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Madhya Pradesh High Court · body

2004 DIGILAW 406 (MP)

Parmeshwari Vallabh Sharma v. Begam Suraiya Rasheed

2004-04-28

S.P.KHARE

body2004
ORDER 1. This is plaintiff's first appeal under section 96, CPC against the dismissal of his suit for specific performance of contract. 2. It is not in dispute that the defendants No. 1 to 5 were owners of the plot of 129' x 98' size in Hathikhana, Shamla Hills, Bhopal. They entered into the agreement dated 12.3.1970 (Ex. P-l) with the plaintiff to sell this plot to him for Rs. 30,0001- and received an advance of Rs. 5,0001-. The vendors agreed to obtain' 'No Objection Certificate from Nazul Department before the execution of the sale-deed." They applied for such certificate but they could not get it. Therefore, another agreement dated 1.3.1973 (Ex. P-2) was executed by them. The condition relating to the NOC from the Nazul Department was incorporated in this agreement also. The plaintiff sent the notice dated 6.4.1982 (Ex. P-10) calling upon these defendants to execute the sale-deed. These defendants sent the reply dated 4.5.1982 (Ex. P-11) informing the plaintiff that the Nazul Department has rejected their application for issuing the NOC and, therefore, they have cancelled the contract and refunded the advance with interest at the rate of 9% per annum from 12.3.1970 to 20.11.1981 through special messenger on 20.11.1981 but the plaintiff refused to accept the refund. These defendants also informed the plaintiff that they are still willing to refund the advance with interest. The plaintiff, by his notice dated 9.7.1982 (Ex. P12) asked for the details of the case in which the application for NOC was rejected. These defendants by their letter dated 20.7.1982 (Ex. P-13) apprised the plaintiff that the application for NOC was rejected by the SDO, Nazul by order dated 12.7.1978 in Case No. 75/B-121177-78. The defendants No.1 to 5 gifted this plot to defendant No.6 and he in his turn sold it to the defendants No. 7 to 10. 3. The plaintiff's case was that he was always ready and willing to perform his part of the contract. He has pleaded that he was prepared to get the sale-deed executed even without any NOC from the Nazul Department and he is still willing to get it done. There could not be unilateral cancellation of the contract. 4. 3. The plaintiff's case was that he was always ready and willing to perform his part of the contract. He has pleaded that he was prepared to get the sale-deed executed even without any NOC from the Nazul Department and he is still willing to get it done. There could not be unilateral cancellation of the contract. 4. The case of the defendants No.1 to 5 is that the Nazul Department was not issuing the NOC and, therefore, they proposed to the plaintiff on 21.2.1976 to get the sale-deed executed and thereafter both sides would make efforts to obtain the NOC but the plaintiff on 22.5.1976 informed them in writing that he is ready to have the sale-deed executed in his favour without NOC but he attached the condition that in the event no NOC is ultimately granted they would have to refund the total sale-price with interest at the rate of 18% per annum. This condition was not acceptable to them and, therefore, they again tried to get the NOC but their application was rejected. During this period the prices of plots at Bhopal rose very high and, therefore, it would be unjust and unreasonable to direct these defendants to execute the sale-deed without NOC when the plot has already been sold to the defendants No.7 to 10. 5. The trial Court has held that the condition regarding the NOC was essential term of the contract and as the application for NOC was rejected by the competent authority, the contract fell through and it could not be performed. It has been held that the proposal of the defendants No. 1 to 5 to have the sale-deed executed without NOC was not accepted by the plaintiff at the appropriate time and he came out with an additional condition as mentioned above and, therefore, the decree for specific performance of contract at such a late stage cannot be granted. These defendants have, however, been directed to refund the advance with interest to the plaintiff. 