JUDGMENT : VENUTHURUMALLI GOPALA KRISHNA RAO, J. 1. The appeal is filed against the judgment and decree dated 01-12-2005 passed by the learned Senior Civil Judge, Gajuwaka, Visakhapatnam District, in O.S. No. 301 of 2003. The suit is filed for the relief of a direction of specific performance of contract by the defendant, directing him to execute a registered sale deed and deliver vacant possession in respect of suit schedule property or alternatively, to direct the defendant to pay damages to a tune of Rs.7,50,000/- to the plaintiff and for costs of the suit. 2. The case of the plaintiff as narrated in the plaint, in brief, is as follows: (a) It is pleaded that the defendant is a company incorporated under the Companies Act, having its branch office at Visakhapatnam and Head Office at New Delhi. The defendant gave an advertisement in “The Hindu” English Daily dated 12-12-2002 offering to sell industrial plots each measuring 2002.5 square metres i.e. 90 metres x 22.25 metres. The price quoted by the defendant is Rs.370.64 paise. The interested parties have to deposit a sum of Rs.40,000/- by way of demand draft besides an application fee of Rs.500/-. (b) It is further pleaded that in response to the advertisement, the plaintiff submitted an application dated 05-3-2003 making payment of Rs.500/- towards cost of application and a sum of Rs.40,000/- by way of demand draft towards plot booking amount. The defendant by a letter dated 06-3-2003 intimated the plaintiff that he was allotted plot No. 19 at the rate of Rs.37.64 paise per sq. mtr in an extent measuring 90 mtrs x 22.25 mtrs, which is of the value of Rs.7,42,207/- payable within 30 days by way of postal order/banker’s cheques/demand draft/etc. The amount of Rs.40,000/- was appropriated by it as part of sale consideration. In the said letter, it was further informed that the defendant would hand over the plot within 7 days after receipt of payment from the plaintiff. Then the plaintiff obtained banker’s cheques for Rs.7,02,207/- and with that amount, he approached the defendant but the defendant refused to receive the same by informing that an approval from Visakhapatnam Urban Development Authority (VUDA) is awaiting and the amount shall be received only thereafter and asked him to contact after 10 days. He accordingly visited the office of the defendant, but no information was given by the defendant company. He accordingly visited the office of the defendant, but no information was given by the defendant company. (c) It is further pleaded that the plaintiff during his enquiry came to know that in case of plots lying in industrial zones, the competent authority for approval is APIIC. He also came to know that the defendant already sold away some plots in pursuance of the notification and denying sale of plots to him and some other applicants. Though he requested the defendant authorities for registration of the plot, it became futile and having no other go, he got issued a registered notice dated 19-8-2003 demanding the defendant to register and deliver the schedule property by receiving balance sale consideration. The said notice was acknowledged by the defendant, who sent a reply dated 13-9-2003 with false and untenable contentions. Thus, he sent a rejoinder dated 22-9-2003, which was acknowledged and a reply was also given on 12-10-2003 with evasive, false and untenable contentions. (d) It is further pleaded that the plaintiff was forced to incur debts at high rates of interest with a view to deposit amount as per the schedule given by the defendant in its letter dated 06-3-2003, that he was paying high rates of interest at 3% per annum. Due to the breach of contract committed by the defendant, he suffered loss, which the defendant is liable to compensate for mental agony. He filed a writ petition bearing No. 22971 of 2003 before this Court for a direction in the nature of mandamus to register the plot, but the said writ petition was dismissed giving him liberty to approach the civil court. He is always ready and willing to have the sale deed registered. He retained the banker’s cheques till September, 2003 and got the same acknowledged by retaining Xerox copies, since the validity of the banker’s cheques is expiring. 3. Brief averments in the written statement filed by the defendant are as follows: (a) It is contended that the defendant acquired an extent of Ac.21.31 cents in Industrial Development Area in Survey No. 38 part of Chinagantyada village, Gajuwaka Mandal, Visakhapatnam from Andhra Pradesh Industrial Infrastructure Corporation (APIIC) for the purpose of setting up their stockyard. Subsequently, the management of Steel Authority of India Limited (SAIL) took a decision not to set up the stockyard. Subsequently, the management of Steel Authority of India Limited (SAIL) took a decision not to set up the stockyard. As the purpose for which the land was acquired was given up, the defendant decided to dispose of the same for industrial purpose. Accordingly, a plan was prepared for 40 plots (industrial plots) having dimensions of 90 mtrs x 22.55 mtrs and 44 plots each making dimensions of 100 mtrs x 20 mtrs and were advertised for sale. Thereupon, the plaintiff and several other interested persons deposited Earnest Money Deposit (EMD). At that juncture, APIIC insisted that minimum plot width should be 30 to 40 mtrs for a plot having length of 90 mtrs. As per the above suggestion of VUDA, APIIC, which is a statutory