UMAR NOOR MOHAMMAD Vs. DAYAL SARAN DARBARI
HIGH COURT OF ALLAHABAD
UMAR NOOR MOHAMMAD
DAYAL SARAN DARBARI
Referred Judgements :-
MUNUSWAMI NAYUDU V. SAGALAGUNA NAYUDU
SAKALAGUNA NAYUDU V. CHINNA MUNNUSWAMI NAYUDU
BIPIN BEHARI DEB V. MASRAB ALI
P.L. RAN GIAH CHETTIAR V. PARTHASARATHY IYENGER
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Gangeshwar Prasad, J. -
(1.)THESE two appeals arise out of a suit for the recovery of a sum of money claimed as payable to the plaintiff on account of the defendant's failure to perform a contract for sale of a house in favour of the plaintiff. The house stands on Nazul land forming part of the Government Estates in Allahabad, and the land is held by the defendant as a lessee from the Government. By means of a deed of agreement dated 5-2-1948 the defendant agreed to sell the house to the plaintiff for Rs. 20,500 out of which a sum of Rs. 1,000 was paid to the defendant as earnest money. Under the terms of the agreement the sale deed was to be executed after the sanction of the Collector and within three months of the receipt of the sanction. The case of the plaintiff is that the defendant refused to execute the sale deed in spite of being repeatedly asked to do so, and the plaintiff is consequently entitled to a refund of the earnest money and to a sum of Rs. 1,000 as damages according to the terms of the deed of agreement.
(2.)THE defence is that the defendant was always prepared to execute the sale deed in favour of the plaintiff but the plaintiff insisted on the sale deed being executed in favour of the Allahabad Cooperative Housing Society Limited and refused to have it executed in his own favour as provided in the deed of agreement, and that the plaintiff thus committed breach of contract and, consequently, the, earnest money stands forfeited under the terms of the deed of agreement and the plaintiff can neither claim recovery of the earnest money nor any damages.
The trial Court upheld the defence and dismissed the suit in its entirety. On appeal, the learned Civil Judge came to the conclusion that the plaintiff has not forfeited his earnest money but his claim for damages is not justified, and he accordingly decreed the suit for the recovery of Rs. 1,000 and dismissed it for the remainder. Both the parties have preferred an appeal to this Court, the appeal of the plaintiff being appeal No. 2306 of 1953 and that of the defendant being appeal No 1894 of 1953.
The dispute between the parties which was responsible for the sale deed not having been executed admittedly related only to the question as to who should be described as the vendee in the sale deed and it arose in the following circumstances. It appears that the plaintiff is a member of the Allahabad Cooperative Housing Society Limited which purchases houses for its members and advances two-third of the purchase money on the condition that the member concerned pays the remaining one-third and the sale deed is executed in the name of the Society, which holds the house so long as the money advanced by it along with the interest thereon is not paid up and, thereafter, transfers the house in favour of the member for whom it is purchased The evidence clearly indicates that a few days after the execution of the deed of agreement the plaintiff thought of purchasing the house under this scheme, and he informed the defendant that he wanted to purchase the house through the Allahabad Cooperative Housing Society Limited as he needed the financial aid of the Society for the purchase. It was alleged by the plaintiff that there was an oral agreement between the parties that the sale deed would be executed in the name of the Society, and that as a result of that agreement the parties made an application to the Collector of Allahabad on 3-3- 1948 seeking his sanction for the transfer of the site of the house in question in favour of the plaintiff 'through the Allahabad Cooperative Housing Society Limited'.
(3.)THE defendant denied having agreed to execute the sale deed in favour of the Society but he admitted that the words 'through the Allahabad Cooperative Housing Society Limited, were added by him in the application to the Collector at the request of the plaintiff who represented to him that he would take some loan from the Society for the purchase of the house and the insertion of these words would facilitate the advance of the loan. Sanction for the transfer was granted by the Collector but the words 'through the Allahabad Cooperative Housing Society Limited' were not mentioned in the sanction. THE courts below have not accepted the case of the plaintiff that it was agreed between the parties that the sale deed would be executed in favour of the Society and this finding cannot be disturbed. THE learned Judge has, however-clearly held that in consequence of some talk between the parties subsequent to the deed of agreement there was a variation of the terms of the agreement to this extent that the sale deed was to be executed in favour of the plaintiff 'through the Allahabad Cooperative Housing Society Limited'. This finding too has to be accepted and it is amply borne out by the oral evidence and the application for sanction (Ex B) made to the Collector on 30-3-1948.
It appears that the Collector sanctioned the transfer on 26-4-1948 and the parties were informed of the sanction. Then, there was an exchange of correspondence between the parties, the plaintiff insisting that the sale deed be executed in favour of the Society and the defendant insisting on its execution in the name of the plaintiff. Ultimately by a notice (Ex. F) dated 14-6-1948 the defendant informed the plaintiff that if the latter did not get the sale deed executed in his name within three days of the receipt of the notice the earnest money would stand forfeited and the defendant would be at liberty to sell the house to anybody else. A reply (Ex. 6) dated 17-6-1948 was sent by the plaintiff to the above notice, stating among other things that proper sanction in terms of the application for sanction had not been granted by the Collector and asking the defendant either to execute a sale deed in favour of the Society or to make a fresh application for sanctioning transfer in the name of the Society.
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