THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE K.S.APPA RAO A.S.No.2603 of 1999 JUDGMENT: (Per Hon’ble Sri Justice A.Gopal Reddy) This appeal under Section 96 CPC, by the plaintiffs, is directed against the judgment and decree of the II Additional Senior Civil Judge, Visakhapatnam, dated 28-01-1998, whereby the suit in O.S.No.706 of 1988 filed by the appellants/plaintiffs seeking specific performance of contract, dated 16-11-1957, was dismissed. 2. For the sake of convenience, the parties will be referred to as they are arrayed in the suit. 3. Brief facts of the case of the appellants/plaintiffs are that one late V.P.P.Raju, an ex-serviceman, was the father of the plaintiffs and the 7th defendant. His wife i.e., mother of the plaintiffs and 7th defendant was predeceased him. Said Raju worked as a Major and N.C.C. Officer in 10 Andhra Battalion up to 1967 and he retired as a pensioner in the capacity of Captain. He applied for the purchase of military surplus land, to an extent of Ac.1.6447 square feet covered by T.S.No.1044, Block No.48, Waltair Ward in Visakhapatnam, when the land was sought to be sold in public auction by the Military Estate Officer, Madras Circle. He also wrote a letter requesting to sell the land to him by private treaty as per letter dated 04-09-1957 claiming that ex- servicemen are entitled to first preference to purchase the property. He deposited 10% of the price agreed upon and given an undertaking in writing to purchase the land after ascertaining the intimation of the full market value by the Military Estate Officer and after being satisfied with the material furnished by late Raju, the Military Estate Officer withdrew the suit land from auction, entered into a private treaty and accepted the deposit of earnest money of Rs.797-60 ps. being 10% of the purchase money as final, and has not proceeded with the auction of the above said property. On late Raju furnishing a copy of the pension payment order duly certified to prove that he was an ex-serviceman, along with a letter dated 08-10-1957 undertaking in writing in unequivocal terms that he used the site for the purpose stated in clause (1) of the auction conditions. The Military Estate Officer accepted the papers and also received 10% of the amount fixed for the property to be auctioned, so that there was a concluded contract between late Raju and the Government represented by the Military Estate Officer. The said contract is binding on the defendants 1 to 6. Late Raju wrote a number of letters to the defendants 1 to 6. On 01-09-1967, he received a letter stating that his application was sent to the Military Estate Officer to take necessary action. Thereafter, as there was no action by the defendants, he issued a notice dated 03-04-1969 under Ex.A-9, through his advocate about the proposed action to file a suit for specific performance. The 2nd defendant sent another letter on 04-10-1969 stating that his claim was under verification. Again as there was no action by the defendants, he issued another notice on 10-09- 1975, marked as Ex.A-12 under Section 80 CPC, but the same was also not being replied by the defendants 1 to 6. After the death of Raju, the 1st plaintiff has sent a letter dated 16- 07-1985 to the Government requesting for the execution of the registered sale deed by taking balance of consideration. On that, the Director General, Defence Estate, New Delhi, by reply letter dated 22- 05-1986, acknowledging about receipt of 10% of the assessed cost of the suit land informed the 1st plaintiff that the land was required by the State Government and therefore, it is not possible for the Government to transfer the land to late Raju. In view of the said reply, the plaintiffs and the seventh defendant got issued a legal notice on 20-10-1986 to the defendants 1 to 6 and filed the suit for specific performance. 4. The 2nd defendant filed a written statement resisting the claim of the plaintiffs. It is stated that the suit as such is speculative, frivolous and vexatious and neither the plaintiffs nor the 7th defendant are entitled to maintain the suit and denied the relationship between the plaintiffs and the 7th defendant with that of late Raju. The averments made in the plaint that late Raju was working in the military as a Major and as an N.C.C. Officer and he applied to purchase military surplus land in T.S.No.1044 in Block No.48 of Waltair Ward and requested the Military Estate Officer to sell the land by private treaty by letter dated 04- 09-1957 to construct a building for his residence etc., are all denied. It is asserted that there is no valid binding contract entered into between late Raju and defendants 1 to 6 on 16-11-1957 nor any sale price was determined and fixed for enabling him to pay 10% of the market value on the sale price. The Military Estate Officer is not competent to enter into the private treaty to the sale of the land either with Raju or with any others and also denied all the other plaint allegations. It is further stated that the suit schedule land is constituted in the defence land and is originally acquired with the Central Government fund for using it for military burials during the second world war in view of its situation by the side of the existing Waltair Cemetery and since the date of application it has been used as a burial ground and it was decided to sell by way of public auction and put to auction on 25-04-1962 and in the meanwhile, late Raju appeared to have made a futile attempt to grab away the land for a pittance taking advantage of the position as retired army officer. In this futile attempt to achieve his objects, he misdirected and misrepresented with the concerned officers and he appears to have unauthorizedly deposited Rs.797-60 ps alleging to be 10% value of the land and therefore the deposit is not binding on the defendants 1 to 6. However, the Government of India decided to sell the land by way of public auction. Intimations were sent to late Raju and others to participate in the public auction along with others, but they have failed to attend on the date of auction. The Christian Burial Board, the Municipal Commissioner and the Special Officer protested against the disposal of the said defence land by public or otherwise, as it was required for extension of the said Waltair Cemetery and as per the decision of the Government of India, the land was leased out to the State of Andhra Pradesh in 1965 under the perpetual lease of Rs.12/- for the specific purpose of using it as cemetery. Since then, the land has been used for burial ground. Late Raju has not made any efforts to get back his 797-60 ps., which is in deposit for long years, as such, the claim for this amount is also time barred. He refused to receive the cheque issued in his favour for refund of this amount. Since there is no contract between the defendants 1 to 6 and the plaintiffs, as such, the suit is not maintainable. Further, the damages claimed by the plaintiffs are imaginary and excessive as the plaintiffs never suffered any damages or lost anything at the hands of the defendants to claim the suit amount. Hence, he prayed for dismissal of the suit. 5. On the above pleadings, the following issues are framed by the trial Court. 