MAN CHAND KATOCH Vs. VIRENDER SPEYA

JUDGEMENT

(1.) The plaintiff has filed the instant suit for specific performance of contract executed between the parties on 13.3.1997 whereby the defendant had agreed to sell plot No. 503, TypeB in Sector 4, B.C.S., PhaseII, New Shimla to the plaintiff or in the alternative for recovery of Rs. 80,00,000/ (for short suit land).

(2.) The defendant contested the suit by filing written statement wherein preliminary objections regarding maintainability, concealment of material facts, the plaintiff having not approached the court with clean hands, alleged agreement of sale being not enforceable, suit being bad for nonjoinder of necessary parties, limitation, valuation etc. were raised. On merits, the execution of the agreement in question was not disputed. However, it was submitted that the agreement though had been reduced into writing, yet the same is not a legal and valid document as it was in contravention of the terms and conditions as contained by the HIMUDA, which was previously known as Himachal Pradesh Nagar Vikas Pradhikaran and, therefore, the plaintiff was not entitled to the relief claimed.

(3.) It is further averred that the allotment in question was governed by the conditions as contained in Annexure 'A' attached with the allotment letter, according to which, the lease in respect of the plot in question commenced with effect from the date of issue of the letter after payment of the amount as mentioned in the said letter. Apart from the payment of Rs. 3,67,380/ the defendant was also liable to pay from the commencement of this lease ground rent calculated on the premium of the land @ 2 % per annum for the first 33 years, @ 3 % per annum for the next 33 years and @ 5% per annum for the remaining 33 years of the lease and in case there was any contravention of these terms and conditions, the hire purchase agreement that had been executed in favour of the defendant by the Pradhikaran on 6.4.1996 was liable to be terminated. It is further averred that as per this agreement, there was a complete bar to transfer, alienate, sell, assign or otherwise part with the possession of the whole or any part of the plot without previous consent in writing of the owner and any permission on this account was subject to the discretion of the Pradhikaran. The replying defendant had entered into an agreement in ignorance to the above said terms and conditions and the same is not enforceable in the eyes of law and, therefore, since he was neither competent in law to alienate this plot in favour of the plaintiff nor was he ready and willing to do so because in case the alleged agreement of sale is implemented by him in favour of the plaintiff, in that event, the allotment itself may result into cancellation. It is also averred that since the plaintiff has deposited a total sum of Rs. 7,78,877/, the defendant in order to cutshort the litigation is ready to return the amount to the plaintiff. It is lastly averred that the suit is otherwise barred by limitation and, therefore, deserves to be dismissed as such.