1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.85 OF 2009 WITH CIVIL APPLICATION NO.311 OF 2009 Shri Narayan Mahadu Patil & Anr. .... Appellants (ori.defendants) Vs. Giridharilal Bansidhar Gupta .... Respondents (deceased) thru his LR K.G. Gupta (Ori.plaintiff) Mr.V.B. Naik i/by Mr.A.M. Kulkarni, Advocate for appellants. Mr.P.S. Dani, Advocate for respondent no.2. Coram : SMT.R.P. SONDURBALDOTA, J. Date : 18th July, 2009 P.C. 1. This Second Appeal arises out of a suit for specific performance of the contract between the appellants and respondents. By the agreement dated 7th February 1982, the appellants agree to sell the land at gat no.165 admeasuring 2-66-9 kharaba 0-33-1 for the total consideration of Rs. 90,000/- to the respondents. Later supplementary agreement dated 9th August 1982 was executed providing for payment of additional earnest money and handing over possession of land on such payment. Accordingly additional earnest money was paid and possession of the suit land was handed over to the respondents. 2. The dispute between the parties is over the conditions contained in the two agreements of obtaining permissions from various authorities. Clause (4) of the agreement dated 7th 2 February 1982 specified permission of the Collector for sale of the property as at the relevant time, by the Government Notification dated 18th January 1982, all the transactions of sale of properties in the surrounding area had been suspended. Clause 5 of the agreement refers to “other necessary permissions from Government offices”. The supplementary agreement dated 9th August 1982 refers to the permission for the use of land for non agricultural purposes and permission under Bombay Prevention of Fragmentation and Consolidation of Holding Act. 3. The record of the proceedings shows that the respondent had obtained necessary permission for sale of the property relating to Government Notification dated 18th January 1982. The other permissions obtained by the respondents were (i) no objection certificate from Gram Panchayat to start industrial use and for making plots in the suit land, (ii)no objection certificate from Town Planning authority for permission to use the suit land for industrial purposes and (iii)no objection certificate to purchase the suit land for industrial purposes. In addition to it, the respondents had taken steps for measurement of the suit land and deposited the fees for the measurement. They had also engaged an Architect for preparing lay out and for obtaining necessary permission. The two permissions which had been left out were permission for use of the land for non agricultural purposes and permission under 3 Bombay Prevention of Fragmentation and Consolidation of Holding Act. The Trial Court by it’s judgment and order dated 31st January 1989 held that the responsibility of obtaining both the permissions were with the appellants,they being the owners of the suit property and granted specific performance. It gave other requisite directions for deposit of balance consideration, an application to be made for permission and execution of deed of conveyance. 4. The decree was challenged by the appellants by filing Civil Appeal No.180 of 2001 to the District Court contending that liability to obtain the permissions was of the respondents and since they had failed to obtain the permissions, they were not ready and willing to perform their part of the contract. The appellate court after considering the rival contentions rejected the appeal by holding that the respondents cannot be said to be not willing to perform their part of the contract merely because the permissions were not so obtained by them. It observed that the lack of permission could not be an impediment in passing a decree for specific performance of the contract. During pendency of the appeal, the appellants sold land admeasuring 2 H., 63 R out of the suit land to one Dr.Hemant Shantaram Pikle on 7th May 1997 for the consideration of Rs.4,25,000/-. According to them, the balance portion admeasuring 13 gunthas was acquired by the State of Maharashtra. They had sought to amend the written 4 statement so as to oppose the relief of specific performance on the ground that they do not have any more interest in the suit property. The appeal court had rejected the application for amendment observing that transfer of immovable property in violation of order of injunction is no transfer and the transferee is not having any right, title or interest in the land so transferred. The order rejecting amendment was not carried further either by the appellants or by the transferee. 5. In the present second appeal, the appellants challenge is essentially on two grounds. Firstly that the appellants no more being owners of the suit property cannot be subjected to the decree of specific performance. Secondly that the finding of the courts below that the respondents have been ready and willing to perform their part of contract is erroneous. 6. Mr.Dani, learned counsel for respondents submits that the first ground of appeal taken up by the appellants disentitles them to file the appeal as they are no more aggrieved by the impugned judgment and the only person who would file the appeal is the transferee. As against this, Mr. Naik, the learned counsel for the appellants submits that any transfer during the pendency of the proceedings is no transfer at all. Therefore, the appellants would be bound by any decree passed in the suit for specific performance. He also submits that it is only the appellants who can challenge the 5 decree for specific performance against them by pointing out the defects in the two orders. 