P.C.Verma, J. - (1.) This appeal has been filed by the U.P. Small Industries Corporation Ltd., Kanpur (here-in-after referred to as the "UPSIC") against the judgement and decree dated 31.03.2008 passed by learned Additional District Judge, Court No. 1, Agra (here-in-after mentioned as the "impugned judgment") whereby the suit instituted by M/S Anupam Housing (P) Ltd., Agra (in brief as "AHPL") for specific performance was decreed against the UPSIC to execute a transfer-deed in favour of the AHPL (Respondent No. 1) regarding the leasehold interest of the suit property being Block No. 86/4, measuring 606.17 sq. mtrs. situated in the Sanjay Place Commercial Complex at Agra after obtaining 'No Objection Certificate' in its respect from the Agra Development Authority (ADA) (Defendant No. 2).
(2.) The brief facts giving rise to the present appeal are: (i) The AHPL instituted a suit in the Court of the Civil Judge (SD), Agra being Original Suit No. 306 of 1998, arraying therein the UPSIC and the ADA as the Defendant Nos. 1 and 2. The plaint (paper no. 4-A) allegations were: (ii) The plaintiff is a private limited company duly incorporated under the Indian Companies Act, 1956 and Inder Chand Jain is its Director having a right and authority to file the suit. The Defendant No. 1, UPSIC, is also a company. The ADA granted a lease in favour of UPSIC in respect of the plot of land bearing Block No. 86/4, measuring 606.17 sq. mtrs. situated in Sanjay Place Commercial Complex, Agra for a period of 80 years vide lease-deed dated 24.09.1992. (iii) It was further averred in the plaint that UPSIC decided to dispose of the above plot and invited tenders for its disposal after giving wide publicity in various National daily newspapers on 19.01.1996, 20.01.1996 and 21.01.1996. Pursuant thereto, five offers were received by UPSIC including one dated 01.02.1996 (Annexure P-1 to the plaint) of the AHPL for a sum of Rs.55,21,000/- along with its earnest money of Rs.50,000/-, and subject to the condition that the transfer charges for the grant of permission by the ADA or the non-construction levy, if payable to the ADA, were to be borne by the UPSIC. On 02.02.1996, the AHPL revised its offer by raising price to Rs.75,51,000/- and maintained the other terms mentioned in its initial offer (Annexure P-2 to the plaint). The UPSIC, thereafter, invited the tenderers for negotiations in its office on 08.03.1996 vide its letter dated 01.03.1996 (Annexure P-3 to the plaint). Before the Committee constituted by the UPSIC, all tenderers appeared and AHPL, in continuation of its offer dated 01.02.1996 and revised offer dated 02.02.1996, further revised and enhanced the amount to Rs.75,11,000/- (Annexure P-4 to the plaint), which worked out to Rs.12,391/- per sq. mtr. On 10.04.1996, the AHPL requested the UPSIC to take an early decision (Annexure P-5 to the plaint). The UPSIC, vide its communication dated 20.05.1996 (Annexure P-6 to the plaint), called AHPL's representative and two other tenderers for further negotiations on 25.05.1996 in connection with their offers pending with the UPSIC. Pursuant thereto, the representative of AHPL reached the office of UPSIC on 25.05.1996 and explained to the Committee about the reasonableness of the price offered by it. It was brought to the notice of the Committee that the ADA was selling its commercial plots with permission to construct 8 (eight) storeys in Sanjay Place at Agra @ Rs.12,500/- per sq. mtr., while on the disputed land, the constructions could be raised only upto 4 floors. Being satisfied, the Committee of UPSIC recommended the offer of AHPL for its acceptance to the Board of Directors of the UPSIC vide its report dated 25.05.1996 (Annexure P-7 to the plaint). Thereafter, this matter was taken up in the 179th meeting of the UPSIC as agenda Item No. 18 on 02.07.1996 (Annexure P-8 to the plaint), but no decision could be taken. Then the matter remain pending and the representative of AHPL used to meet and send letters to the Managing Director of UPSIC. In the second fortnight of December, 1996, AHPL gave its letter dated 16.12.1996 to the M.D. of the UPSIC agreeing to enhance the price to Rs.12,500/- (Annexure P-9 to the plaint) which was followed by another communication dated 17.12.1996 (Annexure P-10 to the plaint). (iv) It was also averred in the plaint that the 181st meeting of the Board of Directors of the UPSIC was held on 28.12.1996 wherein the offer of the plaintiff was accepted with variation of price (premium) (Annexure P-11 & 12 to the plaint). Further, the offer of the AHPL was never revoked either by the lapse of time or otherwise and both the parties i.e. AHPL and UPSIC accepted the offer made by AHPL, as revised and reiterated from time-to-time, remained pending all through. The letter of acceptance dated 27.02.1997 was given to AHPL (Annexure P-13 to the plaint). Since there was variation of price as was offered by AHPL, the said acceptance, under law, amounted to a "counter offer". AHPL acknowledged the above letter dated 27.02.1997 vide its letter dated 28.02.1997 (Annexure P-14 to the plaint) and also further confirmed its acceptance of the aforesaid counter offer and thus a concluded contract raised between the parties. It was also averred that the execution of a formal contract was not necessary to conclude the contract and, therefore, none insisted upon it. The acceptance of the offer of the AHPL was also communicated by the Managing Director of the UPSIC