Y. R. MAHADEV v. K. DAYALAN — 1997 DIGILAW 142 (KAR)

CHIDANANDA ULLAL, J. ( 1 ) THE instant appeal is filed to challenge the judgment and decree, dated 7-4-1994 in o. s. No. 4443 of 1990 on the file of the vi additional city civil judge, Bangalore, whereby the said judge had dismissed the suit of the appellant. ( 2 ) I heard the learned counsel for the appellant, Sri m. r. achar and the learned counsel for the respondent, Sri g. Lingappa. I have also perused the records. ( 3 ) THE facts in brief leading to the above appeal are as follows: that the appellant had filed suit in o. s. No. 4443 of 1990 on 30-7-1990 for a decree for specific performance of agreement of sale, dated 9-6-1988 executed by the respondent for sale of site bearing No. 67, formed by the Bangalore development authority in a layout called further extension of mahalakshmi layout, Bangalore, measuring 12. 20 metres into15. 50 + 14. 65 / 3 metres, that the sale consideration of Rs. 85,000/- and cash payment of Rs. 20,000/- was paid by the appellant to the respondent on the same day as advance amount, that the said site was allotted by the Bangalore development authority to the respondent under a letter of allotment, dated 5-5-1984 marked as ex. D-3 and the possession was given to him under possession certificate, dated 21-8-1985 marked as ex. D-4. The respondent had also entered into a lease-cum-sale agreement, dated 24-4-1985 marked as ex. P-10, that the time fixed for the execution of the sale deed under the agreement of sale was three months and accordingly the respondent would have executed the sale deed on or before 8-9-1988, that the appellant requested the respondent to execute a sale deed but the respondent did not do so, whereupon the appellant had sent a letter on 8-9-1988 marked as ex. P-2 calling upon the respondent to receive the balance amount of Rs. 65,000/- towards sale consideration and further to execute a deed of sale, that thereafter the appellant had also sent a legal notice on 30-11-1988 marked as ex. P-4 demanding execution of the sale deed as agreed upon under the agreement of sale. As against that the respondent had caused for a reply notice as at ex. P-6 whereupon the respondent had also sent a cheque for Rs. 21,400/- being the earnest money of Rs. P-4 demanding execution of the sale deed as agreed upon under the agreement of sale. As against that the respondent had caused for a reply notice as at ex. P-6 whereupon the respondent had also sent a cheque for Rs. 21,400/- being the earnest money of Rs. 20,000/- and interest at 12% p. a. from June 1988 to december, 1988. He further stated in the said reply notice that the respondent had got issued legal notice on 13-12-1988 whereby he revoked the agreement of sale entered into by him with the appellant. The appellant, however, caused for yet another notice, dated 22-2-1989 as at ex. P-8 demanding the respondent to execute a sale deed and further communicating therein that he would not encash the above cheque the respondent had sent for Rs. 21,400/ -. The appellant having found the respondent not responding to the demand to execute the sale deed, had ultimately resorted to the said suit in. o. s, no, 4443 of 1990 before the vi additional city civil judge, Bangalore (hereinafter referred to as city civil judge for convenience ). ( 4 ) THAT the respondent having entered into appearance in the suit, contested the same, that he filed his detailed written statement on 5-10-1991 wherein though he had admitted about the execution of the agreement of sale, he had contended therein that the site in question was not alienable for 10 years, that subsequent to the execution of the agreement of sale by him on 9-6-1988, on 20-6-1988 the government had issued a notification in exercise of powers conferred on it under Section 22 (a) of the Registration Act, 1980 as amended by the Karnataka Act 55 of 1976 in No. Rd 132 arg 76 making certain amendment to earlier notification No. Rd 132 erg 76, dated 14-3-1979, prohibiting transfer of Bangalore development authority sites during the period of lease under lease-cum-sale agreement entered into by an allottee with the Bangalore development authority under the provision of the Bangalore development authority (allotment of sites) rules, 1984, that the agreement of sale, dated 9-6-1988 therefore could not be given effect to as the performance of the contract was prohibited, that therefore the respondent had no choice but to revoke the agreement of sale and further to return the advance of Rs. 20,000/- together with interest at 12% p. a. , that the suit was frivolous and therefore the same was liable to be dismissed under order 7, Rule 11 of Code of Civil Procedure, that the appellant was not entitled to for the decree for specific performance. ( 5 ) ON completion of the pleadings of the parties as above, the learned city civil judge had framed as many as 6 issues as hereunder:" (1) whether the plaintiff proves that the agreement, dated 9-6-1988 is enforceable? (2) whether the plaintiff proves that he was ready to perform his obligations within 3 months from 9-6-1988? (3) whether the defendant proves that the agreement of sale is unenforceable due to change in laws? (4) whether the plaintiff is entitled for compensatory specific relief? (5) whether the defendant is entitled for compensatory costs? (6) what decree or order?" ( 6 ) THE learned city civil judge on appreciation of evidence on record and on hearing of the parties had recorded his finding as against the above issues in para 4 of the impugned judgment as follows: "4. My findings on the above issues are: ( 7 ) IN passing the impugned judgment, the learned city civil judge dismissed the suit of the appellant on the ground