Mrs. Chandnee Widya Vati Madden v. Dr. C. L. Katial & Others

Specific performance'-Contract to sell house property-Implied t•rm-Poi11ts not raised in the High Court, if be allowed for the first time in this Court.

The plaintiffs-respondents entered into a contract of sale in respect of a house property belonging to the appellant. The deed of agreeuient provided that the vendor shall obtain the pt"rmh.sion of the Chief Commissioner to the transaction of sale within two months of the agreement and if the sairl permission was not forthcoming within that time, it was open to the purchasers to extend the date or to treat the agreement as canceJlcd. As the necessary permission was not forthcom-ing ~.vithin the stipulated time, the purchasers extended the time by another month. The appellant withdrew her applica-tion for the necessary permission. The defendant having failed to perform her part of the contrart, the plaintiffs brought a suit for specific performance of the contract for sale or in the alt<rnative for damages. The trial court, althoug-h it found that the plaintiffs had been throughout ready ani willing, inderd anxiou-., to perform their part of the contract and that it was the defendant who had backed out of it, refused the main relief of specific performance of the contract on the ground that the agreement was inchoate, as the previous sanction of the Chief Com1nissioner to the proposed transfer had not been obtained. The High Court came to the conclusion that there 1963 was a completed contract between the parties and that the

condition in the agreement that the vendor would obtain the Ch,.ndritd WidJ·a sanction of the Chief Commiisioner to the transaction of sale

Vnli Afc~~n

v. did not render the contract incomplete and the trial court was L. Kahal in error in holding that the agre"ment was inchoate.

Held that on the findings in this case, the court had got to enforce the terms of the con;.ract and to enjoin upon the defendant·appellant to make the necessary application to the Chief Commissioner, which was implied in the contract. It will be for the Chief Commissioner to decide whether or not to grant the necessary sanction. In the event of the sanction being refused, the plaintiffs shall be entitled to the damages as decreed by the High Court. In this view of the matter, the High Court was entirely correct in decreeing the suit for specific performance of the contract.

Motiwl v. Nanhelal (1930) L. R. 57 I. A. 33, referred to. Held further, that the points not sprcifically raised in the High Court nor pleaded in the pleaclir.gs should not be allowed for the first time to be raised in this Court.

C1vn, APPELLATE jt:RISDICTION : Civil Appeal No. 559 of 1962.

Appeal from the judgment and decree dated March 21, J!Hil, of the Punjab High Court (Circuit Bench) at Delhi in Regular First Appeals Nos. 8 D and 21-D of 1960.

A. Rnnganadham Chetty, S. K. Mehta and J(. L. J!ehta, for the appellant.

ilf. C. Setalvad, Hardayal H11rdy and S. N. Anand, for the respondents.

HJ63. March 25. The Judgment of the Court was delivered by c. SINHA C. J.-This appeal on a certificate 5in.\o J. granted by the High Court of Punjab arises out of

a suit for specific performance of. a cont_raet. of sale in respect of a house property situate m 1ughlak Road New Delhi, belonging to the appellant and built ~n a lease-hold plot granted by the GO\·ernmrnt in the year 1935, to her predecessor-in-title. It appears 1953 that the plaintiffs entered into a contract of sale in re<pect of the disputed property for the sum of Charidnee iv idy Vati Madden R5. 1,10,000/-. The deed of agreement is dated v. September 1956. In so far as it is necessary to C. L. Katial

4, notice the terms of the document, the agreement Sinhi C. J. provided that the vendor shall obtain the permission of the Chief Commissioner to the transaction of sale within two months of the agreement, and if the said permission was not forthcoming within that time, it was open to the purchasers to extend the date or to treat the agreement as cancelled. As the neces- <ary permission was not forthcoming within the stipulated time, the purchasers extended the time by another month. The appellant had made an appli-cation to the proper authorities for the necessary permission, but withdrew her application to the Chief Commissioner by her letter dated April 12, 19.57. The plaintiffs called upon the defendant several times to fulfil her part of the agreement but she failed to do so. It was averred on behalf of the plaintiffs that they had always been ready and willing to perform their part of the contract and that it was the defendant who had backed out of it.

Hence, the suit for specific performance of the con-tract for sale or in the alternative for damages amounting to Rs. 51,100/-. The suit was conte,ted on a large number of grounds of which it is nece-ssary now to take notice only of the plea on which issue No. 8 was joined. Issue No. 8 is as follows :

"(8) Is the contract contingent or impossible of performance and is uncertain and vague and is therefore void ?"

The other material issues were concurrently decided in favour of the plaintiffs, and, therefore, need not be referred to.

The trial Court in a very elaborate judgment d'smissed the suit for specific performance of conuact 1963 and for a pamanent injunction and decreed the Clu:ttdnu U'id.1.t sum of Rs. 11,550/- by way of damages, with propor-

Va1; !t{odden .. tionate costs, against the defendant. Though the

L. lrati41 Courl found that the plaintiffs had been throughout

ready and willing, indeed ·anxious. to perform their