11)5311 ABDCLRAZAR DADAE1/L1 v. KDRE• CALLI, SHALIAPCR

rea ehed hut a’eeo the parties, redueed into v. ritirig. - - 4—,,,’ :3: Under the agreement, the defendant is under an obligation to get approval from the tommissioner, Urban Development Authority, Belgaum under the Urban Land Ceiling Act. Also, to obtain the permission from the competent authority. It is further contended that within one month from the date of receipt of the said approval, the defendant has to execute the sale deed. Sc), the plaintiff has called upon the defendant to execute the sale deed in accordance with the terms of the agreement by issuing a legal notice on 24.06.1996. There, being no positive action except the refusal to execute the sale deed, filed the suit on 07.11.1996, seek lbr decreeing of the suit for specific performance.

The defendant has entered appearance contend that plaintiff is a stranger to the defendant. Defendant knows the husband of the plaintiff. It is also contended that the defendant has entered into an agreement with the husband of the plaintiff. So, contend that there is no privity of contract between the parties. It is also further contended the defendant has written a letter on 12.01.1994 requesting the husband of the plaintiff to sign the necessary L’.IP( rs 1’ r •.r’t itrt’ Tj’t’ J’( 1It.i’—’—’’ •it .t; er:. : r:’.J’: ( ‘Ivy’ .‘r’ ‘‘:“ ; it.... Ti’. .wi ‘.‘..!l ,...%e.; .t t.t, . C . ‘ i’l. .C • •, I. 4 •4 t • . IC 1• t • . I ‘ ( ,(. — a .. r S . jI€iiittl IS I I I th :F •1 •(y pi_CI ‘C ., I) Ut :‘-.

‘ I L’!C ‘ .f ‘.1. V, ‘ 1 .zs Ir 1pj t , p. r’r..ittul iJr hittlc s to !t ci jih PiA PW cxtrtnc 1 t u f)IeliT liii IItls•I c.afl 1Ct jii’ )% - i fcrc. a ‘ C Li 1 I• ; •“ ,.t J t tc d’t I JST • C I.• I IL ‘ ci C h t St I’ C i I ‘‘‘ ‘ S. .4 • . .3 F Is r ifs- 3ifl .. 4r Sf,.’ S.C. . .. • • ‘J— C Fl •1 t ‘I.

5. Rs.20,100/- as earned money? Whether the plaintiff proves that she perform her part of contract? ready and willing always plaintiff Whether defendant failed to perform her part of the contract of agreement of sale? proves Whether the suit is time barred? Whether the plaintiff is entitled to relief of decree for performance of contract refund eamest money?

What order? FINDINGS: Issue No.1 : In the affirmative; Issue No.2 In the affirmative; Issue No.3 . : In the affirmative; Issue No.4 : In the negative: Issue No.5 & 6 Partly in the affirmative;

Learned advocate for the defendant contend that though the agreement of sale pleaded by the plaintilT is admitted, in reply notice, is positively contended by the defendant that the agreement is with the husband of the :6: plaintiff and not with the plaintiff. So. there is no privily of contract between the parties. As there is no privily of contract between the parties, agreement is not enforceable. On this ground alone, the suit of the plaintiff is not maintainable.

The next submission of the learned advocate for the defendant is that the defendant has called upon the plaintiff to sign the necessary papers to seek permission from the Urban Land Ceiling Authority and also to process the papers for obtaining the sanction. The husband of the plaintiff having not turned up, the burden is on the husband of the plaintiff. On this ground also, the plaintiff is not entitled for specific performance.

The next contention of the advocate for defendant is that now, the defendant is not interested in the sale transaction, he wants the property for his own use. So. the plaintiff has to be non-suited for specific: performance.

Learned advocate has placed reliance on MATADIN AGARWAL AND ETC., vs. SYED ABDUL RAZACK N1) OIHL_RS IP 1’’’, P i’. C r .. r d’ r P’ a; (t’’%T -lI ( ‘.. ‘ 1 :t9(f ;. •.t’’n 1’. ..‘‘•.‘? b ‘ I •‘.: i .&t ii at1 I I : I i ‘.— •. a .t -‘i sç’L1i i ,ir J t Icnt It )rcrL’ ‘. 1’ (

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1.’ ‘tb.. tti •1 • . •r. L. OR\\ ‘V e?EDr)i \ R\MAKRP3HN\ PL DIY IIIR 000 F’ \K Sr.’ rc dii itt u’t I’ s Id rnrt c t tint I I’ P’S ‘ & Pi•iit cit ‘‘ t •“‘‘‘—:n• 1ii” 1fl 9, Iii” ‘‘j !ifl! X’’ I’LL ‘t.t ;‘e.rI.” i .f ii ni..r’sn • 11’. c’n•irt .v.’s •‘I” I i:I:t .,. s:.. • a Lh• ‘‘I it; I • a.. I’ Li .‘1( :. .;a• , •, •)a •I I •. a • • . I.ii • • —: ‘a. • •• • ‘ . • .• a •• •. a i I .1 • ‘• • . .. St 3 rcitlc’r(r t1 Iti nr 1t. t% !.c r • 3% :‘ • . 5. II I• . . • • F’ ‘C r . •‘‘ , I ‘I •I lt• t. I• •‘ It ‘ t 1 , hL% :ii1’t.r % ‘i. iit;t I ‘ r ‘OI I1L’ I RM1)’tI flE\’I iND OThER IK )‘h’(; ‘ SI ht’rriii ii •:fl has lit—ic: ‘hr c” ii in i’ti: t:r s ccli pcftr 1 Itit i Fl g %t.%’( In it t t e I •• “ a I I .• !P. •1 ; i ctYj Ic itc’ C ti c Itril ‘ I’ tt C ‘ •1 I t’ I in’, ‘S.C I . •j p.’:’ •! • ii • • I.’ I, III • .1 I . (. .5) 7 I j1 ( ‘ £ It I I .) Ii .7. 1 C . • 5I•’ A :9: agreement of salc, defence is that the defendant has not contracted with the plaintiff. This defence is their oral defence. The agreement between the parties is produced before the Court, it probablises the case of the plaintiff. So, the contention of the defendant that the plaintiff did not had priviLy of contract with the plaintiff is a false submission. It probabilise the false defence being placed by the defendant.

