At, High Court of Rajasthan
By, THE HONOURABLE MR. JUSTICE DEEPAK MAHESHWARI
For the Appellant: Honey Satpal, M.R. Singhvi, Advocates. For the Respondent: Hemant Ballani, Vikas Balia, Advocates.
1. By filing this appeal, appellant – Rajasthan State Industrial Development & Investment Corporation Ltd. (for short, hereinafter referred to as "the RIICO") has challenged the judgment and decree dated 03.02.1995 passed by learned Additional District & Sessions Judge No.3, Jodhpur in Civil Original case No.244/94 whereby the learned trial Court, while allowing the suit filed by the respondent plaintiff ordered the defendant/appellant to hand over the possession of the industrial plot, admeasuring 2000 square meters @ Rs.10 per sq. mtr. towards development charges and Rs.62.50 towards annual rent as also to execute the lease deed in favour of plaintiff. It was also ordered that since 07.01.1988, interest @ 19% per annum be also given on Rs.5000/- deposited by the plaintiff and this amount of interest be adjusted towards the development charges, leviable from plaintiff.
2. Respondent/plaintiff filed a suit alleging that on 6.9.1980, he moved an application for allotment of an industrial plot to RIICO and deposited a sum of Rs.1000/- with RIICO vide receipt dated 24.9.1980 (Ex.1). Defendant RIICO informed the plaintiff vide letter dated 09.12.1980 (Ex.2) regarding allotment of plot No.E-477-A, admeasuring 2000 sq. mtrs. and also asked to deposit Rs.5000/- within 15 days. Pursuant thereto, plaintiff deposited Rs.5000/- on 7.1.1981 vide receipt Ex.3. Thereafter, defendant issued an allotment letter to plaintiff on 29.1.1981 (Ex.4) asking him to deposit Rs.15,000/- within 90 days towards the balance payment of 75% of the development charges and economic rent of Rs.62.50 per year. When the plaintiff went to inspect the site of allotted plot, he found that there was no road and demarcation of the plot was not made. Other necessary facilities were also not provided. The plot was in possession of some other person. He informed RIICO about this situation by writing letter on 23.12.1980. He also contacted the officers of the RIICO
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nd informed them about the situation but nothing could happen. Then, plaintiff again wrote letters on 20.6.1981 (Ex.5) and on 15.10.1981 (Ex.6) and again on 27.9.1982 (Ex.7) and requested RIICO to allot some other plot as he was in need of it to establish his factory. Lastly, he wrote letter to Chairman, RIICO on 17.1.1986 (Ex.8). Higher officials of the RIICO called for the factual report vide letter dated 28.1.1986 (Ex.10). Ultimately, RIICO wrote a letter to plaintiff on 07.01.1988 (Ex.11) asking him to deposit Rs.15,000/- along with the interest amount of Rs.20,363.83 @ 19% per annum upto 31.1.1988. He immediately contacted the officers of RIICO objecting to the demand of interest amount and to accept the deposit Rs.15,000/- only from him. No response was made to this request by the officers of the RIICO. He again wrote a letter to RIICO on 30.1.1988 (Ex.12) to accept the actual amount of Rs.15,000/- and to withdraw the demand of interest but no response could be received.3. Lastly, the respondent plaintiff filed a suit on 5.11.1988 for specific performance of contract praying that the possession of the industrial Plot, admeasuring 2000 sq. mtrs. be handed over to him @ Rs.10/- per sqr. Mtr towards development charges and Rs.62.50 for annual economic rent. He also claimed interest @ 19% per annum since 7.1.1981 when he deposited Rs.5,000/- with RIICO.4. Defendant denied the prayer saying that vide letter dated 09.12.1980, only a provisional offer was made to plaintiff for allotment of an industrial plot on the condition to deposit Rs.5000/- within a period of 15 days but he deposited the same after the prescribed period. It was also stated that on account of the litigation pending between the RIICO and the land holders, RIICO was unable to hand over the possession of alleged plot to plaintiff. Vide letter dated 21.10.1982, it clearly informed the plaintiff that because of the judgment passed by Hon'ble High Court in the said litigation, the plot does not belong to RIICO and hence, possession thereof cannot be given to him and he may get back the amount deposited by him. On the repeated requests made by plaintiff and in order to facilitate him, a letter dated 07.01.1988 was written by him to deposit the remaining amount of Rs.15,000/- towards 75% development charges along with 19% per annum interest of Rs.20,363.83 upto 31.1.1988, if he is interested to get the possession of the plot on old rates but the plaintiff did not comply with the said conditions. He was never interested in getting the plot