6. In this appeal it has been argued that the defendants No. 1 to 5 did not make any effort to get the NOC and committed breach of the contract. It is urged that the conditional decree of specific performance of the contract can be passed in favour of the plaintiff and he would obtain the NOC. 6. In this appeal it has been argued that the defendants No. 1 to 5 did not make any effort to get the NOC and committed breach of the contract. It is urged that the conditional decree of specific performance of the contract can be passed in favour of the plaintiff and he would obtain the NOC. The plaintiff has died during the pendency of this appeal and his legal representatives have been brought on record. On the other hand, it is contended that the plaintiff was not ready and willing to get the sale-deed executed without the NOC in 1976 and, therefore, now it is too late to claim the conditional decree for specific performance when the legal title in the plot has already been conveyed to the defendants 7 to 10. 7. The documentary and oral evidence on record has been scrutinized by this Court in light of the arguments advanced by both the sides. In the second agreement dated 1.3.1973 (Ex. P-2), the condition relating to the NOC was again specifically incorporated Plaintiff Parmeshwari Vallabh Sharma (PW 1) in his cross-examination in para 9 to 10 has specifically stated that he was not prepared to get the sale-deed executed in the absence of NOC. Therefore, the finding of the trial Court that the obtaining of NOC from the Nazul Department by the defendants No. 1 to 5 was an essential condition of the contract is correct. This NOC was not granted by the Nazul Department to them. Plaintiff Parmeshwari Vallabh Sharma (PW 1) in para 11 in cross-examination has stated that the defendant No.1 had made a proposal to him to get the sale-deed registered without NOC and thereafter both of them would make efforts to obtain the NOC. The plaintiff has further admitted in his deposition in this para that he had accepted this offer with a qualification that in case the NOC is not granted ultimately, the vendors would have to refund the entire sale-price with interest at the rate of 18% per annum. The plaintiff attached this condition de hors the agreement. It means the plaintiff did not accept the proposal to have the sale-deed registered in his favour without the NOC. It is clear that the plaintiff was not ready and willing to have the sale-deed in his favour without the NOC. The plaintiff attached this condition de hors the agreement. It means the plaintiff did not accept the proposal to have the sale-deed registered in his favour without the NOC. It is clear that the plaintiff was not ready and willing to have the sale-deed in his favour without the NOC. As such after about 20 years he cannot claim to get the sale-deed executed without the NOC. It is an admitted fact that the price of the plot has risen and that is why the plaintiff is now giving up the condition of obtaining the NOC. The defendants No. 1 to 5 had informed the plaintiff that the application for NOC has been rejected by the SDO Nazul vide order dated 12.7.1978. It is clear that the plaintiff was not willing to pay sale-price without the NOC and the vendors even after their application and sincere efforts could not get the NOC from the Nazul Department and as such the sale-deed could not be executed. By the letter dated 20.11.1981 (Ex. D-2) the counsel for the defendants No. 1 to 5 informed the plaintiff that the contract has been cancelled and the amount of Rs. 5,000/- is being refunded with interest. The plaintiff does not dispute this fact in his notice dated 9.7.1982 (Ex. P-12) which is a reply to the notice dated 4.5.1982 (Ex. P-11) of the defendants No.1 to 5. The finding of the trial Court that on 20.11.1981 by the notice Ex. D-2 the defendants No.1 to 5 cancelled the contract because they could not obtain the NOC, is correct. 8. It is true that the performance of the contract is required to be completed in the sequence given in the agreement. The vendors were required to obtain the NOC as per agreement but their application for grant of NOC was rejected. They made a proposal to the plaintiff to get the sale-deed executed even in the absence of NOC but the plaintiff declined to do so. The conditional offer of the plaintiff that in case the NOC is not granted the vendors would refund the entire sale price with interest at the rate of 18% per annum shows that he was really not willing to have the sale-deed executed without the NOC. The conditional offer of the plaintiff that in case the NOC is not granted the vendors would refund the entire sale price with interest at the rate of 18% per annum shows that he was really not willing to have the sale-deed executed without the NOC. Granting of the relief of specific performance of the contract is discretionary and in the present case, it cannot be said that the discretion has been wrongly exercised by the trial Court. The view taken by the trial Court is correct. 9. The appeal is dismissed. .........................