VIJAI INDUSTRIES Vs. NAGAR MAHAPALIKA KANPUR & OTHERS

JUDGEMENT

(1.) This second appeal is directed against the judgment and decree dated 13.04.2001 passed by Sri Narendra Kumar Jain, Xth Additional District Judge, Kanpur Nagar allowing the Civil Appeal No. 87 of 2001 and setting aside the judgment and decree dated 19.11.1996 passed by Sri Ved Prakash Gaur, IIIrd Additional Civil Judge, Kanpur Nagar in Original Suit No. 153 of 1982.

(2.) Plaintiff instituted a suit praying for a decree of specific performance of contract and mandatory injunction against the defendants.

(3.) The case of the plaintiff is that it is a company engaged in the tanning of leather; that in 1974 an advertisement was published by the defendant no. 1, Nagar Mahapalika Kanpur advertising auction for lease of plot no. 1 (area 2 bighas) Block-D, Scheme No. 39, Zajmau, Kanpur Nagar on 05.05.1974 through public auction; that plaintiff required the land for the business and therefore, participated in the aforesaid public auction; that one of the condition of auction was that the highest bidder would be required to deposit 1/4th of bid amount just after the acceptance of the bid and remaining 3/4th amount within 30 days; that no one was willing to purchase the plots on the above terms of the auction and, therefore, the defendant no. 1 altered the condition to the effect that if the deposit of 1/4th amount is made immediately, the remaining 3/4th amount will have to be deposited by the highest bidder in twelve-6 monthly installments alongwith 9% interest per annum; that it was also provided in the terms of auction that the possession of the plot shall be delivered to the purchaser on the date his bid is accepted and lease holder would be required to pay Rs. 10 annually towards lease rent which would be for a period of 99 years; that on the basis of the altered terms of auction, plaintiff made bid @ Rs. 1,12,000/- per bigha and he deposited 1/4th of the bid amount of Rs. 5,000/- on 05.05.1974 with the auction agent; thereafter on 06.05.1974, he paid Rs. 5,000/- more and finally on 24.05.1974 the plaintiff paid Rs. 46,000/- to the defendant no. 1 through bank draft which was duly received and receipt was issued in favour of plaintiff; that on 25.05.1974, the defendant no. 1 confirmed the auction in favour of plaintiff after receiving the amount of Rs. 56,000/-; that the plaintiff wanted to start his leather business at the earliest over the land in dispute, therefore it sent a letter dated 11.09.1974 to the Sahayak Nagar Adhikari (Vikray) of defendant no. 1 praying for physical possession over the plot in dispute; that plaintiff further informed the defendant no. 1 that people residing near the plot in dispute are changing its nature by digging mud therefrom; that on 30.11.1974 plaintiff again sent a letter to the defendant no. 1 to provide him actual physical possession so that the plot may be protected; that defendant no. 1 sent a reply dated 06.12.1974 informing the plaintiff that actual physical possession over the plot shall only be delivered after the lease deed is executed in its favour and directed the plaintiff to submit the required stamp papers for execution of lease deed before him; that on 18.03.1976 defendant no. 1 sent a letter to the plaintiff directing him to purchase stamp paper of Rs. 35973.75/- so that the lease deed may be executed in his favour; that on 20.03.1976, the plaintiff requested the defendant no. 1 to clarify as to how the stamp papers of the aforesaid amount are required and defendant no. 1 replied that he may contact Sub-Registrar in this regard; that the plaintiff approached the Sub-Registrar, Kanpur who informed that the Government has imposed a ban on registration of transfer deeds since Ceiling Act is about to be promulgated and he also informed that he cannot tell when permission for execution of sale deed would be granted by the Government and what would be the required stamp duty payable thereon; that the plaintiff approached defendant no. 1 and informed about the information given by Sub-Registrar and defendant no. 1 directed him to wait for some time; thereafter plaintiff sent several letters to the defendant no. 1 but no reply was given; that on 09.03.1977, a letter was sent by the defendant no. 1 directing the plaintiff again to submit the stamp papers of Rs. 35973.75/-; that plaintiff again met defendant no. 1 and inquired about the demand and stated that he has already spent Rs. 56,000/- and has got nothing is return; that the defendant no. 1 also did not issued "No Objection Certificate" to the plaintiff to start the business which was required for starting the business; that plaintiff was always ready and willing to get the lease deed executed in his favour from the defendant no. 1 and on 25.06.1979 he purchased stamp paper of Rs. 35973.75/- and requested that lease deed may be executed in his favour but nothing was done; that on 08.12.1981, the plaintiff sent a notice under Section 80 C.P.C. to the defendant no. 1 praying that within the period of notice, lease deed may be executed but in vain hence the suit was instituted.