Man Kaur vs Hartar Singh

R.L. Anand, J.

Smt. Man Kaur wife of Lt. Col. Kartar Singh defendant in the trial Court, has filed the present Regular Second Appeal and it has been directed against the judgment and decree dated 3.6.1997, passed by the Court of learned District Judge, Chandigarh who affirmed the judgment and decree dated 15.3.1983 passed by the Court of additional Senior Sub Judge, Chandigarh, who granted a decree for possession by way of specific performance of the agreement of sale dated 20.10.1978, with costs and called upon the defendant to execute the sale deed in favour of the plaintiff within a period of three months on receipt of the sale consideration minus the costs of the suit if deposited within two months from the date of the passing of the decree dated 15.3.1983. If the defendant fails to execute the sale deed in favour of the plaintiff within the stipulated period of three months, it will be open to the plaintiff to get the sale deed executed through Court of law by filing an executionpetition.

The pleadings of the parties can be summarised in the following manner. According to the plaintiff, Smt. Man Kaur defendantappellant was the owner of the partly built House No. 508, Sector 18B, Chandigarh which was built on Plot No. 100D and measured 1000 sq. yards. On 20.10.1978 the defendant through her husband and general attorney Lt. Col. Kartar Singh entered into an agreement of sale of the above said plot to the plaintiff Shri Hartar Singh. The defendant was in possession of one room i.e. Gaushala and had agreed to hand over the vacant possession of the said Gaushala to the plaintiff. The remaining portion of the annexe was with the tenant and it was agreed that the premises would be sold as it is i.e. the possession of the Gaushala was to be handed over at the time of the registration of the sale deed. The defendant had indicated that at the time of the execution of the agreement, he had filed a suit for ejectment against the tenant who was occupying the remaining portion and it was agreed that in case the defendantappellant gives the vacant possession of the entire annexe then the consideration of the sale was to be Rs. 1,60,000/ otherwise, if the possession of the Gaushala was given as indicated the sale consideration would Rs. 1,50,000/. After the execution of the agreement, the plaintiff paid Rs. 11,500/ to the defendant as earnest money and a separate receipt for the said amount was executed and the balance amount of the consideration was agreed to be paid before the Sub Registrar at the time of the registration of the sale deed. The parties further agreed that the bargain will be finalised and the sale deed would be executed and registered on or before 20.12.1978 and it was claimed on behalf of the plaintiff that time was never the essence of the contract. According to the plaintiff, the defendant agreed to hand over the following documents to the plaintiff at the time of the registration of the sale deed because the sale deed could not be executed and registered without these documents :

i) Deed of conveyance in original.

ii) No objection certificate from the Estate Officer

iii) Permission under the Urban Land Ceiling Act, 1976.

iv) Incometax clearance certificate.

v) Other relevant documents.

It was further stated that in case the seller fails to perform his part of the contract he shall be liable to pay Rs. 11,500/ and damages of Rs. 10,000/ besides the right of the plaintiff for specific performance of the contract. In case of failure of the plaintiff he would forfeit the earnest money of Rs. 11,500/. It was also alleged that agreement to sell and bargain had been struck through Shri Balraj Singh, Property Dealer of M/s Sethi and Company. The plaintiff further states that the defendant could not obtain the documents referred to above as those were necessary for the execution of the sale deed. In these circumstances, the time agreed for the registration of the sale deed was extended from time to time. Ultimately, Shri Kartar Singh, attorney of the defendant, reached Chandigarh on 7.6.1979 and the plaintiff also came to Chandigarh on the said date. Kartar Singh disclosed that he had come on the said date for the execution of the sale deed but he did not appear before the office of the Sub Registrar while the plaintiff remained present in the said office and got himself marked present by making a proper application. Even after 7.6.1979, neither the defendant nor her husband came to Chandigarh in order to contact the plaintiff or the property dealer and repeated attempts were made by the property dealer to contact the defendant but of no use. The plaintiff has further alleged that he was always ready and willing to perform his part of the contract and was ready to pay the balance sale consideration to the defendant and to get the sale deed registered in his favour. The defendant on the other hand had failed to perform her part of the contract so much so the plaintiff served registered notice on 5.3.1980 calling upon the defendant to complete the sale by executing the sale deed within a fortnight but no reply was given. Hence the suit was instituted on 16.5.1980 for possession by way of specific performance. It was claimed by the plaintiff that defendant had backed out from the bargain as the prices had risen in Chandigarh and defendant had tried to sell the plot at higher price.

Notice of the suit was given to the defendant who filed the written statement and denied the allegations. Defendant, however, admitted that agreement of sale was executed. She also admitted that she received a sum of Rs. 10,000/ by way of earnest money through her attorney and the remaining amount of Rs. 1500/ was paid to the property dealer for the completion of the formalities as the same were to be done by the plaintiff or his agent i.e. Shri Balraj Singh Property Dealer of M/s R.P. Sethi & Company. It was, however, admitted that earnest money was also taken towards advance because the expenses for completion of the formalities were to be borne by the defendant for no objection certificate, permission under the Urban Land Ceiling Act and the income tax clearance certificate. It was submitted that the same were to be obtained by the plaintiff through his agent at Chandigarh as the defendant was living for away from Chandigarh and it was very difficult to complete all the formalities. It was also claimed that the defendant had signed the papers for getting No Objection Certificate, Income Tax Certificate and had handed over the same to the plaintiff for obtaining the certificate. It was also submitted that forfeiture clause had not been correctly reproduced by the plaintiff.

Shri Balraj Singh had sent a telegram to the general attorney for the registration of the sale deed and the said telegram was received by the defendant and her attorney reached at Chandigarh from Rourkela (Orissa) for the purpose of the execution of the sale deed. The general attorney of the defendant had met the plaintiff at Chandigarh but the plaintiff could not arrange money to make full payment and defendant claimed that attorney remained in the office of Balraj Singh, Property Dealer till evening and when the plaintiff informed him, her attorney told that they had been defrauded and harassed unnecessarily as he had come all the way from Rourkela to Chandigarh for the purpose of executing the sale deed registered. Defendant had claimed that her attorney told the plaintiff that he would not execute the sale deed afterwards and the contract stands rescinded. Thereafter, the husband of the defendant left for Rourkela and from there he wrote a letter and informed that deal had been finally closed, due to the behaviour of the plaintiff on 7.6.1979 and defendant was not going to sell the property under any circumstances. The defendant further claimed that she said agreement was also rescinded by the plaintiff himself by offering the revised price of the property and, therefore, it was submitted that plaintiff was not ready and willing to perform his part of the contract and as such he is not entitled to specific performance and that the earnest money advanced by the plaintiff stood forfeited. The defendant also took the stand that the suit has not been filed by authorised person; that it was not maintainable; that the suit is hit by laches and delay and that plaintiff was estopped by his own act and conduct from filing the present suit.

