Bombay High Court
Shantabai vs Manakchand Ratanchand Raka on 16 February, 1987
Equivalent citations: AIR1988BOM82, AIR 1988 BOMBAY 82, (1988) MAHLR 732
Author: Sharad Manohar
Bench: Sharad Manohar
JUDGMENT
1. This is the plaintiff's appeal against the decree passed by the trial Court dismissing the plaintiff's suit for specific performance of the agreement dt. 20-4-1971 for purchase of the suit land.
2. As will be presently pointed out, the defendant has not a leg to stand upon in the matter of his defence and the learned Judge allowed himself to be swayed by a totally false plea raised by the defendant as regards the responsibility to make application for conversion of the land to N.A. use and has dismissed the plaintiff's suit with minimum justification conceivable.
3. The facts are very simple. The defendant is admittedly the owner of the suit land Survey No. 140, Hissa No. 5B admeasuring 1 H. 65 A. situate at Nashik. On 20-4-1971 he entered into the agreement (Exhibit 36) with the plaintiff for sale of the land to him for the total price of Rs. 22,000/-. On the date of the agreement, admittedly, he had received the earnest money of Rs. 10,000/-. Since the land is an agricultural land, question arose about conversion of the same to N.A. use, question might also have arisen about the Collector's permission under Section 63 of the Bombay Tenancy Act on the sale of the land to a non-agriculturist, if the plaintiff was a non-agriculturist. Since the defendant was the owner of the land, in normal circumstances, it would be his responsibility to get the user of the land changed from agricultural to non-agricultural because the plaintiff who had no right, title and interest on the land on the date of the agreement could not have made such an application to the authorities concerned. But it is not unusual that on occasions the purchasers take the responsibility for getting the user converted from the authorities concerned. But normally for such purposes a power of attorney is given by the vendor to the intending purchasers for making such application to the authorities. If this is not done in normal cases the vendor himself makes the application under the Land Revenue Code for the change of user of the land as also under the Tenancy Act for permission to sell the land to a non-agriculturist.
But the point in this case is that as per Clause (4) of the Agreement, Exhibit 36 dt. 20-4-1971 the responsibility of making the application to the Collector for the change of the user of the land from agricultural to the non-agricultural was specifically taken by the defendant upon his shoulder. Even if an application was required to be made under Section 63 of the Tenancy Act for sale of the land to the non-agriculturist, the defendant had taken responsibility in that behalf before the authorities upon his shoulder. This can be clearly seen from Clause (6) of the agreement. He also mentioned in the said Clause (6) that over and above the task of making the application and making the statement before the authorities, he would also give all other kind of help to the plaintiff for getting the permission under the law. It is further clear that both Clauses (4) and (6) of the agreement leave no room for doubt that the responsibility of getting the requisite permission from the authority concerned for sate of the land was undertaken by the vendor-defendant himself.
This fact has great bearing upon the question to be decided in this appeal because in his written statement, the defendant has denied this position whereas in his evidence he has gone back even upon that denial and has tried to set out an entirely third case and as will be presently pointed out even that third case is extremely brittle. After entering into the agreement for sale of the land to the plaintiff, it was necessary for the defendant to make the application to the authorities concerned for the N.A. permission and perhaps also for sale of the land to a non-agriculturist under Section 63 of the Tenancy Act. It is the defendant's case that he got a draft of the application for conversion of the land to N.A. user prepared from the plaintiff's Advocate Shri Brahmecha. It is his case that Mr. Brahmecha prepared the draft application and that a copy of the same was handed over by Mr. Brahmecha to the defendant. The draft application purports to be dt. 1-5-1971 which is produced at Exhibit 43 in these proceedings. It is the defendant's further case that on 17-6-1971 he in fact made an application (Exhibit 52) to the Assistant Collector for what is called the N.A. permission. A document purporting to be a copy of the said application is produced at Exhibit 52 in this proceeding by the defendant.
Thereafter, on 19-7-1971 the defendant wrote a letter to the plaintiff which has got great bearing upon the defendant's case in this proceeding. As will be presently pointed out, the letter throws a floodlight upon the flasehood of the case sought to be made out by the defendant in the Written Statement. By that letter the defendant has requested the plaintiff's husband to purchase the land in the first instance, i.e. to say, to get the Sale Deed executed in favour of the plaintiff in the first instance. He has further stated that getting the land converted to N. A. user is his own responsibility. It is stated by him further that plaintiff's husband was an agriculturist and that that was the reason why he had sold the land to him.
