#383

Описание: #specificperformancesuit #agreementofsale

Supreme Court of India
I.S.Sikandar (D) By Lrs.& Ors vs K.Subramani & Ors on 29 August, 2013
Author: V G Gowda
Bench: G.S. Singhvi, V. Gopala Gowda
REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL
APPELLATE JURISDICTION
CIVIL APPEAL NO. 7306 OF 2013 (Arising out of SLP
(C) No. 20367 of 2009)
I.S. SIKANDAR (D) BY LRs. ... APPELLANTS
VS.
K. SUBRAMANI & ORS. ... RESPONDENTS
J U D G M E N T
V. Gopala Gowda, J.

It is an undisputed fact that there is an Agreement of Sale executed by defendant Nos.
1-4 dated 25.12.1983 in favour of the plaintiff agreeing to sell the schedule property in
his favour for a sum of Rs. 45,000/- by receiving an advance sale consideration of
Rs.5,000/- and the plaintiff had further agreed that the remaining sale consideration
will be paid to them at the time of execution of the sale deed. As per Clause 6 of the
Agreement of Sale, the time to get the sale deed executed was specified as 5 months
in favour of the plaintiff by the defendant Nos.1-4, after obtaining necessary
permission from the competent authorities such as the Urban Land Ceiling Authority
and Income Tax Department for execution and registration of the sale deed at the
cost and expenses of the plaintiff. If there is any delay in obtaining necessary
permission from the above authorities and the payment of layout charges, the time
for due performance of agreement shall further be extended for a period of two
months from the date of grant of such permission. In the instant case, permission
from the above authorities was not obtained from defendant Nos. 1-4. The period of
five months stipulated under clause 6 of the Agreement of Sale for execution and
registration of the sale deed in favour of the plaintiff had expired. Despite the same,
the defendant Nos. 1-4 got issued legal notice dated 06.03.1985 to the plaintiff
pointing out that he has failed to perform his part of the contract in terms of the
Agreement of Sale by not paying balance sale consideration to them and getting the
sale deed executed in his favour and called upon him to pay the balance sale
consideration and get the sale deed executed on or before 18.3.1985.
The plaintiff had issued reply letter dated 16.3.1985 to the advocates of defendant Nos. 1-4, in which
he had admitted his default in performing his part of contract and prayed time till 23.05.1985 to get
the sale deed executed in his favour. Another legal notice dated 28.03.1985 was sent by the first
defendant to the plaintiff extending time to the plaintiff asking him to pay the sale consideration
amount and get the sale deed executed on or before 10.04.1985, and on failure to comply with the
same, the Agreement of Sale dated 25.12.1983 would be terminated since the plaintiff did not avail
the time extended to him by defendant Nos. 1-4. Since the plaintiff did not perform his part of contract within the extended period in the legal notice referred to supra, the Agreement of Sale was
terminated as per notice dated 28.03.1985 and thus, there is termination of the Agreement of Sale
between the plaintiff and defendant Nos. 1-4 w.e.f. 10.04.1985. As could be seen from the prayer
sought for in the original suit, the plaintiff has not sought for declaratory relief to declare the
termination of Agreement of Sale as bad in law. In the absence of such prayer by the plaintiff the
original suit filed by him before the trial court for grant of decree for specific performance in respect
of the suit schedule property on the basis of Agreement of Sale and consequential relief of decree for
permanent injunction is not maintainable in law. Therefore, we have to hold that the relief sought
for by the plaintiff for grant of decree for specific performance of execution of sale deed in respect of
the suit schedule property in his favour on the basis of non existing Agreement of Sale is wholly
unsustainable in law. Accordingly, the point No. 1 is answered in favour of the defendant No.5.
Even if we assume that the Agreement of Sale dated 25.12.1983 is subsisting, we have to answer
point No. 2 in favour of defendant No.5 for the following reasons :-
It would be very much relevant for us to extract Clause 6 of the Agreement of Sale which reads thus:
The time fixed for execution and completion of the sale transaction is five months
from the date of the agreement of sale. The first parties have agreed to get the
necessary permission for registration from the competent authorities such as the
Urban Land Ceiling authorities and Income Tax Authority within the said period of
five months at the cost and expenses of the Second Party. The Second Party has
agreed to pay the necessary layout and conversion charges of the suit property to the
concerned authorities. The first party have further agreed with the second party that
if in case the necessary permission from the aforesaid authorities is delayed and as a