The plaintiff filed a rejoinder to the written statement of the defendant in which he reiterated his allegations made in the plaint by denying those of the written statement and from the pleadings of the parties the following issues were framed :

Whether the suit has been filed by a duly authorised person ? OPP

Whether the suit is not maintainable in the present form ? OPD

Whether the suit for specific performance is not maintainable ? OPD

Whether the suit is hit by laches and delay ? If so, its effect ? OPD

Whether the agreement dated 20.12.1978 has been rescinded and the suit is thus not maintainable ? OPD

Whether the plaintiff is estopped by his own act and conduct from filling the present suit ? OPD

Whether the time was the essence of the contract ? OPD

Whether the plaintiff was and is ready and willing to perform his part of the agreement ? If not its effect ? OPP.

Whether the plaintiff is entitled to the specific performance and in alternative damage as claimed ? OPP.

Relief.

The parties led oral and documentary evidence in support of their case and on the conclusion of the proceedings the trial Court held that the suit has been filed by a duly authorised persons; it is maintainable in the present form; that the agreement dated 20.12.1978 has never been rescinded; that plantiff is not estopped by his own act and contract from filing the suit; that time was not the essence of the contract; that plaintiff was always ready and willing to perform his part of the contract; that the suit of the plaintiff is not barred in view of the preliminary objection No. 7 of the written statement and finally the plaintiff was entitled to a decree for possession by way of specific performance irrespective of the fact that he claimed an alternative relief for damages.

Aggrieved by the judgment and decree of the trial Court, dated 15.3.1983 Smt. Man Kaur defendant filed the appeal before the Court of learned District Judge, Chandigarh, who dismissed the appeal for the reasons given in paras No. 9, 10, 11 and 12 of the judgment, which I would like to incorporate in order to appreciate the contentions raised by the learned counsel for the parties :

"9. On behalf of the appellant, the findings in relation to issues No. 4, 6 and 8 have been challenged before me. It has been submitted that the suit which was filed on 16.5.1980 was clearly barred by laches having been instituted about 11/2 years after the agreement and the trial Court''s finding in relation to this issue has to be reversed. It has been submitted that a perusal of the various documents placed on the record indicated that while the defendant had done everything that was required in the shape of securing no objection certificate from the Estate Officer, deed of conveyance in original; permission under the Urban Land Ceiling Act, 1976; income tax clearance certificate; and other relevant documents. When she signed the application forms and had handed over them to Balraj Singh, the plaintiff did not have the requisite money to purchase the property and, therefore, the finding of the trial Court in relation to issues No. 6 and 8 should also be reversed.

On behalf of the respondent, it was submitted that while the execution of the agreement, to sell is admitted by both the parties, it is clear from the record that the duty to obtain the No Objection Certificate etc., was of the vendor. It was further argued that it is clear from the record that apart from signing the application the vendor did not take any step for obtaining these papers without which the sale deed could not have been executed. In view of this, it was submitted that the trial Court had rightly come to the conclusion that the defendantappellant had not discharged her obligation and the fact that Hartar Singh was represented on 7.6.1979 for execution of the agreement and the means of the plaintiff for the purchase amount have not been questioned warrant an inference that the defendant was not in a position to hand over the vacant possession of the property in dispute and had backed out of the deal only because the price had escalated when the property was worth about Rs. 4 lacs on the date on which the deal was to be executed. In these circumstances, it was submitted that the trial Court had rightly decided issues No. 4, 6 and 8 in favour of the plaintiff and after coming to the conclusion that the defendant had not been able to prove that the suit was liable to be dismissed on account of delay and laches or that the plaintiff was not ready and willing to perform his part of the contract.

I have carefully considered the arguments advanced dy the learned counsel for the parties and have perused the records.

It is admitted case of the parties that the agreement to sell had subsisted uptil 7.6.1979 and the defendant herself and her attorney had come to Chandigarh to execute the sale deed on that day. It is also not disputed that prior to the registration of the sale deed, the deed of conveyance in original, No Objection Certificate from the Estate Officer, Permission under the Urban Land Ceiling Act, 1976, Income Tax clearance certificate; and other documents had to be made available by the defendantappellant and as these had not been made available the parties off and on had been extending the time of the execution of the sale deed. According to the observations contained in M/s Laxmi Ginning and Oil Mills v. M/s Amrit Banaspati Co. Ltd., AIR 1962 Punjab page 56; Balraj Singh, Property Dealer has the status of being an agent of both the parties had been writing letters Ex.P.16 and P17 to the defendant appellant for making available these documents so all the formalities could be completed before the date of the execution of the sale deed. On 2.2.1979, the defendant had also written a letter stating that he was prepared to complete the remaining formalities as it may not be possible for them before 15.2.1979.