But that is not all. In the letter it is further stated that if the plaintiff's husband was not prepared to purchase the land before it was converted to N. A. user, the defendant would mortgage his two or three houses. The gist of the request is that somehow or the other the plaintiff's husband should pay a further sum of Rs. 10,000/- to the defendant for his certain urgent needs which are mentioned in the letter.
Really speaking, most of the letter is not very much relevant for our purpose. What is most relevant is that in this letter, Exhibit 55 dt. 19-7-1971 written just three months after the agreement of sale, the defendant had agree in so many words that the responsibility of getting the land converted to any user was clearly upon the defendant himself.
According to the plaintiff, in spite of this responsibility, the defendant did nothing in that behalf for a full period of one year and hence on 11-7-1972, the plaintiff gave a notice to the defendant calling upon him to perform his part of the agreement and stating that the plaintiff was always ready and willing to perform her part of the agreement. To this legal notice, Exhibit 38, thereply dt. 3-8-1972, Exhibit 40 was given by the defendant. The reply makes an interesting reading. In the third para of the reply, it is specifically stated that the defendant was to sell the land to the plaintiff after he himself obtaining the N.A. permission as also the permission under Section 63 of the Tenancy Act but it is stated further in the said paragraph that the two applications dt. 17-6-1971 made to the Collector under the signature of the plaintiff as well as the defendant had been disposed of by the Collector. It was further stated that the plaintiff was ordered by the Collector to remain present before him for making statement and that the plaintiff did not comply with the order and did not remain present. It was further stated that in those circumstances, the conditions in the agreement of sale imposing the responsibility of change of the user of the land to the N.A. use and for getting permission for sale of the lands on the defendant were liable to be cancelled. It was stated lastly, in the said paragraph, that the said conditions (viz. that the defendant was responsible for getting the permission for N.A. user and for sale of the land) were rescinded by him by the said reply (dt. 3-8-1972).
In the next paragraph, it was stated that the defendant was ready and willing to sell the lands to the plaintiff in the existing condition. He called upon the plaintiff to take the Sale Deed within 15 days from the date of receipt of the letter but it was further stated that before taking the Sale Deed, it was necessary for the plaintiff to obtain a certificate that she was an agriculturist or else, it was stated, the defendant was prepared to sell the land to such of the plaintiff's nominees who would be agriculturists.
It was lastly stated that the defendant was prepared to return the amount of earnest money of Rs. 10,000/- to the plaintiff by cancellation of the agreement of sale. Lastly, it was mentioned that if the Sale Deed was not got executed within the period of 15 days, the agreement of sale will be deemed to have been rescinded.
To this reply, a counter reply, Exhibit 41 was given by the plaintiff on 16-8-1972 in which the above allegations of the defendant were denied by her. It was stated therein that the application for permission was submitted to the Nashik Prant Officer but that the plaintiff did not know as to what happened to the said application thereafter. It was specifically stated that the plaintiff had received no order from the Collector for making any statement. It was further pointed out that the plaintiff was not an agriculturist to the knowledge of the defendant and that that was the precise reason why responsibility was undertaken by the defendant to get the permission of the authorities under Section 63 of the Tenancy Act. AH other claims and allegations in the defendant's reply were denied by the plaintiff by the said counter-reply.
4. It was thereafter that the present suit was filed by the plaintiff for specific performance of the said agreement, Exhibit 36 dt. 20-4-1971, on 4-4-1973.
The plaintiff's case is simple :-- she entered into the agreement for purchase of the agricultural land from the defendant. The land could not be sold by the defendant to the plaintiff unless it was converted to N.A. user because the plaintiff is not an agriculturist and she wanted the land for N.A. use. According to the plaintiff, the defendant therefore agreed to shoulder the responsibility of getting the N.A. permission under the Land Revenue Code and the permission for sale under Section 63 of the Tenancy Act before executing the Sale Deed in favour of the plaintiff and for that purpose out of the total consideration of Rs. 22,000/-, a sum of Rs. 10,000/- was received by the defendant as earnest money. According to the plaintiff she was always ready and willing to perform her part of the contract but the defendant has sat pretty over the matter and has not moved his small finger for doing the needful under the Agreement of Sale by taking any proceedings for the permission for N.A. user or for the permission for sale of the land under Section 63 of the Tenancy Act. The plaintiff, therefore, wanted the Court to pass appropriate decree of specific performance by appointment of an appropriate officer of t he Court for doing the n eedful in this behalf.
