Dismissed

Ramesh Amarnath Malhotra v. Anant Narayan Patil

Bombay HC1 Mar 2005FA/1757/2002

Case brief

AI extract

What is this about?

The High Court of Bombay dismissed the appellant's first appeal against the dismissal of his suit for injunction and other reliefs. The Court held the suit was not maintainable as the plaintiff's firm was a partnership and not registered, violating Section 69 of the Indian Partnership Act, and rejected the claim for injunction simplicitor under Section 41(h) of the Specific Relief Act.

What did the court decide?

Dismissed the appeal against the dismissal of the suit for injunction and other reliefs; no stay granted to the order dated 9/9/2002.

Ramesh Amarnath Malhotra Vs Anant Narayan… — Contract and Commercial Disputes | Bombay HC (2005)

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: 1 :

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CIVIL APPELLATE JURISDICTION

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FIRST APPEAL NO.1757 OF 2002

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Ramesh Amarnath Malhotra ) of Bombay Indian Inhabitant, ) carrying on business in the ) trade name and style of M/s. ) Deonar Development Corporation ) as the sole proprietor thereof ) at C/o. Gemini Estate Developers) 12 Eric House, 16th Road, ) Central Avenue Road, Near ) Ambedkar Garden, Chembur, Bombay) - 400 071. ) ... Appellant (Orig. Plaintiff) Versus Anant Narayan Patil (since ) deceased) through legal heirs ) 1. Shri Hitendra Anant Patil ) 2. Smt. Ashwini Arvind Tambadkar) 3. Shri Mahendra Anant Patil ) 4. Smt. Vanita Anant Patil ) all residing at Patil House, ) Opp. Metal Box, Sion-Trombay ) Road, Devnar Village, Mumbai - ) 400 088. ) ... Respondents (Orig. Defendant) Mr. A.Y. Sakhare, senior counsel with Mr. Shashipal Sankar for the appellant. Mr. D.D. Madon ib/ M/s. Shirodkar & Co. for the respondents.

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CORAM: SMT. RANJANA DESAI, J.

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DATED: 1ST MARCH, 2005.

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ORAL JUDGMENT:-

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1.	In this	first	appeal,	the	appellant	(for	convenience,
"the	plaintiff")	has	challenged	the	judgment	and	decree
dated	15/6/2002	passed	by the	City	Civil	Court	at Bombay

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in S.C. Suit No.2435 of 1990 whereby his suit was dismissed.

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: 2 :

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2. plaintiff	The facts claims to	of the case may be briefly be a builder and devel	stat oper	ed. dealing	The in
the	name an	d style of M/s. Deo	nar	Deve	lopment
Corporation	as	a sole proprietor thereof.	T	he de	fendant
is the	owner of	the property detailed in the	pl	aint.	The
plaintiff	claims	that a total area of 5636	sq.		mtrs.
was	entrusted to	him under an agreement	dated	13	/2/1980
(for	convenience,	"the said agreement") for		deve	lopment
of the	excess va	cant land by the defendant.		According	to
the	plaintiff,	through inadvertence or	oversi	ght,	the
firm o	f the pla	intiff was described as a	par	tnership	firm
and	the plaintiff	as a partner thereof. At	no	point	of
time,	the plain	tiff was a partner. He ha	s al	ways	been
the	proprietor	of the said firm. According	to	him,	he
continued	to be	the proprietor of the said	firm	even	at
the	time of	institution of the suit and he	has	paid	an
amount	aggregating	to Rs.32,500/- from time	to	time	to
the	defendant.	On 6/9/1983 and 23/12/19	83,	letters	were
issued	by the	defendant to the plaintiff w	hereby	the	time
was	further ext	ended to enable the plaintiff	to	take	the
permission	from	the competent authority under	the		Urban
Land	Ceiling Act	for the purposes of the	develo	pment	of
the	suit property	. It is the case of	the	plaintiff	that
by	the said	letters, the defendant gave	an	irre	vocable
power	of atto	rney to the plaintiff and	app	ointed	the
plaintiff	as his	authorised attorney to		enter	into
corresponde	nce in	order to get no object	ion	ce	rtificate
from	the	ULC authorities, Bombay Munici	pal	Cor	poration

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(for short, "BMC") and such other governmental

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: 3 :

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authorities. The plaintiff appointed his architect.