that the suit agreement, ex. P-1 rendered itself as unenforceable for the reason firstly, that the respondent had no right to sell the site in question to anybody from 20-8-1988 in view of the government notification, ex. D-1 prohibiting alienation from 20-8-1988, secondly, that the appellant failed to prove his readiness and willingness to perform his part of obligation within three months from 9-6-1988, since, he failed to show ready money or deposit of the balance of the sale consideration of Rs. 65,000/- from the date of the suit i. e. , 9-6-1988 and onwards, thirdly, that under the Bangalore development authority act and rules of allotment thereunder the suit agreement, ex. P-1 was unenforceable and ab initio void and lastly, that the court could not order for specific performance of the contract since such an action was prohibited under the law and that the contract rendered itself as infructuous. P-1 was unenforceable and ab initio void and lastly, that the court could not order for specific performance of the contract since such an action was prohibited under the law and that the contract rendered itself as infructuous. The learned civil judge even decided to order of refund of the advance amount on the ground that such a prayer was not made by the appellant in his suit and that under Section 22 (2) of the Specific Relief Act, 1963 without there being such a relief claimed, the court did not get jurisdiction to give such a relief. ( 8 ) THE learned counsel for the appellant, Sri m. r. achar while taking me through the back drop of the case argued at the outset that the learned city civil judge was not just and proper in passing the impugned judgment without following the division bench ruling of this court in N. Y. Yogambika V. Narasingh , Wherein the division bench of this court in the case of n. y. yogambica, supra, held that Rule 18 of the city of Bangalore improvement (allotment of sites) rules 1972 among other things provided that the purchaser shall not alienate the site within a period of 10 years from the date of allotment except mortgage in favour of the government of india, government of Mysore etc. , did not come in the way of granting a decree for specific performance. Sri achar in citing the above decision tried to draw an anology in the reported case and in the instant case in hand. Sri achar drew substance to his argument, from what was containing in the lease-cum-sale agreement marked as ex. P-10 wherein it had been clearly mentioned that the allotment rules applicable to the case of the respondent were the city of Bangalore improvement (allotment of sites) rules, 1972 (hereinafter referred to as 1972 rules ). Sri achar had also pointed out that though the above division bench ruling was cited before the learned city civil judge, the learned city civil judge had declined to follow the said ruling on the ground that the allotment rules applicable to the respondent at the relevant point of time was not 1972 rules but 1984 rules, Sri achar found fault with the said observation of the learned city civil judge for the simple reason that in ex. P-10 the allotment rules stated to be applicable to the case of the respondent was the 1972 rules. ( 9 ) SINCE the above argument of Sri achar is the main argument advanced before me, I feel it is proper to meet this argument right at this stage. It is to be noted that the respondent had applied for the subject site under the notification of the Bangalore development authority, dated 22-10-1982 produced at ex. D-2, wherein in item No. (i) thereunder, it had been clearly stated that the allotment of site would be made under the Bangalore development authority (allotment of sites) rules 1982 (hereinafter referred to as 1982 rules' ). The letter of allotment was issued by the Bangalore development authority in the name of the respondent on 5-5-1984 and the allotment rules applicable to the case of the respondent were 1984 rules and not 1972 rules as it had been so stated wrongly in the lease-cum-sale agreement, ex. P-10. In between the letter of allotment, dated 5-5-1984 and the lease-cum-sale agreement, dated 24-4-1985 ex. P-10, there came into force the new allotment rules called the Bangalore development authority (allotment of sites) rules, 1984 (hereinafter referred to as 1984 rules' ). It is to be noted in this context that when the 1982 rules came into force on 3-7-1982 as per Rule 18 of that rules i. e. , 1982 rules, the 1972 rules came to be repealed and in the same way when 1984 rules came into force, as per Rule 17 of the said rules i. e. , 1984 rules, the earlier rules i. e. , 1982 rules, came to be repealed. In that view of the matter the argument of the counsel for the appellant does not appeal to me to say that for the respondent's case, the allotment rules applicable were 1972 rules. It appears to me that in the lease-cum-sale agreement, ex. P-10 it is mentioned that the allotment rules applicable were the 1972 rules. As a matter of fact, the learned city civil judge had rightly observed that when the 1972 rules were no longer in force as on the date of lease-cum-sale agreement, ex. P-10, mentioning therein that the 1972 rules as applicable was erroneous and that therefore, it is clear that what were applicable to the case of the respondent were the 1984 rules. P-10, mentioning therein that the 1972 rules as applicable was erroneous and that therefore, it is clear that what were applicable to the case of the respondent were the 1984 rules. Therefore, I do not find any error in observation made by the learned city civil judge that the division bench ruling of this court in n. y. yogambika's case, supra, was not at all applicable to the instant case of the respondent. ( 