I.S. Sikandar (D) By Lrs. – Appellant Versus K. Subramani and others – Respondent

 SUPREME COURT OF INDIA

Before: - G.S. Singhvi & V. Gopala Gowda, JJ.

I.S. Sikandar (D) By Lrs. – Appellant

Versus

K. Subramani and others – Respondent

Facts:

Plaintiff had entered into an agreement with defendants for sale of the suit property in his favour for consideration of L 45,000/-. A sum of L 5000/- was paid towards part sale consideration to the defendants and they delivered original title deeds and put the plaintiff in physical possession of the suit schedule property. They had agreed to receive the balance sale consideration amount of L 40,000/- at the time of registration of the sale deed to be executed in favour of the plaintiff. The plaintiff that on being put in possession of the suit property, he erected cattle shed to tether cattle and paid betterment charges to the concerned authorities. He also secured change of khata and paid the property taxes.

Plaintiff requested the vendors to execute the deed of conveyance in his favour. The vendors declined to accede to his request and stated that the Agreement of Sale was rescinded by the defendants. He was called upon to return the original documents of suit property and on his failure to do so, the said agreement would stand terminated. 

The plaintiff (respondent No. 1 herein) instituted for grant of a decree of specific performance in respect of suit schedule property and grant of permanent injunction restraining the defendants from interfering with his peaceful possession and enjoyment of the suit schedule property.

An interlocutory application was filed by the appellant to implead himself as 5th defendant to the original suit proceedings pleading that he is the proper and necessary party to the original suit proceedings, claiming that he had purchased the suit schedule property under a sale deed from his vendors.

Issues framed:

1. Whether the plaintiff proves that defendants have executed Agreement of Sale and delivered possession of the same?

2. Whether the plaintiff proves that he is in lawful possession of the suit property? 

3. Whether the 5th defendant proves that he purchased the property under sale deed and is in possession of it?

4. Whether plaintiff was always ready and willing to perform his part of the obligation?

5. Whether the 5th defendant proves that plaintiff is the defaulter and is not ready and willing to perform his part of the obligation?

6. Whether the defendant proves that plaintiff put up construction after the completion of the sale? 

Plaintiff has been ready and willing at all material times, to pay the balance sale consideration amount to defendant Nos. 1-4 on execution of the deed of conveyance of the suit property.

Defendants Nos. 1-4 committed a serious breach of the obligation in terms of Agreement of Sale.

5th defendant is the owner of the suit schedule property in pursuant to the sale deed although he had knowledge of the Agreement of Sale in favour of the plaintiff and therefore he is not the bona fide purchaser.

Para 17 and para 28 were referred to by the claimant counsel in yesterday’s (31 May) hearing. 

Para 17 states that as per Clause 6 of the Agreement of Sale, the time to get the sale deed executed was specified as 5 months in favour of the plaintiff by the defendant Nos. 1-4, after obtaining necessary permission from the competent authorities. If there is any delay in obtaining necessary permission from the above authorities and the payment of layout charges, the time for due performance of agreement shall further be extended for a period of two months from the date of grant of such permission. The period of five months stipulated under clause 6 of the Agreement of Sale for execution and registration of the sale deed in favour of the plaintiff had expired. Despite the same, the defendant Nos. 1-4 got issued legal notice to the plaintiff pointing out that he has failed to perform his part of the contract in terms of the Agreement of Sale by not paying balance sale consideration to them.

Held:

The plaintiff has not sought for declaratory relief to declare the termination of Agreement of Sale as bad in law. In the absence of such prayer by the plaintiff the original suit filed by him before the trial court for grant of decree for specific performance in respect of the suit schedule property on the basis of Agreement of Sale and consequential relief of decree for permanent injunction is not maintainable in law.

Para 23

The learned senior counsel has rightly submitted that the findings of fact on issue Nos. 4 & 5 have been erroneously set aside by the learned Judge of the High Court by recording his reasons which are not supported by pleadings and legal evidence on record. The findings of the learned Judge of the High Court are contrary to the admitted facts and legal evidence on record.

In absence of such a prayer by plaintiff the original suit filed by him before the trial court for grant of decree for specific performance is not maintainable in law. specific performance is not maintainable in law. 

Relief sought on the basis of non-existing Agreement of Sale is wholly unsustainable in law.

Provisions of law:

Specific Relief Act, 1963, Section 20(1) and (2)- Agreement to sell property - Seller terminating the agreement - Suit for specific performance by purchaser - Purchaser has first to seek declaratory relief to declare the termination of agreement to sale as bad in law.

Cases Referred :-

Maria Angelena v. A.G. Balkis Bee, (2002)9 SCC 597

His Holyness Acharya Swamy Ganesh Dassji v. Shri Sita Ram Thapar, 1996(2) R.R.R. 684 : (1996)4 SCC 526. 

International Contractors Ltd. v. Prasanta Kumar Sur (Deceased), 1961(3) SCR 579. Jawahar Lal 

Wadhwa v. Haripada Chakroberty, (1989)1 SCC 76

 Manjunath Anandappa v. Tammanasa, 2003(2) RCR (Civil) 713 : (2003)10 SCC 390

Sukhbir Singh v. Brij Pal Singh, (1997)2 SCC 200.