the above Society in full and final settlement of the consideration in respect of the ownership of your above flat to be transferred in my favour by the said society as soon as possible after completion of the required formalities.
It is clearly understood and agreed between myself and yourself that the above amount viz. 48,800/- (Rupees forty eight thousand and eight hundred only) as mutually agreed upon includes the Tax liability which is due until 31st March, 1980 in respect of the said flat to be borne by you as and when payable to the appropriate authority and thereafter any liability arising out of the said flat to be borne by me.
Thanking you, Yours faithfully, Anjali Das.
Confirmed. Confirmed. 7-4-80. Bidyut Sarkar. Nilotpal Das. 7-4-80 7-4-80
Carefully reading of that letter would show that on that date the appellant was agreeing to pay Rs. 48,800/ - in full and final settlement of the consideration after the ownership of the flat in suit is transferred to her after observance of all the formalities. That letter does not specifically show that the total consideration was Rs. 48,800/- and does not rule out the possibility of the total consideration being Rs. 1,10,000/- and such a letter could have been issued by the appellant after the appellant had made payment of Rs. 61,200/ - to the respondent.
21. It is the clear evidence of the appellant proved by oral and documentary evidence that she got the several deposits encashed in such applications he wrote that she was doing it for purchasing a property. On behalf of the respondent it is contended that the appellant could have procured the said money for payment of Rs. 48,800/- to the respondent after the approval of the same by the Society.
22. We are unable to accept the said contention. In order to procure Rs. 48,800/-the appellant could not with such haste procure Rs. 61,200/- when the Society did not yet approve the sale and it was not known how long it would take to give the approval.
23. Moreover, it is the case of the appellant that immediately in such payment the key of the flat was handed over to her.
24. It is an admitted fact that the key of the flat was handed over to the appellant at about that time. The respondent has stated that the key was given on 8-4-80.
25. Even though the respondent disclosed in the petition written to the Society that the appellant was his grand-mother but it is now disclosed that there is no relationship between the appellant and the respondent. The appellant was living at that time in a rented flat and there were no serious threat from the landlord to vacate it. Moreover, it is not at all probable that without receiving major portion of the consideration money the owner of the flat would deliver possession of the flat in suit and that to without any agreement to get any amount monthly by way of rent or licence fee. It is not at all probable that unless somebody is a close relative a person would deliver possession of the flat to him only on entering into an agreement for sale and without even securing any earnest money.
26. Therefore, we are satisfied that the consideration fixed was Rs. 1,10,000/- and that out of which Rs. 61,200/- was paid on 7-4-80 by the appellant to the respondent No. 1 and on such payment the letter Ext. 5(a) was issued by the appellant and the key of the flat was handed over to the appellant by the respondent and after such letter the appellant had the obligation to pay the balance amount of Rs. 48,800/- through the Society on the Society giving approval to such agreement for sale.
27. The next point for decision is whether the agreement for sale was a contingent contract and the contingency having failed, namely, approval of the Society not given the contract has become unenforceable.
28. Mr. Roy Chowdhury for the appellant submitted that Supreme Court has clearly held that even though on agreement for sale to be specifically enforced requires approval by Government or other Authority the contract is not a contingent contract and the decree for specific performance can be passed against the vendor directing him to specifically enforce the contract or getting such approval.
29. On the other hand Mr. Jayanta Mitra appearing for the respondent No. 1 has submitted that the appellant was fully aware that the sale could not be effected without the approval of the Society, that the respondent No. 1 took all steps to get such approval but when the Society refused to give it he cancelled such contract and asked the appellant to quit and vacate the suit premises.
30. It is an admitted fact that the respondent No. 1 who is the owner of the flat in suit is occupying it under Vidya Sagar Samabaya Abasan S amity a registered Cooperative Society, under the bye-laws of the said society the transfer of the flat is subject to the approval by the Society and on the intending purchaser abiding by the terms and conditions thereof. Rule 6 of the Bye-laws of the Vidyasagar Samabaya Abasan Samity which are relevant for the purpose of deciding the appeal is reproduced below :--
"6. (a) Any Indian capable of making contract under Section 11 of the Indian Contract Act, 1872, joining in the application for registration of the Society or subsequently admitted to membership after registration in accordance with the rules and bye-laws, shall be a member of the Society.
Adverse votes of the majority of members present at a meeting of the Managing Committee will be sufficient to exclude an application from membership provided that no person shall be admitted as a member without the approval of the Registrar.
Provided further that no money shall be collected from any intending member whose membership has not been approved by the Registrar. The Managing Committee may, however, charge a nominal fee for issuing the prescribed application form to an intending applicant.