Ex. P.19 and P.20 are also letters which show that sale deed could not be executed because no objection certificate and the permission to sell had not been obtained and it also indicates that the plaintiff was always ready and willing to perform his part of the contract. Ex.P.14 the letter of attorney of the plaintiff would show that the income tax certificate which is alleged to have been obtained by the defendant was not proper and Ex.P.15 letter of the attorney of the defendant would further show that he had called upon the agent to inform him as to when he should come to execute the sale deed. Letters Ex.D.3 to D.5 also indicate that the plaintiff was ready to get the sale deed executed and the agent had requested the defendant to carry out his part of the contract. Only when all these efforts had failed the plaintiff filed the suit for specific performance and in these circumstances, the trial Court had rightly come to the conclusion that the suit having been filed within one year of the cause of action and the delay cannot be considered to be unreasonable and the defendant cannot be said to have been put to a disadvantage by the plaintiff''s action and had rightly relied upon the observation contained in Faujmal v. Nathulal and another, AIR 1965 Rajasthan page 115; and, therefore, decided issue No.4 in favour of the plaintiff. The finding in relation to issue No. 4, therefore, has to be affirmed. Issue Nos. 6 and 8 can be taken up together and there is abundant material on the record in the shape of letters written by Balram Singh who was acting as joint agent of the parties to show that the plaintiff was throughout desirous of purchasing the property in dispute. There is nothing on the record to indicate that the agent had acted partially towards any party or has deposed in the case in a partisan manner. From these circumstances, the trial Court had rightly observed that the circumstances brought on the record clearly indicated that the plaintiff respondent could not be estopped by his own act and conduct from filing the suit. So, the finding in relation to issue No. 6 has to be affirmed. I may now turn to issue No. 8 and on going through the correspondence between general attorney of the defendant and Balram Singh property dealer the only unmistakable conclusion that can be drawn is that the plaintiff was always ready and willing to perform his part of the contract. Apart from this, Jagtar Singh general attorney has also deposed regarding the readiness and willingness of the plaintiff to perform his part of the contract and pay the remaining sale consideration. He has on oath deposed that a sum of Rs. 40,000/ to Rs. 50,000/ in cash was readily available with him and the remaining money was available in the Bank. Balraj Singh Property Dealer had deposed that Hartar Singh plaintiff had a bank account in Andhra Bank and had a sum of Rs. 1,60,000/ in his two bank accounts. Apart form this it is in evidence that the plaintiff had purchased a site for commercial flat in Section 17, Chandigarh, in the year, 1980 for Rs. 3,75,000/ and had spent Rs. 5 lacks on its construction. These circumstances were rightly used by the Court below to dispel the assertion sought to be made by the defendant that the plaintiff had no money to carry out the contract. Furthermore, it has been pointed out that a perusal of letter Ex.P.15 shows that the plaintiff wanted to pay Rs. 1,60,000/ in case he was given vacant possession and letters Ex.D.3 to D.5 show that the defendant did not execute the sale deed because the plaintiff had not offered a sum of Rs. 1,60,000/ on 7.6.1979 which was apparently because on that date neither the documents were complete nor was the defendant in a position to hand over the vacant possession of the entire premises as required under the agreement and under these circumstances would have been entitled to receive only a sum of Rs. 1,50,000/. In view of the fact that the defendant was not agreeing to execute the sale deed price of Rs. 1,60,000/, it was necessary for the plaintiff to have carried the entire amount for being displayed before the SubRegistrar. The evidence on the record shows that the plaintiff had sufficient funds in cash with him to pay for the purchase of stamp papers and other expenses and even according to the defendant, the plaintiff had enough money in his saving bank account which he could withdraw at any time. When the plaintiff seeks relief for specific performance of a contract he has only to show that he had kept the contract as subsisting and was prepared to fulfil his obligations and to accept the performance when time came and he was not required to show that he had necessary finance throughout the life of the contract. The trial Court and rightly relied upon the rulings reported in S.P. Narayanaswami Pillai v. Dhanakoti Ammal, AIR 1967 Madras 220; and Ramesh Chandra Chandiok and another v. Chuni Lal Sabharwal (dead) by his legal representatives and others, AIR Supreme Court 1238 and K. Kalpana Saraswathi v. P.S.S. Somasundaram Chettiar, AIR 1980 Supreme Court 512. The finding in relation to issue No. 8 to the effect that the plaintiffrespondent was always ready and willing to perform his part of the contract has to be affirmed."

Aggrieved by the judgment and decree dated 3.6.1997, passed by the learned District Judge, Chandigarh, the present appeal has been filed by the defendantappellant.

The appeal was instituted in the year 1997. For one reason or the other, it could not be decided at the motion stage. My Lord, Hon''ble Mr. Justice S.S. Sudhalkar, vide his order dated 12.2.1999 called for the records of the case.

I have heard Shri M.S. Sethi, Sr. Advocate, on behalf of the appellant and Shri Amarjit Markan Advocate, on behalf of the respondent and with their assistance have gone through the records of the lower Courts as well as the judgments and decrees of the Courts below.

The learned counsel appearing on behalf of the appellant at the motion stage itself, took a long in order to convince me that both the Courts below had committed error of law in the appreciation of evidence. Mr. Sethi the learned counsel submitted that the suit of the plaintiffrespondent could not be decreed because the plaintiff was not ready and willing to perform his part of the contract; that plaintiff himself has not come in the witness box; that the relief for specific performance could not be granted by the first appellate Court specially in the year 1997 when the learned District Judge dismissed the appeal and also by the High Court in the year 1999 on account of delay, as a great hardship would be caused to the defendant if she is called upon to execute the sale deed and deliver the possession in favour of the plaintiff. Shri Sehti even submitted that the plaintiff claimed alternative relief of damages in the plaint itself and at the most the Courts below ought to have granted a money decree specially in view of the fact that there is a steep rise in the prices of the property specially in Chandigarh. Also it was submitted by the counsel for the appellant that the plaintiff is guilty of delay and laches. He has not written any letter in his individual capacity to the defendant calling upon her to execute the sale deed rather he examined his attorney who was not in a position to tell as to what were the conditions of sale. He further submitted that in this case the time was the essence of the contract as the plaintiff was not ready and willing to perform his part of the contract and that he had no ready money on 7.6.1979 when the attorney of the defendant came from Orissa to Chandigarh for the purpose of the sale deed, therefore, the suit of the plaintiff is liable to be dismissed on this short ground alone. The learned counsel for the appellant did not lag behind when he referred to a lot of case law which I will also discuss in the later portion of the judgment.

On the contrary, the learned counsel appearing on behalf of the respondent had supported the reasons of the Courts below and submitted that the concurrent findings of fact cannot be disturbed by the High Court even if the High Court comes to conclusion that some other opinion can be formulated. The counsel submitted that defendant had committed the breach of the agreement. He was not interested to execute the sale deed on 7.6.1979. The time was not the essence of the contract specially in the case of immovable property until and unless it is so made by the parties with their conduct. The defendant, in fact, wanted to back out from the contract through her attorney who wanted to impose his own conditions. The plaintiff had ready money so much so he went to the office of the Sub Registrar for the execution of the sale deed. The defendant did not appear. The plaintiff had been approaching the defendant through property dealer as the plaintiff resides abroad. Property dealer Shri Balraj Singh, had been writing letters to the defendant calling upon her to execute the sale deed. The intention of the defendant and her attorney was not sincere. The defendants cannot take the advantage of their own wrongs and lapses by stating that with the passage of time the prices of the property had increased and, therefore, they are under no obligation to execute the sale deed by way of specific performance. Some case law was also cited by the learned counsel for the respondent.

After considering the rival contentions of the parties this Court is of the considred opinion that there is no merit in this appeal and it should be dismissed.

Though Mr. Sethi, during the course of submission, advanced arguments on issue No. 4, 6, 7, 8, 9 and 9A, yet I may point out that the learned counsel appearing on behalf of the defendant appellant before the first appellate Court never assailed the judgment and decree of the trial Court on issues No. 7, 9 and 9A as would be clear from para No. 9 of the judgment of the first appellate Court, where it is clearly mentioned as follows :

"On behalf of the appellant, the findings in relation to issues No. 4, 6 and 8 have been challenged before me."