authority and competent to approve industrial plots, returned the layout plan submitted by the defendant. Thereafter, once again a new plan was prepared and submitted to APIIC for onward transmission to VUDA. In those circumstances, the defendant did not accept the demand drafts brought by the plaintiff. The defendant also refunded the EMD of Rs.40,000/- paid by the plaintiff by cheque bearing No. 776379 dated 16-9-2003 drawn on State Bank of India, Visakhapatnam. The defendant while declining to accept the demand drafts from the plaintiff explained the reasons. (b) It is further contended that in fact, the defendant did not sell plots to anyone and explained to the applicants to wait for some time and refunded the EMD also as in the case of plaintiff. Except the plaintiff, none else raised any dispute. The issuance of legal notice by the plaintiff and reply sent by them are admitted. The sale of plot for which the plaintiff applied is not possible for the purpose as APIIC has not agreed to sell plots of the dimensions for which the plaintiff applied and advised to the defendant to form plots each having width of 30-40 mtrs with length of 90 mtrs. The plaintiff was informed in April, 2003 itself about the decision taken by the defendant. Hence, the defendant is not responsible if the plaintiff retained banker’s cheques till September, 2003. Hence, the suit is not maintainable. There is no cause of action for filing the suit. 4. The plaintiff was informed in April, 2003 itself about the decision taken by the defendant. Hence, the defendant is not responsible if the plaintiff retained banker’s cheques till September, 2003. Hence, the suit is not maintainable. There is no cause of action for filing the suit. 4. Based upon the pleadings of both the parties, the trial Court framed the following issues for trial: (1) Whether the plaintiff is entitled for specific performance by a direction to defendant to execute sale deed and register the sale and deliver vacant possession of plot No. 19 i.e. plaint schedule property by accepting the consideration from the plaintiff? (2) To what relief? 5. During the course of trial, on behalf of the plaintiff, PWs. 1 to 5 are examined and Exs.A-1 to A-11 are marked. On behalf of the defendant, DW-1 is examined and Exs.B-1 and B-2 and Exs.X-1 to X-15 are marked. 6. After completion of the trial and hearing the arguments of both sides, the trial Court dismissed the suit. Felt aggrieved of the aforesaid judgment and decree passed by the learned Senior Civil Judge, Gajuwaka, the unsuccessful defendant therein filed the present appeal. 7. Heard Sri K. Sairam Murthy, learned counsel appearing for the appellant/plaintiff and Sri T. Ramesh Babu, learned counsel for the respondent/defendant. 8. The learned counsel for the appellant would contend that the Court below failed to appreciate that the respondent, being a Government Undertaking and having received part payment of sale consideration, cannot afford to breach the contract. He would further contend that the Court below failed to appreciate Ex.A-1 dated 06-3-2003 issued by the defendant with specific terms and conditions allotting plot No. 19 after having received the cash of Rs.40,000/- as a part payment. He would further contend that the Court below failed to appreciate the law in a proper perspective manner and he would contend that the appeal may be allowed and the judgment and decree passed by the learned trial Judge may be set aside. 9. Per contra, the learned counsel for respondent would contend that on appreciation of the entire evidence on record, the learned trial Judge rightly dismissed the suit. Therefore, there is no need to interfere with the finding given by the learned trial Judge. 10. 9. Per contra, the learned counsel for respondent would contend that on appreciation of the entire evidence on record, the learned trial Judge rightly dismissed the suit. Therefore, there is no need to interfere with the finding given by the learned trial Judge. 10. Now, in deciding the present appeal, the points that arise for determination are as follows: (1) Whether the trial Court is justified in dismissing the suit in O.S. No. 301 of 2003 on the file of Senior Civil Judge’s Court, Gajuwaka and whether the judgment and decree passed by the trial Court needs any interference? (2) To what extent? 11. Point No. 1: Whether the trial Court is justified in dismissing the suit in O.S. No. 301 of 2003 on the file of Senior Civil Judge’s Court, Gajuwaka and whether the judgment and decree passed by the trial Court needs any interference? The case of the appellant/plaintiff is that the defendant is a company incorporated under the Companies Act and gave an advertisement in “The Hindu” English Daily dated 12-12-2002 offering to sell industrial plots each measuring 2002.5 sq. mtrs i.e. 90 mtrs x 222.5 mtrs and the price quoted by the defendant is Rs.370.64 paise and in response to the advertisement, the appellant submitted an application dated 05-3-2003 and sent an amount of Rs.40,000/- by way of demand draft towards booking of the plot. The appellant further contended that the respondent by a letter dated 06-3-2003 intimated the appellant that he was allotted plot No. 19 at the rate of Rs.37.64 sq. mtr in an extent measuring 90 mtrs x 22.25 mtrs, which is of the value of Rs.7,42,207/- payable within 30 days. The appellant further pleaded that he obtained banker’s cheques for Rs.7,02,207/- and with that amount, he approached the respondent, but they refused to receive the same by informing that an approval from Visakhapatnam Urban Development Authority (VUDA) is awaiting and the amount shall be received only thereafter and subsequently, the respondent did not handover possession of the plot and did not receive the amount of Rs.7,02,207/- as stated supra. 12. It is the contention of the respondent that the appellant and several others, on seeing the advertisement given by the defendant, sent their acceptance to purchase the plots and deposited EMD amount at the rate of Rs.40,000/-. 12. It is the contention of the respondent that the appellant and several others, on seeing the advertisement given by the defendant, sent their acceptance to purchase the plots and deposited EMD amount at the rate of Rs.40,000/-. The respondent would contend that APIIC insisted that minimum plot width should be 30 to 40 metres for plot having length of 90 mtrs and as per the suggestion of VUDA, APIIC, which is a statutory authority and competent to approve industrial plots, returned the layout plan submitted by the respondent. In view of the aforesaid circumstances, the respondent also refunded the EMD of Rs.40,000/- paid by the appellant by way of cheque bearing No. 776379 dated 16-9-2003 drawn on State Bank of India, Visakhapatnam. 13. PW-1 before the trial Court is no other than the plaintiff, who put forth the facts in his chief-examination affidavit in tune with the pleadings. PW-2 is another witness of the plaintiff. As per his evidence, he accompanied the plaintiff to the office of the defendant by guiding the plaintiff right from the purchase of application and also till the day the plaintiff went to the office of defendant to deposit balance sale consideration of Rs.7,02,207/- and the defendant did not receive banker’s cheque from the plaintiff on the ground that they are waiting for approval from VUDA. He further deposed in his evidence that the plaintiff went to the office of defendant nearly 3 times and on all the occasions, he accompanied the plaintiff. It is to be seen that there is no whisper in the evidence of PW-1 that PW-2 accompanied him to the office of defendant whenever he visited the office of defendant. As per the evidence of PW-1, in chief-examination affidavit itself, he personally went to the office of defendant with a view to making a demand on 07-04-2003 but the defendant officials did not receive the demand draft and they informed him that they are waiting for approval from VUDA. There is no whisper in the plaint also that along with the plaintiff, PW-2 also accompanied to the office of defendant. 14. As per the case of plaintiff, for paying the remaining balance amount of Rs.7.5 lakhs, he borrowed several loans from third parties viz. PW-3 and others with interest at the rate of 36% per annum. There is no whisper in the plaint also that along with the plaintiff, PW-2 also accompanied to the office of defendant. 14. As per the case of plaintiff, for paying the remaining balance amount of Rs.7.5 lakhs, he borrowed several loans from third parties viz. PW-3 and others with interest at the rate of 36% per annum. As per the evidence of PW-3, the plaintiff approached her at the end of March, 2003 and borrowed an amount of Rs.1,50,000/- with interest at the rate of 36% per annum and the plaintiff informed her that the said amount, which was borrowed from her, was for the purpose of purchasing industrial plot at Autonagar, Gajuwaka from the defendant. In her evidence in cross-examination, she admits that she has not filed any document to show that she lent the amount to the defendant from out of the death benefits of her husband. As per the evidence of PW-4, the plaintiff is his customer and known person to his son late Srinivasa Rao and the plaintiff borrowed an amount of Rs.2,00,000/- from his son for the purpose of purchasing an industrial plot from the defendant with interest at the rate of Rs.3.00 per month per hundred. In his evidence in cross-examination also, he admits that he has no evidence to show that his son lent amount to the plaintiff and he also repaid the amount along with interest. There is no whisper in the evidence of PW-1 that he borrowed the amounts from PW-3 and son of PW-4, with an interest of Rs.3.00 per month per hundred to pay the balance sale consideration of Rs.7.5 lakhs to the defendant. Absolutely, there is no evidence on record to show that the plaintiff borrowed money from PW-3, so also from the son of PW-4. For the aforesaid reasons, the plaintiff failed to prove that he borrowed money with abnormal rate of interest and later, after cancellation of plot by the defendant, he repaid the same with interest at the rate of 36% per annum. Furthermore, as seen from the evidence of PW-5, Branch Manager of State Bank of India, Chodavaram, 15 demand drafts were obtained by the plaintiff in the name of defendant. Exs.X-1 to X-15 are certified copies of demand drafts in favour of Steel Authority of India Limited and they have issued all those demand drafts from their branch. Furthermore, as seen from the evidence of PW-5, Branch Manager of State Bank of India, Chodavaram, 15 demand drafts were obtained by the plaintiff in the name of defendant. Exs.X-1 to X-15 are certified copies of demand drafts in favour of Steel Authority of India Limited and they have issued all those demand drafts from their branch. Some of the demand drafts were cancelled in the month of September and remaining demand drafts were cancelled in the month of October. The admissions of PW-1 clearly go to show that the plaintiff obtained demand drafts from State Bank of India, Chodavaram Branch to pay the balance sale consideration and since the defendant raised an objection, the plaintiff encashed the same. Furthermore, the material on record clearly reveals that an amount of Rs.40,000/- which was received towards EMD from the appellant, was also refunded by the defendant and the same is received by the plaintiff without any protest. 