M/S Greater Ashoka and Land Development Company vs Kanti Prasad Jain (Deceased) Through Lrs

2023 INSC 1055 REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(S). OF 2023 (Arising out of S.L.P.(C) No.23655-56 of 2018)

M/s GREATER ASHOKA AND LAND DEVELOPMENT COMPANY … Appellant(s)

VERSUS KANTI PRASAD JAIN (DECEASED) THROUGH LRs … Respondent(s)

JUDGMENT

RAJESH BINDAL, J.

Leave granted.

2. The order1 passed by the High Court2 in Second Appeal3,

vide which the judgment4 of the lower Appellate Court5 was reversed

and that of the Trial Court6 was restored, is impugned in the present

appeal.

Signature Not Verified

1 by Order dated 02.05.2018.

Digitally signed SONIA BHASIN Date: 2023.12.07 2 Punjab & Haryana High Court at Chandigarh 11:34:51 IST Reason:

3

Regular Second Appeal No. 2956 of 1998 4 Order dated 07.08.1988 5 Additional District Judge (I), Faridabad 6 Order dated 29.03.1966 passed by Additional Civil Judge (Senior Division), Faridabad 1

3. The suit7 filed by the predecessor-in-interest of the

respondents (hereinafter described as ‘the respondent’) for specific

performance of contract was decreed by the Trial Court. In appeal, the

lower Appellate Court reversed the judgment and decree of the Trial

Court directing execution of the sale deed, however, granted the relief

of refund of earnest money given by the respondent as part sale

consideration along with interest. The High Court finally upheld the

judgment and decree of the Trial Court after setting aside the judgment

of the lower Appellate Court.

4. Learned senior counsel for the appellant submitted that lay

out plan of Ashoka Enclave Extension, Part-III, situated at Faridabad,

developed by the appellant was approved in the year 1961. In 1963, an

advertisement was issued by the appellant inviting applications from

the public for sale of plots at the cost of ₹25/- per square yard. The

respondent paid ₹500/- and ₹950/- towards provisional booking of plot

No. 103, for which the receipts were issued on 01.11.1963 and

09.11.1963, respectively. As per the conditions of sale, 25% of the cost

was to be paid as earnest money, however, the same was not paid.

Even the subsequent payments which were spread over,

commensurate with the development of the project were also not made

7 Case No, 342 of 1986 2 by the respondent. On 22.11.1963, the 1963 Act8 was enacted. The area,

on which the colony was being developed, was declared as part of the

controlled area. The appellant got relevant permission from the

competent authority under the 1963 Act with the approval of the new

lay out plan on 11.04.1969. After six years of booking the plot, two

further payments of ₹1165/- each were made by the respondent. While

the appellant was in the process of complying with the conditions laid

down in the permission granted under the 1963 Act, new 1971 Act9 was

notified, in terms of which again the appellant was required to obtain

permission for development of a colony. While the appellant was in the

process, the respondent vide letter dated 27.01.1975 requested the

appellant to refund the earnest money paid by him along with interest

@12% per annum. The request was followed by another letter dated

01.01.1976 with similar prayer.

5. Vide letter dated 13.12.1982, the appellant offered a new

plot to the respondent as the booking for the earlier plot was frustrated

with the passage of time due to various developments, which took

place after the booking was made. It was offered to the respondent @

₹135/- per square yard. In addition, external development charges

payable to the State Government, were to be paid. The consent was to

8 Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Act, 1963 9 Haryana Restriction of Development and Regulation of Colonies Act, 1971 3 be given by the respondent within ten days. The aforesaid letter was

replied to by the respondent vide letter dated 27.12.1982 not giving

the consent for purchase of plot on revised terms. Rather, he asked for

certain details which could not be furnished as on date, namely, the

amount to be paid to the State Government for external development.

