MRS. CHANDNEE WIDYA VATI MADDEN versus DR. C. L. KATIAL & OTHERS

2 S.C.R.

For the reasons given above we allow the appeals and answer the question referred to the Hi!)h Court in favour of the assessee. The appellant will be entitled to his costs in this court as also in the High Court ; there will be one hearing fee.

Appeals allowed.

MRS. CHANDNEE WIDYA VATI MADDEN

DR. C. L. KATIAL & OTHERS (B. P. SINHA, C. J., J.C. SHAH and N. RAJAGOPALA AYYANGAR JJ.)

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 contract of sale in respect of 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 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

Pfii/ip lnlm Fla!kei Thomas v. Commiuionf!r of Income-tax, Ca'c111ta Das J.

A1.arch 25

1963 Ch,.ndritd WidJ·a Vnli Afc~~n v. C. L. Kahal

5in.\o c. J.

was completed contract between the parties and that the condition in the agreement that the vendor would obtain the sanction of the Chief Commiisioner to the transaction of sale did not render the contract incomplete and the trial court was 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 and 21-D of 1960.

Chetty, S. K. Mehta and

A. Rnnganadham

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

SINHA

C. J.-This appeal on certificate

granted by the High Court of Punjab arises out of suit for specific performance of. cont_raet. of sale in respect of house property situate m 1ughlak Road New Delhi, belonging to the appellant and built ~n lease-hold plot granted by the GO\·ernmrnt

2 S.C.R. SUPREME COURT REPORTS

in the year 1935, to her predecessor-in-title. It appears

that the plaintiffs entered into contract of sale in re<pect of the disputed property for the sum of R5. 1,10,000/-. The deed of agreement is dated September 4, 1956. In so far as it is necessary to notice the terms of the document, the agreement 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 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 very elaborate judgment

d'smissed the suit for specific performance of conuact

Charidnee iv idy Vati Madden v. C. L. Katial Sinhi C. J.

1963 Clu:ttdnu U'id.1.t Va1; !t{odden .. C. L. lrati41 Sinko C. J.

and for pamanent injunction and decreed the sum of Rs. 11,550/- by way of damages, with propor-tionate costs, against the defendant. Though the Courl found that the plaintiffs had been throughout ready and willing, indeed ·anxious. to perform their part of the contract, and that it was the defendant who backed out of it, it refused the main relief of specific performance of the contract on the ground that the agreement was inchoate in view of the fact that the previous sanction of the Chief Commissioner to the propo1ed transfer had not been obtained_

The High Court on appeal came to the conclu-

sion that the agreement was completed contract for sale of the house in question, subject to the sanction of the Chief Commissioner before the sale transaction could be concluded, but that the Trial Court -was in error in holding that the agreement was inchoate, and that, therefore, no decree for specific performance of the contract could be granted. The High Court relied mainly on the decision of their Lordships of the Judicial Committee of the Privy Council in JJ!otila.l v. Km1helul ([1]), for coming to the conclusion that there was completed contract between the par-ties and that the condition in the agreement that the vendor would obtain the sanction of the Chief Comm-issioner to the transaction of sale did not render the contract incomplete_ In pursuance of that term in the agreement, the vendor had to obtain the sanction of the Chief Commissioner and as she had withdrawn her application for the necessary sanction, she was to blame for not having carried out her part of the contract. She had to make an application for th~ necessary permission. The High Court also po•ntcd out that if the Chief Commissioner ultimately refused to grant the sanction to the sale, the plaintiff may not be ahlc to enforc~ the decree for specific ptrfor-mancc of the contract but that was no bar to the Court passing decree for that relief. Thou~h it was not necessary in the view the High Court took of (I) (1~30) L. R. S7 !. ,\. 331.

2 S.C.R. SUPREME COURT REPORTS

the rights of the parties, it recorded finding that sum of Rs. 5, 775/- would be the appropriate amount of damages in the event of the plaintiffs not succeed-ing in getting their main relief for specific perfor· mance of the contract.

The main ground of attack on this appeal is that the contract is not enforceable being of con· tingent nature and the c0ntingency not having been fulfilled. In our opinion, there is no substance in this contention. So far as the parties to the con-tract are concerned, they had agreed to bind them-selves by the terms of the document executed between them. Under that document it was for the defen-dant-vendor to make the necessary application for the permission to the Chief Commissioner. She had as matter of fact made such an application but for reasons of her own decided to withdraw the same. On the findings that the plaintiffs have always been ready and willing to perform their part of the contract, and that it was the defendant who wilfully refused to perform her part of the contract, and that the time was not of the essence of the contract, the Court has got to enforce the terms of the contract and to enjoin upon the defendant· appellant to make the necessary application to the Chief Commissioner. It will be for the Chief Commissioner to decide whether or not to grant the necessary sanction. In this view of the matter, the High Court was entirely correct in decreeing the suit for specific performance of the contract. The High Court should have further directed the defendant to make the necessary application for permission to the Chief Commissioner, which was implied in the contract between the parties. As the defendant-vendor, without any sufficient reasons, withdrew the application already made to the Chief Commis-sioner the decree to. be prepared by this Court will add the clause that the defendant, within one m01nh

Clumdntf' Wit/~ Vati MatltJen v. C. L, Kaiial Sin/IQ C. /.

ChanJn,t U'iit)o VaJi Ma'tWJ v. C. 1 .... KaJial Sirth~ C. J.

from to day, shall make the necessary application to the Chief Commissioner or to such other competent authority as may have been empowered to grant the necessary sanction ·to transfers like the one in question, and further that within one month of the receipt of that sanction she shall convey to the plaintiffs the property in suit. In the event of the sanction being refused, the plaintiffs shall be entitled to the damages as decreed by the High Court. The appellant sought to raise certain other pleas which had not been raised in the High Court, for example, that this was not fit case in which specific perfor-mance of contract should be enforced by the Court. This plea was not specifically raised in the High Court and the necessary facts were not pleaded in the pleadings. It is manifest that this Court should not _allow such pica to be raised here for the first time.

For the reasons given above, the appeal fails and is dismissed with costs.

.Apptal dismis1ed.