15. It is the case of respondent that in Ex.A-7 terms and conditions of tender notification, it was clearly recited in clause 7.5 that “the respondent reserved the right inter alia to altogether cancel the scheme at any time without assigning any reasons whatsoever”. Therefore, the said terms and conditions are binding on both the parties. Therefore, the appellant, having been made an offer of accepting the terms and conditions, is not supposed to insist the defendant to execute a registered sale deed for the plot, which was allotted to the appellant. 16. The respondent relied on Ex.B-1, which is a letter addressed by APIIC to the respondent. It shows that VUDA insisted that minimum plot measurements should be 90 mtrs in length and 30 to 40 mtrs in width. Accordingly, the plaintiff submitted revised plan. Ex.B-2 also goes to show that 24 plots were approved as against 44 original plots and there is no plot with the dimensions as mentioned in the plaint schedule, which is available for sale and thus, the contract has become impossible of performance. Ex.A-3 is the reply notice issued by the counsel for respondent to the plaintiff. In Ex.A-3 reply notice, the respondent stated that since the respondent apprehended inordinate delay in completion of the formalities with APIIC and VUDA for sale of plots, they did not accept the demand draft from the plaintiff by explaining the reasons for the same and the plaintiff went away. In Ex.A-3 reply notice, the respondent stated that since the respondent apprehended inordinate delay in completion of the formalities with APIIC and VUDA for sale of plots, they did not accept the demand draft from the plaintiff by explaining the reasons for the same and the plaintiff went away. The recitals in Ex.A-3 go to show that subsequently they have refunded EMD of Rs.40,000/- by way of cheque bearing No. 776379, dated 06-8-2003, drawn on State Bank of India, Main Branch, Visakhapatnam and the said cheque was duly encashed by the plaintiff without any protest. Furthermore, Ex.A-6 also goes to show that industrial plots, which they originally intended to sell, could not be sold, as an approval for the layout was statutory pre-condition under the provisions of the Urban Area Development Act, 1975 and VUDA is the competent authority to approve the layout and they refused to approve the layout for the dimensions of each plot as mentioned in the plaint schedule. Therefore, the performance of contract is beyond the control of defendant. Thus, the contract has become impossible of performance for the reasons as stated by the respondent. 17. It is settled that the performance of an act may not be literally impossible but it may be impracticable and unless from the point of view of the object and purpose which the parties had in view; and if an untoward event or change of circumstances totally upsets the very foundation upon which the parties rested their bargain, it can very well be said that the promissor finds it impossible to do the act which he promised to do so. It is also well settled that if substantially the whole contract becomes impossible or impracticable by some clause for which neither was responsible. 18. As seen from the material on record, it is clear that the defendant published a notification in “The Hindu” English Daily for inviting general public offering to sell industrial plots, measuring 2002.5 sq. mtrs i.e. 90 mtrs x 222.5 mtrs and apart from the appellant, other public also made their acceptance and sent an amount of Rs.40,000/- by way of demand draft and subsequently, the APIIC and VUDA refused to accept the layout plan and that the said contract could become impossible. The respondent also explained the reasons for not performing its part of the contract. The respondent also explained the reasons for not performing its part of the contract. Therefore, the respondent explained the reasons for not performing its part of contract and refunded the advance amount to the plaintiff, who received the same without any protest. Therefore, in view of the subsequent change of circumstances, the performance of contract may not be literally impossible. For the aforesaid reasons, the appellant/plaintiff is not entitled to the relief as sought in the suit. On appreciation of the entire evidence on record, the learned trial Judge rightly dismissed the suit. I do not find any illegality in the judgment and decree passed by the learned trial Judge and the judgment and decree passed by the trial Court is perfectly sustainable under law and it requires no interference. 19. Point No. 2: To what extent? Resultantly, the appeal is dismissed, confirming the judgment and decree, dated 01-12-2005, in O.S. No. 301 of 2003 on the file of Senior Civil Judge’s Court, Gajuwaka. Pending applications, if any, shall stand closed. Considering the circumstances of the case, I order each party to bear their own costs in the appeal.