AGARWAL M Vs. SYED ABDUL RAZACK

JUDGEMENT

(1.) Plaintiff is the appellant. He filed the suit for specific performance of agreement for sale dated 27-7-1978, or in the alternative for refund of the advance money of Rs.15,000/- together with damages of Rs.15,000/-. The appellant's case is that he entered into an agreement with the first defendant to purchase the plaint schedule land measuring 1,000 sq. metres at the rate of Rs.50/- per sq. yard. The appellant paid a sum of Rs.15,000/- as advance. The terms of the sale were negotiated by the first respondent, his brother Syed Abdul Rahman (R-2) and his sister Mahamooda Begum (R-6) who also entered into agreements to sell their continguous land to some other persons under separate agreements. The first respondent represented to the appellant that as per the proceedings of the competent authority under Urban Land (Ceiling and Regulation) Act, 1976 - hereinafter called "the Act", he was permitted to retain 1,000 sq. metres in Survey No.71, Syed Jalal Garden, Maredpalli, within the limits of Secunderabad Contonment area. Along with the agreement of sale, a plan was also attached. As per the terms of the agreement, the first respondent had to obtain necessary permission from the competent authority under the Act. The sale transaction had to be completed by executing a registered sale deed within a period of six months from the date of intimation in writing by the first respondent to the appellant about the grant of such permission. The first respondent also agreed to get his brother, sister and mother to sign the sale deed as attesting witnesses as a token of expressing their consent. The first respondent accordingly made an application to the competent authority. However on 1-4-1980 the first respondent represented to the appellant that it had become necessary to make a fresh application to the competent authority in view of the objections to the earlier application. Accordingly, he submitted a fresh application after obtaining the signature of the appellant. The appellant was repeatedly enquiring about the result of the proceedings before the competent authority and the first respondent went on stating that the matter was pending and final order; are awaited. However on 19-3-1981 the first respondent by a notice informed the appellant to take back the advance paid by him as the competent authority refused permission 24-8-1978.The appellant was always ready and willing to perform his part of the contract. The first respondent had committed default. Hence the suit.

(2.) The first respondent in his written statement stated that he executed an agreement on 27-6-1978 and net on 27-7-1971 as wrongly mentioned in the plaint.It is further stated that it is made clear to the apellant that the agreement of sale was subject to obtaining permission to sell me said land from the competent authority, and in case permission was not granted, the appellant would only be entitled for refund of the advance money. In spite of his best efforts permission was refused by the competent authority by its letter dated 24-8-1978. The allegation that the first respondent made a representation that he should send a fresh application etc., is denied. At the request of the appellant another application dated 29-4-1980 was made and the same was rejected on 26-8-1980 which was duly intimated to the appellant The application dated 30-7-1982 was not made by the first respondent in pursuance of any agreement to sell, but it was. in the nature of enquiry as to how much he could retain or sell under the Act. As the permission contemplated in the agreement was refused twice, the appellant was intimated that he is entitled to collect back the advance money and also through a reply notice dated 1-7-1981.. As the permission was refused, the agreement stands cancelled and therefore, the question of enforcing the same does not arise.

(3.) In the trial Court, the appellant examined himself as P.W.I and marked Exs.A-1 to A-40; while the first respondent examined himself as D.W.I and marked Exs.B-1 to B-20. The trial Court on a consideration of the entire evidence on record held that the agreement of sale became unenforceable in view of refusal of exemption by the competent authority; and consequently a decree was granted in favour of the appellant for refund of the advance money of Rs.15,000/- with interest at 6 per cent per annum, together with damages of a further sum of Rs.15,000/-. Dissatisfied with the said decree, this appeal is filed by the plaintiff-appellant seeking for the main relief of specific performance.