(b) Every application for admission to membership shall be in writing in the form prescribed by the Managing Committee of the Society for the purpose, on payment of Rs. 10/- and signed by the applicant. Such Applications shall be dealt with by the Managing Committee. !n case of rejection, the applicant shall have a right to appeal to the General Meeting.
(c) The Managing Committee shall prepare and maintain a panel of names of persons with full particulars of present and permanent address and occupation from amongst those who applied for membership of the Society but could not be admitted as such, for subsequent admission, on priority basis in terms of the date of application, as members thereof when circumstances so permit. The panel of such members shall not include more than 25% of the total number of members of the Society.
(d) The number of members other than the associate members shall not exceed the total number of houses or flats proposed to be allotted by the Society.
(e) In case of any transfer of a house or flat by a member preference shall be given to applicants in accordance with the provisions of bye-law 6(c) above.
Provided that, if the transferer expresses his intention to transfer his house or flat to any of his close relatives, the name of such relative may be included in the panel referred to under sub-clause (c) above, in which case, the nominee of the transferer shall be required to submit a written formal application for membership as required under sub-clause (b) above. Such close relative shall be given priority over other applicants in the panel and, if found acceptable by the Managing Committee and approved by the Registrar, shall be accepted as a member.
Note: For the purpose of this clause a "Close Relative" shall mean (1) Wife, (2) Husband, (3) Son, (4) Step-son, (5) Daughter (both married and unmarried), (6) Stepdaughter (both married and unmarried), (7) Father, (8) Mother, (9) Brother, (10) Sister, (11) Daughter's husband, (12) Sons' wife, (13) Legally adopted son, (14) Legally adopted daughter, (15) Grand-son, (16) Grand-daughter, (17) Brother's sons and daughters, (18) Sister's sons and daughters.
(f) All transfers of land, houses or flats shall be effected only by the Managing Committee. As a basis for this, the Managing Committee shall determine the prevailing value of the land, house or flat at the time of transfer with the concurrence of all the parties concerned, viz. the Managing Committee, the transferer and transferee, taking into consideration any premium payable to the Society. The amount to be paid by the transferee or incoming member shall be on the basis of the prevailing value of land, house or flat as determined in the aforesaid manner less any outstanding loan or capital cost of construction and any depreciation for the period on the property as determined by the Society. The transferee has, in addition, to pay any premium charged by the Society, and shall give an undertaking to pay the amount of outstanding loan with interest, if any, and shall purchase all the shares held by the transferer or the outgoing member at par.
The transferer or the outgoing member, shall besides having the proceeds of the purchase of his shares, will receive the present value of the land, house or flat as determined by the Managing Committee in the aforesaid manner less (1) any outstanding loan against capital cost, (2) depreciation, (3) any tax liability or other liabilities with interest, if any, accruing so far, and (4) any penalty levied by the Society. The land, house or flat will pass on to the transferee or the incoming member only after the full amount has been paid and a declaration given by him for payment of the outstanding loan, with interest, if any, and after his membership has been approved by the Registrar.
(g) No person shall be admitted as a member of the Society who already owns a house, flat or a building site within Calcutta Metropolitan Area as defined under C.W.D.A. Act, 1972 either in his own name or in the name of his dependants or members of family as defined under Rule 201 of the West Bengal Co-operative Societies Rules, 1974, or whose needs for a house or flat are not considered necessary, pressing or deserving in the opinion of the Managing Committee or who has failed to furnish full and accurate information of house, flat, etc. owned by him or who has failed to furnish an affidavit as required under Rule 202."
The Rule 6 therefore clearly indicates that the transfer of the flat shall guided by the provisions of the rules and the essential condition for such transfer is that the intending purchaser has to be enrolled as a member of the Society.
31. It is true that the correspondence that passed between the parties and the Society shows that initially the Society did not agree to the appellant being enrolled as member, but in 1981 that position was reversed and the appellant has been kept in the waiting list of the membership and the application for membership has been duly received. It is also disclosed in document that the Society has also offered to the appellant another flat for a consideration of Rs. 1,90,000/-.
32. The appellant who is interested in the transfer of the flat in suit in her favour was not interested in accepting any other flat. But these facts disclose that the Society at present is willing to consider the appellant as a member of the Society which is an essential condition for the flat in suit being transferred to her.
