MIRZA WALI KHADER BAIG Vs. DEEPAK KUMAR

JUDGEMENT

(1.) the unsuccessful second defendant is the appellant. It is a suit for specific performance under Section 10 of the specific relief Act, 1963 (act 47 of 1963), for short, "the act", to enforce the contract ex. A-1 dated april 9, 1974. Executed by the motherthe first defendant in favour of the respondents agreeing to execute a sale deed in respect of the houses bearing NOS. 2-2-58 to 60 together with open land of 5,000 sq. Yards situated at ambarpet lor a consideration of Rs. 1, 75,000/. On the same day, a sum of Rs. 10,000/was paid. The suit was decreed by the trial court along with enforcement of another contemporaneous agreement, ex. A-13 which i would refer at that appropriate stage. Dissatisfied with the decree, the appeal has been filed.

(2.) the material facts not in dispute are that smt. Qaderunnisa begum, who was the owner of the property, died pending suit. Her legal representative is the appellant. She admittedly entered into the contract ex. A-1 with the respondents to sell the afore-stated property. The contract covenants that she should take immediate steps to have the tenant, namely, the department of survey of india of the central government, vacated and vacant possession taken from the tenant, to have the property released under Section 3 of the andhra pradesh buildings (lease, rent and eviction control) Act, 1960 (act 15 of 1960), for short, "the rent control act". In the event of her not succeeding in getting vacant possession on or before june 15, 1974, it will be open to the respondents to extend time for getting possession by fixing time or to terminate the agreement. In such an eventuality, the vendor undertook to.repay the earnest money of Rs. 10,000/ with 1% per mensem interest from the date of termination within a week thereafter. In the event of the agreement not cancelled and the vendor giving possession of the scheduled properties, then balance consideration of Rs. 1, 65,000/should be paid and sale deed got executed at the expense of the vendees. It is not in dispute that before the expiry of the period, the possession could not be taken. The vendor filed an application for release of the property but was not released. Though the tenant vacated, possession was not given to the vendor. It was allotted to the other government offices. Subsequently, the respondents got issued initially a telegram, the certified copy of which is ex. A-2, which is acutely disputed but followed thereafter by ex. A-3 notice dated august 17, 1974, to which the first defendant has got issued reply under ex. A-5 dated september 7, 1974. The first defendant also has got issued a notice under ex. A-14 dated august 5,1975 calling upon the respondents to take the sale-deed in respect of the agreement of the even date, ex. A-13 entered into by the respondents with her daughter-in-law under ex. A-13. The respondents laid the suit for specific performance. At stated, at the trial, the trial court accepted the plea of the respondents and rejected the contention raised by the appellant. The main defence raised before the court below in the pleadings and repeated here are: (1) the contract, ex. A-1 is a composite and contemporaneous contract along with ex. A-13; when the respondents are only willing to perform their part of the contract under ex. A-1 and have given go-bye to ex. A-13, they are not ready and willing to perform the entire part of the contract. Accordingly, they are not entitled to specifically enforce the contract; (2) the contract it subject to having the property released under Section 3 of the rent control act and to deliver vacant possession of the property under ex. A-8 dated september 5, 1974, the release was refused and thereby the contract became unenforceable and, therefore, it is frustrated ; (3) it is contended that the appellant was made to incur an additional expenditure of rs, 20,000/ to wards effecting improvements as per the directions issued by (he accommodation controller under fx. B-5, dated january 25, 1975. The respondents were not ready and willing to reimburse the same. Therefore, they are not entitled to the specific performance.

(3.) Sri sivarama sastry, learned counsel for the appellant has reiterated these contentions and he also further contended that on account of the lapse of time from the date of the contract till date, the value of the property has considerably been appreciated. Therefore, it is inequitous to specifically enforce the contract and he placed reliance under Section 20 (2) (a) and (c) of the act. Sri shankar rao, the learned counsel contended that ex. A-13 is only a contingent contract. Since the appellant did not deliver possession, the contract under ex. A-13 still remained to be a contingent contract. Therefore, there is no illegality in seeking to enforce the contract ex. A-