METADIN AGARWAL Vs. SYED ABDUL RAZACK

JUDGEMENT

(1.) In these two appeals the common question that arises for consideration is whether the agreement of sale entered into between the parties became frustrated as held by the Courts below accepting the contentions of the respondents herein.

(2.) Though the parties are different in both the suits they can be disposed of by a Common Judgment. One Syed Abdul Razack and his sister Mohamuda Begum agreed to sell thousand square meters of vacant land under two agreement of sales marked as Ex.A.1 in O.S. No.667 of 1985 and the other agreement executed by Mohamuda Begum was marked as Ex.A.l in O.S.No.l 16 of 1986. An advance of Rs.15,000.00 was paid in each of the agreement of sale. After sometime they got issued a legal notice stating that the competent authority under Urban Land Ceiling Act refused permission to sell the vacant land to the plaintiff and as such the agreement of sale stood cancelled. They also offered to refund the advance paid under the agreement of sale. The plaintiffs contested the claim of the defendants by getting legal notice issued Ex.A.7 dated 16-6-1981. Thereafter, the defendants got a rejoinder Ex.A.8 dated 1-7-1981 issued. In these circumstances, the agreement holders filed the above suits for specific performance with an alternate prayer to repay the advance with interest at 18% p.a from the date of suit till the date of realisation and also claimed damages with costs. While Metadin Agarwal filed O.S. No.1161 of 81, Syed Abdul Razack and his brother filed O.S. No.1160 of 81 against MOharnuda Begum. Subsequently these two suits were transferred to IV Additional Chief Judge, City Civil Court and they were numbered as O.S. Nos.667 of 1985 and 116 of 1986 respectively. For the sake of convenience the parties are referred in the judgment as they are arrayed in the suits. The Trial Court framed the following issues in both the suits:

(3.) Both the suits were clubbed together and evidence was recorded in O.S.No.667 of 1985. In support of their contentions, the plaintiff examined himself as P.W.I and marked Exs.A.l to A. 40. The first defendant, Syed Abdul Razack got examined himself as D.W.I and got marked Exs.B.l to B.20. On appreciation of the oral and documentary evidence the Trial Court came to the conclusion that though the agreement of sale entered into between the parties is true it became unenforceable due to rejection of permission by the competent authority and ultimately granted alternative relief of directing the defendant to refund the advance paid Rs.l5,000.00under agreement of sale and also to pay a sum of Rs.15,000/- towards damages from 24-8-1978 the date on which the competent authority rejected the permission for the first time under Ex.B.9 with interest at 6% p.a. in each of the case.