33. The learned Advocate for the respondent No. 2 Society has also submitted that the Society will abide by whatever decision this Court will render in the matter. The learned Advocate has also referred to us the Supreme Court decision in which while considering the right of an allottee of a flat in a Co-operative Society constituted under Maharashtra Cooperative Societies Act, 1960 and the bye-laws framed by the relevant Co-op. Society has held that the transfer of a flat held by a member of the Co-operative Society is not. wholly illegal and it is transferable subject to the approval of the Society and consequently it is liable to be attached and sold in execution of a Civil Court decree and such auction-purchaser may apply to the Society for being admitted as member and if the auction-purchaser fulfils the conditions of such membership the Society would normally admit him to such membership and the transfer will be validated. The learned Advocate for the respondent No. 2 before us submits that the principle laid down therein is applicable to this case and if the Court decrees the suit for specific performance of contract subject to the approval being given by the Society the Society will abide by such decree of such Court and will decide as to whether it would approve such transfer or not.
34. On perusing the relevant bye-laws of the Society specifically Rule 6 we are also of the view that the transfer of the flat of a Cooperative Society under the W.B. Co-operative Societies Act, 1983 is transferable but subject to the approval by the Society.
35. In view of the legal position thus enumerated in the above we are of the view that the appellant and respondent No. I could enter into a valid agreement for sale of the flat in suit, that both the parties had the obligation to apply for necessary approval of the Co-operarive Society which they admitted to have done and the position as it how stands the Society has not yet refused the approval and on the contrary the learned Advocate for the Society has agreed to abide by whatever decision the Division Bench thinks fit and proper.
36. Therefore, even if it be conceded for the sake of an agreement that the contract was a contingent contract as sought to be urged by the respondent the contingency i.e. the approval of the Co-operative Society not having been refused the contract has not become enforceable.
37. Mr. Roy Chowdhury, however, does . not accept the contention of the respondent No. 1 that the contractis a contingent contract. He refers before us the decision of Supreme Court in Nathulal v. Phulchand, , where the Supreme Court has held that where statute requires permission of the authority to effect a valid transfer the agreement to transfer the property must be deemed to subject to the implied condition that the vendor shall obtain the necessary permission. Similar view has been expressed in (Mrs. Chandnee Widya Vati v. C. H. Katial), where the plaintiff entered into contract for sale of the plot given by the Government and the agreement was that the vendor shall obtain necessary permission from the Government within two months from the agreement and if permission was not forthcoming the purchasers could extend the time or could bear the contract as cancelled.
38. The vendor, however, withdrew the application for permission already made. In such circumstances the Supreme Court has held that the Court is entitled to enforce the terms of the contract and to enjoin upon the defendant to make the necessary application to the Chief Commissioner and it was for him to decide whether to grant permission or not.
39. In AIR 1986 SC 1912 (Rajasara Ramjibhai v. Joni Narottam Das), the Supreme Court has held that even in respect of contingent contract the specific performance should be granted as the contingent became ineffective by reason of subsequent event namely, the passing of Saurashtra Land Reforms Act by which the title of the defendant became perfect.
40. On behalf of the respondent No. 1 the decision of the Privy Council reported in AIR 1947 PC 182 : 52 Cal WN 472 (Dalsukh v. Guarantee Life Employment Ins. Co.) has been referred to. In that case when the plaintiff entered into contract for sale with the defendant subject to approval of the Court and when the approval of the Court was not granted the Privy Council has held that it was a contingent contract and the approval not having been obtained the specific performance of the contract cannot be granted by the Court.
41. We are of the view that facts of that case are different. In this case the Cooperative Society has not yet refused the permission and the contract has not been unenforceable.
42. On the contrary the Supreme Court in Nathumal v. Phulchand, , has relied upon the Privy Council decision of (Motilal v. Nanhelal) . In that case the contract for transfer of rip land was subject to approval of the Revenue Officer under the provision of Control Provinces Tenancy Act, 1920. The Privy Council has held that there was an implied covenant on the part of the vendor to do all things necessary to effect the transfer which would include an application to the Revenue Officer for such permission and when no such permission was obtained the Court can direct the defendant to obtain such permission and execute a conveyance on receipt of such sanction.
43. On behalf of the appellant the Delhi High Court decision in has been referred to in which on the approval being given by Co-operative Society the Court granted decree for specific performance of contract for sale of a number of Cooperative Society. This has been referred to in order to demonstrate that the contract for sale of a flat of a Co-operative Society can be transferred subject to Society's approval.
44. In view of the above legal position we are of the view that the contract in this case is enforceable and when the appellant has already applied for such approval and also filed an application for membership we can grant the decree and direct the respondent No. 1 and respondent No. 2 to execute sale-deed in respect of the fiat in suit on the respondent No. 2 considering the application for membership of the appellant and the prayer for transfer of the flat in accordance with law and in terms of the bye-laws.
However, the respondent No. 1's learned Advocate has urged that the appellant made unexplainable delay in filing the suit and has not produced sufficient evidence that she was ready and willing to perform her part of the contract.