10 ) SRI m. r. achar next argued that 'restrictions, conditions on sales of sites' in the 1972 rules, were provided for in Rule 18 thereof, whereas, in the 1982 rules as well as in the 1984 rules 'restrictions, conditions on sales' were provided for in Rule 14 of the said rules, Sri achar argued that as far as the provision as to 'restrictions, conditions on sales of sites' in all the three rules i. e. , 1972 rules, 1982 rules and 1984 rules are one and the same, and therefore, according to Sri achar the above said division bench ruling of this court is equally applicable to the case in hand, for according to him ultimately what the division bench had laid down was the principle of law. ( 11 ) TO find out whether the provision of Rule as to 'restrictions, conditions on sales of sites' were one and the same in all the rules i. e. , 1972 rules, 1982 rules and 1984 rules, it is necessary to quote Rule 18 of the 1972 rules on the one hand and Rule 14 of the 1982 rules and 1984 rules on the other. ( 12 ) RULE 18 of the 1972 rules reads as follows: "18. Restrictions, conditions and limitations on sales of sites. (1) notwithstanding anything contained in. (1) these rules or any other rules, bye-laws or orders governing the allotment, grant or sale of sites by board of construction of building; or (ii) any instrument executed in respect of any site allotted, granted or sold by the board for construction of building, the chairman may at the request of the allottee, grantee or purchaser of a site, execute a deed of conveyance subject to the restrictions, conditions and limitations specified in sub-rule (2 ). (2) the conveyance by the chairman of a site in favour of an allottee, grantee or purchaser of site (hereinafter referred to as the purchaser) shall be subject to the following restrictions, conditions and limitations, namely. (a) in the case of a site on which a building has not been constructed. (i) the purchaser shall construct a building on the site within such period as may be specified by the board, as per plans, designs and conditions to be approved by the board or in conformity with the Provisions of the city of Bangalore municipal Corporation Act, 1949 and the bye-laws made thereunder; (ii) the purchaser shall not without the approval of the board, construct on the site any building other than a building for the construction of which the site was allotted, granted or sold; (iii) the purchaser shall not alienate the site within a period often years from the date of allotment except by mortgage in favour of the government of india, the government of mysore, the life insurance corporation of India or the Mysore housing board, or any corporation set up, owned or controlled by the state government or the central government to secure money advanced by such government, corporation board, society or corporations, as the case may be, for the construction of the building on the site. (b) in the case of a site on which a building has been constructed, the purchaser shall not alienate the site and the building constructed thereon within a period often years from the date of allotment, except. (i) by mortgage in favour of the government of india, the government of mysore, the life insurance corporation of India or the Mysore housing board or any co-operative society approved by the board to secure moneys advanced by such government, corporation, board or society for the construction of the building on the site; or (ii) with the previous approval of the board; (c) in the event of the purchaser committing breach of any of the conditions in clause (a) or clause (b), the board may at any time, after giving the purchaser reasonable notice, resume the site free from all encumbrances. The purchaser may remove all things which he has attached to the earth: provided he leaves the site in the state in which he received it. The purchaser may remove all things which he has attached to the earth: provided he leaves the site in the state in which he received it. All transaction entered into in contravention of the conditions specified in clauses (a) and (b) shall be null and void ab initio. Explanation. In this Rule, references to the board shall be deemed to include the chairman when authorised by the board by a general resolution to exercise any power vested in the board. (3) notwithstanding anything contained in sub-rule (2), the board may, with the previous approval of the state government, and on payment of such sum not exceeding twelve and half per cent of the allotted value of the site by the lessee, by order in writing, permit the alienation during the period of the lease, of the site and the building, if any, constructed thereon, on account of the inability of the lessee to reside in the city of Bangalore for reasons beyond his control or the insolvency or impecuniosity of the lessee. Where such permission is granted, the alienee shall for the purposes of these rules, be the lessee subject to all the terms and conditions of the lease deed already executed". Rule 14 of the 1982 rules and the 1984 rules reads as follows: "14. Restrictions, conditions on sales of sites. (1) notwithstanding anything contained in these rules, the commissioner may at the request of the allottee of a site, execute a deed of conveyance subject to the restrictions, conditions and limitations specified in sub-rule (2 ). (2) the conveyance of site by the commissioner in favour of an allottee (hereinafter referred to as the purchaser) shall be subject to the following restrictions, conditions and limitations namely: (a) in the case of a site on which a building has not been constructed. (2) the conveyance of site by the commissioner in favour of an allottee (hereinafter referred