THE POORNA PICTURES PRIVATE LIMITED Vs. KARIMUNNISA BEGUM

JUDGEMENT

(1.) THE plaintiff, being unsuccessful in O.S. No. 313 of 1982 on the file of the learned Additional Chief Judge, City Civil Court, Hyderabad, in obtaining the decree for specific performance of the agreement, dated 21 -08 -1977, has preferred the appeal assailing the Judgment and Decree dated 28 -01 -1993. The plaint schedule property comprises of 4188 Sq. Yds., forming part of the premises Nos. 1 -1 -79/C, 1 -1 -79/B and 1 -1 -79/A/1, Musheerabad, Hyderabad.

(2.) THE plaintiff, which is a private limited company, in its plaint pleaded that on 21 -08 -1977 it agreed to purchase the suit schedule property from the defendants No. 1 to 3 for a consideration of Rs. 4,00,000/ - and paid Rs. 40,000/ - towards advance and the sale agreement was reduced into writing. As per the terms of the sale agreement, the plaintiff was entitled to apply for permission so as to construct a theatre in the suit schedule property. It is averred that originally nine months time was agreed for obtaining such permission, but the time was extended up to 21 -10 -1978 by mutual agreement. When the plaintiff applied for permission, the concerned authorities refused to grant the same and then the plaintiff filed W.P. No. 2028 of 1980 before the High Court, which was pending. It is further averred that the plaintiff addressed several letters to the defendants No. 1 to 3 expressing its readiness and willingness to pay the balance sale consideration. The defendants replied stating that the suit schedule property was agreed to be sold for the purpose of constructing a theatre and since the permission was refused, the agreement stood cancelled. Such an interpretation of the terms of the agreement is not correct. The clause providing for obtaining the permission for the benefit of the plaintiff and it is for the plaintiff to waive such clause. The time is not the essence of contract for the fulfillment of that clause. It was further pleaded that in fact, defendants No. 1 to 3 extended the time till 24 -10 -1978 by their letter, dated 24 -07 -1978. That the plaintiff addressed several letters to the defendants No. 1 to 3 calling upon them to obtain necessary permission from the competent authority under the Urban Land Ceiling Act but they failed to do so. The plaintiff has been always ready and willing to perform its part of the contract but the defendants No. 1 to 3 refused to perform their part of the contract. It was also pleaded that after filing of the suit, the plaintiff came to know that a portion of the suit schedule property consisting of 2,000 Sq. Yds., was sold to the 4th defendant. So, the 4th defendant was also impleaded and the decree that might be passed in favour of the plaintiff would bind on her also. In fact, the 4th defendant had the prior notice of the suit agreement. Hence, the suit.

(3.) THE 4th defendant in her written statement stated that she purchased the site long prior to filing of this suit by which time the suit agreement was cancelled. She is a bona fide purchaser for value and without notice, in fact, an exchange deed was executed on 02 -03 -1981, and that earlier, an agreement dated 17 -08 -1979 was executed by the defendants No. 1 to 3 on one hand and the defendant No. 4 on the other. The plaintiff sought for an injunction restraining the defendants No. 1 to 3 from selling the suit property and the same was dismissed. The claim is time barred and as such the suit is to be dismissed with exemplary costs of Rs. 3,000/ -.