Secondly, contend that according to the terms of the agreement, the plaintiff was ever-ready and at no point of time, is the ease of the defendant the plaintiff is notified about the permission granted and plaintiff has failed to perform his part of the contract. Unless. the condition of obtaining the permission complied, agreement becomes an unenforceable one, as plaintiff has waited for the defendant to comply, the defendant has not complied within the period prescribed under law, defendant cannot agitate any other ground except as the one found in the agreement of sale. There being a concluded contract in regard to the rate at which it has to be sold, the opinion reached by the learned trial judge is in consonance with the law. The 4— 10: change in the market value need not be taken note by the Court as the plaintiff is ready and willing to pay additional money also and such an oflèr is made and it is rejected. The learned advocate for the plaintiff contend that the defendant has taken a positive stand that he has written a letter to the husband of the plaintiff asking the husband to come and sign the documents, but no such document is produced. So, this defence is a false defence. It is further fortified as defendant contends that he wants the property, but admits sale of other adjoining 3 guntas for a similar price. The Court while considering the suit for specific performance exercises equitable jurisdiction, equity cannot extended to a person who is at. fault. so pray for dismissal of the appeal.

In the light of the above, the points that arise for consideration are as under:

1. Whether the plaintiff proves that there is a privity of contract between plaintiff defendant?

Whether the piantiff proves the agreement da ted 22O5i99.2 being executed by the defen•dant?

Whether the plaintiff is entitled to specific performance0 4 Whether defendant proved husband plaintiff has failed to execute the necessary documents/letters to obtain the permission from the concerned authorities? iP. POINT NOS1 TO 4: 3Irsl CDJr 111]1 starr s t.akcn by rh.c de.tendanr co.ntenCIiryf,.hat there is no privitv of contract. DW- 1, in the course of evidence while admitting t.har t.he plainti IT is the husband of I I — S aenee. r S me WTI tte n .r nre erie n t 0 -;5 ie claimed b lain tiff, The tenure 01 We ruree.men t of ml€ j t . j v e 12: would show it is in between the plaintiff and defendant. This fact is brought to the notice of DW- 1 when DW- 1 was in the witness box and an answer is taken from the mouth of DW

1. The wordings so brought out in the cross-examination of DW-l reads v c.- t ztn. eot .. —. .1r

With this admission of the defendant No. 1 regard to execution of Ex.P-6, principles under Sections 91 & 92 of the Tndian Evidence Act has to be read in, wherein when there is a written contract between the parties, the oral evidence contrary to the said contract is not permissible. So, the oral defence taken by the defendant being contrary to the principles under Sections 91 & 92 of the Evidence Act, the contention of the defendant that he has not entered into an agreement with the plaintiff is prima facie not permissible under law. SC), his contention that defendant has not entered into a contract with the plaintiff is rightly negatived by the learned trial judge and this court finds no reason to interfere with the said reasoning. So, the plaintiff has proved that defendant has entered into an agreement of sale. •t. 13:

The next subject to be considered by the Court is in regard to the defence of the defendant that he has called upon the husband of the plaintiff to execute the necessary papers to obtain the pcrmission from the concerned Urban Land Ceiling Authority and other local authorities.

Though such a contention is found, though an application under Order Xlii Rule 1 & 2 is filed, no document is marked in the evidence to prove the same. Even otherwise. it is the case of the defendant that he has sent the letter through post, when rights of the parties are being agitated. is for the party to prove that the notice he has addressed has reached the party to whom he has intended. No such evidence is produced, at least by producing an acknowledgment of UCP. So, the contention that defendant has addressed a letter to the husband of the plaintiff asserted by the defendant is not proved in the facts of the case. So, it is answered in the negative.

The next contention of the learned advocate for the defendant is that there is no concluded contract as the 14 titi: r t.’. •‘L’’ t i’. :: i.t’ ‘‘ ‘;.:‘ 1 ‘ii !rc I ) Litl. () ti tuf1y I

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In this situation found in the facts of the case. the ruling of the apex court in SARDAR SJNGH V’S. StilT. KRISHNA DEl/I AND ANR. (AIR 1995 SC 491] is attracted wherein the apex court has held that it is well settled law that justice demands partial enforcement of the contract instead of refusal of the specific performance in entirety. So, the Court holds that the plaintiff is entitled for specific performance to an extent of one gunta and not to an extent of 3 guntas as the one claimed by her. As the plaintiff has detained the money paid by the plaintiff to the defendant. the plaintiff is directed to pay further a sum of Rs.2,00,000/- in addition to the money that the plaintiff is payable, namely [Rs.84,000 — Rs.20.lOOfr Rs.63.900/- So. the suit of thc plaintiff is decreed for I gunta at Rs.2,63,900/- :i.e.. Rs.2,00,000/- + Rs.63,900/-I.

Plaintiff is directed to deposit this money within a span of ninety days and then seek for execution of the sale deed. On the failure to do so, the plaintiff is at liberty to seek for enforcement. i))MOijUSidCU)L{1 1fl:?dUI )L IDanf