to as the purchaser) shall be subject to the following restrictions, conditions and limitations namely: (a) in the case of a site on which a building has not been constructed. (i) the purchaser shall construct a building on the site within such period as may be specified by the authority as per plans, designs, and conditions to be approved by the authority or in conformity with the Provisions of the Karnataka Municipal Corporations Act, 1976 and the bye-laws made thereunder; (ii) the purchaser shall not without the approval of the authority construct on the site any building other than a building for the construction of which the site was allotted, granted or sold; (in) the purchaser shall not alienate the site within a period of ten years from the date of the conveyance except by mortgage in favour of the government of india or the government of karnataka, the life insurance corporation of India or the Karnataka housing board or any company or co-operative society approved by the authority or any corporation set up, owned or controlled by the state government or the central government to secure money advanced by such government, corporation, company, board, society or corporation, as the case may be for the construction of the building on the site. (b) in the case of a site on which a building has been constructed, the purchaser shall not alienate the site and the building constructed thereon within a period of ten years from the date of agreement, except by mortgage in favour of the government of india, the government of karnataka, the life insurance corporation of india, or the Karnataka housing board or any company or co-operative society approved by the authority to secure money advanced by such government, corporation, board or society or company for the construction of the building on the site. (c) in the event of the purchaser committing breach of any of the conditions in clause (a) or clause (b) the authority may at any time, after giving the purchaser reasonable notice, resume the site free from all encumbrances. (c) in the event of the purchaser committing breach of any of the conditions in clause (a) or clause (b) the authority may at any time, after giving the purchaser reasonable notice, resume the site free from all encumbrances. The purchaser may remove all things which he has attached to the earth: provided that if he has left the site in the state in which he received it, all transactions entered into in contravention of the conditions specified in clause (a) and (b) shall be null and void ab initio. Explanation. in this Rule, references to the authority shall be deemed to include the references to the commissioner when authorised by the authority by the general resolution to exercise any power vested in the authority. (3) notwithstanding anything contained in sub-rule (2) but without prejudice to the Provisions of Rule 13 where the lessee applies that for reasons beyond his control he is unable to reside in the city of Bangalore or by reasons of his insolvency or impecuniosity it is necessary for him to sell the site or site and the building, if any, he may have put up thereon the Bangalore development authority may, with the previous approval of the state government, either: (a) require him to surrender the site, where there is no building in its favour; or (b) where there is a building put up permit him to sell the vacant site and building: provided that (i) in case covered by clause (a) the authority shall pay to the lessee the allotted value of the site and an additional sum equal to the amount of interest at twelve per cent per annum thereon; and (ii) in case covered by clause (b) the lessee shall pay to the authority a sum equal to the amount of interest at twelve per cent per annum on allotted value of the site". ( 13 ) IF we read, compare and appreciate the above Provisions, it is clear that the sub-rule (3) of Rule 18 of the 1972 rules, with regard to the restrictions on sale are totally different from the sub-rule (3) of Rule 14 of the 1982 rules and 1984 rules as to the restrictions on sales. ( 13 ) IF we read, compare and appreciate the above Provisions, it is clear that the sub-rule (3) of Rule 18 of the 1972 rules, with regard to the restrictions on sale are totally different from the sub-rule (3) of Rule 14 of the 1982 rules and 1984 rules as to the restrictions on sales. From the above, one can make out without any difficulty that in the 1972 rules with a previous approval of the state government and on payment of such sum not exceeding 12% of the allotted value of a site by the lessee, the Bangalore development authority, by an order in writing permit alienation during the period of lease of the site and the building, if any, constructed thereon on account of the inability of the lessee to reside in the city of Bangalore for reasons beyond his control or the insolvency or impecuniosity of the lessee and in such an event where permission is granted, the alienee shall for the purpose of the said rules be the lessee subject to all the terms and conditions of the lease deed already executed. Unfortunately, for the appellant in Rule 14 of the 1982 rules and 1984 rules the provision as to alienation are totally different and all that provided for therein is the lessee to surrender the site where there is no building and in such an event, the Bangalore development authority to pay the value of the site allotted and in addition to the same, additional sum equal to the amount of interest at 12% p. a was also payable. ( 14 ) HENCE, it appears to me that it is futile on the part of Sri achar to argue that the provision as to the restrictions on sale of sites in the year 1972 rules on the one side and 1982 and 