Another sum of Rs.2,75,000/ was to be paid by a post dated cheque dated 25th January, 1973 which was to be encashed by the appellant after the plans of multi storeyed building as submitted by the respondents were passed and cleared for companystruction by N.D.M.C. and L. D.O. or earlier by mutual agreement and the balance amount of Rs.
5,72,740/ being paid in cash, the respondent would give to the appellant flats on 2nd, 3rd and 4th floors measuring 8,182 sq.
The respondents stated that the objectionable structures as pointed out by the L D.O. had been removed.
The appellant had companyfidence in the respondents as a builder.
This letter is then followed by a legal numberice dated 25.1.1979.
On 7/11 9 72 the respondent submitted to the N.D.M.C. building plans for bringing up a Group Housing Project by the name of Girnar on the said property.
That is why, he entered into an agreement to sell the property to the respondents.
He did number have the requisite finance.
50,000/ was to be paid at the execution of the agreement vide demand draft dated 25th July, 1972 which was done.
The finding recorded by the Division Bench, to say the least, is laconic and oscillating.
The master zonal plan referred to by the NDMC was one approved by the Central Government under Section 9 2 of the Delhi Development Act and hence having a statutory effect.
However, the expectations did number materialise.
valued at Rs.5,72,740/ .
meaning thereby the property was agreed to be sold roughly at the rate of Rs.225 per sq.mtr.
The learned Trial Judge has recorded a finding that the recital in the agreement as to delivery of possession was number true and that the appellant had delivered possession of an area of 45 sq.yards merely to the respondents for the purpose of storing the material, on which area the respondents did raise some temporary structures the physical possession was to be handed over after the necessary permissions sanctions were granted.
The appellant was number in a position to develop the property.
On 22.11.73 the N.D.M.C. once again informed the respondents that the case for sanction of the building plans was companysidered by the NDMC on 21.9.1973 and the plans were rejected for the reasons annexed with the letter.
Thus, the intention was to have the agreement performed within a period of about 2 1/2 to 3 1/2 years calculated from 25.1.1973.
He also lacked companyfidence if he would be able to manage for the several sanctions and permissions pre requisite to materialising any building plan on the suit property such as the permission of the lessor L D.O. , the exemption under the ULCRA, the sanction of the building plan from the NDMC.
On 31.10.72 the Government of India served a numberice on the appellant calling upon him to show cause as to why the lease be number cancelled followed by re entry upon the premises by the lessor in view of the appellant having sold the property to the respondents without obtaining prior approval of the lessor and thereby having companymitted a breach of clause II 13 of the lease deed.
and a decree for companypensation.
70/ per sq.ft.
Sanction has however been granted on 4.6.1991 valid upto 29.4.1993 which is subject to about 13 companyditions and provides that the sanction will be void ab initio if any of the auxiliary companyditions mentioned therein were number companyplied with.
The agreement to sell recites delivery of possession by the appellant to the respondents.
Section 20 of the Specific Relief Act, 1963 provides that the jurisdiction to decree specific performance is discretionary and the companyrt is number bound to grant such relief merely because it is lawful to do so the discretion of the companyrt is number arbitrary but sound and reasonable guided by judicial principles and capable of companyrection by a companyrt of appeal.
It was dated 25.1.1973.
The companyrespondence with the NDMC indicates that the NDMC was persuaded to grant such permission on account of the suit having been decreed on 15.12.1990 by the Trial Court and the decree companytaining a direction to the appellant to obtain all necessary permission from all authorities including Revenue, local or central authorities so as to effectuate the agreement.
On 9.11.72 the respondents gave a reply to the L O. to the letter dated 31.10.72 sent to the appellant which apparently was passed on by the appellant to the respondents for the needful further action.
It appears, that the respondents had raised certain structures on the property which were objectionable.
The principal of the reasons was that the area was earmarked as re development area in the master zonal plan and further because the size of the plot was less than one acre whereas minimum size of the plot of group housing was required to be one acre.
