K. Narendra vs Riviera Apartments (P) Ltd.
1992 Latest Caselaw 694 Del

JUDGMENT

Sat Pal, J.

(1) Since common question arise's in both the appeals the same are being disposed of by this common judgment.

(2) While RFA(OS) 9 of 1991 is directed against the judgment and decree dated 5th, December, 1990 in Suit No.243 of 1980, RFA(OS) 10 of 1990 is directed against the judgment of the same date in Suit No-607 of 93 1979, both passed by a learned Single Judge of this Court. The aforesaid two suits were consolidated vide order dated 26th November, 1980 passed by the learned Single Judge and the main judgment was rendered in Suit No.243 of 1980.

(3) The facts, relevant for the purpose of deciding these two appeals briefly stated, are that the appellant is the holder of lease-hold rights in respect of property known as 6, Tolstoy Marg, New Delhi, granted by the President of India in terms of a perpetual lease commencing from 29th May 1957. Vide an agreement dated 25th July, 1972 (Exhibit P1) entered into between the appellant (seller) and the respondent (purchaser), the appellant agreed to sell, transfer and assign all his rights, title and interests in the entire land known as 6, Tolstoy Marg, New Delhi, along with all structures, out house, plants etc., in consideration of a sum of Rs.8,97.740.00 payable in the manner provided in-clause (1) of the agreement. The agreement also contemplated the construction of a multi-storeyed building by the respondent on the .said property. In terms of this agreement a sum of Rs.50,000.00 was to be paid at the execution of the agreement vide demand draft dated 25th July, 1972, another sum of Rs.2,75,000.00 by a post-dated cheque dated 25th January, 1973 to be encashed by the appellant after the plans of multi-storeyed building as submitted by P53 the respondent, were passed and cleared for construction by the NDMC & L&DO or earlier by mutual agreement and the balance amount of Rs.5,72,740.00 after the completion of the said multi-storeyed building. Some other relevant clauses of the agreement dated 25th July, 1972 are reproduced herein below:- "4)That the purchaser shall have the building planned in their absolute discretion and after having the plans -duly sanctioned construct and sell flats in the said building as per their terms and conditions without any let or hindrance from the Seller of any sort whatsoever. 7) That the vacant physical possession of the premises is hereby given to the Purchaser who will now forth be in actual possession of the premises. 8) That the Purchasers shall be at liberty to store .their construction materials, make storage, shed, keep chowkidars and make room for them in the rear of the said Bungalow No.6, To story Marg.New Delhi, at their own cost without any let or hindrance from the seller or anyone claiming through or under him provided as specifically agreed that in case the-post-dated cheque for Rs.275,000.00 stated above, is not honoured by the 'bankers, the possession shall immediately be returned to the seller. 9) That the; seller shall execute an irrevocable power of attorney in favor of the Purchasers authorising them to do all and every for constructing the said building on this land. 13) That in the event the Government of India acquired or requisitioned whole or part of the property or prohibits the transfer of the said property under any Urban Property Ceiling law enforced before the date of the sanction of the plans for the construction of the proposed multi-storeyed buildirtg, then in such even the sellers shall refund the amounts paid by the purchasers and the Purchasers shall simultaneously hand vacant and peaceful possession of the premises to the Sellers. Provided that in the event any such laws are promulgated after the sanction of the plans, then the rights of the sellers shall rest in the hands of the. purchasers and this agreement shall stand intact. 16) The purchaser undertakes to complete the construction of the said building within a period of two to three years from the date the plans for the said buildings are sanctioned and released by the appropriate -authorities subject to strike, war, natural calamity and force majeure and civil commention."

(4) On 20th July, 1972 the agreement dated 25th July, 1972 was modified by the parties. Under the original agreement out of the total consideration of Rs.8,97,740.00 , a sum of Rs.50,000.00 was payable at the time of agreement, Rs.2,75,000/ - at the. time of sanction of plans and balance Rs.5,72,740.00 at the time of conveyance which was to be carried out after the building was completed. In terms of the supplementary agreement, in lieu of the balance consideration of Rs.5,72,740.00 , the respondent was to give to the appellant flats on 2nd, 3rd and 4th floors measuring 8182 square feet at the rate of Rs.70.00 per square feet valued at Rs.3,73,740/ and this area could be reduced or increased by five to six per cent at the discretion of the respondent.

(5) Pursuant to the agreement dated 25th July, 1972 as modified by the supplementary agreement dated 26th July, 1992, a sum of Rs.50,000.00 was paid by the respondents to the appellant on 25th July, 1972 and thereafter the respondent also gave to the appellant a post-dated cheque dated 25th January, 1973 for a 'urn of Rs.2,75,000.00 and this cheque was to be encashed by the appellant in terms of the agreement after sanction of the building plans of the proposed multi-storeyed building and after the plans' had 'been passed and cleared by the New Delhi Municipal Committee (for short called 'NDMC') and the Land & Development Office (for short called 'L&DO'). However, the cheque for the said amount of Rs.2,75,000/ was encashed by the appellant though the building plans had not been sanctioned by the NDMC and L&DO.