5. The Written Statement of the defendant is of great significance. The defendant in his WrittenStatement, Exhibit 18 (read with the additional Written Statement, Exhibit 30) has not denied that he entered, into agreement for sale with the plaintiff and that he received the sum of Rs. 10,000/- as earnest money from the plaintiff. But his contention was that the liability to obtain the N.A. permission under the Land Revenue Code and the permission for sale under Section 63 of the Tenancy Act was upon the plaintiff and not upon the defendant. It was further stated by him that the defendant did everything in his hand for getting such permission but that the plaintiff did not give proper co-operation with the result that the permission could not be received by the defendant, which was the reason, according to the defendant, why the defendant had rescinded this agreement of sale and had entered into agreement of sale with third person for sale of a part of that land. He stated further that he had returned the amount of Rs. 10,000/- to the plaintiff by cheque but that cheque was returned by the plaintiff to him.
6. On these pleadings issues were framed by the learned Judge. The first issue was as to whether the responsibility of obtaining the N.A. permission and the permission under the Tenancy Act was upon the plaintiff and the second issue was whether the defendant had made any breach of the agreement. On these issues, the learned Judge recorded the finding in favour of the defendant holding that as per the agreement, the responsibility of obtaining the N.A. permission and the permission for sale under the Tenancy Act was upon the plaintiff and that, hence, it could not be said that there was any breach on the part of the defendant as such. The learned Judge, therefore, dismissed the plaintiff's suit for specific performance but directed the refund of amount of Rs. 10,000/-paid by the plaintiff to the defendant as earnest money, with 4% interest from the date of the decree till the date of the payment.
7. To my mind, the learned Judge's decree of dismissal is totally unjustified. It is impossible to see as to on what basis the learned Judge has come to the conclusion that the responsibility of obtaining the N.A. permission and the permission for sale of the land was upon the plaintiff. The relevant portion of the agreement of sale is already referred to by me above in extenso. It leaves no room for doubt whatsoever that the responsibility for conversion to N.A. user and the responsibility for taking permission for sale of the land was taken by the defendant on his shoulders. The two clauses of the agreement which are relevant in this behalf viz. Clause Nos. (4) and (6), leave no room for doubt whatsoever on this point; but the position is further clear by defendant's reply to the plaintiff's notice in which he categorically admits that the responsibility for obtaining the permission for N.A. user and permission for sale of the land was upon the defendant himself. In fact he has stated that before the Collector, the plaintiff did not make any statement as per the Collector's order, the application for N.A. user etc. was disposed of by the Collector and that, on that account, the defendant was rescinding the said stipulation in the agreement imposing responsibility on the defendant to obtain those permissions. This clearly means that even according to the defendant the responsibility for those permissions was upon the defendant only.
As if this was not enough, there is the defendant's own letter, Exhibit 55, referred to above dt, 19-7-1971, i.e. to say, just three months after the agreement of sale, in which the defendant has stated in so many words that the responsibility of converting the land to N.A. user was his own responsibility. In spite of these specific unequivocal statements by the defendant, the defendant had the cheek to make a positively false averment in the written statement that the responsibility for taking permission for N. A. user etc. was upon the plaintiff. The statement is not only wrong, it is false and in any sensible society a person making such a false statement ought to be dealt with, with the help of the criminal law.
But as if even this was not enough, the defendant has stepped into the witness box and has admitted in the cross-examination, that the responsibility was his responsibility. He was confronted with his letter, Exhibit 55 dt. 19-7-1971, with reference to which he specifically admitted that he had assured the plaintiff to get the permission of the N.A. user of the land even after the execution of the Sale Deed. If this is the position of the documentary and oral evidence, it defies understanding as to how the learned Judge could have recorded a finding to the effect that the responsibility of getting the N.A. permission and the permission for sale was upon the plaintiff.
