R. C. Lahoti, J. -
(2.)An introductory statement of bare necessary facts would suffice for the purpose of this order. On 31-10-1987, a contract for sale of immovable property was entered into between the parties whereby the appellant agreed to sell the suit property consisting of a building and the site on which the building stands, for a consideration of Rs. 40,25,000/-. An amount of Rs. 8,00,000/- was paid by way of advance or earnest money, the balance consideration of Rs. 32,25,000/- was to be paid simultaneously with the execution and registration of sale deed. This contract was in supersession of an earlier contract dated 22-9-1986 which had lapsed. The vendor had agreed to obtain the requisite permission from the Urban Land Ceiling Authority before 30th June, 1988. The time so appointed could be extended by mutual consent of the parties. It was expressly agreed upon between the parties that if the requisite exemption or permission under the Urban Land (Ceiling and Regulation) Act, 1976 ('ULCRA', for short) was not forthcoming by 30th June, 1988 or within such extended period as may be mutually agreed to, then the contract was to become inoperative and unenforceable in which event the only obligation surviving on the vendor was to refund the earnest money. The vendor could return the earnest money within three months thereafter and if for any reason whatsoever the amount could not be so repaid then the amount was to carry interest at the rate of 12 per cent per annum. It appears that proceedings for declaration that the suit property was within the ceiling limits as appointed by the ULCRA were already pending before the Competent Authority at a point of time when the agreement was entered into between the parties. However the decision was not forthcoming within the period of six months from the date of the agreement. On 1-12-1988 the appellant wrote a letter to respondent informing that the agreement to sell stands cancelled as per the terms of the agreement for failure of the requisite clearance from the competent authority (Urban Land Ceiling) forthcoming. With the letter the appellant tendered an amount of Rs. 2,00,000/- through two cheques enclosed with the letter, requesting for the agreement being returned duly cancelled to the vendor and assuring the payment of the balance amount of the earnest money before the end of December, 1988. This letter erupted a conflict between the parties leading to exchange of legal notices and filing by the respondent of a suit for specific performance of agreement to sell on 29-6-1989. On 12-3-1992 the trial Court decreed the suit against which the appellant filed First Appeal before the High Court. On 19-8-1999 the High Court has allowed the appeal, set aside the judgment and decree of the trial Court and remanded the case for holding additional trial on the three additional issues framed by the High Court and thereafter to decide the case afresh.
(3.)A perusal of the order of remand made by the High Court shows that on behalf of the appellants six contentions were raised : (i) that the suit was not maintainable as the pleadings did not conform to the requirements of Forms 47 and 48 of Appendix A of the Code of Civil Procedure; (ii) that there was no pleading in the plaint that the plaintiff-respondent had always been ready and willing to perform his part of the contract and continued to be so, and on the contrary the conduct of the respondent showed the absence of such readiness and willingness; (iii) that the agreement became inoperative and unenforceable on 30th June, 1988 and therefore was rendered incapable of specific performance; (iv) that the grant of relief of specific performance was discretionary, which the facts and circumstances of the case did not permit being exercised in favour of the plaintiff-respondent; (v) that the respondent had not approached the Court with clean hands and therefore was not entitled to the discretionary and equitable relief of specific performance; and (vi) that the respondent was not financially sound and therefore was not in a position to perform his part of the contract.