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3.	The	further ca	se of the plaintiff is that under	the
said ag	reemen	t, the	defendant was required to make	out a
clear a	nd	marketa	ble title to the suit property	within
three m	onths	of	its execution. However, the	defendant
did not	do	so.	Sometime towards the end of 1988,	the
defendant	inform	ed the	plaintiff that some litigation	was
pending in	re	spect of	the ownership of the suit	property.
In Appeal	No	.272 of	1982 pertaining to the suit	property,
consent te	rms	were	filed on 8/10/1986 between	the
defendant	and	one	Kotiram Patil whereby the	defendant
gave up	and	relinquis	hed his right, title and inter	est in
respect	of	part of	the premises. The plaintiff	contends
that on		22/11/1989,	the plaintiff came across a	press
advertisement		purported	to have been inserted on	behalf
of M/s	.	Adhiraj	Construction Co. stating, inter	alia,
that the		defendant	had entered into an agreement	with
them for	the	purpose	of selling the suit property.	It is
on the	ap	prehension	that the defendant may have	entered
into an	agreem	ent with	M/s. Adhiraj Construction Co.	or
with	some	third	party and/or transferred the	possession
of the	suit	propert	y so as to frustrate the	said
agreement	that	the	plaintiff filed the instant	suit
praying	for	p	erpetual injunction restraining	the

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defendant from alienating and/or disposing of the suit

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property.

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4.	The	defe	ndant	resisted	the	suit.	The defendant
contended	that	on	or	about	11/1/1990,	he	had entered into

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: 4 an agreement in respect of	: the suit property	with	A.N.
Kamble and A.S. Sonawane,	the Chief	Promot	ers of
Saikripa Co-operative Housin	g Society Lim	ited	(Proposed)
for valuable consideration.	According to him,	the	said
agreement was only a co	llateral security for	the	sum
advanced by the plaintiff to	the defendant and	the	said
loan not having been recovered	by the plaint	iff ha	s since
become time barred. The	defendant further	pleaded	that
the defendant did not receive	any response to	the	press
advertisement and, therefore,	the defendant	went	ahead
and completed the transaction	with the		purchaser.
According to the defendant,	the plaintiff did	not	perform
his part of the contract	where time was	the	essence.
According to the defendant,	the said	agreement	was
cancelled both orally as wel	l as in writing	in	November,
1983. The defendant claimed	that the possessi	on of	the
suit property was parted with	on or about 6/1	1/1989.	The
defendant contended that he	has also	execut	ed an
irrevocable power of attorney	in favour of	the	purchaser
to perform the necessary	acts in that	behalf.	The
defendant expressed his rea	diness to return	the	amount
allegedly paid to him by the	plaintiff. Acco	rding	to him
the price offered by the	present purchaser	was	better.
The defendant contended that	the plaintiff’s	firm	was
unregistered and, therefore, th	e suit was hi	t by	section
69 of the Indian Partnership	Act. The defe	ndant	denied

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that he has received Rs.32,500/- as set out in the plaint.

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In support of its case, the plaintiff examined

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: 5 : himself on oath. The defend	ant,	however,	did not	lead
any oral evidence. The trial	court	by	the i	mpugned
judgment dismissed the suit	holding	that	the d	efendant
had failed to prove that	the	suit	is barred	by
limitation. It was held that	the	defen	dant had	proved
that the instant suit simpl	icitor	for	injunction	without
substantive relief is not main	tainable.		The trial	court
held that the plaintiff failed		to	prove that	the
agreement dated 13/2/1980 was	en	tered	into by	the
plaintiff in his capacity as pro	prietor	of	M/s.	Deonar
Development Corporation. The	trial	cou	rt further	held
that the defendant had proved	that	the	suit is	not
maintainable for want of registrati	on	under	section 69	of
the Indian Partnership Act. It	was	furthe	r held that	the
plaintiff had failed to prove	that	the	agreement	dated
13/2/1980 was valid, subsisting	and	enforce	able. It	was
further held that the defendant	had	failed	to prove	that
the said agreement was terminated	in	Novem	ber, 1983	and
that the said agreement was exe	cuted	only	as a	collateral
security for the money advanced	by	the	plaintiff to	the
defendant. The trial court	furt	her	held that	the
plaintiff had proved that he ha	d pa	id tota	l amount	of
Rs.32,500/- to the defendant in	pursu	ance	of the	said

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agreement. In view of the above findings, the trial

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court dismissed the suit.