This was followed by a legal notice dated 04.01.1983 calling upon the

appellant to get the sale deed registered at the same rate at which the

plot was initially allotted, @ ₹25/- per square yard. Thereafter, the

respondent remained silent. A Civil Suit was filed after more than three

years since the issuance of legal notice and more than two decades

after the plot was booked. The alternative prayer made in the suit was

for grant of refund of earnest money along with interest @ 18% per

annum. Once an alternative relief has been claimed in the suit filed for

specific performance, the plaintiff is entitled to only that relief. The

appellant does not have any objection to the grant of that relief as it is

ready and willing to refund the amount of earnest money deposited by

the respondent along with interest, as claimed. The appellant is even

ready to pay interest to the respondent even at higher rate of 36% per

annum also.

6. He further submitted that at present the agreement of

contract is frustrated on account of developments which have taken

4 place in the last sixty years as no plot is available. Even in his cross-

examination, the respondent stated that he was not ready and willing

to take the plot @ ₹135/- per square yard. It was only a matter of

gesture that the appellant had offered a plot to the respondent after

taking licences/permissions under the 1963 Act and 1971 Act, which

intervened after the plot was booked by the respondent. Once the

respondent had failed to accept the offer within the time permitted, the

earnest money deposited by him stood forfeited. In support of the

argument, reliance was placed upon the judgment of this Court in

Kanshi Ram v. Om Prakash Jawal and others10. He further referred

to an order dated 21.08.2003 passed by the High Court in M/s Ashoka

Enclave Plot-holders Association v. M/s Greater Ashoka Land &

Development Co.11, wherein the appeal filed by the Association of

Plot-holders of the same colony seeking same relief was dismissed,

while upholding the judgment of the Trial Court. The aforesaid

litigation being in representative capacity, even the respondent would

be bound by the result thereof.

7. On the other hand, learned counsel for the respondent

submitted that the argument raised by learned counsel for the

appellant that the contract for allotment of plot to the respondent had

10 (1996) 4 SCC 593.

11 Regular Second Appeal No. 293 of 2003 5 been frustrated with the passage of time is fallacious. The appellant

itself had offered the plot to the respondent on 13.12.1982. It is wrong

to allege that the respondent refused to accept the offer. In fact, the

respondent had paid a sum of ₹4,945/- as earnest money at the time of

booking of the plot and subsequently. All that the respondent had

asked for from the appellant was as to how that money already paid

and the interest thereon will be dealt with as the delay in allotment of

plot was attributable to it. The details of the amount to be paid to the

State Government was also asked for. The respondent was entitled to

get that details before accepting the offer in order to avoid any dispute

in future. There was no refusal to accept the offer. The amount asked

for by the appellant included the amount already paid to the State

Government, the details thereof was sought. The information was

asked for by the respondent as in the letter of offer dated 13.12.1982,

the appellant had asked for payment of certain amounts which as

compared to the rate at which the plot was initially allotted was

exorbitant. He further submitted that there is no error in the order

passed by the High Court as the lower Appellate Court had reversed

the well-reasoned judgment and decree of the Trial Court on

erroneous appreciation of evidence produced on record. The

respondent has been waiting for the plot after depositing the amount

6 way back in 1960s for the last six decades. The fault lies with the

appellant. Interim stay was granted by the High Court, hence, to state

that the plot is not available now will be contemptuous.

8. Heard learned counsel for the parties and perused the

paper book.

9. The facts of the case to the extent that the respondent had

applied for allotment of plot measuring 233 square yards at the rate of

₹25/- per square yard, which was allotted to him on 19.11.1963, are not

in dispute. Total sale consideration was ₹5825/-. As noticed by the High

Court in the impugned order, the respondent had paid total sum of

₹4,945/-. The colony was not developed, as the stand taken by the

appellant is that two new enactments by the State, namely, 1963 Act and

1971 Act intervened, in terms of which number of permissions were

required to be taken. The appellant, after taking those permissions,

offered to the respondent an alternative plot vide letter dated

13.12.1982 @ ₹135/- per square yard which, as per the letter, included

the cost of the land and internal development charges. The amount

already paid or payable to the Haryana Government on account of

external development will be additionally payable by the allottee. The

offer was to be accepted within ten days. Twenty five percent of the

total amount was payable immediately. Twenty percent of the total

7 amount was to be deposited within 30 days. The balance 55% was to

be deposited in phased manner corresponding with the development

of the colony. From paragraph 6 of the aforesaid letter, it is evident that

beyond 100% of the cost of the plot, which was sought to be offered @

₹135/-per square yard, ₹20/- per square yard was asked for as part

payment to be deposited with the State Government for development

work. The fact remains that the size of the plot was not mentioned in the

letter.