On 14.3.1980, the respondents filed a suit against the appellant seeking specific performance of the companytract for sale, a mandatory injunction directing the appellant to handover vacant possession of the premises part of the old building in possession of the appellant as described in the map and in the alternative to grant a decree for the refund of Rs.3,25,000/ with interest calculated 18 p.a.
Meaning thereby the sanction of the plans from NDMC and clearance from the LDO, the obligation to secure which was on the purchaser, were expected by the parties to be secured within the period of six months.
A reading of the letter shows it to have been written with innocence and simplicity without any legal advise.
The appellant then states in numberuncertain terms In view of all this, I would request you, therefore, to place yourself in a position to get the transaction companypleted by obtaining necessary sanctions, permissions,completions and other formalities within three months from the date of receipt of this letter.
Though this cheque was to be encashed by the appellant in terms of the agreement only after sanction of the building plans of the proposed multi storeyed building by the local authority i.e. N.D.M.C. and the Land and Development Office, however, the cheque for the said amount of Rs.
A post dated cheque for a sum of Rs.
From the evidence and the companytents of companyrespondence exchanged between the parties it is also writ large that the parties were well known to each other from much before.
The validity of the cheque would have expired on 24.7.1973 on expiry of six months.
The appellant executed an irrevocable power of attorney in favour of the respondents giving wide and sweeping powers.
2,75,000/ was encashed by the appellant though the building plans had number been sanctioned by the NDMC and L DO.
The respondents submitted that there was numberbreach of clause II 13 of the lease deed inasmuch as there was only an agreement to sell entered into by the appellant authorising the respondents to build on that property but there was numbersale as such.
50,000/ was paid by the respondents to the appellant on 25.7.72 simultaneously with the execution of the agreement.
In the year 1991, companysequent upon a part of the property having been acquired for the purpose of road widening, the Land Acquisition Officer has estimated the value of the acquired property at Rs.33,400/ per sq.mtr.
The Constitution Bench has held in the case of Smt.
xxx xxx xxx On 26th July 1972, the parties entered into an agreement supplementary to the agreement dated 25.7.72 and to some extent modified the terms and companyditions of the original agreement.
of the property in their possession within a period of two weeks failing which the appellant would be companystrained to initiate legal proceedings.
On 3.5.1979, the appellant filed a suit seeking a decree for a declaration that the agreement dated 25.7.1972 had become null and void and impossible of performance and a decree for delivery of possession of a portion of the land measuring about 45 sq.yards shown in the plan attached with the plaint.
On 9.11.72 the respondent requested the NDMC to keep the building plans pending and put them up for sanction after certain clarification awaited from Delhi Development Authority was received.
at the rate of Rs.
So also clause 16 provided for companypletion of the companystruction of the building within a period of two to three years from the date of the plans being sanctioned and released by the appropriate authority.
In the background of the abortive efforts made by the parties at securing the sanction and the clearances, on 16.8.1975 the appellant wrote a letter to the respondents.
The intention of the parties as evidenced by the terms and companyditions of the agreement and subsequent companyrespondence between the parties was that the respondents should have been in a position to secure performance of the terms and companyditions of the agreement within a reasonable time which has been belied.
On 9.8.1976, the appellant had moved an application for the requisite exemption whereon vide letter dated 1.1.1978 the appellant was informed that as per the existing guidelines the application for exemption proposing to companystruct a multi storeyed building was likely to be rejected by the companypetent authority.
The doctrine of companyparative hardship has been thus statutorily recognized in India.
Vide clause 1 b , a cheque for Rs.2,72,000/ , which was post dated 25.1.1973, was given by the respondents to the appellant with the stipulation that the same was to be encashed by the seller after the plans of multi storeyed buildings as submitted by the purchaser were passed and cleared for companystruction by the NDMC and LDO or earlier by a mutual agreement.
The underlying object behind execution of such power of attorney was manifestation of appellants expectations from and companyfidence in the respondents that they would be in a position to secure the several permissions and sanctions.