1984 rules on the other are one and the same. Therefore, I have got no hesitation to reject the argument of Sri achar that the division bench ruling of this court is applicable to the instant case in hand of the respondent. Therefore, I have got no hesitation to reject the argument of Sri achar that the division bench ruling of this court is applicable to the instant case in hand of the respondent. ( 15 ) THE learned counsel for the appellant next argued that the learned city civil judge had erroneously come to the conclusion that he was not keeping money or fund ready as on the date of suit or thereafter towards the balance of the sale consideration, for according to Sri achar it was nobody's case that the appellant was having no fund at all. But one thing,i have to observe in this connection is that in the plaint averments though the appellant had stated that he was ready and willing to do his part of contract, he never said anywhere that he was having the balance of sale consideration of Rs. 65,000/- with him or in deposit in support of his claim, that he was ready and willing to do his part of contract. In this context, it is relevant to mention here that it is the appellant who was the suitor before the city civil judge and it is for him to plead and show by cogent evidence before the city civil judge that he was having the requisite money or fund and in the absence of such pleading in the plaint and evidence in support of that pleading before the city civil judge, I do not find any error on the part of the learned city civil judge to observe that the appellant failed to prove his readiness and willingness to perform his part of contract within three months, since he failed to show that he was having ready money or deposit of the balance of sale consideration of Rs. 65,000/- from 9-6-1988 to the date of suit and all through. Therefore, I do not find any substance in that part of argument addressed by Sri achar. ( 16 ) THE learned counsel for the respondent, Sri lingappa, had argued that the division bench ruling of this court in n. y. yogambika's case, supra, has no application to the instant case in hand. In view of the above discussion, I endorse the said argument of Sri lingappa. It is also his argument that the respondent, in the instant case, had very promptly refunded the advance amount of Rs. In view of the above discussion, I endorse the said argument of Sri lingappa. It is also his argument that the respondent, in the instant case, had very promptly refunded the advance amount of Rs. 20,000/- together with interest at 12% p. a in all for a sum of Rs. 21,400/- by issuing a cheque in the name of the appellant. He had sent the cheque in the name of the appellant having come to know that under ex. D-1, the government had banned the registration of any agreement of sale in respect of a site allotted by the Bangalore development authority as long as the lease period was in subsistence. He pointedly, drew my attention to the circumstances that within 10 days from the date of execution of the suit agreement, there came ex. D-1, notification by the government on 20-6-1988, prohibiting the alienation of the Bangalore development authority sites during the subsistence of the lease period and further banning of the very registration of the documents by the registering authority and the moment the respondent came to know such a notification, he had very promptly put an end to the suit agreement and further sent a crossed cheque for Rs. 21,400/- as above. He further submitted that ex. P-1, sale agreement had therefore rendered itself as infructuous and unenforceable. It is also his argument that even the very suit agreement was ab initio void for the reason that the respondent was only a lessee and the title in the subject site vested in the Bangalore development authority and therefore with that imperfect title in him, he i. e. , the respondent could not enter into the suit agreement of sale to transfer the right, title and interest on the site. In support of his argument, he had cited before me the decision in t. Ramachandraiah v g. Nagappa naidu , on the point that where the title of the vendor is imperfect or there is a bar as against alienation, the court was not competent to pass a decree for specific performance, of course, the said decision according to other side was set aside by the Supreme Court on the limited point that the said judgment was passed by the learned single judge of this court when the counsel on record died after illness and that despite notice to the respondent in that case he did not make either alternative arrangement or be present before the court. The next decision Sri lingappa cited is JT 1995 (2) SC 513, on the point that when the agreement of sale stands frustrated, the question of readiness and willingness on the part of the vendor or vendee does not arise and that in such an event the plaintiff is entitled to for refund of the earnest money, c. Ramaiah v mahammadunnisa begum , on the point that when the agreement was frustrated the same becomes impossible for performance due to supervening Act, naveen chandra sharma v vi additional district and sessions judge, meerut and others, on the point that when the contract is void, the plaintiff is not entitled to for any relief, rajendrakumar bhandari v poosammal and others , on the point that when the vendor is having no marketable title, there cannot be a suit for specific performance of an agreement of sale and lastly in the case of kanshi ram v om prakash jawal and others, wherein the Supreme Court held that when the court gets into equity jurisdiction, it would be guided by justice, equity, good conscience and fairness to both the parties. Therefore, Sri