The first appellate Court also held in para No. 13 of the judgment that no other point has been urged before him to challenge the judgment and decree of the Court below.

In this view of the matter, this Court is of the opinion that it is not open to the defendant to throw a challenge to issues No. 7, 9 and 9A. Still, I would like to deal with all these issues in the interest of justice.

Let me discuss the common facts on which there is no dispute.

Agreement of sale was executed on 20.10.1978. This is the magna carta. Both the parties are relying upon this document. Through this agreement, the property was agreed to be sold for a consideration of Rs. 1,50,000/. It was further agreed between the parties that in case the seller will be able to give the possession of the entire annexe at present in occupation of the tenant then the price will be Rs. 1,60,000/. As per clause No. 5, the period of sale is agreed upon up to 20.12.1978 and as per clause No. 10, the seller agreed to hand over the following documents to the purchaser/SubRegistrar at the time of the registration of the sale deed being the evidence of his ownership right as title deed and the nature of his documents were (i) deed of conveyance in original; (ii) No Objection Certificate from the Estate Office; (iii) Permission under Urban Land Ceiling Act, 1976; (iv) Income Tax clearance certificate; and (v) all other relevant documents. These documents regarding which I have made a mention above, are very essential because in the absence of these documents, even the Sub Registrar will not register may sale deed. There is purpose of these documents because if No Objection Certificate is not granted by the Estate Officer, the Sub Registrar, will not execute the sale deed. If the permission under the Urban Land Ceiling Act is not granted and if the income tax authorities do not give a clearance certificate, there will be no registration of the document. Meaning thereby, that this agreement has to be read in its entirety though the period of registration was fixed up to 20.12,1978 but prior to this date, it was incumbent upon the part of the seller to obtain all the requisite documents as mentioned in para No. 10 of the agreement and till those documents are taken, there could not be a breach on the part of the plaintiff and till today, the defendant has not been able to obtain the documents though an application was moved before the appropriate authorities through the broker and this part of the case I will discuss also in the later portion of the judgment.

In order to prove his case the plaintiff examined Shri Jagtar Singh Sangha who is none else but a real brother and attorney of the plaintiff and Shri Balraj Singh the property broker. Now, it is to be seen whether the plaintiff was always ready and willing to perform his part of the contract or not or that who committed the breach ? Shri Jagtar Singh Sangha stated that he is the real brother of the plaintiff who does his business in England. He is a General Attorney of his brother. The plaint and the replication have been signed by him. He further stated that the plaintiff came to India for getting the sale deed registered in the month of June, 1979 i.e. 7.6.1979. He had sufficient with him towards the remaining sale consideration at that time. In case of need of money in India, the attorney was prepared to advance him the money to the tune of rupees two to three lacs. The plaintiff was ready and willing with the remaining sale consideration in the month of June, 1979 to perform his part of the contract. The statement of this witness was recorded on 20.10.1981. The witness stated that even on that day he was prepared to pay the balance consideration and get the sale deed registered on behalf of his brother. With regard to the financial position of the plaintiff Shri Kartar Singh, it has been stated by Jagtar Singh Sangha PW1 that his brother owns a showroom in Section 26, Madhya Marg whose value is more than rupees ten lacs. His brother spent a sum of Rs. 5/6 lacs on it. He also owns a commercial flat in Sector 17, which was purchased by him in the year 1980 for a sum of Rs. 3,75,000/. The plaintiff again came to India in the month of February and March, 1980 and appointed him as attorney. In the crossexamination this witness stated that when the agreement of sale was executed on 20.10.1978, he was not present at that time and that he did not know the detailed terms and conditions of the transaction. It has been stated by this witness that when the plaintiff came to India in month of June, 1979, at that time, he was carrying about Rs. 40,000/ to Rs. 50,000/ and besides that he had money in the Bank. He had account in the Andhra Bank, Sector 17, Chandigarh. The learned counsel for the appellant wanted to make a capital from the statement of PW1 by saying that since the plaintiff did not come in the witness box to depose about his readiness and willingness to perform his part of the contract and with regard to the events which took place on 7.6.1979, therefore, the best information has been withheld from the Court and in these circumstances, the plaintiff is not entitled to decree for specific performance.