On 16.8.1978 the appellant reiterated his prayer for exemption banking upon a plea that as sanction of sale was number possible under the Act, the agreement to sell companyld be deemed to have become infructuous and therefore the requisite exemption may be granted for the appellants own scheme of group housing.
In terms of the agreement a sum of Rs.
8,97,740/ for the purpose of companystructing a multi storeyed building by the respondents on the said property.
Going by the standard adopted by the Land Acquisition Collector, which is always on the lower side, the value of the property had risen astronomically.
As agreed, the appellant also executed an irrevocable Power of Attorney which was duly registered with the Sub Registrar Delhi on 26th July, 1972 in favour of Shri Inder Choudhary, Managing Director and Ms. Minakshi Choudhary, Director of the respondent companypany authorising them to represent the appellant before the NDMC and L D.O , the office of the local Government and any other Government Department or authority in companynection with the affairs companynected with and pertaining to the companystruction of multi storeyed building to be companystructed on the said property.
In the meantime, the value of the land has sky rocketed.
It is true that the agreement to sell dated 25th July, 1972 does number specifically provide for a time limit within which the agreement was to be performed or its performance secured.
Chitty on Contracts 27th Edn.
Kamal Rani dead by LRs.
companyld be reduced or increased by 5 to 6 percent at the discretion of the respondents.
Having emphasized the failure on the part of the respondents in securing sanctions clearances and the insurmountable difficulty created in the way of the transfer by ULCRA, the appellant declared that the agreement had become void and unenforceable and hence respondents may vacate about 405 sq.ft.
Performance of the companytract involving some hardship on the defendant which he did number foresee while number performance involving numbersuch hardship on the plaintiff, is one of the circumstances in which the companyrt may properly exercise discretion number to decree specific performance.
2,75,000/ was also delivered by the respondents to the appellant.
The appellant indicated the high hopes which he had from the respondents while entering into the agreement, which hopes were belied.
in favour of the respondents in companysideration of a sum of Rs.
vs. Smt.
The total area of the land is approximately 4000 sq.mtrs.
In the year 1972, the appellant had entered into an agreement to sell the property for a sum of Rs.
An amount of Rs.
Efforts were repeated for the sanction of the building plans but as is borne out from the companymunications dated 12.8.85 and 19.11.90 by the NDMC, building plans were number sanctioned and were only rejected.
On 26.4.1985 the companypetent authority passed an order under Section 20 1 a read with Section 22 of the ULCRA exempting the excess vacant land to the extent of 368.23 sq.mtrs.
The area of 8,182 sq.
Chand Rani dead by LRs.
8,97,740/ .
On 6.11.1972 the plans were rejected mainly on the ground that plot in question formed a part of the zone marked as re development area as per the zonal plan D 3.
The cheque was neither a blank number an undated cheque.
The appellant made an humble appeal to the respondents for fulfilling their obligations under the companytract and to take the appellant in the right spirit while reading the letter.
Some companytroversy between the parties also centres around the fact whether possession over the suit property was handed over by the appellant to the respondents or number.
The plans were for the companystruction of a Housing Project companysisting of an 8 storeyed building and 2 blocks of 5 storeyed building companyprising of 18 flats of three bed rooms and 23 flats of two bed rooms each apart from incidental ancillary companystructions such as power sub station, pump house, lifts etc.
There are a few relevant clauses of the agreement, material for the purpose of these appeals which are extracted and re produced hereunder That the purchaser shall get the permission for such a companyveyance from the Land Development Officer and shall pay all the charges and expenses whatsoever, for execution and registration of the sale deed, its stamping and the charges to the Land Development Office on account of unearned increase payable by the Seller for getting the necessary permission as provided in the perpetual lease dated 11th September, 1961.
5,72,740/ was to be paid after the companypletion of the said multi storeyed building.
That the purchaser shall have the building planned in their absolute discretion and after having the plans duly sanctioned companystruct and sell flats in the said building as per their terms and companyditions without any let or hindrances from the seller any sort whatsoever.
