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34. Placing reliance upon the above judgment of the Apex Court a Full Bench of the Gujarat High Court in Shah Jitendra Nanilal v. Patel Lallubhai Ishverbhai . Held that a conditional decree for specific performance subject to exemption being obtained under Section 20 of the ULC Act was permissible. That was a case where the defendants 1 and 2 entered into an agreement with the defendants 3 to 5 in respect of a land in an extent of 3 acres. That agreement was executed on 4-7-1966. The defendants 1 and 2 in their turn entered into an agreement with the plaintiff on 1-7-1967 to sell a portion of such land to the plaintiff. That portion agreed to be sold was subsequently re-constituted under the town planning scheme into a plot of 8451 square yards. The plaintiff filed the suit for specific performance as between defendants 1 and 2 on one hand and defendants 3 to 5 on the other. The defendants 1 and 2 earlier filed a suit against defendants 3 to 5 which ended in a compromise. The suit filed by the plaintiff was dismissed and he carried the matter in appeal. During the pendency of the appeal, ULC Act came into force. The Full Bench eventually answered the question in Para 13 thus :

13. In this view, in answer to the second question referred to us we hold that a conditional decree for specific performance subject to exemption being obtained under Section 20 of the Urban Land (Ceiling and Regulation) Act, 1976 (Act No. 33 of 1976) is permissible. As we have said earlier, we do not propose to answer the first question as it may not be necessary. The case will be sent back to the Division Bench for disposal in accordance with the decision herein and in accordance with law.

36. Per contra, the learned Senior Counsel for the defendants 1 and 2 seeks to place reliance upon a Division Bench Judgment of this Court in Sampatlal Ramlal Kimtee v. A.V. Shridhar Naik (DB). That was a case where the suit for specific performance of sale agreement was filed. There also formal exemption or permission under the ULC Act was required. The parties thereto agreed inter alia that the plaintiff should obtain necessary permission from the authority within a period of six months. At the end of trial, the trial Court held that since time was the essence of contact and obtaining permission from the authority under the ULC Act is sine qua non and in the absence thereof, the contract would be frustrated and the same could not be enforced. Since the contract had been frustrated, the trial Court finally directed refund of the amount paid by the plaintiff with interest. Before the High Court in the appeal, when it was sought to be contended by placing reliance upon the Full Bench Judgment of the Gujarat High Court in Shah Jitendra Nanilal's case (supra) that a conditional decree could be passed, this Court held thus :

We do not think it necessary to go into the question whether this Court has got power to pass a conditional decree, but the circumstances obtaining in the case on hand do not justify passing of such a conditional decree inasmuch as 20 years have elapsed after execution of suit agreements and plaintiffs could not obtain necessary permission or exemption till today.

37. He further seeks to place reliance upon a judgment of the Apex Court in M.V. Shankar Bhat v. Claude Pinto . That was a case where an agreement to sell the property was entered into by the executor with the purchaser not as sole executor of the will but as a legatee and/or one of the heirs of the testator. The agreement was made subject to ratification of the terms and conditions thereof by the co-heirs who were not parties to the agreement. It was held that there was no conclusive contract between the parties and the sale agreement could not be specifically enforced. I am afraid that both the judgments are of no relevance to the facts of the instant case and are distinguishable.