lingappa prayed for dismissal of his appeal; nevertheless he submitted that the respondent 3 ready to refund the advance amount to the appellant. ( 17 ) IN the light of the above argument addressed by both the learned counsels appearing for the parties, the points for my consideration are as follows: (i) whether the impugned judgment and decree passed by the learned city civil judge is just and proper in dismissing the suit denying relief of specific performance? ( 17 ) IN the light of the above argument addressed by both the learned counsels appearing for the parties, the points for my consideration are as follows: (i) whether the impugned judgment and decree passed by the learned city civil judge is just and proper in dismissing the suit denying relief of specific performance? (ii) whether the appellant is entitled to for the refund of the advance amount together with interest as prayed for in the instant appeal before this court? ( 18 ) REGARDING point No. (i): the main thrust of the argument of the learned counsel for the appellant is that the suit agreement, ex. P-1 was valid and quite enforceable as against the respondent as laid down by the division bench ruling of this court in n. y. yogambika's case, supra, I have carefully gone through the above decision cited before me in support of the case of the appellant. It is pertinent to mention here that the said ruling was based on the 1972 rules wherein, a specific provision was made under sub-rule (3) of Rule 18 to the effect that when the permission was granted to" the lessee by the government and resolution thereto was passed by the Bangalore development authority permitting the lessee for the alienation during the period of lease, the alienee shall for the purpose of the said rules be the lessee subject to all the terms and conditions of lease deed already executed. Unfortunately, for the appellant the 1972 rules came to a close on 3-7-1982 when the 1982 rules came into force repealing the 1972 rules and further the 1982 rules came to a close when the 1984 rules came into force repealing the 1982 rules as on 18-4-1984, and more importantly, that the provision in sub-rule (3) of Rule 18 in the 1972 rules as to restrictions on the alienation of Bangalore development authority sites during period of lease totally changed in the subsequent rules of 1982 and of 1984. As I have analysed in paras 11 to 13, supra, in 1982 rules as well as 1984 rules that permission to the lessee by the government as well as the Bangalore development authority no longer provided for in the subsequent rules. If that is the legal position, I do not think the argument addressed by the learned counsel for the appellant can be well received by this court. If that is the legal position, I do not think the argument addressed by the learned counsel for the appellant can be well received by this court. Therefore, I have to observe here that the learned city civil judge had rightly repealed the said argument advanced by the appellant in passing the impugned judgment and decree. Hence I have got no hesitation to reject the said limb of the argument advanced by the learned counsel for the appellant, Sri m. r. achar. ( 19 ) NOW the point is whether the respondent could enter into an agreement of sale as per ex. P-1 agreeing to sell the suit land in the name and favour of the appellant. It is clear from the 1982 rules as well as 1984 rules that during the period of lease, the status of the lessee was that of a tenant and that under the lease-cum-sale agreement he was continuing only as a tenant by paying lease amount to the Bangalore development authority, in the instant case and then with the execution of the lease-cum-sale agreement by the Bangalore development authority in the name of the respondent as at ex. P-10 in the instant case, the right of the respondent was only to hold of the subject site in that capacity as lessee or a tenant and he had no marketable title either to alienate or encumber in any manner \vhatsoever other than what is provided for under Rule 14 (2) (a) (iii) that too for the limited purpose of construction of building on the site. As per the said rules all that the lessees are permitted is to mortgage the site under lease in favour of the government of india, the government of karnataka, the life insurance corporation of India or the Karnataka housing board or any co-operative society approved by the Bangalore development authority or the corporation set up, owned or controlled by the state government or the central government to secure money advanced by such government, corporation, board, society or corporations as the case may be, for the limited purpose of construction of the building on the site. To quote Rule 14 (2) (a) (iii) the same reads as follows: " 14 (2) xxx xxx xxx: (a) xxx xxx xxx. (i) xxx xxx xxx. (ii)xxx xxx xxx. To quote Rule 14 (2) (a) (iii) the same reads as follows: " 14 (2) xxx xxx xxx: (a) xxx xxx xxx. (i) xxx xxx xxx. (ii)xxx xxx xxx. (iii) the purchaser shall not alienate the site within a period of ten years from the date of the conveyance except by mortgage in favour of the government of India or the government of karnataka, the life insurance corporation of India or the Karnataka housing board or any company or co-operative society approved by the authority or any corporation set up owned or controlled by the state government or the central government to secure money advanced by such government, corporation, company, board, society or corporation, as the case may be for the construction of the building on the site". ( 20 ) FROM the above provision, it is crystal clear that there is a total bar under the above Rule as against the lessee or the purchaser as that of the