8. But the defendant came out with another case with a view to riggle out of the contractual liability. That case finds no place in the correspondence prior to the notice, Exhibit 38 given by the plaintiff to him before the suit. That case has dawned upon the defendant for the first time when he gave reply to the plaintiff's notice, Exhibit 38. The case was that the applications for the N.A. user and the permission for sale were made by the defendant to the Collector, that the Collector sent notice to the plaintiff to remain present for making statement and that because she did not remain present the Collector disposed of the application and that was the reason why the plaintiff could not get the land converted to N.A. user as also why the permission for sale could not be received by him from the Collector, under the Tenancy Act. In this connection the state of pleadings and the nature of issues are very peculiar. It does appear that in the Written Statement this plea about default on the part of the plaintiff herself was taken in a twisted manner. In para 3(A) of the Written Statement, it is stated that the responsibility of obtaining the N.A. permission and the permission for sale was not upon the defendant but upon the plaintiff but in para 4 it is stated that it was the plaintiff who had failed to file the necessary papers along with the application for N.A. user and for permission for sale etc. It is also stated in the said para 4 of the Written Statement that neither the plaintiff nor the defendant was informed as to whether the permission was received or not.
But the point is that even assuming that such an averment is made by the Defendant in the Written Statement sufficiently, no issue is invited by the defendant on that point. The issue framed by the learned Judge in this behalf is the first issue which is as follows : --
"Does the defendant prove that N.A. permission and other permissions under the Bombay Tenancy and Agricultural Lands Act, 1948 were to be taken by the plaintiff."
The finding recorded by the learned Judge on this point is in the affirmative and that is why he has recorded the finding on the second issue to the effect that the defendant has not committed any breach of the agreement. The issue framed by the learned Judge is not as to whether the permissions were not received by the defendant because of the want of cooperation on the part of the plaintiff. In spite of this position, the defendant was allowed to lead evidence on that point but even in the matter of evidence on that point, the defendant has failed dismally. I have gone through the entire evidence and find that not a word is murmured by the defendant to the effect: (a) that he made an application to the Collector for N.A. permission and for permission for sale; (b) that in pursuance of the application to Collector sent a notice to the plaintiff for remaining present for making certain statements as regards the intended user of the land; (c) that the plaintiff did not comply with the said notice and did not make any such statement; and (d) that because the plaintiff did not make any such statement before the Collector and because he did not comply with the Collector's said order, the applications for the permission were disposed of by the Collector. The plaintiff has not stated a word about these facts nor has he led any evidence whatsoever in support of those pleas. Even in the plaintiff's cross-examination no question was put to the effect that a notice was received by the plaintiff from the Collector for making certain statements as regards the user of the land and that the plaintiff committed default in that behalf. As will be presently pointed out, Mr. Angal, the learned Advocate for the defendant appearing before me has tried to advance arguments on this basis viz. that it was the plaintiff who was at fault in not making the requisite statement before the Collector. Point is that this argument is an entirely airy argument. There is no basis for the same either in any part of the evidence; the documentary evidence before the suit and the documentary and oral evidence after the filing of the suit. This was an entirely new case sought to be made out by the defendant for the first time in reply to the plaintiff's legal notice; but the defendant himself was perfectly aware of the hollowness of the contention which must have been the reason why not even an issue was invited by the defendant on this point. Not one word is as much as murmured by the defendant in his evidence to the effect that an application was disposed of by the Collector because of the want of responsibility on the part of the plaintiff. If this is the position, then the entire defence of the defendant crumbles down.
9. Mr. Angal, the learned Advocate for the defendant appearing before me, however, argued that there is evidence toshow that the defendant did make an application before the Collector for permission for N.A. user and for permission for sale of the land. The learned Advocate conceded that the defendant's original plea in the Written Statement to theeffect that the responsibility of getting the N.A. permission and the permission for sale under the Tenancy Act was on the plaintiff was an untenable contention. But he contended that even though the responsibility in that behalf was upon the defendant, the defendant had made such an application to the Collector and according to the learned Advocate this much was sufficient for discharging the defendant's liability. For the present I will assume that the defendant did make such an application to the Collector but the point is that that is not enough. He ought to have pursued the application. If the application was rejected by the Collector he should have informed the plaintiff accordingly so that the plaintiff and the defendant could have taken appropriate proceeding in that behalf. Nothing of that kind is done by the defendant. In fact as pointed out above, the defendant has come out with the cases that he did not know as to what happened to the application and in spite of this plea of the defendant, argument is advanced by Mr. Angal that the application was rejected by the Collector on the ground that the plaintiff did not comply with the order of making the statement before the Collector. The entire argument is in air. In order to succeed, it is not enough for the defendant to show that he made the application to the Collector. It is further necessary for him toshow that the application could not be granted by the Collector on account of the absence of co-operation on the part of the plaintiff herself. In fact this was the defendant's plea in reply to the notice as well as in the Written Statement. That plea is not made good at all and, at the most, all that can be gathered is that the plaintiff has made some kind of application to the Collector for N.A. user of the land and perhaps also for permission of the sale of the land. We do not know in what manner the defendant prosecuted the application. We do not know as to what was the order passed by the Authority on that application and the reasons, if any, for the same. In these circumstances, it is futile to blame the plaintiff for the unsuccessful result of the application, if any, made by the defendant.