(6) The appellant also executed an irrevocable power of attorney which was duly registered with the Sub-Registrar, Delhi on 26th July, 1972 in favor of Shri Inder P.Choudhary, Managing Director and Ms.Meenakshi Choudhary, direct or of the respondent-Company respectively thereby authorising them to represent the appellant before the NDMC and L&DO, the offices of the local government and any other government department or authority in connection with the affairs connected with and pertaining to the construction of the multi-storeyed building to be constructed on the said property.

(7) In the plaint of Suit No.243/80, it was alleged by the respondent (plaintiff) that after the execution of the agreements mentioned hereinabove, the appellant handed-over to the respondent the vacant possession of the said property and after handing-over the vacant possession, the appellant requested the respondent to permit the appellant to live temporarily in the old constructed building of the property. It was, however, clearly understood that the appellant would temporarily reside there and would immediately vacate the same when called upon to do so by the respondent. It was further alleged that an open space in the said property still continued to be in the physical possession of the respondent where the respondent has constructed shed structures etc.

(8) Thereafter the respondent submitted the plans to the NDMC. The NDMC rejected the plans in December 1972. The respondent was, however, informed by the NDMC vide letter dated 6th November, 1972 that the property in question was within the zone marked as "re-development area as per the local plan D- 3" and, since the zonal plan for that area had not yet been finalised by the Dda, NDMC was not sanctioning any plan in that zone. By another letter dated 22nd November, 1973 NDMC informed the respondent that the plans along with the detailed scrutiny would be put up before the Committee on receipt of advice from DDA. According to the respondent, the zonal plans of D-3 were finalised in 1982 and necessary guidelines were issued by the Central Government and Delhi Administration for sanctioning the construction of multi-storeyed building for group housing in the said zone in which the property in question is situated. During the pendency of these appeals an application being, Cm 362/ 92 was filed on behalf of the respondent and in reply dated 27th March; 1992 to notice of this application NDMC has stated that the plans submitted by the respondent were sanctioned for the building to be erected at 6, Tolstoy Marg, New Delhi, vide Committee's resolution No.33 dated 30th April, 1991 and in terms of Section 194 of the Punjab Municipal Act the construction can be commenced on. or before, 29th April, 1992.

(10) The appellant addressed letter dated 16th August, 1975 (Exhibit P11) to Shri Inder P.Choudhary of the respondent company wherein the respondent was requested to get the transaction completed by obtaining necessary sanctions, permissions, completions and other formalities within three months from the date of receipt of that letter. It was further stated in this letter-that in the absence of the respondent's effort to get the transaction completed within this period, the appellant may desire to exercise his legal rights and enforce them. In reply the respondent addressed letter dated 19th September, 1975 (Exhibit P12) to the appellant wherein, inter alia, it was stated that the appellant was well aware that the entire Hailey Road area is part of Zone D-3 which was under re-development and even in September 1971 general freeze of building activities had stopped sanctioning of plans in this area. It was further stated that not a single building in this area of Tolstoy-Marg, New. Delhi hud been sanctioned' since the execution of the agreement in July 1972 between the parties. It was also stated in this letter that the respondent could not accept any limitation,of three months. Thereafter the appellant addressed another letter dated 22nd September, 1975 (Exhibit P13) to Mr. Inder P. Choudhary of the respondent company wherein he requested Shri Choudhary to intimate the latest position about the plans so that he could supplement his efforts.

(11) On 17th February, 1976 Urban Land (Ceiling & Regulation) Act, 1976 came into force. The said Act required the filing of return in respect of vacant land held in excess of the ceiling limit as provided therein. Under section 20 of the said Act, permission could be obtained from the competent authority for exemption from the applicability of the provisions of said Act.

(12) The appellant served notice dated 25th January, 1979 on the respondent wherein the respondent was requested to treat the agreement dated 25th July, 1972 as modified by the agreem.ent dated 26th July, 1972 as null and void and also to vacate the part of the property in question measuring about 405 square feet within a period of two weeks from the receipt of the notice, otherwise he would file a suit for declaration that the agreement was now null and void and also for the recovery of possession of the aforesaid part of the property.

(13) Thereafter, the appellant instituted a suit, bearing No-607/79 on 7th May, 1979, against the respondent for declaration that the agreement dated 25th July, 1972 entered into between the appellant and the respondent in respect of the transfer of property at 6, Tolstoy Marg, New Delhi had become null and void and impossible for performance and further for the delivery of possession of a portion of the land measuring about 45 square yards of the aforesaid property. In this suit, para 16 of the plaint which pertains to cause of action is reproduced hereinbelow:- "THAT the cause of action has accrued to the plaintiff as against the defendant in the month of January 1979 when the aforesaid notice was served by the plaintiff on the defendant and the defendant declined to treat the agreement null and void and to deliver back the possession of the aforesaid part of the land."

(14) The respondent also instituted a suit bearing No 243/80 on 13th March, 1980 against the appellant for specific performance of agreement to sell dated 25th July, 1972 as modified by agreement dated 26th July, 1972 in respect of property No.6, Tolstoy Marg, New Delhi and mandatory injunction directing the appellant to apply to the Competent Authority under the Ceiling Act of 1976 and obtain necessary permissions/exemptions, to obtain the other necessary permissions from the revenue authorities, local or central authorities so as to give effect to the aforesaid agreement for constructing a multi-storeyed building on the said land and to hand over the vacant possession of the property in suit subject to the terms and conditions mentioned in the plaint and in the alternative a decree for refund Of Rs.3,25,000.00 together with interest at the rate of 18 per cent per annum from the date of payment till the realisation thereof.

 (15) In suit No-607/79 the following issues were framed:-    1)Whether the plaint has been valued properly for the purposes of court fees and jurisdiction and sufficient court fees paid on the plaint? g). Whether the defendant is in possession of only 45 sq. yards of the suit property? 3) Whether the agreement dated 25th July, 1972, between the parties has become void and incapable of performance for the reasons alleged in the plaint?. 4) Relief.  

 (16) In suit No.243/80 the following issues were framed:-    1)Whether the suit has been validly instituted and plaint signed/verified by a duly authorised person on behalf of the plaintiff? Opp 2) Whether the plaintiff was not in possession of the property in suit towards part performance of the agreements dated 25th July, 1972-and 26th July, 1972, entered into between the plaintiff and the defendant. If so, to what extent and effect was the deffendant's possession of the property in suit. 3) Whether the plans submitted by the plaintiff were finally rejected by the New Delhi Municipal Committee, if so, to what effect? Opd 4) Whether the defendant was not obliged under the agreements dated 25th July, 1972 and 26th July, 1972, and in law to apply for requisite permission jointly with the plaintiff or severally under Section 20 of the Urban Land (Ceiling & Regulation) Act, 1976, to the competent authority. If so, has the defendant failed and neglected to apply for such permission and to what effect? Opp 5) Whether the plaintiff was ready and willing to perform his part of the obligations under the agreements dated 25th July, 1972, and 26th July, 1972? Opp 6) Whether the agreements dated 25th July, 1972, and 26th July, 1972 are void and unenforceable in law, in view of the plans submitted by the plaintiff having been rejected? Opd 7) Whether the transfer of the property in suit is prohibited under law as alleged by the defendant? Opd 8) Whether the plaintiffs entitled to a decree of specific performance and mandatory injunction as pet prayer clauses of the plaint? Opp . In this case two additional issues were also framed, which are as under:- 9) Is plaintiff entitled to the refund of Rs.3,25,000.00 with interest? If so. at what rate. 10) To what further damages or compensation, if any, is the plaintiff entitled?  

 (17) Both the suits mentioned hereinabove were consolidated by order dated 26th November, 1980 passed by a learned tingle Judge of this Court.   

 (18) It may be pointed out here that at the stage of final arguments before the learned Single Judge an application bearing No. 1A 8821/87 under Order Vi Rule 17 of the Code of-Civil Procedure was filed by the appellant in Suit No.243/ 80 seeking leave of the Court to amend the written statement so as to incorporate the plea that the suit filed by the plaintiff (respondent herein) was barred by time. This application was allowed by the learned Single Judge. Though no formal issue on limitation was framed, the question "whether the suit filed by the plaintiff is barred by time" was dealt with by the learned Single Judge and it was held that the suit was within time.   

 (19) The learned Single Judge by his judgment dated 5th December, 1990 dismissed Suit No.607/79 filed by the appellant for the reasons given in his judgment of the same date in suit No.243/80.   

 (20) As regards Suit No.243/80, the learned Single Judge passed a decree in favor of the respondent and against the appellant for mandatory injunction whereby the appellant was directed to hand over the vacant possession of the property in suit, that is, 6. Tolstoy Marg, New Delhi within one month from the date of the receipt of communication, thereby sanctioning the building plans by the appropriate authorities for the purposes of constructing a group housing multi-storeyed building subject to certain conditions mentioned in the judgment. The learned Single Judge also passed a decree for mandatory injunction in favor of the respondent and against the appellant whereby the appellant was directed to apply to the competent authority under the Ceiling Act of 1976 and obtain necessary permissions/exemptions, if not already obtained, within six months from the date of the judgment and the appellant was further directed to obtain other necessary permissions from the revenue autority, local or central authorities so as to give effect to the terms and conditions of the agreements dated 25th July, 1972 and 26th July, 1972 for constructing a group housing multi-storeyed building. The learned Single Judge further passed a decree for specific performance of the aforesaid agreements dated 25th July, 1972. and 26th July, 1972 in favor of the respondent and against the appellant to the effects that subject to the fulfillment of the aforesaid terms and conditions including the delivery of the agreed possession of the space to the appellant by the respondent in the proposed group housing multi-storeyed building, the appellant shall sign, execute and register the sale deed in favor of the respondent in respect of the property No.6, Tolstoy Marg, New Delhi in terms of the agreement dated 25th July, 1972 and 26th July, 1972 within two months from the fulfillment of all the conditions. The learned Single Judge further held that in case if for the reasons mentioned in the judgment the agreements could not be specifically peformed then in that event, the appellant shall refund a sum of Rs.3,25.000.00 with interest at the rate of 15% per mensum from 1st January, 1973 till payment. The words "15 per cent per men sum" were. however, modified as "15 per cent per annum" in terms of the orders passed by the learned Single Judge on 10th May, 1991. Mr. Bindra, the learned Senior Counsel, for the appellant, urged the following contentions:-    1)Suit. No.243/8.0 filed by the respondent was barred by limitation. 2) The agreements for sale of the suit property came to an end in terms of clause 13 of the agreement dated 25th Juy. 1972 after the Ceiling Act of 1976 came into force. Further the aforesaid agreements for sale have become impossible of performance as a result of the Ceiling Act of 1976, particularly when the permission under section 20 of the Said Act was refused by the competent authority under this Act. 3) The agreements for sale of the suit property could not be enforced as the respondent failed to get the plans sanctioned inspite of the fact that even according to the respondent's own case, the Zonal Plan for Zone-D3 had been cleared in 1982. 4) The agreement for sale dated 25th July, 1972 between the appellant and the respondent was for construction of a multi-storeyed building and the same could not be enforced for construction of a building under group housing scheme. 5) The learned Single Judge erred in giving a direction to the appellant to apply to the competent authority under the Ceiling Act of 1976 to obtain necessary permission/exemption under section 20 of the Act as the said direction amounts to substituting the agreement for sale dated 25th July, 1972 by a fresh agreement between the parties. 6) 'The doctrine of frustration will apply in this case inasmuch as the suit property falls in 'Lutyen Bungalow Zone' and the construction of multi-storeyed buildings in the 'Lutyen Bungalow Zone' is not permissible. 7) The respondent was not entitled to discretionary relief under section 20 of the Specific Relief Act on the ground that till date the building plans have not been got sanctioned.  

 (21) We now proceed to examine the contentions urged by the learned counsel for the appellant. In support of the first contention the learned counsel referred to Article 54 of the Limitation Act, 1963, which reads as under:- For specific performance of a contract Three Years The date for the performancie, or, if no such date is fixed, when the plaintiff has notice that performance is refused.   

 (22) He submitted that in terms of the first part of column (3) of Article 54, the appellant vide his idler dated 16th August, 1975 (Exhibit P-11) had fixed the date for performance as 16th November, 1975 and since the respondent's suit bearing No.243/80 was not filed within the said date. it was time barred.   

 (23) He further submitted that even assuming the first part of column (3) of Article 54 was not applicable to the facts of the present case, the letter dated 16th August, 1975 mentioned hereinabove put the respondent on notice that the appellant had refused to perform and after the expiry of three months there from, performance was refused by the appellant.   

 (24) The learned counsel also submitted that limitation could be extended only in terms of exceptions stated in Sections 4 to 14 of the Limitation Act, 1963. He submitted that in the year 1978 the appellant had taken the Managing Director of the respondent company to Shri Sikander Bakht, the then Union Minister of Works & Housing in connection with getting the building plans sanctioned, but by this act of the appellant, the limitation could not be extended keeping in view the exceptions mentioned hereinabove.   

 (25) The learned counsel further submitted that though no time was fixed in the agreements for getting the building plans sanctioned, even then under law the time should bereasonable. He submitted that inspite of the lapse of a period of more than 20 years from the date of agreement, the building plans have not been got sanctioned.   

 (26) In support of these submissions the learned counsel placed reliance on the following judgments. Manick Lal Seal and another Vs. K.P. Chowdhury, , Hajari Lal Vs. Phoolchand. Air 1957 MB. 177, Manjural Haque Vs. Smt. Mewajan Bibi and others, , Narsappa and another Vs. Bharmapa and others, Air 1921 Bombay 409, Gandu and others Vs. Mt. Nasibo and others, Mr 1938 Lahore 22, Kruttiventi Mallikharjuna Rao Vs. Vemur Pardhasaradhirao, Air 1944 Madras 218, Kasturch and Okaji Marwadi Vs. Hari Govind Wagle-, Air 1934 Bombay 491 and M/s. Shiv Hiraji Mining Industries and others Vs. State of Maharashtra and others, Air 1983 Bombay 82 (DB).   

(27) Mr. Arun Mohan, Senior Counsel, appearing on behalf of the respondent submitted that first part of column (3) of Article 54 of the Limitation Act is not applicable to the facts of the present case as no date for performance was fixed in the agreements dated 25th July, 1972 and 26th July, 1972. He further submitted that the letter dated 16th August, 1975 (Exhibit P-11) cannot be construed as fixing time, for the agreements being bilateral, there could be no unilateral fixing of time. He submitted that if no time is fixed by the contract, it cannot be fixed by a document de horse the contract. In support of his submissions he relied on two judgments reported as Kashi Prasad Vs. Chhabi Lal and R.Muniswami and another Vs. B.M.Shamanna Gouda and others, . Regarding part (2) of column 3 of Article 54 of the Limitation Act, he submitted that letter dated 16th August, 1975 (Exhibit P-11) does not amount to refusal. He submitted that in fact there is no pleading of as such refusal. Relying on the notice dated 25th January, 1979 and appellant's statement in the evidence, the learned counsel submitted that for the first time the refusal is contained only in the said notice sent by the appellant to the respondent. In reply to the argument that under law the time should be reasonable, the learned counsel submitted that the concept of 'reasonable time' is unknown to the law of limitation and the reason for this is that Article 54 of Limitation Act specifically provides two dates, that is, the date fixed for performance or if no such date was fixed, the date of refusal. Lastly, the learned counsel submitted that neither extension nor waiver of limitation was the case of the respondent either before the learned Single Judge or before this bench.

(28) As regards the submissions made by the learned counsel for the appellant regarding applicability of the first part of column (3) of Article 54 of the Limitation Act to the present case, we find no merit in this submission. Admittedly, in the agreement dated 25th July, 1972 (Exhibit P-l) and the supplement agreement dated 26th July, 1972 (Exhibit P-2) no time was fixed. The learned counsel for the appellant, however, submitted that in the letter dated 16th August, 1975 the appellant had fixed three months' time for performance. We are unable to agree to this submission. The above mentioned agreements being bilateral, and no time having been fixed in these agreements, the appellant in law could not fix the time for performance unilaterally de hors the contract.

(29) As regards the applicability of second part of column (3) of Article 54 of the Limitation Act, the learned counsel for the appellant placed reliance on six judgments of various High Courts mentioned hereinabove. The ratio of all these judgments is that the period of limitation must be computed from the date of refusal to perform. But the dais of refusal to perform will depend on the facts of each case. The submission of the learned counsel for the appellant is that the letter dated 16th August, 1975 (Exhibit P-11) had put the respondent on notice that the appellant had refused to perform. But a plain reading of Exhibit P-11 shows that this letter does not constitute a 'refusal' within the meaning of Article 54 of the Limitation Act. The letter clearly shows the intention of the appellant to get the transaction completed and the matter finalised. At the most it can be said that this letter shows some intention on the part of the appellant to do something in future but it does not amount to actual refusal. It may be relevant to point out here that the appellant even never understood this letter as refusal to perform. In his cross-examination, in reply to a question as to when for the first time he came to the conclusion that the agreement Exhibit P-1 as modified by Exhibit P-2 had come to an end, he clearly stated that it was immediately after coming into force of the Urban Land Ceiling Act (which came into force on 9th February, 1976). In reply to another question he further stated that after 'the promulgation of the said Act, he for the first time informed the respondent by his letter dated 25th February, 1979 that the agreement had come to an end. Even from the pleadings in Suit No.607/79 filed by the appellant, it is clear that the appellant had been accepting the agreements as subsisting till 25th January, 1979 when for the first time he refused to perform. This is substantiated from para 16. of the plaint in the said suit which has been reproduced hereinabove. This fact is further substantiated from the admission of the appellant that he took Shri Inder Chaudhry, Managing Director of the respondent company to Shri Sikander Bakht, the then Union Minister of Works & Hosing in the year 1978 in connection with getting the building plans sanctioned. Since the Suit No.243/80 Was filed by the respondent within three years from 25th January, 1979, the same is not barred by limitation.

(30) We also do not find any merit in the submission of the learned counsel for the appellant that in case no time is fixed in the agreement, even then the time should be reasonable to the purposes of limitation. In this connection we agree with the submissions made by the learned counsel for the respondent that Article 54 of the Limitation Act itself takes care of this point The said Article provides two dates, that is, date fixed for performance or in case no such date was fixed, the date of refusal. Therefore, in a case where no date is fixed for performance and a party comes to the conclusion that the reasonable time has come to anend, he need not wait but simply can serve a notice refusing performance. Even otherwise, the concept of reasonable time is not applicable to the facts of the present case. As stated earlier, out of the total sale price of Rs.8,97,740.00 , the appellant had received a substantial amount i.e. Rs.3,25,000.00 till January, 1973 and in lieu of the balance amount of Rs.5.72,740.00 , the respondent shall allot and transfer to the appellant flats measuring 8182 square foot @ Rs.70.00 per square foot in the proposed multi-storeyed building.

(31) In support of contention No.2 the learned counsel submitted that the performance of the agreement dated 25th July, 1972 has been rendered impossible after the Land Ceiling Act of 1976 came into force and exemption under section 20 of the said Act was refused to the respondent vide letter dated 2nd May, 1979 (Exhibit P-32). In this contention the learned counsel placed reliance on a Supreme Court decision in Mugneeram Bros. & Co. vs. Gurbachan Singh, . In this case it was held that where the performance of a contract had been rendered unlawful by reason of some subsequent event, the contract would stand discharged. We, however, find no merit in this contention. As held by the learned Single Judge the word "prohibits transfer" appearing in clause 13 of the agreement Exhibit P- 1 mean the 'absolute prohibition or the transfer of the property becoming impossible. But the land ceiling Act itself contains section 20 under which the appropriate authority/State Government has been empowered to exempt the vacant land held in excess of the ceiling limit on various grounds and subject to such conditions as may be imposed. In this connection we may refer to the statement of Shri Ram Richhpal (Public Witness 1), an official from Delhi Administration, who stated that the request of the respondent for exemption under section 20 of the said Act was rejected by the Lt. Governor on the ground that the respondent was not the owner of the property. He also stated that a similar application was moved by the appellant and he was informed by letter dated 31st August, 1978 (Exhibit P-28) that in case he was interested in group housing he could proceed further but the appellant did not follow the case thereafter. From these facts it is clear that the exemption under section 20 of the said Act has not been refused by the competent authority to the appellant. The ratio of the judgment in the case of Mugneeram (Supra) is. therefore, not applicable to the facts of this case. In this connection we may refer to a judgment by a Full Bench of Gujrat High Court in Shah Jitendra Nanalal Vs. Patel Lallubhai Ishverbhai. wherein it was held that a conditional decree for specific performance subject to exemption being obtained under section 20 of the Land Ceiling Act, 1976 is permissible. A learned Single Judge of this Court has also taken a similar view in Veena Jain Vs. Harnam Singh. Suit No.639/76 decided on 7th February, 1980. In this case it was held that the provisions of the Land Ceiling Act of 1976 do not make the transfer of property impossible and all that is required is that the permission from the competent authority is to be obtained.

(32) In support of contention No.3, the. learned counsel submitted that the appellant had executed an irrevocable power of attorney in favor of the respondent authorising them to represent the appellant before the New Delhi Municipal Committee, Land & Development Office, the Office of the Local Government or any other Government or authority in connection with the affairs connected with and pertaining to the construction of the multi-storeyed building on the suit property. But the respondent has failed to get the building plans sanctioned. The learned counsel submitted that in fact the building plans submitted by the respondent were rejected by the NDMC vide letter dated 22nd November, 1973 (Exhibit Public Witness 2/5). But the question arises as to whether the building plans were finaly rejected in terms of the aforesaid letter. This question has been dealt within details by the learned Single Judge and we agree with his findings that the building plans were not rejected finally in view of the reasons mentioned in the statement annexed to Exhibit PW2/5 itself. It may also be relevant to point out here that the appellant got the cheque for Rs.2,75,000.00 encashed after the rejection of the building plans.

(33) The suit property is situated in Zone D-3 and this fact is evident from the appellant's own letter dated 15th December, 1973 (Exhibit P-10) addressed to DDA. In the evidence affidavit filed on behalf the respondent it was clearly staled that the scheme for this zone was cleared by the Delhi Development Authority in its meeting held on 24th October, 1982. It was also stated in this affidavit that not a single plan of any property in Zone D-3, Hailey Road area was sanctioned by NDMC or Dda till 24th October, 1982. On this averment there is no cross-examination. Relying on this, Mr. Arun Mohan, learned counsel for the respondent, submitted that the freeze was lifted on 24th October, 1982 but before that the appellant served on the respondent a notice dated 25th January, 1979 (Exhibit D-7) and filed suit No.607/79 for declaration that the agreement dated 25th July, 1972 and the supplement agreement dated 26th July, 1972 were null and void and also for recovery of possession of the part of the property which was under the occupation of the respondent. The learned counsel further submitted that after filing the suit, the appellant continued to create obstructions in sanction of the building plans as is evident from the letter dated 15th May, 1985 (Exhibit P-86) addressed by the appellant to NDMC. We find that the submissions made by the learned counsel for the respondent have force. The contention of the respondent is further substantiated from the fact that ultimately the plans were sanctioned by NDMC by their resolution No.33 dated 30th April, 1991. In reply to Cm 362/92 NDMC has admitted the sanctioning of the building plans submitted by the respondent. in view of this we reject contention No.3 urged on behalf of the appellant.

(34) We find no substance at all in contention No.4 urged by the learned counsel for the appellant that the agreement dated 25th July, 1972 was only for construction of a multi-storeyed building and not of a building under group housing scheme. Even under the group housing scheme the construction will be of a multi-storeyed building on the suit property. Even the letter dated 11th January. 1972 (Exhibit P-7) addressed to the appellant by Delhi Development Authority shows that the appellant himself was corresponding with the authorities for construction of a building under group housing scheme.

(35) Contention No.5, again has no merit since we have held that permission/ exemption under section 20 of the Ceiling Act of 1976 can be obtained by the owner of the property and since the appellant is still the owner of the property, we find the direction given by the learned. Single Judge to the appellant to apply to the competent authority for the said permission/exemption is perfectly legal.

(36) In support of contention No.6 that the doctrine of frustration will apply in this case as the suit property falls in Lutycn Bungalow Zone, the teamed counsel for the appellant relied on a judgment of this Bench in Ravindra Properties (P) Ltd) Vs. Union of India, 1992 Drj (23) 270. We, however,' find that the ratio of this judgment is not applicable to the present case. In the present case there is no pleading in the written statement that the suit property falls in Lutyen Bungalow Zone. On the contrary, as stated earlier, the appellant himself had mentioned in his letter Exhibit P-IO that the suit property was situated in Zone D- 3. The scheme for this zone was cleared by the Delhi Development Authority on 24th October, 1982. In fact NDMC in their reply to Cm 362/92 has admitted that the plans were sanctioned for the building to be erected on 6, Tolstoy Marg, New Delhi vide its resolution No.33 dated 30th April, 1991. Accordingly, we find no merit in this contention also.

(37) We also do not find any merit in contention No.7. In fact as stated earlier the building plans have since been sanctioned by the NDMC vide its resolution No.33 dated 30th April. 1991. In this connection it will be relevant to refer to a judgment of the Supreme Court in Prakash Chandra Vs. Angadlal. . In this case it was held by the Supreme Court that "the ordinary rule is that specific performance should be granted. It ought to be denied only when equitable considerations point to its refusal and the circumstances show that the damages would constitute an adequate relief'. In the present case the total consideration mentioned in the agreement Exhibit P-l is Rs.8,97,740.00 . out of which a sum of Rs.50,000.00 was paid on the date of execution of the agreement itself. The next Installment of Rs.2,75,000.00 was payable on sanction of the plans or earlier by mutual agreement and the balance consideration of Rs.5,72,740.00 was payable at the time of registration which registration was to be effected after the completion of the building. In fact the payment of Rs.2,75,000.00 was made without waiting for the sanction of the plans as mentioned hereinabove. In terms of the supplementary agreement Exhibit P-2, the balance consideration of Rs.5,72,740.00 (which was payable at the time of registration in terms of agreement Ex.P-l) was converted into 8,182 square feet of space in the constructed building at the rate of Rs.70.00 per square foot. Since the aforesaid amount had been converted into constructed space or flats, those flats could not be delivered until the building was constructed. The appellant, thus, will get the constructed flats at the rate of Rs.70.00 per square foot though the accutal rate at that time is likely to be substantially higher. In view of these facts, the performance of contract would" not involve the appellant in any hardship which he did not foresee. We, therefore, find no reason why the respondent should not be granted the relief of specific performance.

(38) In view of the above discussion, both the appeals are dismissed.

(39) CROSS-OBJECTIONS The law regarding cross-objections (Order 41 Rule 22 of the Code of Civil Procedure) was amended with effect from 1st February, 1977 when second clause and an explanation were inserted. In terms of sub-rule (1) of Rule 22 the said objections are to be filed within one month from the date of service on the respondent or his pleader of the notice of the date fixed for hearing or with such further time as the appellate court may deem fit in law. In both the appeals, notice to show cause as to why the appeal be not admitted was issued on 5th April, 1991 for 8th May, 1991 and the learned counsel for the respondent/caveat or appeared on that date. The submission of the learned counsel for the appellant is that the period of limitation of one month will start from 5th April, 1991 itself when notice to show cause was issued by this Court. Both the appeals were, however, admitted on 9th September, 1991 and the following order was passed:- "ADMIT.To be listed for final hearing on 14th January, 1992. High Up."

(40) The contention of the learned counsel for the respondant is that prior to 9th September, 1991, no cross-objections could be filed as the appeals were only posted for preliminary hearing under Order 41 Rule 11 of the Code of Civil Procedure and the limitation of one month will, therefore, start from 9th September, 1991 when the appeals were admitted and listed for final hearing. It may be pointed out here that the corss-objections were filed on 8th October, 1991 but returned with objections and were re-filed on 14th February, 1992 and again on 15th Febroary, 1992. A reading of the sub-rule (1) of Rule 22 shows that period of limitation of one month would commence from the date of service on the respondent or his pleader of notice of the date fixed for hearing of the appeal. We are of the view that until the appeal is admitted for hearing, the period of limitation cannot commence. Accordingly, we hold that the cross-objections were filed within limitation, i.e. on 8th October, 1991. As regards the delay in re-filing, the respondent had filed an application being Cm 283-A/92 under section 5 of the Limitation Act. The said application was allowed by us on 17th February, 1992 in view of the facts explained" in the application. Since the order dated 17th February, 1992 was passed in the absence of the learned counsel for the appellant, a review application being R.A. 27/92 was filed on behalf of the appellant wherein it was prayed that the order dated 17th February, 1992 passed in Cm 283- A/92 be reviewed, set aside and modified in the interests of justice. The review application was also accompanied by Cm 416/92 under section 5 of the Limitation Act read with Section 151 of the Code of Civil Procedure as there was' delay of two days in filing the same. The learned counsel for the appellant contended that since there was substantial delay in re-filing the cross-objections, the delay ought not have been condoned by this Court. We are, however, of the view that since the delay is only with respect to re-filing of cross-objections, the same was correctly condoned in view of the facts explained in the application Cm 283-A/92. We allow application bearing No.CM 416/92 for condensation of delay in filing the review application for the reasons given in the application. But we find no merit in the review application and the same is accordingly dismissed.

(41) The learned counsel for the appellant raised another objection that the corss- objections were not sufficiently stamped. We, however, find no merit in this objection. The respondents have only challenged certain observations made by the learned Single Judge while passing the deccree. The cross-objections are not against any decree that has been passed, nor against a judgment refusing to pass a decree. This objection is accordingly rejected.

 (42) Now coming to the cross-objections on merits, the learned counsel for the respondent urged the following contentions'    A)Although the issue of limitation has been decided in favor of the respondent, the full import of the submission has not been correctly noticed. b) The learned Single Judge was wrong in holding that the possession had not been delivered to the plaintiff-respondent. c) That although the learned Single Judge had decreed the suit for specific performance, but he has imposed certain conditions-and given directions which are firstly wrong and secondly unnecessary and onerous.  

 (43) As regards contention (a) we do not feel it necessary to deal with this contention here as the issue of limitation has been dealt with in details by us while disposing of the main appeals.   

(44) Before dealing with contention (b) we may refer to clause (7) of the agreement dated 25th July, 1972 (Exhibit P-l) which reads "that the vacant physical possession of the premises is hereby given to the purchaser who will now forth be in actual possession of the premises." This clause appears to have been inserted consciously as the respondent on . the date of execution of this agreement (i.e. 25th July, 1972) had given a demand draft for Rs.50,000.00 and a post-dated cheque dated 25th January, 1973 for Rs.2,75,000.00 out of the total consideration of Rs.8,97,740 In terms of clause (8) of the said agreement it was further agreed that "in case the post-dated cheque of Rs.2,75,000.00 is not honoured by the bankers, the possession shall immediately be returned to the seller". From these terms and conditions of the agreement EX.P1 it is clear that the vacant possession of the suit premises was handed over by the appellant to the respondent on 25th July, 1972. Since the appellant had got encashed the aforesaid cheque of Rs.2,75,000, the legal possession of the suit premises continued with the respondents. Accordingly, we direct the appellant to hand over the physical possession of the portion of the suit premises, which is in his occupation, to the respondent fortwith.

(45) As regards contention (c) the learned counsel for the respondent submitted that the land of the suit property stands in the name of the appellant although substantial amount out of the total consideration has already been paid up to 1973 and for further construction on this land substantial investment will have to be made by the respondents and as such the direction of the learned Single Judge to the respondents to furnish bank guarantee in the sum of Rs.,60,00,000.00 was unwarranted. We agree with the submissions of the learned counsel for the respondent as the land of the suit property will continue in the name of the appellant till the proposed multi-storeyed building is completed and thereafter flats measuring 8182 square feet subject to variation of 5 to 6 per cent are allotted to the appellant against the balance amount of Rs.5,72,740.00 . More-over the amount already paid by the respondent to the appellant and the amount to be spent on the construction of the building would be sufficient security for the appellant.

(46) Accordingly, we order the deleting of the direction of the learned Single Judge to the respondents to furnish the bank guarantee in the sum of Rs.60,00,000/ to the satisfaction of the Registrar of this court. We, however, uphold the other directions given by the learned Single Judge.

(47) Before concluding we may, however, point out that the respondents had filed an application bearing Cm No.362/92 wherein, inter alia, it was prayed that the validity of the plans sanctioned by NDMC vide their resolution No.33 dated 30th April, 1991 be extended as long as the stay of dispossession continues. NDMC had filed a reply to this application on 27th March, 1992. In tin's reply it was stated tht the plans were sanctioned for the building to be erected at 6, Tolstoy Marg, New Delhi vide resolution No.33 dated 30th April, 1991 and it was staled that the respondents can start construction on or before 29th April, 1992, i.e., within one year from the date of sanction of the building plans. Since the dispossession of the appellant from the suit property was stayed by this Court, we order that the sanction granted by the NDMC vide its resolution No.33 dated 30th April, 1991 will be valid for one year from the date of this judgment. However, we leave the parties to bear the-own costs.