I do not subscribe to the arguments raised by the counsel for the appellant in view of the facts of this case. There is no dispute with the preposition of law that every litigant is supposed to lead the best evidence. If some vital information is withheld which is within the personal knowledge of a party, the Court can draw an adverse inference. In the present case, there was hardly any vital information which was required on the part of the plaintiff himself. The point for determination before the Courts below was whether Smt. Man Kaur executed an agreement of sale and whether the defendant had obtained the requisite documents before the stipulated date of performance and whether the plaintiff on 7.6.1979, when both the parties were in Chandigarh, was ready and willing to perform the contact or not and Shri Jagtar Singh Sangha PW1 categorically stated that petitioner had the ready money to perform the contract. In this regard we cannot ignore the statement of Shri Balraj Singh PW2 who was none else but the property broker. He brought both the parties to the negotiable table. Being a broker both the parties will try to deal through him. He is a signatory of the agreement. He cannot be held to be a biased witness either for the plaintiff or for the defendant. Of course, he may be interested in his brokage in the event the deal is matured in a satisfactory manner. According to this witness, there were certain necessary formalities which were required to be completed by the vendor such as to obtain No Objection Certificate from the Estate Office; to have income tax clearance certificate and permission from the competent authority under Urban Land Ceiling Act. The witness stated that defendant could not complete these formalities within the time agreed upon. Accordingly, the time for the execution of the sale deed was extended by correspondence which was so done by Shri Kartar Singh attorney of the defendant. So much so he had been receiving the letters Ex. P.9 to P.12 and P.15 to that effect from Shri Kartar Singh. In such a situation, it cannot be said that time was the essence of the contract because the defendant himself was a defaulter as he was not in a position to procure the necessary documents which were very essential. Broker further deposed that he called Shri Kartar Singh telegraphically. On 7.6.1979 in order to execute the sale deed he came to Chandigarh. Plaintiff Hartar Singh was already in Chandigarh as he had come for getting the sale deed registered in his favour. According to this witness, the plaintiff had approximately Rs. 1,60,000/ in his two saving bank accounts which were in Andhra Bank. Besides that he was having Rs. 40,000/ in cash. Let us see whether there is any truth in the submission of Mr. Sethi when he contended that plaintiff was not willing to perform his part of the contract as he had no money. According to PW2, the plaintiff owned property worth 8/9 lacs in Chandigarh. The statement of this witness was recorded on 19.3.1982. It has also come in evidence that plaintiff had constructed show room on Madhya Marg, Sector26, Chandigarh after 6.7.1979 by spending rupees five lacs and he also purchased a flat in Sector17, Chandigarh for a sum of Rs. 3,75,000/. It has further come in the statement of Shri Balraj Singh Property Dealer that the defendant was reluctant to execute the sale deed on 7.6.1979. Firstly, he demanded Rs. 1,60,000/ as price though the annexe which was agreed to be sold was not vacant. When the plaintiff became ready even to pay Rs. 1,60,000/, then the husband of the defendant started telling that he would again visit the office of the broker but never turned up. Consequently, the plaintiff and the broker along with Shri Paramjit Singh went to the office of the Sub Registrar and they made an application on the same day indicating the intention on the part of the plaintiff that he was ready and willing to perform his part of the contract. This is not the law of the land that the plaintiff himself should produce ready money before the Sub Registrar at the time of the filing of the application because these types of applications are only a basis of evidence. These applications are not bound to be filed under the Registration Act. In order to watch the bona fides of the vendee a practice has developed that the vendee goes in the office of the Sub Registrar, waits for the vendor and if the vendor does not turn up, submits application before the Sub Registrar in order to show his bona fides and willingness. Defendant, of course, could go there but Shri Kartar Singh had never gone to the office of Sub Registrar nor he issued any telegram or letter on 7.6.1979 calling upon the plaintiff that he was not ready and willing to perform his part of the contract. The reason is obvious. The heart of the defendant was dirty for the reasons best known to her husband. Inspite of the fact that several letters were written to the defendant calling upon him to execute the sale deed no reply was sent so much so a public notice was given in the Tribune by the plaintiff which is Ex.P.22. Further notice Ex.P.23 was given to the defendant and that this notice also reminded unreplied. In view of all this, how it can be said that plaintiff was not ready and willing to perform his part of the contract. If the defendant wanted to back out and commit breach of the contract why a decree for specific performance should not be granted to the plaintiff specially when the contract relating to immovable property has been answered satisfactorily by the counsel for the plaintiff. Even the defendant has admitted that he could not perform the essential conditions of the contract. I can quote his statement in his own words as under :

"I was not issued no objection certificate till 7.6.1979 and Shri Balraj Singh confirmed to me that he completed the formalities but I do not know whether the No Objection Certificate by the Estate Officer was issued or not. I received one income tax clearance certificate for my wife and I sent the same to Shri Balraj Singh but it was not correct certificate according to Shri Balraj Singh. It is correct that the said certificate was not a correct certificate and I requested Balraj Singh to get corrected the certificate from the Income Tax Department, Chandigarh. I have never seen the income tax clearance certificate issued by the Income Tax authority, Chandigarh and I had not seen any permission under the Urban Land Ceiling Act nor I have the same but Balraj Singh told and confirmed that he has obtained so".

In this light of this admission, it can be easily inferred that on 7.6.1979, the defendant was not ready to discharge his obligation under the contract. With regard to the capacity of the plaintiff with money, Shri Kartar Singh, husband of the defendant has stated as follows :

It may be correct that plaintiff had Rs. 1,60,000/ in his saving bank account and he was carrying Rs. 50,000/ cash on 7.6.1979 as the construction of the showroom in Sector7, was going on".

In view of this statement, a reasonable inference can be drawn that plaintiff had the ready money with him on 7.6.1979. The defendant has not made any efforts at the trial stage to dislodge the allegations of the plaintiff that on the relevant day the plaintiff had no money in Andhra Bank Account. As per Section 10 of the Specific Relief Act, specific performance of contract in the discretion of the Court, is enforceable when there exists no standard for ascertaining actual damage caused by the nonperformance of the act agreed to be done or when the act agreed to be done is such that compensation in money for its nonperformance would not afford adequate relief. The explanation is very relevant which lays down that "unless and until the contrary is proved the Court shall presume that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money."

It is a case of immovable property and in such like contracts the time is not the essence of the contract. I have already quoted that the obtaining of the essential documents was a condition precedent for the registration of the sale deed, which was supposed to be executed on or before 20.12.1978. It is the admitted case of the parties that defendant wanted to execute the sale deed on 7.6.1979 when she deputed her husband and attorney for this purpose. How, it can be said that time was an essence of the contract. There is no satisfactory evidence to suggest that after 7.6.1979, the plaintiff was not willing to perform his part of the contract. The broker of the parties had been writing letters calling upon the defendant for the execution of the sale deed but defendant was not willing to do the needful and she had been evading her liability under the contract. Even it cannot be said that the plaintiff was guilty of delay and laches. He was supposed to wait for the defendant to a reasonable time after 7.6.1979. There is a chain of correspondence besides newspaper items with regard to the alleged breach. The present suit has been instituted on 16.5.1980. Till today, there is noncompliance of the mandatory provisions of the agreement. By which document or the conduct of the plaintiff the defendant wanted to show to the Court that the plaintiff had acquiesced to the nonperformance of the agreement on the part of the defendant. By which action the plaintiff had suggested that he was not interested in the property. The plaintiff filed the suit without unreasonable delay. He came to India. He executed a power of attorney in favour of his brother in March, 1980. The suit has been instituted without unreasonable delay. In order to bring the case under the heading of acquiescence or laches, it has to be been shown by the defendant that the plaintiff at the relevant time was not interested in the transaction irrespective of the fact that he had the right to get his right enforced. Every reasonable man will try to procure the property when the case of the defendant itself is that with the passage of time the prices in Chandigarh had risen. This very argument should go against the defendant appellant who wanted to withdraw from her obligations under the contract and became greedy when she raised on unreasonable demand against the contract itself to obtain Rs. 1,60,000/ against the agreed amount of Rs. 1,50,000/. When the plaintiff even became ready to pay Rs. 1,60,000/ the husband of the defendant fled away from the office of the broker and never appeared before the Sub Registrar. Even to establish the plea of estoppel, it was incumbent upon the defendant to prove that the plaintiff by his own act and conduct had represented in such a manner that on that representation the plaintiff had changed his stand and the representation of the plaintiff compelled the defendant to change his stand also. Even the letters Exs. D.3 to D.5, would suggest that the general attorney of the defendant was not prepared to execute the sale deed even on 7.6.1979 and the plaintiff was ready to pay Rs. 1,60,000/. Ex.D.2 would show that the defendant refused to get the sale deed executed because the plaintiff did not pay full amount of Rs. 1,60,000/ on 7.6.1979. The tenant had not vacated the premises. How, the defendant could plead an unreasonable stand calling upon the plaintiff to pay Rs. 1,60,000/ against the terms of the agreement itself.

