SURESHKUMAR SAKHARCHAND SHAH Vs. EDNA SUSHILA SAMUEL

JUDGEMENT

(1.) THESE are cross-appeals arising out of the judgement and decree of the Joint Civil Judge, Senior Division at Pune vis-a-vis Survey No. 52/6-C admeasuring 1 acre and 32-3/4 gunthas at village Vadgaon Sheri. Taluka Haveli, District Pune, more precisely described in para 1 of the plaint.

(2.) THE appellant in First Appeal No. 285 of 1985, hereinafter referred to as defendant as the owner of the suit land. The appellant in First Appeal No. 249 of 1985, hereinafter referred to as the plaintiff is a businessman based at the Pune. Defendants husband and the plaintiff were clubmates, both being the members of the Pune club. Plaintiff entered into an agreement to purchase the suit land from the defendant and the said agreement was reduced to writing on 19-7-1971 at Exh. 55. Broadly speaking, the plaintiff paid earnest money of Rs. 10,000/- from out of the agreed price of Rs. 1,22,000/-, was to pay the balance within a period of nine months and in return the defendant was to pass a sale deed in plaintiffs favour. The defendant on her part undertook to do various things such as produce documents of title to satisfy PIFF of her right to transfer the land free of encumbrances, acquire and furnish to the plaintiff a demarcation certificate from the District Inspector of Land Records, secure permission from the Collector to convert the land which was agricultural into non-agricultural (NA) etc. The period for execution of the sale deed was extended from time to time. The extensions being granted on 21-3-1972, 16-2-1973, 18-4-1976 and 12-2-1979. the second extension endorsement, had, amongst others, the following recital : in pursuance of the agreement of sale I am herewith, delivering vacant possession of the shed as per plan attached". The land had a shed and the said shed had been previously let out to the Maharashtra State Warehousing Corporation on rent by the defendant. Plaintiff was placed in possession of the shed a from 1-11-1973. The last extension endorsement effected an important variation in the agreement. Plaintiff agreed to an enhancement of the price by 28,000/- which sum was to be paid along with the balance of the price of Rs. 1,12,000/- at the time of the execution of the sale deed. Secondly, until the agreement was performed i. e. the sale deed executed, plaintiff would pay the defendant a sum of Rs. 1,000/- per month. This payment was described as "rent". Thirdly, defendant gave a specific commitment to extend full co-operation so as to further the transaction vis-a-vis any application to be made to the Government or any other authority. Lastly, time for the performance of the agreement was extended upto 11-2-1980. Plaintiff gave a public notice in certain newspapers of Pune about his intention to purchase the suit land and this was done with a view to elicit objections from those claiming to or having an interest in the property. Certain objections were raised by various persons through their advocates and this was in August 1971. The plaintiff on 18-8-1971 addressed a notice to the defendant at Exhibit 91 calling upon her to deal with the claims raised by the persons aforementioned. Defendant replied on 6-9-1971 through Exhibit 66 disclaiming the objectors claim vis-a-vis the suit land. Plaintiff seems to have been satisfied with the clarification given by the defendants, because it was only after the receipt of Exh. 66, that the extensions of time were given for the performance of the agreement. After February 1980 there was an exchange of several missives between the parties. The first was Exh. P-88 dated 24-4-1980 sent on behalf of the defendant to the plaintiff. The notice recited various events. Paragraphs 8 and 9 of Exh. P-88 spoke of defendant having furnished a return in the prescribed form - form prescribed under section 6 of the Urban Land (Ceiling and Regulation) Act 1976, hereinafter referred to as the Ceiling Act. Defendant mentioned that she had in her return described that suit land as an agricultural land and had further made it clear that she had entered into an agreement with the plaintiff to sell the said land unto him. Paragraph 9 spoke of the defendant ever being ready and willings to perform her obligations under the agreement; plaintiff evading performance of his obligations and this despite several extensions agreed to by her on a personal request made by the plaintiff. Plaintiff was accused of not taking steps to furnish his signatures on applications to be made to different authorities for conversion of the user of the land. This term appearing in the agreement was said to be a term agreed to for the convenience of the plaintiff only, there being otherwise no legal impediment in the sale of agricultural land by the defendant to the plaintiff. Paragraph 10 of the notice called upon the plaintiff to inform defendant whether he was still interested in completing the transaction, and, if so, to forward the requisite applications and other documents on which defendants signatures were required. In case the formalities required for completing the transactions were to exceed three months, plaintiff was called upon to pay a sum of Rs. 70,000/- from out of the balance agreed to be paid. In case there was no response to the notice, defendant would treat the agreement as cancelled and return to plaintiff the sum of Rs. 10,000/ -. She also indicated that she would be resuming possession of the structure which was described as a farm-house. Plaintiff gave a reply to Exh. P-88 on 3-5-1980. This reply is a Exh. 89. Plaintiff denied that he had been remiss in carrying out his obligations under the agreement. In fact, it was defendant who was guilty of in action in not even dealing with the objections raised in response to the public notice intimating his desire to purchase the suit land. Next the reply spoke of defendant who was guilty of inaction in not even dealing with the objections raised in response to the public notice intimating his desire to purchase the suit land. Next the reply spoke of defendant doing nothing to further the transaction inasmuch as she had not obtained and furnished the requisite demarcation certificate or N. A. permission. The sum of Rs. 1,000/- per month which was being paid by the plaintiff was by way of rent and not compensation. Defendant had not obtained a No-objection Certificate to the completion of the transaction from the Competent Authority under the Ceiling Act. Until defendant performed her obligations under the agreement plaintiff was not willing to pay Rs. 70,000/-, though he was ready to pay the entire balance at the time of the sale deeds execution. At the end of the reply, plaintiff enumerated what exactly the defendant was supposed to do. First, she was to obtain a demarcation certificate from the D. I. L. R. s office. Secondly, she was to obtain N. A. permission from the Collector. Thirdly, she was to furnish all documents of her title to the suit land. Fourthly, she was to obtain an N. O. C. under the Ceiling Act. Plaintiff expressed his readiness to give his signatures on the requisite forms to facilitate the fruition of the agreement. A rejoinder was sent by the defendant which rejoinder is at Ex. D-72 dated 10-6-1980. She took exception to the accusation levelled against her, and, in para 7 averred;