10. But really speaking, it is very much doubtful as to whether any such application was made by the defendant at all to the Collector. The defendant has not murmured one word in his evidence that any such application was made by him. All that he has stated in his evidence is that he signed such an application and handed it over to the plaintiff's Advocate Shri Brahmecha or to the plaintiff's Manager, Shri Shingane. There is nothing in the defendant's evidence to show that the application was filed by him in the office of the Collector. Significantly enough, there is evidence on record in the form of his own admission that the application was not made by the plaintiff but by the defendant himself. However, in his evidence suggestion is that he signed the application and gave it to Mr. Brahmecha, Advocate for the plaintiff. All this shows that the making of the application itself is a suspect affair.
Mr. Angal strongly relied upon the statement made on behalf of the plaintiff in the rejoinder, Exhibit 41, dt. 16-8-1972 in which it is stated that the defendant had made the application but that the result was not known to the plaintiff. On the basis of this solitary averment it is sought to be argued before this Court that such an application must have been made by the plaintiff. Even in the plaintiff's earlier notice, a statement to this effect appears to have been made. But from the statement it would be seen that the source of the plaintiff's information in this behalf was nothing other than the information received by her from the defendant himself. The plaintiff has stated that the defendant had told her that he had made the application. She stated further that if, therefore, he had made the application, the result was not known to the plaintiff. I have pointed out above that even the defendant does not know as to what the result was. But the further point is that the defendant has not made even any attempt to know the result. All this goes to indicate that the defendant must not have made any application at all. If the defendant had really made any application to the Collector, nothing was easier than summoning the Office of the Collector to produce the record before the Court for verifying the factum of the making of the application and the result of the application. The defendant has not moved his small finger in this behalf. It could, therefore, be safely held that the defendant must not have made such an application at all.
But, as stated above, even assuming that the defendant had made such an application, the mere making of the application would not exonerate him from the liability under the contract. He had to pursue and prosecute the application diligently. If the application was unsuccessful he had to give intimation to the plaintiff in that behalf so that both of them could have put their heads together to find the way out. This is what the parties are expected to do to bring about the fulfilment of the contract. The defendant has thus failed to prove that he had done everything in his hand to perform his part of the contract. It can, therefore, be held that the breach was on his part and not on the part of the plaintiff as wrongly held by the learned Judge.
No other point was urged before me in support of the lower Court's decree.
11. The appeal, therefore, succeeds. The decree of dismissal passed by the lower Court is set aside. However, in view of the fact that, admittedly, the decree cannot be executed by the defendant unless the necessary permission for conversion of the land for N. A. user is obtained from the Collector and requisite permission under Section 63 of the Tenancy Act is received from the authorities concerned, it is necessary to pass an order appointing a suitable officer of the Court to make the requisite application in that behalf to the appropriate authorities in default of the application by the defendant.
12. Another difficulty has arisen which is purely by virtue of the Laws' Delays. The agreement in question was entered into by parties on 20-4-1971. The suit for specific performance was filed in the month of April, 1973. It was only because of the Laws' Delays and because of the recalcitrance on the part of the defendant that it so happened that the Sale Deed was not executed in favour of the present plaintiff. If the Sale Deed was executed in good time the subsequent difficulty arising out of the supervening Urban Lands (Ceiling and Regulation) Act, 1976 (hereinafter, Urban Land Ceiling Act) would not have arisen. That Act came into force on 17-2-1976. Even if the trial Court had passed an appropriate decree for specific performance of the Agreement when the Court delivered its judgment on 31-7-1975 there would have been no difficulty presenting itself against the plaintiff in the matter of getting the decree for specific performance and possession of the land. It is only because of the wrong view of the evidence taken by the trial Court that the plaintiff has been required to face another difficulty, the one arising out of the provisions of the Urban Land Ceiling Act.
