GIAN CHAND Vs. GOPALA

JUDGEMENT

(1.) This appeal, by special leave, arises from the judgment of the learned Single Judge of the High court of Punjab and Haryana in RSA No. 931 of 1986 dated 11/8/1986. The appellant had entered into an agreement with the respondent on 13/1/1978 to purchase l/3rd share of the land belonging to the respondent for a total consideration of Rs. 78,000. 00 and paid a sum of Rs. 20,000. 00 as earnest money. The sale deed was to be executed on or before 30/4/1978. Later the appellant came to know that notification under Section 4 (1 of the Land Acquisition Act, 1894 was published on 3/8/1977 whichfact was concealed to the appellant, so he had filed the suit for refund of the earnest money. The trial court in Suit No. 620 of 1982 decreed the suit for refund of the earnest money with interest at 6% per annum from 25/1/1980 till the date of realisation of the decree amount. Feeling aggrieved, the respondent filed Civil No. 110 of 1983. The District Judge by his judgment and decree dated 28/9/1985 reversed the decree and dismissed the suit. In second appeal, the High court dismissed the same in limine. Thus this appeal, by special leave.

(2.) The only question for consideration is whether the appellant is entitled to obtain refund of earnest money. One of the terms of the contract, admittedly entered into between the parties, is that in the event of acquisition of land by the government for a public purpose, the respondent "shall return the earnest money without interest". Admittedly, since the notification under Section 4 (1 of the Land Acquisition Act was already published, the question arises whether the appellant could get a sale deed executed and in its absence whether he is entitled to obtain refund of earnest money paid under the agreement. On publication of notification under Section 4 (1 of the Act, though it is not conclusive till declaration under Section 6 was published, the owner of the land is interdicted to deal with the land as a free agent and to create encumbrances thereon or to deal with the land in any manner detrimental for public purpose. Therefore, though notification under Section 4 (1 is not conclusive, the owner of the land is prevented from encumbering the land in that such encumbrance does not bind the government. If ultimately, declaration under Section 6 is published and acquisition is proceeded with, it would be conclusive evidence of public purpose and the government is entitled to have the land acquired and take possession free from all encumbrances. Any sale transaction or encumbrances created by the owner after the publication of notification under Section 4 (1 would therefore be void and does not bind the State. In this perspective, when the necessary conclusion is that the agreement of sale stands frustrated, the question of readiness and willingness on the part of the vendor or vendee does not arise. The appellate court wrongly held that the appellant was not ready and willing to perform his part of the contract. In the face of the notification how could the appellant get a valid title? Any attempt on his part would be futile exercise and avoidable expenditure. Both the courts have concurrently found that time is not the essence of the contract. Under those circumstances, the plaintiff is entitled to lay the suit for refund of earnest money within three years from the date of refusal of the performance of the contract. In this case, declaration under Section 6 was published and so it was conclusive of public purpose and the land was acquired. The contract was, therefore, frustrated. Since one of the terms of the contract is to return the earnest money, in the event of acquisition being made by the State, the vendee-appellant is entitled under Section 33 of the Contract Act, as rightly and legally held by the trial court, to seek refund of the earnest money.

(3.) Section 33 of the Contract Act reads thus: