Baij Nath vs Ansal And Saigal Properties Pvt. ...
1992 Latest Caselaw 203 Del

JUDGMENT

R.L. Gupta, J.

(1) This appeal is directed .against judgment dated 7-1-77 of the learned Single Judge by which he dismissed the suit of the appellant plaintiff for specific performance for an alleged agreement dated 22-4-70 to allot and sell by execution and registration of sale deed in respect of 1400 sq. ft. space on the 13th floor of the building known as "Surya Kiran" at 19, Curzon Road, New Delhi and to put him in full possession of the said property.

(2) The allegations are that he paid a sum of Rs. 55,000 to the respondent, towards the purchase price of flat Nos. 3 and 4 to be constructed on 13th floor of the aforesaid building, as part payment vide receipt No. 1130 dated 22-4-70. Later on. however, the appellant was told by the respondent that the plans for the 13th floor might not be approved. So on 18-4-70 appellant wrote to the respondent that in view of uncertainty, the respondent may retain Rs. 5,000 against each flat and refund the balance to the appellant. He further wrote that in case plan for the 13th floor was approved he will take those flats on payment of the due amount; otherwise he will be entitled to the refund of the said amount of Rs. 10,000 lying with the respondent. The respondent refunded Rs. 45.000 on 18-8-70 to the appellant. In response to an inquiry vide letter dated 7-1-71 the respondent informed the appellant that they were not in a position to inform him when the 13th floor will be sanctioned, though they were pursuing the matter. The respondent thereafter returned Rs. 10,000 through cheque with interest along with letter dated 19-7-71, stating that the additional Far had not been sanctioned by the appropriate authorities. The appellant wrote back: on 27-7-71 that whenever sanction for additional Far was received by the respondent, he will have priority to get those flats. The respondent confirmed vide letter dated 30-7-71 that if the additional Far against the land taken for road cutting was sanctioned and they were in a position to build additional office space on the 13th floor, they shall certainly allow him the flats and that it would not be sold to any other individual. Later on the appellant came to know that the respondent had constructed some portion of 13th floor and so he addressed a letter dated 16-8-72 to the respondent asking for information as to what area they had constructed on the 13th floor so that he may send the amount for the same at the agreed and settled rate. The respondent informed that no additional Far was sanctioned and so they could not construct any office space on the 13th floor. However, a restaurant had to be provided for the said premises and to facilitate that, they had to reduce the floor area of the flats on various floors, and the space thus saved was utilised for constructing a restaurant room on the 13th floor. It appears that the respondent also advertised in the Hindustan Times dated 21-8-72 for leasing the 13th floor space measuring 150 sq. mts. The appellant was then obliged to file a suit for permanent injunction seeking to restrain the respondent from transferring, giving on lease or on contract any construction made on the 13th floor. On a specific objection being taken regarding the maintainability of the suit by the respondent, the appellant withdrew that suit and filed the present suit as aforesaid. The respondent contested the suit raising various pleas, giving rise to the following issues :- Issues

1. Whether the plaint does not disclose any cause of action ? If not, what is the effect ?

2.Whether the suit is barred for the reasons stated in paragraphs 5 and 6 of the preliminary objections in the written statement ?

3.Whether the suit is barred under Order 23 Rule 1 (iii) of the Code of Civil Procedure for the reasons stated in paragraph 7 of the preliminary objections in the written statement ?

4.Whether the suit is barred by principles of resjudicata ?

5.Whether the alleged contract between the parties is not specifically enforceable in view of clauses (b), (c) and (d) of Section 14(l) of the Specific Relief Act?

6.What were the terms of the alleged contract between the parties, and what is their true meaning

7.If the case of the plaintiff as pleaded in the plaint is proved, is he entitled to specific performance of the alleged contract between the parties ?

8.Whether any office accommodation has been constructed on the 13th floor of Surya Kiran Building on Curzon Road, New Delhi ? If so, can the plaintiff's suit be decreed in respect of the said accommodation ?

9.It it be proved that the parties entered into a contract as pleaded in the plaint, then. was the said contract contingent ? If so, what was the contingency, and has the same not been fulfillled?

10.Whether the agreement between the parties if proved, is void for uncertainty ? If so, what is the effect ?

11.According to the terms of the agreement between the parties, if proved, was the plaintiff not entitled to the right of ingress e.nd egress to the office 'accommodation to be allotted to him on the 13th floor " If this issue be found in favor of the plaintiff, then, what, if any, were the terms on which the plaintiff was to have the said right?

12.Whether the suit has not been properly valued for purposes of court fee and jurisdiction?

13.Whether the plaintiff is debarred from maintaining the present suit because he received back the amount which was originally advanced to the defendant?

14.Whether in the exercise of its discretion, the court ought to grant the plaintiff a decree for specific performance of the alleged contract between the patties ?

15.Relief.

(3) As a result of findings on issues 6, 7, 8 and 9 the suit of the appellant was dismissed. The findings on other issues do not hurt the appellant. Therefore, the main controversy between the parties shall have to be resolved with reference to the aforesaid issues.

(4) Learned counsel for the appellant drew our attention to certain documents produced by the appellant during the trial. One such document is Ex. D. 12 which contains comparative details of covered areas for "Surya Kiran" building accountable in FAR. The learned counsel for the appellant with reference to this document urged that initially total area of various floors sanctioned was 1,70,953.60 sq. ft. But as against that the respondent was able to construct a total covered area of 1,71,145.83 sq. ft. which is in excess by 192 sq. ft, including the covered areas on 13th floor. Therefore, the contention is that even if the respondent was not able to honour its commitment of giving 1400 sq. ft. to the appellant as initially agreed between the parties, it was incumbent upon the respondent to at least transfer the excess area of 192 sq. ft. in his favor. We have given doe consideration to this argument of the learned counsel. The document Ex. D. 12 shows that the respondent had to deduct various areas from almost all the floors of the building up to 12th floor. The total deductions in this manner made by the respondent came to 2501 sq. ft. while up to the 13th floor it constructed a covered area of 2693 sq. ft. The contention on behalf of the learned counsel for the respondent, therefore, is that it was not on account of sanction of any additional Far that the respondent raised some construction on the 13th floor of the building but as a matter of necessity to provide a restaurant a facility attached to the premises as a whole. Since no additional Far was sanctioned by the appropriate authorities, the appellant could not insist that any covered area constructed on the 13th floor or part thereof be transferred by the respondent to the appellant.

(5) We are of the view that the argument raised on behalf of the respondent has force, while for the appellant, it is not convincing. This point has also been specifically discussed in para 15 of the judgment of the learned Single Judge. In fact, there are no dear cut terms of contract between the parties on the basic of which the appellant could ask for specific performance of the so called contract. The appellant initially paid Rs. 55.000 on 22-4-70 for booking of flats 3 and 4 on the 13th floor. It is neither pleaded nor proved by the appellant as to at what rate he had booked the aforesaid flats, Therefore it is not possible to infer the terms of contract between the parties either from the pleadings or from the receipt dated 22-4-70. We are to infer such terms only from the correspondance exchanged between the parties. Plaintiff himself wrote a letter dated 18-8-80 to the defendant reminding them that he had booked flats 3 and 4. Then he says that he has been given to understand that the plan of 13th floor may not be approved for that building. Therefore, he suggested that the defendant may retain Rs. 5.000 against each of the two flats and refund the balance to him. He also said that in-case the 13th floor plan was approved, he will take those flats and pay them the amount due thereon and in case it was not approved he will be entitled to the balance amount i.e. Rs. 10,000. Then he made an inquiry on his own vide letter dated 7-l-71 from the defendant as to how much time it will take for the plans of the- 13th floor to be approved by the authorities so that he may be ready in time to make the payment. Down cams a reply dated 11-1-71. from the defendant that they were not in a position to let him know that fact though they were pursuing the matter with the appropriate authorities. They also offered to return the balance of Rs. 10,000 lying with them with 12 per cent interest, in case the plaintiff needed the amount' earlier. "The defendant then informed the plaintiff vide letter dated 19-7-71 (Ex. P. 3), pointing out that the booking of the flats on 13th floor was provisional and for that reason call notices were not issued for payment of further Installments. Since in spite of their best efforts the additional Far against the area deducted from their original plot for widening of ' roads was not sanctioned, the defendant enclosed' the balance of Rs 10,000 along with interest at 12 per cent. Plaintiff acknowledged the receipt of this cheque of Rs. 12,887 vide letter dated 27-7-71 (Ex.P. 10). He further stated that whenever the defendant got sanction for additional Far, he shall have priority to get the flats. This arrangement was agreed to by the defendant vide letter dated 30-7-71 (Ex. P. 4).

(6) By reference to the above correspondence it seems clear that the initial booking of flats 3 and 4 by the plaintiff in favor of the defendant was only provisional, meaning thereby that in case additional Far was sanctioned by the appropriate authorities the plaintiff would be offered the agreed two flats. It is also proved on record that no point of time additional Far was sanctioned and, therefore, it is natural to infer that the defendant was never in a position to offer any constructed area to the plaintiff on the 13th floor. Section 14 of the Specific Relief Act describes contracts which are not specifically enforceable. The relevant portion .of this section says that a contract, which from its nature is such that the court cannot enforce specific performance of its material terms is determinable and not capable of specific enforcement. First of all, it has not been shown as to at what rate the plaintiff agreed to purchase the flats from the defendant. There are varying versions by both sides in the witness box. Secondly, since additional Far was not sanctioned in favor of the defendant, it can be said that the nature of the contract was such that in the absence of sanction of additional Far the contract could' not be specifically enforced and it was in a way determinable on that account. The contract between the parties was- in the nature of a contingent contract which was dependant on the sanction of additional Far in favor of the defendant by the appropriate authorities. Unless that contingency was fulilled the contract was not capable of specific enforcement as stated in Section 31 of (he Indian Contract Act, 1872.

(7) So far as the submission that at least the contract may be specifically enforced qua 392 sq. ft. of space on the 13th floor, it is repeated simply to be specifically rejected for various reasons. (1) The contract regarding rate of purchase is not certain. (2) It is not constructed against any additional FAR. (3) It is not in the shape of a separate covered area, but forms part of & bigger hall restaurant measuring about 1400 sq. ft. Specific performance of part of a contract is otherwise barred under Section 12 of the Specific Relief Act unless the part to be performed bears a substantial proportion in value and the unperformed portion admits of compensation in money. (4) Part performance in the circumstances of this case, even otherwise, would involve hardship on the defendant, whereas the nonperformance thereof would involve no hardship on the appellant.

(8) We, therefore, do not find any merit in this appeal which is hereby dismissed. Parties, however, shall bear their own costs.