45. We find that before the learned trial Judge these matters were not seriously pressed. The appellant filed the suit within three years of the cancellation of the contract and is within the period of limitation. The appellant had been pressing the Co-operative Society to grant the approval. It is true that one stage the defendant-respondent was also pressing the Society to grant the necessary approval. But subsequently the respondent No. 1 turned round and cancelled the contract and refused to perform his part of the contract. The respondent No. 1 appears to have taken that attitude in the supposed refusal of the approval by the Society. But as the matter now stands the Society did not finally decide to refuse the permission and has accepted the application for membership of the appellant and also offered her another flat to purchase it at Rs. 1,90,000/-. In that view the respondent No. 1 was not justified in cancelling the contract.
46. That the appellant did not have the necessary means to pay the amount consideration and was thus not ready and willing to perform her part of the contract was not urged before the learned trial Judge. The respondent No. 1 not also cross-examined Anjali Das on the point not did her advocate in cross-examination even suggested to her that she was not ready and willing to perform her part of the contract.
47. In that view of the matter we are of the view that discretion shall be used by us in favour of the appellant in this case.
48. As regards the right of the appellant to remain in the possession of the flat in suit with the aid of Sec. 53A of the Transfer of Property Act the learned Advocate for the respondent has strenuously urged that she did not have protection of Sec. 53A of the Transfer of Property Act.
49. But in the case we have already held that after the agreement was reduced to writing on 7-4-80, i.e. by Ext. 5(a) on receiving Rs. 62,200/- from the appellant the respondent No. 1 delivered possession of the flat in the suit to the appellant. That must have been granted in part performance of the contract for sale. In such a case the appellant can maintain that possession till the decree of specific performance is enforced against the respondent. If, however, the approval of the respondent No. 1 is not obtained, then the appellant would get the refund of the money that has been paid to the respondent No. 1 and he shall also have the obligation to deliver possession of the flat to the respondent but till that date the appellant is entitled to maintain her possession in the flat in question.
50. On behalf of the respondent No. 1 it is urged that no case for relief u/S. 53A of the Transfer of Property Act was made out in the written statement of the suit for recovery of possession filed by respondent and no such case can therefore, be allowed to be made out at the time of trial.
51. But we find that the appellant sought to allege the right u/ S. 53A of the Transfer of Property Act to maintain her possession in the flat by seeking to amend the written statement. That was refused by the trial Court. But the High Court in revision though upheld the order permitted the appellant to lead evidence as regards her right to possession by invoking Sec. 53A of the Transfer of Property Act.
52. Mr. Mitra has submitted us several decisions in order to urge that when the specific performance is not possible Sec. 53A of the Transfer of Property Act is not attracted. He has also urged that the terms of the contract are vague and uncertain and the terms on the basis of which the relief is sought for is based on oral agreement contrary to the written agreement relief u/ S. 53A cannot be claimed by the appellant.
53. These matters have already been discussed by us. We are unable to hold that the terms are vague and uncertain, that the contract being partly oral and partly in writing. Oral evidence regarding the full terms of the contract are admissible and that when the written agreement was entered into on 7-4-80, the possession was given and we are satisfied that such possession was given in consideration of such contract in writing.
54.In such case we are of the view that the protection of Sec. 53A is available to the appellant till her suit for specific performance of contract is disposed of finally.
55. In the result both the appeals are allowed. The judgment and decree passed by the learned trial Judge analogously in T.S. No. 246/81 and T.S. No. 123/84 are hereby set aside. The plaintiff is granted the decree for specific performance of contract for sale within three months from this date. The respondent No. 2 shall consider the appellant's application for membership in Vidya-sagar Sambaya Abasan Samity and also the approval of the transfer in accordance with the Rule 6 of the bye-laws of the respondent No. 2 so far as they are applicable to this case. If the respondent No. 2 approves such transfer, then both the respondents Nos. 1 and 2 shall execute and register the Sale Deed in respect of the flat in suit in favour of the appellant on accepting the balance consideration money and other fees and charges to which the respondent No. 2 may be entitled under their bye-laws, failing which the appellant shall be at liberty to apply before the learned trial Judge for getting the Sale Deed execute and register through Court on payment of necessary balance consideration money and other fees and charges which the respondent No. 2 may lawfully charge upon the appellant on such transfer.
56. If, however, the respondent No. 2 is unable to grant such transfer on any valid ground, then the respondent No. I shall within three months of such refusal return to the appellant Rs. 61,200/ - and on such return the appellant shall also deliver possession of the flat in suit to the respondent No. 1. In the circumstances of present case both the parties shall bear respective costs of the suits as well as these two appeals themselves.
Mahabendra Nath Roy, J.
57. I agree.
58. Appeals allowed.