It was one of the major contentions of Mr. Sethi that since the plaintiff in the suit itself had claimed damages in the alternative, therefore, the suit for possession by way of specific performance should not be decreed. The argument is dangerous to be accepted. It is open to the plaintiff to claim both the reliefs. In the alternative, the Court can refuse the specific performance being a discretionary relief. If the Court feels that an agreement sought to be specifically enforced is so harsh or unconscionable then it should not be enforced. The breach on the part of a unscrupulous vendor cannot be endorsed or accepted by the law Courts because judicial discretion has to be used in a judicious manner and not arbitrarily. To accept the dangerous plea of the defendant, would amount to frustrate the agreement in which the sanctity lies. Agreements of sale of immovable property specially are not supposed to be violated by the parties to the contract. Those are supposed to be respected and advanced. The defendant cannot take the benefit of her own wrongs. She first committed the breach, delayed the proceedings at every step and now after a lapse of 21 years, she is asking for the equity which she lost somewhere in the month of June, 1979 itself. To encourage such a defaulter would lead to drastic results, as we all know that civil litigation always take a long in its decision and the judicial notice can also be taken that with the growth of urban population the prices of the immovable property have increased. A blanket plea of frustration of the agreement with the passage of time cannot be allowed to succeed.

Now, I will like to deal with the case law upon which a reliance has been placed by both the parties.

The first authority relied upon by the counsel for the appellant is 1999(5) Supreme Court Cases 77 : 1999(3) RCR (Civil) 292 (SC), K. Narendra v. Riviera Apartments (P) Ltd. The judgment is not applicable to the facts in hand as it is a judgment of facts. The Hon''ble Supreme Court categorically held in this cited judgment when agreement, on facts having become incapable of performance, compensation equal to the amount of price already received by the vendor, was directed to be paid to the vendee in addition to the refund of the amount received besides interest. Here it cannot be said that the agreement is incapable of performance. In the cited case, the part of the plot was excess land under the Urban Land Ceiling Act and other part was acquired by the State Government. Both such parts were unsellable. In view of the peculiar facts the Hon''ble Supreme Court was pleased to hold by adopting the doctrine of hardship that specific performance should not be granted rather than the petitioner should be compensated with compensation besides interest. The counsel for the appellant then relied upon J.T. 1999(2) SC 183, Vidhyadhar v. Mankikrao and another and submitted that when a party to a suit does not appear in the witness box, a presumption should be drawn that his case is not true.

I have gone through these judgments and in the view of this Court, the blanket law was not laid down by the Hon''ble Supreme Court. If the judgment is read between the lines, the intention of the Hon''ble Supreme Court was that when a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be crossexamined by the other side, a presumption would arise that the case set up by him is not correct. The Hon''ble Supreme Court placed reliance on the basis law laid down in AIR 1927 Privy Council 230, Gurbakhsh Singh v. Gurdial Singh and another and AIR 1930 Lahore page 1, Kirpa Singh v. Ajaipal Singh and others, besides other authorities. But here is a case when the attorney of the plaintiff appeared in the witness box. He was crossexamined on all material particulars. Agreement has been proved. Capacity of the plaintiff to pay the money stands established at all material times i.e. at the time of the institution of the plaint and even on 7.6.1979. It is not laid down by the Hon''ble Supreme Court in this citation that the case of the plaintiff has to be held as incorrect even if his attorney appears. Reliance was also placed on AIR 1930 Lahore 1, which I have already quoted above. This citation was relied upon by the learned counsel for the appellant along with citation reported as AIR 1974 Punjab and Haryana 7, Bhagwan Singh v. Bhishan Chand and others to supplement the argument that best evidence should be led by the parties to the suit. In this case, the best evidence is with regard to the execution and readiness and willingness which has been unfolded by the brother of the plaintiff. He was his general attorney. Besides, there is statement of the broker who had been corresponding on behalf of the plaintiff and has a interest for the successful implementation of the agreement in the capacity of a broker and nothing more.

In AIR 1997 S.C. 463, Pandurang Ganpat Tanawade v. Ganpat Bhairu Kadam and others it has been held by the Hon''ble Supreme Court while dealing the case under Section 16(c) of the Specific Relief Act and by dealing the proverb "ready and willing to perform" that if an averment in plaint has been made by the purchaser who had even sent the registered notice to the seller to execute the sale deed and further he has alleged in the plaint that he was willing to pay the fees required for sale deed, costs of registration etc. and a statement has also been made in Court to that effect, it should be inferred and held that buyer was ready and willing to perform his part of the contract as required under Section 16(c) of the Act. Counsel for the appellant then relied upon 1997(2) J.T. S.C. 375 : 1997(2) RCR (Civil) 312 (SC), K.S. Vidyanadam and others v. Vairavan and submitted that it is not necessary that every suit for specific performance of agreement should be decreed if the same is filed within limitation. The High Court should look at all relevant circumstances including time limits specified in the agreement and determine whether its discretion to grant specific relief should be exercised or not. This judgment again is not applicable to the facts of the case in hand. The judgment relied upon by the counsel was on its own facts. The plaintiff was repeatedly asking the vendor to get the tenant vacated and then he will perform his part of the contract. Subsequently, the prices of the property touched sky high and that thing made the plaintiff as greedy and he filed a suit for specific performance after a lapse of 21/2 years. The Hon''ble Supreme Court held that it was a case of total inaction on the part of the plaintiff and thus, it is not equitable to give him the relief. In the present case, I have determined on facts that defendant is guilty of the breach. The suit has been instituted without any delay. Shri Kartar Singh was not willing to execute the sale deed. He put forth his own terms fully realising that he had not complied with the terms of para No. 10 of the agreement. The intention of Shri Kartar Singh was dishonest to my mind. Equity lies in favour of the plaintiff and not in favour of the defendant and, therefore, the defendant cannot take the advantage of his own problems. Reliance was also placed on 1997(2) R.C.R.(Civil) 437 : JT 1997(2) S.C. 750, Bibi Jaibunisha v. Jagdish Pandit and others. In the view of this Court the cited judgment is against the appellant. It was held by the Hon''ble Supreme Court that in the matter of enforcement of the agreement of sale time is not always essence of contract unless expressly stipulated. In this case the specific performance was granted. Yet reliance was placed on JT 1996 Vol. 4 S.C. 733, Kanshi Ram v. Om Parkash Jawal and others in which it was held that rise in prices of property during the pendency of the suit is not the sole consideration for refusing to grant the decree. The Hon''ble Supreme Court in this case first gave the findings that granting of decree for specific performance would be unrealistic and unfair and moreover, it will be inequitable and unjust on the part of the appellant if he is called upon to execute the sale deed. On facts, this judgment is not applicable. Every case has to go by its own facts. If this Court finds that there was a fault on the part of the plaintiff or that he induced the defendant with some misrepresentation fraud or otherwise to enter into an agreement, certainly the law will come for the rescue of the defendant.