13. The factual position in this behalf as stated by Mr. Angal across the bar, about which no dispute is raised by Mr. Walawalkar, is that after the Urban Land Ceiling Act came into force, the defendant filed return under the said Act and in that return the suit land has been shown by him to be the excess vacant land which will ultimately vest in the State Government as per the provisions of Section 10(3) of the Urban Land Ceiling Act. If such vesting takes place then the plaintiff may have some difficulty in getting the sale deed in respect of and possession of the said land in execution of the decree to be passed by this Court. In fact, it will be doubtful whether this Court can pass a decree for execution of Sale Deed in respect of this land, if the particular land is legitimately the subject matter of the return filed by the plaintiff showing that the land is excess vacant land liable to be acquired by the State Government and liable to be vested in the State Government under Section 10(3) of the said Act.
14. However, this need not necessarily result in complete deprivation of the plaintiff's right for decree for specific performance. About the legal position in this behalf, there need not be much dispute. The position, should be the same as under the Tenancy Act and the Land Revenue Code in which cases a conditional decree is passed by the Courts. Even in the present case, a conditional decree can be passed by this Court requiring the plaintiff to make suitable application to the Competent Authorities under the Urban Land Ceiling Act: (a) for directing the defendant to file a revised return excluding this land from the category of land shown as excess vacant land because he could not cause loss to the plaintiff by making a choice of the suit land to be the excess vacant land, or (b) for an application for exemption of suit land from the provisions of Section 10 and other allied provisions of the Urban Land Ceiling Act. In the former case where prayer is made for direction to the respondent for filing a revised return, the Competent Authority shall have to note that on the date when the Urban Land Ceiling Act came into force, the Respondent was bound in equity to sell the land to the present appellant for which he had already received a tidy sum of Rs. 10,000/-. This fact has been suppressed by the respondent from the Competent Authority and, hence, it can be readily held by the Competent Authority that the return filed by the respondent was not a legitimate return.
15. Mr. Walawalkar invited my attention to the judgment of the Full Bench of the Gujarat High Court in where the Gujarat High Court was required to consider the identical situation. In this connection, it has been noted that although the present plaintiff has filed the return under the Urban Land Ceiling Act, no final order on the said return has been as yet passed by the authorities under the Act and no order of acquisition of land and for vesting of the land in the State Government under Section 10(3) of the Act has been as yet passed by the Competent Authority. This being the position, there should be no difficulty for the plaintiff to make a suitable application to the Competent Authority for the above purposes. The plaintiff is directed to make the suitable application to the Competent Authority for this purpose and a copy of the judgment shall be annexed by him to the said application. Such application should be made by him as early as possible and in any event, within two months from the date of receipt of the certified copy of this order.
16. If, however, it so happens that for some unavoidable reasons, it is not possible for the Competent Authority to direct the present defendant to file a revised return or to grant exemption certificate to the plaintiff, it would follow that the plaintiff would not be entitled to the specific performance of the agreement in question, not because of any fault on his part but because of the supervening event viz. the advent of the Urban Land Ceiling Act. In that case the plaintiff should be entitled :
(a) to the refund of earnest money of Rs. 10,000/- paid by him at the time of the signing of the agreement;
(b) to the notice fee Rs. 200/- claimed by him in the Plaint.
(c) to damages on account of the breach of the agreement.
But, although the plaintiff has claimed the damages to the extent of Rs. 10,000/- he had led no evidence for proving the said damages. No doubt, the Court can take judicial notice of the fact that the prices of the land have risen considerably, manifold, from the date of the agreement till this date, but the Court cannot take judicial notice of the exact rate of the increase. The measure of damages would be the excess price that would be required to be paid by the plaintiff to purchase similar lands on the date of the suit, on account of the breach of the agreement on the part of the defendant. But plaintiff has led no evidence in that behalf. The plaintiff would not, therefore, be entitled to a decree for damages of Rs. 10,000/- as claimed by him in the suit.
However, he would be entitled to get interest at 12% per annum as prayed for by him in the Plaint on the amount of the earnest money of Rs. 10,000/- paid by him to the defendant at the time of the signing of the agreement.
