GUNVANTLAL RATANCHAND Vs. RAMESHBHAI P PATEL

JUDGEMENT

(1.) The plaintiffs-appellants have filed this First Appeal against the judgement and decree dated 31st January 1984 of Civil Judge (SD), Narol, partly dismissing the suit of the plaintiffs-appellants for specific performance of the agreement to sell but partly decreeing the suit of the plaintiffs-appellants against the defendants nos.8 to 12 directing them to refund the earnest money of Rs.20,000.00 received by them from the plaintiffs with interest at the rate of 12% per annum from the date of the suit till realisation. The suit of the plaintiffs-appellants was dismissed against the defendants nos.1 to 7.

(2.) The brief facts giving rise to this appeal are as follows:-

(3.) Two plots bearing Nos.236/2 and 234/2 admeasuring 7986 sq. yards are situated in village Bodakdev, Taluka Dascroi, District Ahmedabad. These plots were owned by Parshottam Babarbhai Patel. These plots were undivided joint hindu family property. Defendants Nos.1 to 4 and deceased Parshottamdas Babarbhai Patel executed an agreement to sell in favour of the defendants nos.8 to 12 on 29.11.1971. Tweleve months' period was fixed for execution of the sale deed. Thus, the sale deed was to be executed by the defendants nos.1 to 4 and Parshottamdas Babarbhai Patel before 29.11.1972. On the basis of the aforesaid agreement to sell the defendants nos.8 to 12 in turn executed an agreement to sell in favour of the plaintiffs on 23.5.1972 and received Rs.20,000.00 as earnest money from the plaintiffs. The time limit for the execution of the sale deed was fixed up to 20.11.1972. Under the terms and conditions of the agremeent to sell the defendants were required to produce title clearance and were to obtain necessary permission under Section 63 of the Bombay Tenancy Act. Another condition in the agreement to sell was that the defendants were to execute the sale deed in favour of the plaintiffs or any person as desired by the plaintiffs. On 17.11.1972 a supplementary agreement was executed by Parshottamdas Babarbhai Patel and the defendants nos.1 to 4 in favour of defendants nos.8 to 12. According to this agreement the time limit for execution of the sale deed was fixed as 3 months after cessation of Gujarat Vacant Land in Urban Areas Prohibition Alienation Act, 1972. Under the terms and conditions of the agreement the defendatns were required to produce title clearance and were to obtain necessary permission under Sec. 63 of the Bombay Tenancy Act. Another condition in the agrement to sell was that the defendants were to execute the sale deed in favour of the plaintiffs or any person as desired by the plaintiffs. On 17.11.1972 a suppplementary agrement was executed by Parshottamdas Babarbhai and the defendants nos.1 to 4 in favour of defendants nos.8 to 12. According to this agreement the time limit for execution of the sale deed was fixed as 3 months after cessation of Gujarat Vacant Land in Urban Areas Prohibition Alienation Act, 1972. Similarly defendants nos.8 to 12 executed agreement in favour of plaintiffs and extended the period for execution of the sale deed to two months after the provisions of the said Act ceased to remain in force vide agreement dated 8.11.1972. The said Act ceased to remain in force with effect from 12.8.1975. In this way, time limit given under the agreement dated 23.5.1972 stood extended up to 12.10.1975. Parshottam Babarbhai Patel expired on 26.10.1973. The defendants nos.1 to 4 and 6 and 7 are children of said Parshottam Babarabhai Patel. The defendant no.5 was the wiow of Parshottamdas Babarbhai Patel. In this way, according to the plaintiffs the transaction entered into by Parshottamdas Babarbhai Patel is binding upon the defendants nos.1 to 7. After 12.8.1975 when the Gujarat Vacant Land in Urban Areas Prohibition Alienation Act, 1972 ceased to remain in force, the plaintiffs asked the defendants to execute the sale deed. The plaintiffs were ready and willing to perform their part of the contract but the defendants did not perform their part of the contract and failed to execute the sale deed and thereby committed breach of the contract and defendants nos.1 to 7 tried to sell the land to other persons. Consequently, the plaintiffs published a notice in daily newsppare "Gujarat Samachar"on 16.11.1975 indicating their intention to purchase the land and disclosing the agreement to sell subsisting in their favour. Thereafter Urban Land (Ceiling & Regulation) Act, 1976, came into force on 17.2.1976. The plaintiffs asked the defendants to obtain the requisite permission from the competent authoirty under this Act to execute the sale deed but the defendants did not obtain any such permission. Accordingly, suit was filed by the plaintiffs against the defendants claiming specific performance of the agreement to sell, handing over of possession, refund of earnest money amounting to Rs.20,000.00 and damages amounting to Rs.75,000.00 with interest at the rate of 9% per annum.