P. CHIINARAO Vs. A.R. SRIKANTH

JUDGEMENT

(1.) The respondent has filed a suit for specific performance in OS.No.217 of 2010 on the file of the Principal District Court, Chengalpet on the basis of alleged sale agreement dated 10.07.2004. In the aforesaid suit, the first revision petitioner / first defendant has filed written statement on 17.12.2016 and the defendants 2 to 4 / revision petitioners 2 to 4 have filed written statement in the year 2015. The revision petitioner has denied averments in the plaint filed by the respondent. The revision petitioners have filed an application in IA.No.669 of 2015 under Order 7 Rule 11 of the Civil Procedure Code. In the aforesaid application, the revision petitioners have raised plea under section 16 (b) of the Specific Relief Act, prayer for specific performance cannot be enforced. Secondly, the respondent has not satisfied, under Form-48 Appendix-A of the Specific Relief Act. Therefore, the relief as prayed for in the suit is barred under section 16 (c) of the Specific Relief Act. Thirdly, the respondent / plaintiff had chosen to make only conditional offer for payment of necessary consideration only upon execution of the sale deed or at the time of execution of sale deed. There is a violation of essential terms of conditions, the property in the schedule property in the alleged sale agreement, is an agricultural land. The respondent / plaintiff being Non Resident of India, is a specific bar, under provisions of the Foreign Exchange Management Act and Regulations in force. On the aforesaid grounds, the petitioners filed the instant application to reject the plaint. The respondent filed counter statement by disputing entire allegations, by stating that the aforesaid grounds raised by the petitioners / defendants can be raised at the time of trial in the said suit. The petitioner has not satisfied the requirements under Order 7 Rule 11 (d) of the Civil Procedure Code to reject the plaint, insofar as, section 23 of the Contract Act and on the basis of the provision of Foreign Exchange Management Act and regulations has been denied in his statement. By considering the aforesaid contentions of the petitioners as well as the respondent, the trial court dismissed the said application. Hence, the revision petitioners have preferred the Civil Revision Petition before this Court.

(2.) The learned counsel for the petitioners would submit that on perusal of the averments in the plaint and the documents shows that the respondent has breached the essential terms of the contract. Therefore, the relief of specific performance is barred under section 16 (b) of the Specific Relief Act, insofar as the readiness and willingness is concerned, the respondent has not complied the requirements under Order 6 Rule 3 read with Form 48 of Appendix A of the Specific Relief Act is mandatory as well as in the decision of the Hon'ble Supreme Court, in the case of Church of Christ Charitable Trust and Educational Charitable society represented by its Chairman v. Ponniammal Educational Trust represented by its Chairperson / Managing Trustee reported in (2012) 8 SCC 706 and also raised suppression of Act and alteration of sale agreement in the schedule for raising performance of contract and also relied upon the evidence of PW1, in the proof affidavit filed by the petitioners would disclose the plaintiff and defendants were residing in USA on 10.07.2007. Under Transfer of Property Act, 1882, the contract is enforceable under section 23 of the Contract Act and the same is prohibited and forbidden under Foreign Exchange Management (Acquisition and Transfer of Immovable Property) Regulations, 2000, there is a bar under the regulations, the said suit filed by the respondent is not maintainable.

(3.) The learned counsel for the petitioner relied upon the decision of Hon'ble Supreme Court in the case of Saleem Bhai and Others v. State of Maharashtra and Others reported in (2003) 1 SCC 557 , wherein in paragraph 9, it has been held as follows.