(3.) THE case set out in the plaint was that the plaintiff had always been ready and willing to perform his obligations under the agreement at Exhibit 55. Defendant had been raising frivolous objections to avoid performance of her obligations under the agreement. She had not applied to the Collector for obtaining N. A. permission nor had she furnished a demarcation Certificate from the D I. L. R. The application for exemption under section 20 of the Ceiling Act required defendant to sign various applications and forms, which applications and forms had been sent by the plaintiff to the defendants. Defendant for no justifiable reason avoided to sign the said documents. On the contrary she was laying down impossible conditions, which she knew could not be performed. This was because she had no desire to honour her obligations. Plaintiff sought a decree for specific performance. In the event the said decree could not be granted, he was entitled to not only a refund of the earnest money paid to her, but also damages totalling rupees two lakhs. Defendant in her written statement denied that she was unwilling or evasive in the matter of performing her obligations under Exh. 55. It was plaintiff who was making impossible demands upon her and this, because he either did not have the requisite funds or wanted to delay the transaction for undisclosed reasons of his own. In fact with the coming into force of the Ceiling Act, the contract had become impossible of performance as the suit land itself exceeded the permissible limits which a land-holder was entitled to retain or acquire. Coupled with the land-holding of plaintiff himself, the Competent Authority could not grant exemption whether under section 20 or any other provision of the Ceiling Act. The claim for damages was also untenable. As a matter of fact, plaintiff had no right to retain possession of the structure in the land. This structure had been given to him in part performance of the contract. Plaintiff was falsely setting up the defence of being a tenant in respect of the structure whose tenancy was governed by the Rent Act. There was no merit in this contention and therefore defendant counter claimed for the relief of possession of the structure and damages totalling Rs. 17,100/ -. Defendant was prepared to give a deduction for the earnest money refundable by her and accept a decree for only Rs. 7,100/ -. Plaintiff in reply to the counter-claim reiterated that he was in possession as a tenant and that his tenancy was protected under the Bombay Rent Act. Pleadings summarised her, gave rise to the appropriate issues. Only three witnesses were examined at the trial - plaintiff being one of them, the defendants representative being, Professor Bopardikar. The testimony of the 2nd witness examined by the plaintiff is not of much consequence. The learned Civil Judge held that plaintiff had not established his readiness and willingness to perform his obligations under Exhibit 55 and also the Exhibit 55 stood frustrated having regard to the Ceiling Act. In relation to the counter-claim the learned Judge held that plaintiff could not be ejected as his occupation in respect of the structure in the land was protected under the Bombay Rent Act. Adjusting the sum of Rs. 10,000/- refundable by the defendant, a decree for Rs. 7,100/- was passed in favour of the defendant. Parties were left to bear their own costs.