JEELANI BEGUM Vs. COMMERCIAL AND INDUSTRIAL FINANCE LTD

JUDGEMENT

(1.) This appeal is preferred by the defendant, Jeelani Begum, against the judgment and decree of the 1st Additional Chief Judge, City Civil Court Hyderabad, in O. S, No. 55 of 1962 on his file The facts leading to this appeal may shortly be stated.

(2.) The defendant entered into a written agreement of sale on 4-5-1961 (Ex. A-1) in respect af S. Nos. 20 and 28 measuring Ac. 252 and Ac. 384 regpectively, of grazing land, situate in Mianpur village, Hyderabad West, with the plaiatiff. (the Commercial and Industrial Finance Ltd.) for a stated consideration of Rs. 1,000/- per acre, or Rs. 62,000/- on the aggregate. At the time of the agreement, Rs. 6,000/- was paid in cash and a ppst-dated cheque on the Canara Bank, dated 6th June, for Rs. 6,000/- in favour of the defendant was also given by the plaintiff, towards part-payment of the sale price, and it was stipulated that the balance of Rs. 50,000/- should be paid at the time of registration of the sale-deed. The agreement also provided that the vendor should obtain the necessary permission for alienation if found necessary and that vacant possession should be delivered on 16th June, 1961 after encashing the said cheque, by which time the purchaser would make the necessary enquiries regarding the defendants title to the land. It was also stipulated that the sale-deed shaff be registered on or before the 31st August, 1961, and the registration expenses were to be borne by the plaintiff. In default of payxent of the balance of price the vendor was given the right to forfeit the said sum of Rs. 12,000/- while, if the title was found to be defetiver the vendor was bound to return the said sum of Rs. 12,000/- with interest at 9 percent. Since Kishen Chand, one of the Directors of the Bank who signed the cheque, died on 13-6-1961, a fresh cheque for Rs. 6,000/- was issured on 14-6-1961, and the same was encashed on 16-6-61, and possession was dilivered to the plaintiff pursuant to the terms of the agreement. The defendant made the necessary application to the revenue authorities for permission to alienate the properly, and the plaintiff's Director gave the nessesary affidavit as a purchaser But nothing was heard from the defendant about the permission till 3rd November, 1961. Thereafter at the request of the defendant, the plaintiff agreed to pay a further sum of Rs. 2,000/- for expereses in connection with the permission At the instance of the defend ant the plaintiff sent a draft letter dated 23-11-1961 through the representative of the defendant Col Ibrahim Baig, promising to pay the said sum after it was duly signed by the defendant. The defendant, instead, sent a registered lawyer,s notice on 24-11-1961, received by the plaintiff on 27-11-1961 alleging that the contract has become incapable of performance, a the application for was rejected by the Tahsildar,. and also on the ground that time was the essence of vhe contract, and enclosed a cheque for Rs.12,000/- received by The plaintiff sent a reply on 28-11-1901 alleging that it obtained delivery of possession on 16-6-1961, that the defendant was bound to obtain permission of the revenue authorities for the alienation, and that though initially it was mentioned in the application for permission that the alienation was for a non agricultural purpose, the second affidavit was taken from the plaintiff that the permission for alienation for an agricultural purpose may be granted The plaintiff denied that the defendant informed it, or that it was aware that the Remission was rejected. It was alleged that the defendant had not taken the necessary ateps for obtaining the permission, and that the agreement had not become impossible of performance. The plaintiff averned. that it was eveready and willing to take the sale-deed and perfrom its part of the conternt and complete the sale. It is for that reason that it gave a second affidavit to the defendant in the last week of October, 1961, and also agreed, thought latently, to pay a further sum of Rs 2,000/-, and sent the draft letter of 23-11-1961 through Col. Ibrahim Baig. With these averments, the for Rs 12,000/- was returned by the plaintiff's counsel and the defendent was called upon to take all necessary steps and obtain the permission and asserted that the contract was in force, and that neither party was reeasted from its obligations. In view of the rising prices if the defendant entered into contract with a third party and failed to obtain the permission of the Tahsitdar and complete the sale legal action would be taken. The plaintiff, there fore prayed for a decree for specific performance of the contract dated 4th May, 1961; with possession, if need be, in favour of the plaintiff or its nomis nees with a direction to execute a proper conveyance and to register it after duly obtaining the permission of the Collector Hyderabad and in default have the sale deed executed by the Court. If specific performance could not be granted, the plaintiff prayed for a decree for damages for Rs. 62,000/-.

(3.) The suit was resisted on several grounds inter alia that the agreement to sell did not sta.e that the project of the plaintiff was for non-agriculture purpose, and that by then the plaintiff had not finalised the scbeme for industrial purpose, and it was, therefore, intended for agricultural purposes that an application for permission for industrial purpose should be made only when the industrial schemes were finalised. The defendant denied having delivered possession of the land to the plaintiff. The defendant filed an application for permission before the Tahsildar supported by her affidavit, and the affidavit of the plaintiff's principal officer, Viswanadbarao, for sanctioning the alienation Even though it was stated therein that the alienation was for agricultural purposes till the industrial schemes were finalised, the Tahsildar by his order dated 20-10-1961 stated that he was not competent to accord permission for industrial purposes. Thereupon, affidavits were filed by both the defendant as well as Viswanadharao on 23-10-1961, stating that permission for transfer under Section 47 of the Act may be granted for the present, though the defendant would have it that the allegation that she was selling the land for agricultural purposes was made at the instance of the plaintiff. The Tahsildar thereupon passed an order on 4-11-1961 that the defendant should first apply for conversion of land to non-agricultural purpose, instead of applying under sections 47 and 48 of the Tenancy Act. Thus the sanction was not granted by the Tahsildar for no fault of the defendant, and for want of the said sanction the contract has become discharged and the defindant was justified in returning the sum of Rs. 12,000/- along w'ith her lawyer's notice. It was alleged that the contract was illegal as it was contrary to the provisions of the Act, as well as Section 12 of the Andhra Pradesh Ceiling on Agricultural Holdings Act, No. 10 of 1961 (hereinafter called "the Ceiling Act"). The defendant admitted having entered into agreement with third parties for the sale of these two survey numbers on 25-11-1961 and also having made the applications for permission under the Act in accordance with the provisions of the Ceiling Act. Permission not having I een given, he entered into agreements on 5-10-1962 and 21-10-1962 with some others The R D. O., Hyderabad West acting under Section 5 (2) of the Ceiling Act, passed an order on 14th November, 1962 (Ex. B-14), holding that the total extent of the suit land if 636 acres 15 cents, or 8.84 family holdings that the said land was 2.84 family holdings in excess of the ceiling area, and that it should be surrendered, and also called upon the defendant to file a statement as to which land she pro. posed to surrender. It is submitted by the defendant that, in any event, it is only after the excess land is surrendered that she could validly convey any portion of the rest of the suit land, and that the plaintiff is not entitled to a decree for specific performance: She denied that she refused to perform the contract on account of the upward trend of the prices, and that her inability was because the sanction was not granted by the Tabsildar in spite of her best efforts. She denied the right of the plaintiff to claim damages.