Reliance was also placed on JT 1995(5) S.C. 553 : 1995(3) RRR 190 (SC), N.P. Thirugnanam v. Dr. R. Jagan Mohan Rao and others in which it was held that "remedy for specific performance is an equitable remedy and is in the discretion of the Court and discretion requires to be exercised according to settled principles of law and not arbitrarily as adumbrated under Section 20 of the Specific Relief Act. Under section 20, the Court is not bound to grant the relief just because there is a valid agreement of sale. Section 16(c) of the Act envisages that plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the Court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the Court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must necessarily be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The Court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of contract. I have gone through this judgment carefully. This judgment was more on the point whether the plaintiff was ready and willing to perform his part of the contract or not. In a second appeal I am supposed to deal the question of law yet on fact it is established that on 7.6.1979 the plaintiff was ready and willing to perform his part of the contract and he also wanted to discharge his obligation under the contract.

Now I deal with the case law which was relied upon by the counsel for the respondent. In 1998(2) RCR (Civil) 642, Ram Dass v. Ram Lubhaya, it was held that principle of equity, good conscience and fairness is the foundation of grant of relief for specific performance. The object of Section 20 of the Specific Relief Act is to avoid resultant undue hardship to one party while avoiding undue gain to the other. Mere lapse of time and inadequate consideration are no grounds to exercise discretion under Section 20 because Section 20 is an exception to the rule of grant of relief of specific performance and is not a rule by itself and an alternative prayer by the plaintiff in a suit for specific performance cannot be construed as a waiver or abandonment of the main relief. It is just an alternative prayer. A person who commits a breach of contract and his obligation, cannot be permitted to take the advantage to the disadvantage of the other party. Once lawful agreement is proved, equity would demand enforcement of an agreement rather than grant of alternative relief of damage if the plaintiff was always ready and willing to perform his part of the contract. Equity has to be balanced. The Court has to consider the conduct of the defendant right from the time of the execution of the agreement till the passing of the decree. If the defendant was guilty of the breach of agreement he cannot be held entitled to any protection of equity. The judgment can be safely relied upon for rejecting the contention of the counsel for the appellant when he argued that since the plaintiff had claimed alternative relief, therefore, decree for specific performance should not be granted. Further reliance can also be placed on 1999(2) R.C.R.(Civil) 560 : 1999(1) PLR 372, Swaran Singh v. Pawan Kumar, in which there is a reference of the judgment of S.K. Nayyar v. C.K. Anand and another, 1998(1) PLR 694 : 1998(2) RCR (Civil) 331 (P&H) and it was the contention of the respondent plaintiff in that case that mere rise in the prices, even if there was, would be of no consequence and the respondent has rightly been granted the relief of specific performance. Further reliance can also be placed on 1998(3) PLR 525 : 1999(1) RCR (Civil) 9 (P&H), Rattan Lal v. Smt. Bharpal and others, in which the ratio of Kanshi Ram''s case (supra) and AIR 1995 SC 176, Rangaraju Naidu v. S. Thiruvarakkasu, was considered and the Hon''ble Judge was pleased to hold as follows :

"The principles of law enunciated in these cases is the reiteration of settled principles of law. The principles of equity, good conscience and fairness being very foundation for grant of relief of specific performance is the concept not introduced by judicial pronouncement but explicitly indicated by the Legislature in the provision of Section 20 of the Specific Relief Act. The very language of section 20 spells out and indicates the wide direction that is vested in the Court of competent jurisdiction to grant or decline to grant a relief of specific performance for transfer of immovable property. The guiding principles for determination of such controversies have been consistently cogitated by various Courts but to common end. The common weal sought to be achieved is to avoid resultant undue hardship to one party while avoiding undue gain to the other by mere lapse of time attributable to erring party."

The Hon''ble Judge was further pleased to hold that an alternative prayer by a plaintiff in a suit cannot be construed as a waiver or abandonment of the main relief in the suit. An alternative prayer is a relief which is claimed by the party if the party is found to be not entitled to the principle or main relief claimed in the suit. The Hon''ble Judge also held that Legislative intention behind Section 20 cannot be stated to be that a party first fails to perform its part of the agreement later contests litigation on frivolous basis then that party cannot be permitted to raise a plea in equity that value of the property has increased disproportionately resulting in an undue advantage to the plaintiff in a suit. Further it was observed that the time taken by the Courts in deciding suits or appeals would normally be not permitted to work to the disadvantage of the party to the lis. The acts of the Courts shall cause prejudice to none was so stated by the Hon''ble apex Court in the case of Atma Ram Mittal v. Ishwar Singh Punia, 1988(2) R.C.R.(Rent) 423 : AIR 1988 SC 2031. In the present case the conduct of the appellant is certainly not worthy of claiming any special equity while conduct of the respondent has been to the accepted standard demanded by the equity and he has pursued his remedy carefully and in the earliest point of time, while things are taken to be done in their normal course. In this regard reliance was made to 1994(4) S.C.C. 18, Krishna Singh v. Krishna Devi.

