SUPREME COURT OF INDIA

Before:- V. N. Khare and S. N. Variava, JJ.

Civil appeal No. 1713 of 1997. D/d. 02.05.2001.

Nazir Ahmed Imamudin Raza - Appellants

Versus

Gulam Mustafa Faukat (d) by LRs - Respondents

Specific Relief Act, 1963, Section 16 - Agreement for sale of agricultural land - Earnest money paid - Agreement providing that the appellant shall obtain the permission of the Competent Authority under the provisions of Bombay Prevention of Fragmentation & Consolidation of Holdings Act, 1974 for transfer of suit lands - It was also agreed that if the permission is not obtained the vendor shall repay the earnest money along with damages - Appellant made no efforts to obtain the required permission and fulfil his part of the contract - Suit for specific performance - Contention that plaintiff having opted for an election, he therefore, disentitled himself for relief of specific performance - Held, since defendant did not make any effort to obtain permission from the Competent Authority for sale of the land, he cannot take benefit of his own wrong and refuse to sell land.

[Paras 1 to 3]

ORDER

1. UPON hearing counsel the Court made the following cates.

This is a defendant's appeal. The appellant, herein entered into an agreement with the plaintiff-respondent No. 1 on 3.2.1975 for sale of agricultural land being Survey No. 3/3 admeasuring 9 Gunthas at village Sopara, Taluka Vasai, District Thane (Maharashtra) for a sum of Rs. 6,000/-. It is alleged that a sum of Rs. 2,500/- was paid as earnest money. The agreement provided that the appellant shall obtain the permission of the Competent Authority under the provisions of the Bombay Prevention of Fragmentation & Consolidation of Holdings Act, 1947 for transfer of the suit lands. It was also agreed that if the permission is not obtained the vendor shall repay the earnest money along with damages. Since the appellant did take obtain the required permission, the plaintiff-respondent sent a notice dated 20.7.1979 whereby he called upon the defendant-appellant to fulfil his part of the contract. However, the appellant did not execute the sale deed. It is under such circumstances, the respondent filed a suit for specific performance of the agreement for sale of the property. The trial court decreed the suit. The said decree was affirmed by the first appellate court. The second appeal filed by the appellant was dismissed. Against the said judgment of the High Court the appellant has preferred this appeal.

2. Learned counsel appearing for the appellant urged that the plaintiff having opted for an election, he, therefore, disentitled himself for relief of specific performance of agreement for sale. We have gone through the agreement for sale, notice sent by the plaintiff as well as the judgment and find that the concurrent finding recorded by all the three courts below is that the defendant did not make any effort to obtain permission from the Competent Authority for sale of the land. Under such circumstances, no question for exercising option for election arises.

3. The position would have been different if the defendant would have made an effort to obtain the permission and failed in obtaining the same. But it is not the case here. We, therefore, do not find any merit in the appeal. The appeal fails and is, accordingly, dismissed. There shall be no order as to costs.

.