1. Whether the plaintiffs are entitled for the specific performance contract dated 16-11-1957 as prayed for? 2. Whether the plaintiffs are entitled for the refund of Rs.55,56,000/- as an alternative relief? 3. Whther the suit is barred by limitation? 4. To what relief? 6. To substantiate the plea taken by the plaintiffs, 1st plaintiff herself examined as P.W.1 and one more witness was examined as P.W.2 and marked Exs.A-1 to A-15. On behalf of the defendants, one witness was examined as D.W.1 and Exs.B-1 to B-48 were marked. 7. The learned trial Judge on issue No.1 has held that Exs.B-1 to B-15 did not disclose any agreement of sale entered between late Raju and the Government. Mere receipt of Rs.797-60 ps. sent by late Raju does not amount to any concluded contract. Further, Exs.B-3, B-6, B-9 and B-17 categorically reveal that the market value of the land is not at all fixed. On careful perusal of Ex.A-5, dated 16-11-1957, the receipt of amount of Rs.797-60 ps. cannot be treated as 10% of the alleged market value of the land, because no market value was fixed at all by the Military Estate Officer or other officers before late Raju sent this amount. In the absence of any contract, there is no valid offer or acceptance between late Raju and the Government. Further, the evidence of P.W.1 also disclosed that no such properties were ever devolved on the plaintiffs and the 7th defendant. Therefore, late Raju was never ready or willing to pay the balance of sale price amount pursuant to the upset price fixed for the sale of the properties in public auction. Therefore, the learned trial Judge held that plaintiffs are not entitled to the relief of specific performance. 8. On issue No.3, the learned trial Judge held that the suit is barred by limitation. In issue No.3 it was also held that during lifetime of late Raju, he issued Ex.A-9 notice on 03-04-1969 followed by another notice dated 10-09-1975 under Ex.A-12 seeking specific performance. But, late Raju did not file any suit and he died later. By issuing another fresh suit notice by all the legal heirs of late Raju under Ex.B-44, dated 20-10-1986, the limitation period cannot be extended nor it creates a new cause of action for enforcing the agreement. Hence, the suit is barred by limitation. The learned trial Judge, on issue No.2, further held that when the plaintiffs have failed to establish the damages suffered by them to a tune of Rs.55,56,000/-, they are not entitled to grant such amount as an alternative relief and accordingly, dismissed the suit. 9. We have heard the learned counsel for the appellants/plaintiffs, the learned Assistant Solicitor General, appearing for respondents/defendants 1, 2 and 4 to 6 and the learned Government Pleader for Revenue appearing for respondent/defendant No.3, at length, and gone through the evidence on record. 10. Now the points for consideration are whether there is any concluded contract between late Raju i.e., the father of the plaintiffs and 7th defendant and the Government, D-1 to D-6, and if so, is it binding on the defendants 1 to 6. 11. It is not in dispute that notification under Ex.B-1 informing that public auction would be conducted for the suit schedule property and other properties was issued, and 10% of the amount to the respective property was deposited by late Raju. He also made a representation to the authorities concerned not to conduct the open auction for the said property, as he being a Major (retired) is entitled to purchase the property on priority basis, as an ex-serviceman. However, the auction could not be proceeded on the specified date as no bidders came forward to purchase the property as per the auction notice under Ex.B-1 in the year 1957. Thereafter, late Raju sent letters for confirmation of sale (which, in fact, has not taken place) of the said property in his favour for the price fixed in the said notice. Mere acknowledging the receipt of the amount by the defendants will not amount to a concluded contract nor would be considered it as acceptance of the offer made by late Raju to enforce the agreement by either himself or by his heirs, plaintiffs and the 7th defendant. 12. Admittedly, during his lifetime, late Raju also issued notices under Exs.A-9 on 03-04-1969 and A-12 on 10-09-1975 under Section 80 CPC for institution of the suit for sale of the said property. But, he has not filed any suit to set forth his claim. After his death, his sons i.e. plaintiffs issued the notice on 20-10-1986 under Ex.B-44, and filed the present suit. When the plaintiffs failed to establish that there is a concluded contract between their father and the defendants 1 to 6-Government, and there is a failure on the part of the defendants in complying the terms of contract which gives rise to a cause of action for filing a suit for enforcement of agreement, the finding recorded by the learned trial Judge that there is no such concluded contract between late Raju and the defendants-Government is sustainable and the same does not suffer from any perversity or legal infirmities. 13. Though the notices were issued by late Raju under Exs.A-9 and A-12 under Section 80 CPC seeking sale of the property in his favour, but he has not filed any case in his lifetime, as such, by issuing Ex.B-44, dated 20-10-1986, the plaintiffs cannot revive the cause of action, as the suit claim is already barred by limitation, during the lifetime of father of plaintiffs and the 7th defendant. In view of the same, the findings recorded by the trial Court that the suit is barred by limitation can be sustained and the same is accordingly sustained. 14. Coming to the damages, the plaintiffs have not led any evidence to show how they have suffered the damages for an amount of Rs.55,56,000/- as an alternative relief. Even otherwise, the plaintiffs failed to establish the enforceable agreement of contract between their father and the defendants-Government so as to claim the value of the property in the suit. Accordingly, the suit was rightly dismissed by the trial Court. 15. In the result, the appeal is devoid of merit and the same is accordingly dismissed. No costs. _________________________ JUSTICE A.GOPAL REDDY ________________________ Dated:04-08-2011 JUSTICE K.S.APPA RAO kvr