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6.	Before	I	deal	with the	rival		contentions	,	it is
necessary	to	mention	one	aspect	of	this	appeal	on	which
the	learned	counsel	for	the	parties	are	agreed.		Issue
No.5	framed	by the	trial	court	reads	as	follows.		"Does

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: 6 : the plaintiff prove that the agreement dated 13/2/1980 is valid, subsisting and enforceable?" This issue is answered by the trial court in the negative. However, in the entire judgment, there is no discussion on this

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aspect. The trial court has not given any reasons as to

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why it has recorded such a finding.

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7.	Mr. Sak	hare,	the learned coun	sel appearing for		the
appellant	urged that	it	is, therefore,	necessary f	or	this
court	to direct	the	trial court to	give its reason	s	on
this	issue. The	griev	ance of Mr.	Sakhare appears	to	me
to	be justified	beca	use in the abs	ence of reasons,		the
plaintiff	cannot	effectiv	ely deal with	this point		which
is held	against him.		Mr. Madon,	the learned co	unsel	for
the	respondent s	ubmitted	that the	determination of		this
issue	is not	necessary	for the pur	pose of	deter	mination
of	the other	issues	involved in the	instant suit		and,
therefore,	by c	onsent	of the parties	the said issu	e	be
deleted.	He co	ntended	that in view	of the fact	that	the
trial	court had	not	given reasons,	the defendant		accepts
that	the decision	on	the said issue	shall not act	as	a
resjudicata	between		the plaintiff and	the defendant		in
other	proceedings.	T	o that effect,	the learned		counsel

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for the plaintiff and the defendant have filed a pursis.

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The said pursis dated 11/2/2005 is marked as ‘X’.

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In view of the said pursis, I delete issue No.5 by consent of the parties. The decision on that issue shall

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not act as resjudicata between the parties to this appeal

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in other proceedings, if any.

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: 7 :

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Mr. Sakhare, the learned counsel for the plaintiff contended that the trial court has non-suited the plaintiff basically on two grounds. Firstly, it is held that the plaintiff’s suit is not maintainable for want of registration of the plaintiff’s firm. It is hit by section 69 of the Indian Partnership Act. Secondly, it is held that the suit simplicitor for injunction without substantive relief is not maintainable in view of section 41(h) of the Specific Relief Act. Mr. Sakhare contended

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that the trial court has misread the evidence on record

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and misconstrued the provisions of law.

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10. Mr. Sakhare pointed out	that the plaintiff	’s Notice
of Motion No.1746 of 1990 for int	erim relief was	heard on
31/3/1990. On that day, the	plaintiff’s advocat	e sought
leave under Order II, Rule 2 of	the Civil Proce	dure Code
(for short, "the Code") for ins	tituting suit for	specific
performance. However, the learned	trial judge re	fused to
grant leave on the ground that	the plaintiff	is not
entitled to claim specific perform	ance because the	ULC
permission which is a pre-requis	ite for conveyance	has
not been granted. Drawing my	attention to sect	ion 41(h)
of the Specific Relief Act, the	learned counsel	contended
that the injunction can be refu	sed only when	effective
relief can certainly be obtained b	y any other us	ual mode
of proceedings. He submitted tha	t as the ULC	permission
was not available, the conveyance	could not have	been
executed and the learned judge	having refused	permission
under Order II, Rule 2 of the	Code, the plaint	iff cannot

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: 8 :

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be faulted for having not filed a suit for specific

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performance.