7. Section 52 of the Transfer of Property Act provides for effect of transfer during the pendency of the proceedings. Under the said provision, in any suit or proceedings which is not collusive and in which any right of immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the court. Admittedly there was no permission sought by the appellants before selling the suit property. Section 52 does not per se make transfer of property during the pendency of the proceedings illegal. It only takes care of effect of such transaction on the successful parties to the proceedings, by stating that the rights of such successful parties are not affected by such transfer. It would mean that even after the property is so transferred, successful party to the proceedings can get the decree executed against such transferee. 8. Mr.Naik relies upon the decision of the Apex Court reported in (2008) 13 Supreme Court Cases 658 in the case of Bharat Karsondas Thakkar vs.Kiran Construction Company & 6 another to submit that in a suit for specific performance of an agreement against the vendor, a stranger or third party to the agreement cannot be added as a party and therefore according to him the purchaser can neither be a party to the present proceedings nor can he challenge the judgment and decree passed therein. The judgment cited is different on facts. The appellant therein who had filed a suit for specific performance against the respondent sought to join the transferee as a party to the proceedings, at the stage when there was consent decree passed in the suit in order to challenge the consent decree and to have declaration of title. The Apex Court held that the proper course of action for such plaintiff was to challenge the consent decree not in the suit for specific performance, but in a separate suit for declaration that the consent decree ought not to have been passed and the same was not binding on him, because the amendment of the plaint sought by him would substantially change the nature and character of the original suit from a suit for simplicitor specific performance to the suit for title and possession. This is the background against which the Apex Court held that a third party to the agreement is not a necessary party to the suit before it. The judgment does not have direct bearing to the facts of this case. 9. The very first ground in the memo of appeal is that the Appellate Court erred in granting specific performance against 7 the appellants when they are no more the owners of the suit property having alienated the same. If that is so the appellants cannot claim to be persons aggrieved by the decree of specific performance since it cannot be executed against them. It will be executable only against the transferee. Therefore the person really aggrieved would be transferee who can maintain the appeal. 10. Even on merits the appellants demonstrably have no case. They contend that the respondents should be held to be not willing to perform their part of contract as they failed to obtain two of the permissions from the concerned authorities. Mr.Naik submits that the agreements in terms provides that the steps for obtaining permission would be taken by respondents and the appellants would render the required assistance for the same. Therefore he submits that the substantial questions of law arising in this appeal are of interpretation of the two agreements and the question of the respondents being ready and willing to perform their part of the contract. Mr. Dani relying upon the decision of the Apex Court reported in 2002 (1) ALL MR 264 (S.C.) submits that a “question whether a party to such proceedings is ready and willing to perform his part of the contract can never be a question of law much less a substantial question of law. The apex court has held that this question is in fact a question of fact. It is for the 8 courts below to arrive at the decision of this question of fact on appreciation of evidence led before it and the issue of fact which is concurrently held in favour of the respondents cannot be disturbed by the High Court in the Second Appeal. In the same decision, the Apex Court has also discussed as to what can be termed to be a substantial question of law. It has quoted from it’s earlier decision in Sir Chunilal vs. Mehta & Sons Ltd. v. Century Spinning & Manufacturing Co. Ltd., A.I.R.1962 SC 1314 as follows. “The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion or alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law.” In view of the above mandate of the Apex Court, it must be held that there is no substantial question of law arising in the appeal for consideration of the court. Mr. Dani has 9 further rightly pointed out that the trial Court has taken abundant care in giving necessary directions as regards compliance of the conditions by directing the appellants to take steps therefor and on their failure, granting liberty to respondents to approach the trial Court for appointment of commissioner for fulfillment of the conditions. In these circumstances, the appeal is dismissed in limine. In view of dismissal of the Second Appeal, Civil Application No.311 of 2009 does not survive, the same is accordingly disposed off. (Smt.R.P.SondurBaldota,J)