9.1 The aforesaid letter was served upon the respondent on

18.12.1982. Within ten days thereof, the respondent requested the

appellant to supply the lay out plan so as to enable him to know the

number and size of the plot for which the payment was to be made as

there was completely a new lay out plan. He also asked for the manner

in which the amount already paid by him along with interest is to be

adjusted as the letter of offer did not mention anything about the same.

Request was also made to inform about the amount to be paid to the

State Government towards external development charges as in the

letter of offer dated 13.12.1982, ₹20/- per square yard as part payment

towards development charges was required to be deposited. It is not a

matter of dispute that the aforesaid letter of the respondent was not

replied to by the appellant. Immediately thereafter, the respondent got

8 a legal notice issued to the appellant mentioning all the details and

calling upon the appellant to allot the plot measuring 233 square yards

@ ₹25/- per square yard, failing which suit for specific performance

may be filed. The appellant did not respond even to the aforesaid legal

notice. What can be inferred therefrom is that the appellant was not

ready and willing to furnish the basic information sought by the

respondent. The civil suit for specific performance was filed on

02.01.1986 within the period of limitation. It was decreed by the Trial

Court. The judgment and decree of the Trial Court was reversed by the

lower Appellate Court. However, the High Court set aside the

judgment and decree of the lower Appellate Court and restored that of

the Trial Court, directing for registration of the sale deed.

10. We find that allotment of plot was made way back on

19.11.1963. Six decades have passed thereafter. No doubt, there were

certain developments in the meantime. With the enactment of 1963 Act

and 1971 Act, certain permissions were required to be taken by the

appellant for development of the land as a colony. Those were taken.

Even the plot was offered to the respondent. However, when the cost

of the plot was demanded at a higher rate, even on the asking of the

respondent, details were not furnished. The amount demanded was

@ ₹135/- per square yard as against ₹25/- per square yard at which

9 initially the allotment was made. The stand taken by the appellant is

that at present all the plots have been sold out. We are not going into

that aspect as the appellant agreed to pay damages to the respondent

as, according to it, alternative relief for damages in the form of refund

of earnest money along with interest has been claimed. Though the

claim, as per the appellant, is for refund of the money along with

interest @ 18% per annum, however, the appellant is even ready to

pay interest at a higher rate.

11. A perusal of the prayer made in the suit shows that in the

alternative, only refund of earnest money along with interest has not

been claimed, rather the respondent/plaintiff had claimed adequate

damages, which may include refund of the earnest money along with

interest. Merely refunding the earnest money paid, after sixty years

will be unreasonable as the respondent, after booking the plot, has

been waiting all along as even in the litigation since 1986. The price of

the land in the area has increased manifold for the last sixty years.

12. The order passed by the High Court in M/s Ashoka

Enclave Plot-holders Association’s case (supra) does not come to the

rescue of the appellant for the reason that in the aforesaid case, the civil

suit was filed by the appellants therein on 14.06.1991, nine years after

the offer was made to them for allotment of alternative plot. The same

10 was held to be beyond limitation. The argument of the appellant that

the respondent had requested for refund of the earnest money paid by

him vide letters dated 27.01.1975 and 1.01.1976 also deserves to be

rejected as it was not responded to by the appellant.

13. Considering the aforesaid totality of the facts, in our view,

the interest of justice will meet in case the impugned judgment and

decree of the High Court is modified to the extent that instead of getting

the sale deed of the plot registered @ ₹25/- per square yard, in the

alternative, the appellant pays a total amount of ₹50,00,000/- to the

respondent as full and final settlement of claim in the suit. The amount

is to be paid within a period of three months.

14. The present appeals are disposed of accordingly.

…..……………..J (VIKRAM NATH)

…………………..J (RAJESH BINDAL)

New Delhi December 6, 2023.

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