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11. the	Mr. plaintiff cam	Sakhare, then contended that it is only e across a public notice issued by	when the
advocate	for M/	s. Adhiraj Construction Co. in	the
Sunday	Free Pres	s Journal on 22/11/1989 in which it	was
stated	that the	defendant had agreed to sell the	suit
property	for	development to M/s. Adhiraj Cons	truction
Co.	that	the plaintiff apprehended that the d	efendant
was t	rying to	do away with the suit property.	The
apprehensio	n became	a threat when on 28/3/1990	several
persons	posing them	selves as agents of said M/s.	Adhiraj
Constructio	n Co.	visited the suit property and	started
taking	measurement.	The plaintiff had no	other
alternative	but to	rush to the court and file a suit	for
injunction.	In	the plaint, the plaintiff made it	clear
that	in view	of the fact that necessary sanction /	no
objection	certificate	/ permission has not been issued	by
the	Government	of Maharashtra, the transaction could	not
be	completed	and, therefore, the plaintiff cannot at	the
moment	ask f	or specific performance of the	said
agreement.	In	the plaint, the plaintiff had prayed	for
leave	under Order	II, Rule 2 of the Code which	was
subsequentl	y reject	ed. Mr. Sakhare further pointed	out
that	the trial	court by its order dated 15/6/2002	held
that	the agre	ement dated 13/2/1980 is not	valid.
Therefore,	in	any case from 15/6/2002, the	plaintiff
could the	not have agreement.	filed the suit for specific performance The trial court was, therefore, wrong	of in

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: 9 : holding that the plaintiff is not entitled to relief of injunction as he had filed a suit simplicitor for

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injunction without substantive reliefs. The trial court

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erred in holding that the suit is not maintainable.

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12. As regards the second point whic	h pertains	to
maintainability of the suit on the	ground	of
non-registration of the partnership firm, M	r.	Sakhare
contended that the plaintiff is the sole	proprietor	of
M/s. Deonar Development Corporation.	M/s.	Deonar
Development Corporation is not a partnersh	ip firm	and,
therefore, the bar created by section 69	of the	Indian
Partnership Act would not affect the	plaintiff’s	suit.
He contended that in the plaint, the	plaintiff	has
clearly stated that the plaintiff carries	on business	as
a builder and developer in the trade name	and style	of
M/s. Deonar Development Corporation as a	sole p	roprietor
thereof. It is further stated that	though inad	vertently
or through oversight or due to a mista	ke the p	laintiff’s
sole proprietary firm was described as a	partnership	firm
and the plaintiff as a partner therein, at	no point	of
time, the plaintiff’s sole proprietary	firm was	a
partnership firm nor did the plaintiff ever	carry	on
business as a partner of the said firm	and, t	herefore,
the said agreement was, in fact, and in	substance,	with
the plaintiff as the sole proprietor of the	said fir	m of
M/s. Deonar Development Corporation. Mr.	Sakhare	drew
my attention to the evidence of the plaint	iff. In	his
evidence, the plaintiff has stated that his Malhotra was interested in the transaction.	brother He had	Kisan also

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				:	10 :
signed	the	said	agr	eement.	Howe		ver,	hi	s brother	later
developed	cold	feet	an	d ba	cked out.			T	herefore,	the word
"partnership"	was		found	on	the sai	d		agre	ement.	However,
it was	never	a	partn	ership	firm as		such.		The	learned
counsel	contended		tha	t mo	st of	t	he	exh	ibited	documents
(Ex-58,	Ex-59,	Ex	-60,	Ex-65	and	E	x-68)		indicate	that the
plaintiff’s	firm	is	a		sole	p	ropriet	ary	firm.	Mr.
Sakhare	contended		that	the	trial		c	ourt	ignor	ed the
averments	made in		the	plaint	and th	e		evid	ence and	wrongly
came	to the	conc	lusion	that	the suit		was		hit by	section
69 of	the In	dian	Part	nership	Act.		Mr.		Sakhare	further
contended	that	the	def	endant	has not		e	ven	stepped	in the

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witness box. In such circumstances, it was wrong on the

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part of the trial court to dismiss the plaintiff’s suit.

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13.	As against	this, Mr. Madon, the learned	coun	sel for
the	respondents	drew my attention to the said		agreement
where	it is	stated that the developer shall	within	six
months	of execu	tion, through his own efforts at	his	own
costs,	obtain	the sanction of the appropriate		authority
for	development	of the vacant land. He sub	mitted	that
the	plaintiff	cannot, therefore, blame the		defendant
because	the perfo	rmance of the contract was	not	possible.
It is	his inac	tion which has led to this. Mr	.	Madon
submitted	that	in any event, the plaintiff c	ould	have
filed	a suit	for a conditional decree	for	specific
performance	subject	to ULC permission being		obtained.
The	plaintiff	has not done so. In this con	nection,	he
relied	on the	Full Bench judgment of the G	ujarat	High
Court	in Shah	Jitendra Nanalal, Ahmedabad	v.	Patel

