Paragraph numbers below are the court’s original numbering, recovered from the source text.
1. Whether defendant No.I on 24.3.78 agreed to sell the plot in dispute B to the plaintiff at Rs. 85.000/-.
2. If issue No. I is proved, whether this agreement of sale is void being not permissible by law? OPD
3. If issue No.2 is not proved, in favour of the defendant whether the C plaintiff was ready and willing to perform his part of the contract?
4. Whether Rs.8500/- was received by defendant No. I as security for carrying out the construction on the plot in dispute by the plaintiff on behalf of defendant No. I as alleged in para 4 of the written statement ? OPD
5. Whether defendant No.2 is not bound by any agreement to sell in between the plaintiff and defendant No. I if issue No. I is proved? OPD-2 6. Relief.
6. Considering the evidence led, the Trial Court held that the plaintiff E must succeed. In appeal, the High Court after considering the rival submissions came to hold that there were several documents which tend to suggest that defendant no. I was aware of the fact that there was an embargo in the lease deed that transfer could not take place without permission. It appears that he was also aware of the fact that permission, if accorded, by the Delhi p Development Authority for affecting transfer, would be subject to payment of unearned increase and for that reason alone, in one of the letters defendant no. I had specifically informed the property dealer that while making offers that aspect was to be kept in view i.e. 50% of the unearned increase should be paid by the transferee. The High Court made reference to the lease deed dated 2.7.1974 (Exhibit P-4), letter dated 27.9.77 addressed by defendant no. I G to the property dealer indicating his intention to sell if the value would be reasonable and there was no implication in future; Exhibit P-5, i.e. letter dated 16.10. I 977 by which the defendant no.I asked the property dealer that buyer shall have to pay 50% of the difference between original cost and the market value; Exhibit P-6 i.e the letter dated 10.1.78 exchanged by defendant no.I and H (2007] 3 S.C.R. A the property dealer to show that the amount which the prospective buyer was willing to pay was less according to defendant no. I; Exhibit P-7 i.e. letter dated 1.2. 78 by defendant no. I with reference to previous letter asking for more amount from the prospective purchaser. Similar was the situation in several other letters addressed by defendant no. I to the property dealer. The B High Court was of the view that instead of performing his part of the agreement, defendant no. I being conscious of the fact that property prices were rising resiled from his commitment and transferred by way of gift in favour of his son after obtaining the permission for transfer. The High Court also noticed that the plaintiff was ready and willing to perform his part of the contract.
7. The High Court did not accept the contention that since there was some restriction on transfer, that disentitled the plaintiff from obtaining a decree for specific performance of the contract.
8. The appeal was dismissed observing, inter a/ia, as follows: "Consequently, we find no force in the appeal which is hereby dismissed with costs. We make it clear that the learned trial court rightly directed the defendants/appellants to apply for necessary permissions within the period specified therein. In case permissions are not applied for, it will be permissible for the plaintiff to make such an application and in case requisite permission is accorded, on receipt thereof, the plaintiff will call upon the defendants/appellants to execute requisite sale deed in accordance with law and on failure to do so execution and resignation of the sale deed will be as per law."
9. Learned counsel for the appellants submitted that the trial Court and F the High Court failed to appreciate that there was an impediment on the transfer. There could not have a valid agreement. In the background noticed by the Trial Court and the High Court ifthe transfer was prohibited by ODA, agreement could not have been enforced by a decree in a suit for specific performance. IO. Learned counsel for the respondent on the other hand submitted that the lack of permission, if any, cannot act as absolute bar on a decree being passed. The decree may not be executable. As noticed by the High Court it was submitted that the price rise is not a ground to deny specific performance. I I. In this case the trial Court as well as the High Court have categorically VISHWANATH SHARMAv. SHYAMSHANKARGOELA[PASAYAT,J.] 275 found that the plaintiff was ready and willing to perform his part of the A – I arrangement. In fact, if DOA refused to grant permission a suit for damages can be filed. 12. The plea of hardship which is presently being raised was never raised before the Courts !Jelow and was not also pleaded. The conditions 6A and 6B to· the ~eference has been made by learned counsel for the appellant B does not create an absolute bar. The plea that the plaintiff was merely a contractor was also not accepted and it was found that the finding of fact that the plaintiff was not a contractor as claimed by the appellant. …. 13. The Privy council in Motilal v. Nanhelal, AIR (1930) P.C. 287, laid c down that if the vendor had agreed to sell the property which can be transferred only with the sanction of some government authority, the court has jurisdiction to order the vendor to apply to the authority within a specified period, and if the sanction is forthcoming, to cor.'-'~Y to the purchaser within a certain time. This proposition of law was followed in Mrs. Chandnee Widya Wati Madden v. C.L. Katia!, AIR (1964) SC 978, and R.C. Chandiok v. Chuni Lal D Sabharwal, AIR (1971) SC 1238. The Privy Council in Motilal's case (supra) also laid down that there is always an implied covenant on the part of the vendor to do all things necessary to effect transfer of the property regarding which he has agreed to sell the same to the Vendee. Permission from the Land and Development Officer is not a condition precedent for grant of decree for specific performance. High Court relied upon its decision in Mrs. Chandnee E Widya Madden v. Dr. C.L. Kati! (supra) and Maharo Saheb Shri Bhim Singhji v. Union of India AIR (1961) SC 234 to substantiate the conclusive. In Mrs. Chandnee Widya (supra) this Court confirmed the decision of the Punjab and Haryana High Court holding that if the Chief Commissioner ultimately refused to grant the sanction to the sale, the plaintiff may not be able to enforce the F decree for specific performance of the contract but that was not a bar to the Court passing a decree for that relief. The same is the position in the recent case. If after the grant of the decree of specific performance of the contract, the Land and Development Officer refused to grant permission for sale the decree holder may not be in a position to enforce the decree but it cannot be held that such a permission is a condition precedent for passing a decree for specific performance of the contract. 14. In Ramesh Chandra Chandiok and Anr. v. Chuni Lal Sabharwal (dead) by his legal representatives and Ors., (AIR 1971SC1238) it was held that proper form of decree in a case like the instant one would be to direct H [2007] 3 ·s.C.R. ', A specific performance of the contract between defendant and the plaintiff and to direct the subsequent transferee to join in the conveyance so as to pass on the title residing in him. This is because defendant no.2 son of defendant no. I cannot take the stand that he was a transferee without notice. Admittedly, he is son of defendant no. I. The view in Ramesh Chandra's case (supra) was B a reiteration of earlier view, in Durga Prasad and Anr. v. Deep Chahd1and Ors., AIR (1954) SC 75. This Court has repeatedly held ~hat the decree can be passed and the sanction can be obtained for transfer of immovable property and the decree in such would be in the way the High Court has directed. (See: Motilal Jain v. Ramsai Devi (Smt.) and Ors., (2000] 6 SCC 420, Nirmala Anand v. Advent Corporation (P) Ltd. and Ors., (2002] 5 SCC 481, (2004] 6 C SCC 537, Aniglase Yohanna v. Ramlatha and Ors., (2005] 7 SCC 534]. 15. Above being the position we find no merit in this appeal. However, considering the long passage of time it was suggested to respondent no. I that he could pay an additional sum to the appellant. Learned counsel for the respondent left the quantum to be decided by this Court. To a similar effect D was the suggestion of learned counsel for the appellant. Considering the background facts, we direct that as a matter of good gesture, let the respondent pay a sum of rupees five lakhs to the appellant within a period of four months from today. 16. The appeal is dismissed subject to the aforesaid observations. K.K.T. Appeal dismissed.