It has been held in AIR 1995 Supreme Court 1607 : 1995(2) RRR 401 (SC), S.V.R. Mudaliar v. Mrs. Rajabu, that specific performance cannot be refused merely on the ground that the price of the property in question has risen during the pendency of the litigation. In AIR 1996 Supreme Court 2510, Sukhbir Singh and others v. Brij Pal Singh and others, the dictum of the Hon''ble Supreme Court is that if there is a proof on the record by way of the endorsement of the Sub Registrar to the effect that buyer was present in his office for having sale deed executed and registered by the seller, it is explicit that such a buyer is ready and willing to perform his part of the contract and he had necessary funds to pass on the consideration and such averments are in accordance with Forms 47 and 48 of the C.P.C. and it is not necessary to prove on the part of the vendee that he had ready cash with him. In JT 1999(3) SC 163 : 1999(2) RCR(Civil) 587 (SC), Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and others, the Hon''ble Supreme Court was pleased to hold that if there are concurrent findings by the lower Courts and even if there is possibility of two views, such concurrent findings cannot be disturbed under Section 100 until and unless the High Court comes to the conclusion that such findings were based on ''no evidence'' or on inadmissible evidence. In the present case, both the Courts have gone against the appellant by holding that he has committed the breach of contract. It has been held in AIR 1977 Supreme Court 1005, Govind Prasad Chaturvedi v. Hari Dutt, while interpreting Section 55 of the Contract Act that mere fixation of the period within which the contract has to be performed, does not make the stipulation as to time is the essence of the contract. When a contract relates to sale of immovable property it will normally be presumed that the time is not the essence of the contract. The intention to treat time as the essence of the contract may be evidenced by circumstances which should be sufficiently strong to displace the normal presumption that in a contract of sale of land stipulation as to time is not the essence of the contract.

This now leads to deal with the last aspect of the case under issue No. 9A which was dealt by this Court but no argument was addressed on this issue before the first appellate Court like on issues No. 7 and 9. A dying man catches at the straw is a wellknown maxim. The learned counsel for the appellant submitted that plaintiff Hartar Singh was a nonresident of India and he could not enter into an agreement of purchase of the property by virtue of Section 31 of the Foreign Exchange Regulation Act, 1973 without the general or special permission of the Reserve Bank of India. Firstly, there is no proof on the record that plaintiff is not a citizen of India. Section 31 of the Foreign Exchange Regualtion Act, 1973, only bars a person who is not a citizen of India to hold or acquire any immovable property without the permission of the Reserve Bank of India. Moreover, in this case it has been established that plaintiff applied for permission. If such an application is made with Reserve Bank of India and no reply is received within 90 days, it has to be presumed that necessary permission has been granted. A reading of Section 31 of the Act would show that it only debars a person who is not a citizen of India to acquire the property. We all know that by passing a decree for specific performance the interest in the immovable property is not transferred to the decree holder. He simply gets a declaration that he could get the property by sale either through Court of law or if the judgment debtor voluntarily transfers the same. The execution of the regular sale deed will confer a title. Such permission can always be obtained by a person even in execution. In the present case, Shri Hartar Singh plaintiff is an Indian. It is established on the record that he had acquired several properties in Chandigarh. This point was even discussed by the trial Court in para No. 28 of the judgment, which can be quoted as follows :

"Learned counsel for the plaintiff has vehemently argued that the plaintiff has led evidence in this case that an application for permission had been moved to the Reserve Bank of India and under subsection (2) of Section 31 if, no reply is received within 90 days, of the making of the application, it has to be presumed that the necessary permission has been granted. Learned counsel for the plaintiff further vehemently argued that even if it is presumed that the plaintiff was not a citizen of India and he had not applied for the grant of permission as required under section 31 of the Foreign Exchange Act, 1973, the plaintiff could not be refused a decree in the suit because the plaintiff would still be entitled to get a permission from the Reserve Bank of India and to get the decree executed after that. In support of this contention learned counsel for the plaintiff relied upon ruling reported i) AIR 1958 Allahabad 488 in case Someshwar Dayal and others v. Widow of Lalman Shaha and others, ii) AIR 1974 Madras 349 in case R.M.S. Shanmugham Chettiar and others v. Gian Cheng Kiet. It was held that the decree which is made in a suit for specific performance is not a final decree of the character that completely bebars the Court from extending the period fixed by it, for the decree in such a suit partakes of the nature of a contract and unless it is rescinded or performed it subsists and, therefore, the right of the Court to make the extension of time for payment also subsists. Learned counsel for the plaintiff has relied upon these authorities to show that by the passing of the decree for specific performance, the plaintiff does not become the holder or owner of the property and so section 31 of the Foreign Exchange Regulation Act does not debar the passing of a decree for specific performance which is only by way of accepting the subsistence of a contract to sell. The ruling reported in AIR 1974 Madras 349 has also been relied upon by learned counsel for the plaintiff in support of his contention that the permission of the Reserve Bank of India is not required for obtaining a decree for specific performance although it may be required for the execution of the same. I find considerable force in this contention of learned counsel for the plaintiff. The mere passing of a decree for specific performance does not vest any right in the immovable property in the plaintiff. I, therefore, hold that the defendant has failed to prove that the suit was barred in view of the preliminary objection No. 7 in the written statement regarding obtaining sanction of the Reserve Bank of India to purchase the property. This issue is, therefore, decided against the defendant".

The learned counsel appearing on behalf of the respondent relies upon AIR 1990 Delhi 42, Ajit Prashad Jain v. N.K. Widhani and others, in which it was laid down that Section 31 of the Foreign Exchange Regulation Act, does not place restriction on foreign citizen entering into an agreement to sell, transfer etc. of immovable property situated in India. The bar is not absolute. In such a situation, the agreement does not become void and decree for specific performance can be executed. Objection if any, as to the permission can be raised at the stage of the execution of the decree. Also it was held that obtaining permission under the Urban Land Ceiling Act, is not a condition precedent for grant of decree for specific performance. Thus, there is a clear distinction of a decree for specific performance and the execution of the regular sale deed. This point was also discussed by our own High Court in 1987(2) R.C.R.(Criminal) 276 : 1987(2) R.C.R.(Rent) 223 : AIR 1987 Punjab and Haryana 93, Piara Singh v. Jagtar Singh and another, wherein it was held as follows :

"It is true that Section 31(1) provides that without the previous permission of the Reserve Bank, a person who is not a citizen of India, cannot acquire property, but it does not provide that if someone purchases any property the title therein does not pass to him. What the Act provides is that if a person contravenes Section 31 and some other sections, he can be penalized under Section 50 and can also be prosecuted under Section 56. However, there is no provision in the Act which makes transaction void or says that no title in the property passes to the purchaser in case there is contravention of the provisions of subsection (1) of Section 31. Section 63 contains a provision regarding confiscation of certain properties but it does not contain any provision for confiscation if there is breach of the provisions of subsection (1) of Section 31. Therefore, the property purchased in contravention of sub section (i) of Section 31 is also not liable to confiscation. In the circumstances, it cannot be held that the purchaser of property in contravention of Section 31(1) is not entitled to obtain possession of the property or recovery damages for its use and occupation."

Thus, I have seen this appeal from all angles which were shown to me by the counsel for the parties and I am of the considered opinion that this appeal is totally devoid of any merit and the same is hereby dismissed with no order as to costs.