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Lallubhai	Ishverbh	ai, Ahmedabad	: 11 : and		oth	ers, AI	R 19	8	4 Guj.
145 .	Mr.	Madon also	con	tended		that the	plainti	f	f has
not	challenged	the order	pas	sed	by	the	tria	l	court
refusing	leave	under Order II,	Rule	2		of the	Code.		The
learned	counsel	also relied	on	the		judgments	i	n	The
Municipal	Corpor	ation of D	elhi		v.	Sur	esh		Chandra
Jaipuria	and	another, AIR	1976	SC	26	21, M	/s.		Jawahar
Theatres	Private	Limited v.		Smt.		Kastu	ri	B	ai and
another,	AIR 196	1 MP 102, S	atish	Baha	dur	v.	Hans		Raj and
others,	AIR	1980 Punjab	and	Hary	ana	351	and		Rajendra

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Kumar v. Mahendra Kumar Mittal and others, AIR 1992

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Allahabad 35, in support of his submissions.

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14.	As re	gards	th	e co	ntention that	the	plaintif	f’	s	firm
is	a sole propr	ietary	fir	m an	d that the	suit	is no	t		hit
by	the bar	created		by	section 69		of the			Indian
Partners	hip Act,	the		learned	counsel c	onten	ded t	hat		this
case	of the	plaint	iff	is	dishonest. H	e	submitted			that
the	said agreement	and		the	evidence of	the	plainti	ff		make
it	amply clear	that		M/s.	Deonar	Devel	opment	C		orporation
is	a partnersh	ip fir	m	and	since it is	not	a			registered
partners	hip firm,	the		instant	suit is not	te	nable.			He
submitt	ed that th	e trial		court	has rightly	held	so.			In
this	connection, he	relied		on	the judgment	o	f the			Supreme
Court	in Loonkar	an Set	hia	etc.	v. Mr.	Iv	an E.			John
and	others, AIR	1997	SC	336 .	Mr. Madon	su	mmed	u	p	by

¶57

saying that there is no infirmity in the trial court’s

¶58

judgment calling for interference by this court.

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In order to appreciate the contentions of Mr.

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: 12 : Sakhare that the plaintiff was the sole proprietor M/s. Deonar Development Corporation, it is necessary

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¶63

first have a look at the pleadings. Paragraph 4 of the plaint reads as under:

¶64

"4. The	Plaintiff says th	at		through
inadvertence	and/or oversight and	due	t	o a
mistake,	the Plaintiff’s sole		pro	prietary
firm was	described as a Part	nership		firm
and the	Plaintiff as a par	tner		therein.
The Plaintiff	says that at no p	oint	of	time
was the	Plaintiff’s sole proprietar	y	firm	a
partnership f	irm nor did the	Plainti	ff	ever
carry on	business as a partner	of	the	said
firm.	The Plaintiff always was	and		still
continues	to be the sole propr	ietor	of	the
said firm.	In the circumstances	the		said
Agreement	dated 13th February 1980	wa	s	in
fact and	in substance with the	Pla	intiff	as

¶65

the sole proprietor of the said firm of

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M/s. Deonar Development Corporation."

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16.	This asserti	on mad	e b	y the	plaintiff,	however,	does
not a	ppear to be	true.	In	the first	paragraph	of	the
said	agreement, M/s	.	Deonar	Develop	ment Cor	poration	is
described	as a	partnership	fir	m, carry	ing on	business	of
Builders,	Contractors	and	De	velopers.	It	is	further
stated	that the	said	firm	is here	inafter	called	‘the
Developers’	(which	expressio	n	shall	unless	it	be
repugnant	to the	context	or	meaning	thereof	mean	and

¶68

: 13 : include the partners or partner for the time being of	the
said firm.) My attention was drawn to the original of	the
said agreement. It is significant to note that the	said
agreement is signed by the plaintiff and one other	person
as partners of M/s. Deonar Development Corporation.	It
is also significant to note that on the confi	rmation
letter dated 12/8/1980, the plaintiff has signed as	a
partner of M/s. Deonar Development Corporation.	In
spite of this, in his evidence, the plaintiff has	come
out with a case that there was no partnership firm.	He
has stated that his brother was also interested in	the
transaction. He had also signed the said agr	eement.
However, his brother later developed cold feet and	backed
out. Therefore, the word "partnership" was found on	the
said agreement. However, it was never a par	tnership
firm. This story is obviously put up to get over	the
above mentioned recitals in the said agreement and	the
signatures on the said agreement and the letter	of
confirmation by the plaintiff as a partner. I have	no
doubt that the plaintiff has come out with a false	case
that M/s. Deonar Development Corporation is a	sole
proprietary firm. The trial court is right in coming	to
the conclusion that it is a partnership firm. Once i	t is
held that it is a partnership firm and it is	not
registered, the plaintiff could not have filed	the

¶69

instant suit as the bar created by section 69 of the

¶70

Indian Partnership Act would come into play.

