Zarina Siddiqui vs A.Ramalingam @ R.Amarnathan

3. The facts giving rise to the present appeal are that the respondent- first defendant is the absolute owner of 1/3rd undivided share in the property bearing no.43, Mission Road, Bangalore (hereinafter referred to as the ‘suit schedule property’) and his elder brother-second defendant is his power of attorney holder. It is the case of the plaintiff that on 25.6.1979, the second defendant-respondent as registered power of attorney holder entered into an agreement to sell 1/3rd share in the suit property to the appellant-plaintiff for consideration of Rs.40,000/- and received advance of Rs.5,000/-. As per the aforesaid registered agreement, the balance consideration was to be paid on or before 30.12.1980 and the parties to the agreement had to take necessary steps for obtaining permission from the competent authority under the Urban Land (Ceiling and Regulation) Act. Plaintiff’s further case is that he paid the entire sale consideration to the second defendant who received the same on behalf of the first defendant. It is contended that the plaintiff had been always ready and willing to perform his part of the contract and that the plaintiff has been requesting the defendants to take necessary steps to obtain permission from the Urban Land Ceiling Authority. Since the defendants failed to take necessary steps, the plaintiff issued legal notice to the defendants on 5.3.1980 and 25.5.1980 calling upon the defendants to complete the sale in favour of the plaintiff and to perform their part of the contract. The defendants sent reply to notice on 4.10.1980 wherein they repudiated the agreement in question. As averred, the plaintiff has been in possession of the undivided share of the defendants in the schedule property in pursuance of the above agreement for sale. Since the defendants failed to execute the sale deed, the plaintiff filed a suit for specific performance praying for a direction to the defendants to execute the sale deed in respect of 1/3rd share in the suit property.

25. In view of the above, as we are of the considered opinion that the courts below have not proceeded to adjudicate upon the case strictly in accordance with law, we are not inclined to enter into the issue of inadequate consideration and rise in price. However, the judgment impugned cannot be sustained in the eyes of law.”

12. On remand, High Court considered the matter afresh and allowed the appeal of first defendant and set aside the judgment and decree of the trial court, dismissing the suit of the plaintiff. Hence, this appeal by wife of the plaintiff (since deceased).

39. Be that as it may, in the facts and circumstances of the case and considering the phenomenal increase in price during the period the matter remained pending in different courts, we are of the considered opinion that impugned order under appeal be set aside but with a condition imposed upon the appellant (plaintiff) to pay a sum of Rs.15,00,000/- (Rupees Fifteen Lacs) in addition to the amount already paid by the appellant to the respondent. On deposit in trial court of aforesaid amount by the appellant, for payment to the respondent, within three months from today, the respondent shall execute and register the sale deed in favour of the plaintiff in respect of the suit property. In the event the aforesaid condition of deposit of Rs.15 lacs is fulfilled within the time stipulated hereinabove but the defendant fails to comply with the direction, then the appellant shall be entitled to execute the decree in accordance with the procedure provided in law.

40. In the result, this appeal is allowed. The impugned judgment passed by the High Court is set aside and decree of the trial court is affirmed with the conditions imposed as indicated hereinabove. There shall be no order as to costs.

…………………………….J. [ M.Y. Eqbal ] .…………………………….J [Shiva Kirti Singh] New Delhi October 29, 2014