respondent herein not to alienate the site within a period of 10 years of lease period. It is exactly what the respondent had done in executing the suit agreement of sale, ex. P-1 probably under the misconception. Under the facts and circumstances of the case, it appears to me that the respondent had retraced his step to undo the illegal act of his entering into agreement of sale and it is for that reason he had issued a legal notice, dated 13-12-1988 (not marked in case) to put an end to the suit agreement of sale and further returned the entire sum of advance of Rs. 20,000/- together with interest at 12% in all worked out to Rs. 21,400/ -. The appellant, however, did not at that point of time understand the precarious situation of himself and that of the respondent, particularly when notification No. Rd 132 arg 76 marked as ex. D-1 in the suit came into force within 10 days from the date of entering into the agreement of sale, ex. P-1 whereby the government had brought ban to register the deed of sale in respect of the Bangalore development authority site during the period of subsistence of lease. ( 21 ) IN that view of the matter, I fully agree with the argument advanced by the learned counsel for the respondent that the agreement of sale, ex. P-1 whereby the government had brought ban to register the deed of sale in respect of the Bangalore development authority site during the period of subsistence of lease. ( 21 ) IN that view of the matter, I fully agree with the argument advanced by the learned counsel for the respondent that the agreement of sale, ex. P-1 entered into by the appellant on the one side and the respondent on the other was bad at the very point of time of its inception as the same was opposed to law. I don't want to elaborate the different points canvassed by the learned counsel for the respondent, Sri lingappa, supported by case laws on the point that the suit agreement, ex. P-1 was a void agreement and further that even otherwise it rendered itself as infructuous with the issue of notification as at ex. D-1. Therefore, I do not find any error in passing the impugned judgment and decree by the learned city civil judge and I confirm the same in so far as the same related to rejection of the claim of the appellant to enforce the suit agreement, ex. P-1. Hence I answer point No. (i) in the affirmative. ( 22 ) REGARDING point No. (ii): in passing the impugned judgment and decree, the learned city civil judge had observed that under Section 22 (2) of the Specific Relief Act, 1963, he was prevented from giving the relief even ordering the refund of the advanced amount, the appellant paid to the respondent under the suit agreement, ex. P-1, for according to him, no relief under clauses (a) and (b) of sub-section (1) of Section 22 of the Specific Relief Act could be granted by him in view of the fact that it had not been specifically claimed by the appellant in his suit. In this regard, I should point out that under explanation below the proviso under Section 21 (5) of the specific relief Act, it is clearly stated that in the circumstances that the contract has become incapable of specific performance does not preclude the court from exercising the jurisdiction conferred in the matter of grant of compensation for breach of contract. In this regard, I should point out that under explanation below the proviso under Section 21 (5) of the specific relief Act, it is clearly stated that in the circumstances that the contract has become incapable of specific performance does not preclude the court from exercising the jurisdiction conferred in the matter of grant of compensation for breach of contract. Here we should not forget that under the Specific Relief Act, the parties are entitled to for discretionary reliefs and that discretion has to be exercised by the court fairly by putting the parties equally in the scale. Interestingly enough in the impugned judgment, the learned city civil judge had observed that in Section 22 (2) of the Specific Relief Act, it is provided for therein that no relief can be granted by the court unless it has been specifically claimed, but in the instant case in hand, the prayer in the plaint of the appellant as I see is not only for grant of specific performance of the suit agreement, ex. P-1 but also for grant of such other relief or reliefs to the appellant as it may deem fit to grant in the circumstances of the case. To reproduce the prayer in the plaint, the same reads as follows: "wherefore, the plaintiff prays for the judgment and decree: (a) granting the specific performance of the suit agreement, directing the defendant to execute proper lawful deeds of absolute sale in favour of the plaintiff covering the schedule property free from all encumbrances, putting the plaintiff in physical possession and get the document of sale duly registered at the cost of the plaintiff and thereupon to receive the balance of price due to him with a further direction that in the event, defendant failing to do so that the said act or acts being caused to be done through a court commissioner or otherwise to effectively complete the conveyance of the schedule property to the plaintiff as an absolute sale thereof; (b)as a consequence direct him to surrender all documents of title and documents of clearance of all encumbrances what so ever, the documents to be given to the plaintiff; (c)granting costs of these proceedings; and (d)granting such other relief or reliefs to the plaintiff as this Hon'ble court may deems fit to grant in the circumstances of the case in the interest of Justice and equity". ( 23 ) IN my considered view, if the above prayer of the appellant is carefully read along with the explanation below