¶71

17.	Reliance	placed	on		the	judgment	of	Loonkaran
Sethia’s	case	(supra)	is	apt.		In	that	case, the

¶72

plaintiff	had	: 1 sued for a	4 : specific and asc	ertained	sum of
money	on	the basis of th	e settled account.	Acco	rding to
the	plaintiff,	his partners	hip firm was	dissolved	with
effect	from	30/6/1948 and,	thereafter, he	alone	carried
out	the	dealings with the	defendant as	a sole	proprietor
of h	is fir	m. His case	was that the	agreement	dated
6/7/1948	was	entered into by	him with the	defendant	as a
sole	proprietor	of Sathiya	& Co. Acco	rding t	o the
defendant,	it	was a partnership	firm and w	as in	existence
on	6/7/1948	and, thereafter,	as well. The	Suprem	e Court
observed	that	a close scrutiny	of the docu	ments an	d other
evidence	clearly	negative the	contention of	the	plaintiff
and	support	the assertion of	the defendant.	The	Supreme
Court	observed	that a bare	glance of section	69 of	the
Indian	Partnersh	ip Act is e	nough to show	that	it is
mandatory	in	character and its	effect is to	render	a suit
by	a pla	intiff in respect of	a right vested	in hi	m or
acquired	by h	im under a con	tract which he	entered	into as
a	partner	of an unregister	ed firm whether	existing	or
dissolved,	v	oid. It was	further observed	that a	partner
of	an	erstwhile unregis	tered partnership	firm	cannot
bring	a suit	to enforce a	right arising out	of a	contract
falling	within	the ambit of	section 69 of	the	Partnership
Act.	On	the facts before	it, the Suprem	e Court	observed
that t	he suit	was undoubtedly,	a suit for	the bene	fit and
in	the	interest of the fir	m and consequently	a suit	on
behalf	of	the firm. Thus	, the suit was	clearly hi	t by
section	69	of the Partners	hip Act and	was	not
maintainab	le.	In view	of this		authoritative
pronounce	ment	of the Supreme	Court, which	would	clearly

¶73

: 15 : be applicable to the present case, in my opinion, the trial court is right in holding that the plaintiff’s suit

¶74

was not maintainable on account of the bar created by

¶75

section 69 of the Partnership Act.

¶76

18.	So	far as the submission based			o	n section 41(h)	of
the	Specific	Relief Act is concerned,			I	feel that	the
trial	court	has rightly rejected that				as well.	The
plaintiff		has filed the suit	fo	r		injunction si	mplicitor.
He	did	not file a suit for spec	ific			performance of	the
said	agreem	ent. It is well settled			th	at when	equally
efficacious		relief is obtainable in	an		y	other usual	mode
or	proceed	ing, an injunction which	i	s		a dis	cretionary
relief	cannot	be granted. This is	t	h	e	mandate of	section
4(h)	of	the Specific Relief Act.				This has	been
reiterated		by the Supreme Court	in			Municipal Co	rporation
of	Delhi’s	case (supra) on which M	r.			Madon has	relied
upon.	Seve	ral other judgments are cited			by	Mr. Mad	on on
this	point	but in my opinion, this		pr	in	ciple is so	well

¶77

settled that it is not necessary to refer to them because

¶78

all the judgments restate the same principle.