17. Mr. Angal strenuously contended that the defendant had tendered re-payment of the said amount of Rs. 10,000/- by cheque but the fault lay on the part of the plaintiff in not accepting the cheque and hence the defendant should not be saddled with the interest on the said amount of Rs. 10,000/-. I see no justification for such argument at all. The plaintiff was fully entitled to refuse acceptance of the cheque because the breach of the agreement was on the part of the defendant. In fact the plaintiff would be fully justified in believing that the acceptance of the amount would be tantamount to acquiescence in the defendant's right to rescind the contract.
Moreover, the fact remains that the amount has been and is being enjoyed by the defendant all the time from the date of the agreement till this date and in the eye of law he has been enjoying interest on the same. If the plaintiff cannot get specific performance of the agreement on account of the default committed by the defendant, the least that the defendant should be liable for is and would be that he should pay to the plaintiff the interest that he has deemed to have enjoyed on the amount of the earnest monies of Rs. 10,000/- received by him from the plaintiff. I have denied to the plaintiff the damages, but I see no reason to deny to him the amount of interest which would be receivable by him from the defendant. If he had deposited the said amount even in a nationalised Bank he would have received interest at the rate of 12% per annum. In fact he would have got the interest on the basis of compound interest with six months' rests. There is no reason why he should be denied even the simple interest on the amount of Rs. 10,000/-, in case the plaintiff is unable to get the decree for specific performance from this Court.
18. Having regard to all the above circumstances, I pass the further order as follows : --
The plaintiff shall deposit an amount of Rs. 12,500/- in the trial Court. The amount shall not bepaid by the Court to the defendant in the first instance. The amount shall remain lying in the trial Court until the time hereinafter mentioned. The amount, however, shall be deposited by the plaintiff in the trial Court on or before the following dates viz. on or before 16th May, 1987 but if the trial Court cannot accept the amount during the summer vacation, the amount shall be deposited by the plaintiff in the trial Court on the date of the re-opening of the Court after the summer vacation.
Immediately after deposit of the said amount in the trial Court, the Court shall give directions to the defendant to make an application to the Collector, under the Maharashtra Land Revenue Code for conversion of the user of the land to non-agricultural user. Such application shall be made by the defendant to the Collector within 15 days from the receipt of the said directions from the trial Court. If, however, the defendant commits default in that behalf, without prejudice to the other remedies open against the defendant, the trial Court shall appoint a Commissioner to make a suitable application to the Collector for conversion of the user of the land to N. A. user.
Normally speaking, if the user of the land is converted to N. A. purposes by the permission of the Collector, the land should cease to be governed by the Tenancy Act and in that case no question should normally arise for the plaintiff or the defendant or the Commissioner to make an application to the authorities contemplated by Section 63 of the Tenancy Act for sale of the land. However, if such an application is necessary in respect of the conversion of the user, the trial Court shall give direction to the Commissioner to make application under the appropriate provisions of the Tenancy Act for permission to sell the land. The plaintiff also shall make an application to the Competent Authority under the Urban Land Ceiling Act for the purpose of directions to the defendant to file a revised return showing the suit land not to be the excess vacant land and showing another land belonging to him to be the excess vacant land or for exemption of the land from the provisions of Section 10 and other allied provisions of the Urban Land Ceiling Act.
After the necessary permission under the Land Revenue Code for conversion of the land to N. A. user, under the Tenancy Act (if necessary) for sale of the land under the Tenancy Act and for exemption of the land etc. is received, the Commissioner shall execute the necessary Sale Deed in favour of the plaintiff in respect of the suit land.
In case it turns out that the requisite permissions under the Land Revenue Code or the Tenancy Act or under the Urban Land Ceiling Act are lawfully refused by the authorities concerned, or if any such permission is lawfully refused by the relevant Authority, this decree for specific performance will be deemed to have become non est and in that case the plaintiff will be entitled to recovery of the amount of Rs. 10,000/- from the defendant with interest at the rate of 12% per annum from 20-4-1971 till the date of the suit and thereafter from the date of the suit till the date of the repayment at the same rate of 15% per annum. The plaintiff shall also be entitled to a sum of Rs. 200/- being the expenses consequent upon the public notice and the legal notice as referred to in para. 6 of the plaint. The plaintiff shall be also entitled to the costs of the suit in the trial Court and of the appeal in this Court.
By this order the appeal stands disposed of.