to the Government vide letter dated 09.05.1997 (Annexure P-15 to the plaint). (v) AHPL further averred in its plaint that despite its repeated reminders, the UPSIC did not fulfil the conditions and execute the transfer deed in its favour. However, the UPSIC, acting upon the terms of the contract so arrived at, sent letters to the ADA for grant of permission to execute transfer deed of its lessee rights and ultimately the ADA accorded its permission to the UPSIC subject to payment vide its communication dated 28.08.1997 (Annexure P-16 to the plaint). Thereafter, the UPSIC did not take any further steps, although AHPL remained always ready and willing to perform its part of contract. AHPL wrote a number of letters to invite the attention of UPSIC to fulfil its obligation, but they fell on the deaf ears and ultimately a notice by the counsel of AHPL dated 22.11.1997 was served but despite that the UPSIC did not comply with the demand made therein, leading to filing of a Civil Misc. Writ Petition No. 41103 of 1997 on 03.12.1997 but the High Court refused to issue any writ to the UPSIC vide its order dated 21.02.1998 by observing that it involved questions of facts. Aggrieved therefrom, AHPL filed Special Leave Petition, which was finally withdrawn on 30.04.1998 and, thereby, AHPL was left with no alternative but to file the suit. It was also averred that AHPL has always been and still is ready and willing to perform its part of contract according to the true construction of the contract. The ADA was arrayed as Defendant No. 2 as a proper party. AHPL, in the plaint, prayed for a decree of specific performance of the contract of transfer of the suit land and also for directing the UPSIC to fulfil its obligations under the contract to obtain necessary permission or sanction from the ADA to transfer its lessee rights in the suit property and to seek extension of time for the completion of the construction. If the UPSIC failed to perform its part of contract and to obtain sanction, permission and extension, the same might be allowed to be taken by AHPL and the expenses be allowed to be adjusted against the balance of the price to be paid to the UPSIC. Future compensation /damages were also prayed for delaying the execution of the transfer deed. (vi) The UPSIC, arrayed as defendant no. 1 in the suit, filed its written statement (paper no. 49-A) in the Court below. UPSIC did not dispute any of the annexures to the plaint except Annexure No. P-9. In its written statement, UPSIC alleged that the offers of AHPL dated 01.02.1996, 02.02.1996 and 08.03.1996 lapsed on the expiry of their validation period of one month. The offers stood lapsed due to expiry of time and stood revoked. UPSIC was never authorized to accept the offer as it was the Government which alone could have given acceptance. UPSIC made its offer through letter dated 27.02.1997 for giving the land to AHPL at the rate of 12,500/- per sq. mtr. and no terms and conditions were mentioned in the said letter. The communication dated 27.02.1997 was subject to obtaining NOC from ADA. The execution of a formal contract was necessary. The offer of UPSIC was for a total consideration of Rs.75,77,125/- which AHPL did not pay. The transfer deed could not be executed as AHPL did not obtain 'No Objection Certificate' and AHPL did not agree to pay the charges to the ADA. AHPL was not ready and willing to perform its obligation. In additional pleas, UPSIC alleged that no concluded contract came into existence. AHPL was not ready and willing to pay the charges to the ADA for obtaining the 'No Objection Certificate'. The charges for obtaining 'No Objection Certificate' were not included in the amount of Rs.75,77,125/- and the offer of the said price made by UPSIC to AHPL was not accepted by AHPL. The UPSIC could not be considered any authorization for entering into contract with AHPL because of Article 125 of Association. The suit deserves to be dismissed with costs. (vii) The ADA, arrayed as defendant no. 2 in the said suit, filed its written statement (paper no. 55-A). It was alleged therein that the M.D. of UPSIC requested ADA for granting permission for transfer of the disputed plot on 31.12.1996 and the ADA wrote to UPSIC to deposit an amount of Rs.29,74,154/- but UPSIC did not deposit the aforesaid amount and wrongly put an advertisement for auction of the plot.
(3.) Pursuant to the pleadings of the parties, the Trial Court framed 10 issues. Issue No. 1 was decided in the favour of the plaintiff holding that a concluded contract existed between AHPL and UPSIC. Issue No. 2 was decided holding that UPSIC was liable to pay the charges for obtaining permission to ADA. While deciding Issue No. 3, it was held that there was no need for writing of any formal document by the parties. Vide Issue No. 4, AHPL was held to be always ready and willing to perform its part. Suit was also held not to be premature while deciding Issue No. 5. Issue No. 6 was also decided in favour of AHPL by holding that the offer given by AHPL did not expiry by afflux of time. Vide Issue No. 7, AHPL was held to be an incorporated company and Inder Chand Jain was held to be authorized to institute, verify and sign the plaint on its behalf. The suit was held to be properly valued (vide Issue No. 8) and the suit was found to be not bad for misjoinder of ADA (vide Issue No. 9) and vide Issue No. 10, AHPL was given the relief of decree of the specific performance of the concluded contract.;