¶79

19.	Mr.	Sakha	re, h	owe	ver,	pointe	d o	ut tha	t	a prayer	was
made	before	the	learned		judge	that	lea	ve m	ay	be	granted
under	Order	II,	Rule	2	of	the	Code	and	the	said	prayer
was	rejected	on	the	g	round	that	the	ULC	pe	rmission	was
not	obtained	and,	theref	ore,	th	e	said	agree	ment	could	not
have	been	specific	ally	e	nforced		and,	hence,		the	plaintiff
could	not	file	a	suit	for	spe	cific	performa	nce.	It	is
not	possible	to	accept		this	expla	nation.		First	of	all,

¶80

: 16 : under the said agreement, the responsibility of obtaining all the necessary permissions was on the plaintiff. The plaintiff took no timely steps in that behalf. The order

¶81

refusing leave under Order II, Rule 2 of the Code passed

¶82

by the trial court was not challenged by the plaintiff.

¶83

20.	Nothing prevented the plaintiff from seeking	a
conditional	decree. In this connection, it will	be
useful	to refer to the Full Bench judgment of the	Gujarat
High	Court in Shah Jitendra Nanalal’s case (supra) .	In
that	case, defendants 3, 4 and 5 had entered into	an
agreement	with defendants 1 and 2 to sell certain	land.
Agreement	was executed on 4/7/1966. T	hereafter,
defendants	1 and 2 entered into an agreement with	the
plaintiff	on 1/7/1967 to sell a portion of the said	land.
Subsequentl	y, there appears to have been a suit	for
specific	performance as between defendants 1 and 2 on	one
hand	and defendants 3 to 5 on the other. Pending	this
suit,	the plaintiff filed Civil Suit No.1915 of 1970	for
specific	performance of the agreement. The suit filed	by
defendants	1 and 2 was compromised but the plaintiff	was
not a	party to that compromise. In the plaintiff’s	suit,
the	plaintiff was non suited in so far as	specific
performanc	e was concerned. Against that, the	plaintiff
had	come up in appeal. Subsequent to the institutio	n of
the s	uit, the Gujarat Vacant Lands in Urban	Areas
(Prohibition	of Alienation) Act, 1972 came into force	and
later	on in its place the Urban Land (Ceiling	and
Regulation)	Act, 1976 (for short, "the ULCR Act")	came
into	force. Section 5 of sub-section 3 of the ULCR	Act,

¶84

stated that	any	: 17 : transfer made in contraven	tion	of	the
said provision	shall	be null and void.	T	he	question
before the	Supreme	Court was whether	a	decree	for
specific performanc	e could	be granted in a	case	where	the
suit was pen	ding on	the date of the comm	encemen	t of	the
Act. The	Supreme	Court observed that so	long	as	the
provision dec	laring	the transfer under se	ction	5(3)	as
void is su	bject	to the right to move	for	exe	mption,
obtain exemp	tion an	d transfer the property,	the	power	of
an owner of	vacant	land in excess of the	ceili	ng limi	t to
‘alienate’ such	land	is dormant in him and		such	power
could be	exercised	by him in case he	seeks	exe	mption,
satisfies the	Govern	ment that the grounds	for	ex	emption
exist and	obtains	such exemption. The	Sup	reme	Court
observed tha	t the	refore, the decree	for		specific
performance cann	ot be	defeated on the	gro	und	that
‘transfer’ inter	partes	would not be	possib	le.	The
possibility	of obta	ining exemption survives.		That	being
the situation	, until	then, a plaintiff	seeking		specific
performance canno	t be	told that the terms	of	the	contract
cannot be	fulfilled.	It was further obse	rved	that	once
it is said	so, t	he plaintiff loses his righ	t to	get	a
decree for	speci	fic performance, though,	inv	oking	the
provisions of	the	very Act, based on	which	the	plaintiff
was told that	he c	ould not get conveyance	of	the	property
agreed to b	e sold	to him, the owner	of	excess	land
obtained exem	ption	and continues in possess	ion	of	the
property and	perhaps	even alienates it	la	ter.	The
Supreme Court law or in	observed logic to	that there was no countenance such a	reason situation	either and	in there

¶85

was	nothing	prohibiting	: 1 a	8 :	decree	being passed	for
specific	per	formance,	with,	o	f cou	rse, such	alternative
remedies	as	may be	called	for	in	a situation where	that
decree	may	become	inoperative.		The	decree for	specific
performance	ma	y be	made		conditiona	l on the	exemption
under	section	20(1)(a)	or (b)		operating.	I am of	the
opinion	that	similarly,	the		plaintiff	could have	prayed
for a	decre	e of	specific		perf	ormance of the	said
agreement	co	nditional	on	the		availability of	ULC