the proviso of Section 21 (5), it can be said that the least the learned city civil judge would have done is to order for awarding compensation by directing refund of the advance amount particularly when the circumstances that the contract had become incapable of performance specifically. Hence, it appears to me that the learned city civil judge would have done well had he exercised that jurisdiction even suo motu on his own, not to make the appellant to suffer and to loose the advance money in the hands of the respondent. It is well known principle that none should be allowed to enrich oneself at the cost of another. In the instant case in hand, in fact the appellant had clearly prayed for an alternative relief at prayer (d) praying, the learned city civil judge for grant of such other reliefs as the city civil judge may deem fit to grant in the circumstances of the case, in the interest of Justice and equity. When the learned city civil judge was exercising the jurisdiction under the Specific Relief Act, it is obvious that he was more concerned with the discretionary and equitable reliefs to the parties before it and that exercise of jurisdiction would therefore would have been as well be in favour of the appellant too. As a matter of fact in the reported decision cited before me by the learned counsel for the respondent in kanshi ram's case, supra, the Hon'ble Supreme Court had observed in para (5) of the said decision as follows: ". . . . . it is true that the rise in prices of the property during the pendency of the suit may not be the sole consideration for refusing to decree the suit for specific performance. But it is equally settled law that granting decree for specific performance of a contract of immovable property is not automatic. It is one of discretion to be exercised on sound principles. When the court gets into equity jurisdiction, it would be guided by justice, equity, good conscience and fairness to both the parties". But it is equally settled law that granting decree for specific performance of a contract of immovable property is not automatic. It is one of discretion to be exercised on sound principles. When the court gets into equity jurisdiction, it would be guided by justice, equity, good conscience and fairness to both the parties". In that view of the matter, I am of the considered view, that the least the learned city civil judge would have done is to compensate the appellant adequately as contemplated in the explanation below proviso under Section 21 (5) of the Specific Relief Act. When that is not done, I feel it is just and proper for this court to do by directing the respondent to refund the advance of Rs. 20,000/- together with interest from the date of suit to the date of realisation. Now the question is at what rate of interest. I should not forget here that the respondent had unnecessarily been dragged to court by the appellant for no fault of his. This I observe for the reason that the appellant who had refused to encash the cheque for Rs. 21,400/- the respondent very well sent at the earliest point of time and within 10 or 12 days after the suit agreement after rescinding the contract when he came to know that the suit agreement could not be acted upon with the issue of ex. D-1 notification by government banning registration of Bangalore development authority sites during the period of subsistence of lease period. But it is the appellant who did not oblige himself to encash the said cheque and be satisfied with. As such, it is the appellant who tried the path of litigation by making the respondent to bear his side of the cost of litigation unnecessarily. Hence, it would be too harsh a deal if the respondent is directed to return the advance amount at the agreed and contractual rate of interest at 12% p. a. hence, I direct that the advance amount of Rs. 20,000/- now in the hands of the respondent be returned to the appellant at the reduced rate of interest at 9% p. a. hence, I answer point No. 2 in favour of the appellant. 20,000/- now in the hands of the respondent be returned to the appellant at the reduced rate of interest at 9% p. a. hence, I answer point No. 2 in favour of the appellant. ( 24 ) IN that view of the matter, the impugned judgment and decree passed by the learned city civil judge is set aside and modified to the extent that the respondent shall refund to the appellant the advance amount of Rs. 20,000/- together with simple interest at 9% p. a. from the date of agreement i. e. , 24-4-1988 to the date of realisation of the sum by him. The same is done by exercising powers to award compensation under explanation below proviso to sub-section (5) of Section 21 of the Specific Relief Act, 1963. As a matter of fact, the learned counsel for the appellant had submitted that the respondent has got no objection for a direction by this court to refund the advance amount. ( 25 ) TO depart from the discussion and to conclude. I have to record here, words of appreciation with regard to the attitude of the respondent that he does not want to enrich himself and live at the cost of the appellant, no matter that he had not only succeeded before the court below in the suit, but also had the benefit of appropriation of Rs. 20,000/- the above advance amount unto himself in passing the impugned judgment and decree by the learned city civil judge. ( 26 ) IN the result, the impugned judgment and decree passed by the learned city civil judge is set aside and modified to the above extent and in the above terms. ( 27 ) THE appeal therefore stands allowed in part; the decree in this appeal to follow in the above terms, ( 28 ) IN the peculiar circumstances of the case, I award no cost to either side. --- *** --- .