to establish the industrial unit thereon. The original offer given to the plaintiff was provisional only, which was finally revoked by letter dated 21.10.1982 and thereafter, no contract was in existence between the parties. Thus, the plaintiff was not entitled to get the decree of specific performance of contract. It has also been mentioned in the written statement that the plaintiff has not come with clean hands before the Court and he has suppressed the fact regarding letter dated 21.10.1982. The suit is time barred also. Finally, it was prayed to dismiss the suit.5. On the basis of the pleadings of both the parties, five issues were framed by learned trial Court. Plaintiff Rajmal got himself examined as PW-1. No witness was examined on behalf of defendant, but letter dated 11.11.1982 written by the plaintiff to defendant RIICO (Ex.A/1) and letter dated 21.10.1982 written by the RIICO to plaintiff (Ex.A/2) were produced and referred to the plaintiff during his cross examination on behalf of the defendant.6. After hearing the arguments of both sides, learned trial Court proceeded to decree the suit in favour of the plaintiff as mentioned above.7. Learned counsel appearing for the appellant has assailed the judgment on the ground that no agreement was in existence between the parties for which suit for specific performance could have been decreed in favour of the plaintiff. The original offer made to the plaintiff vide letter dated 09.12.1980 was provisional only, which was cancelled by the letter dated 21.10.1982. He also submitted that earlier contract became void because of impossibility of contract. The litigation pending between the land holders and RIICO was decided by Hon'ble High Court in favour of the land holders. As the plot in dispute was not in possession of RIICO, it could not be handed over to plaintiff. However, letter dated 07.01.1988 was written to plaintiff for giving him another plot provided he deposits 75% of the development charges i.e. Rs.15,000/- and 19% of the interest amount of Rs.20,363.83 upto 31.1.1988. That was an altogether new offer, which was not accepted by the plaintiff by complying with the conditions. Thus, there was no contract existing between the parties and the decree of specific performance could have not been passed in favour of the plaintiff/respondent. Learned counsel for the appellant has, thus, prayed to set aside the decree while allowing the appeal.8. Learned counsel for the respondent has vehemently opposed the arguments saying that the original agreement was very well in existence and the decree has been rightly passed in his favour. Hence, he prayed that the appeal be disallowed while upholding the decree.9. I have given thoughtful consideration to the arguments advanced by learned counsels of both the sides.10. So far as factual matrix in this case is concerned, it is an agreed case that only plaintiff has been examined in support of the facts mentioned in the plaint. No oral evidence has been produced by the appellant/defendant in rebuttal thereto. As per the oral as well as documentary evidence produced by plaintiff respondent, it is evident that vide letter dated 09.12.1980 (Ex.2), provisional offer was made by RIICO to plaintiff for allotment of plot No.E-477-A, admeasuring 2000 sq. mtrs. in II Phase Basni @ Rs.10 per sq. mtr. Plaintiff was also asked to deposit 25% of development charges, amounting to Rs.5000/- within 15 days from the date of issue of the letter dated 09.12.1980. It is also an admitted case that the said amount was not deposited by the plaintiff within the prescribed time. The plaintiff deposited this amount on 07.01.1981 vide receipt Ex.3 but since RIICO accepted the said amount and also issued an allotment letter Ex.4 on 29.1.1981, the delay appears to have been condoned by RIICO. By letter Ex.4, plaintiff was asked to pay the balance 75% amount of the development charges i.e. Rs.15,000/- as also economic rent of land @ Rs.62.50 per year within a period of 90 days. Condition No.5 was also imposed vide letter Ex.4 that in case the economic rent and balance amount of development charges is not paid and the lease deed is not executed within 90 days or within the authorised extended period, the allotment shall be treated as cancelled and security money deposited by him shall stand forfeited to the Corporation.11. It is also an admitted case that the said amount of Rs.15,000/- and the economic rent @ Rs.62.50 per year was not deposited by the respondent/plaintiff on the ground that possession of the alleged plot was not handed over to him. Plaintiff – PW/1 has produced in his evidence the letters Ex.5, 6 and 7 written to appellant RIICO mentioning therein that he was ready to deposit Rs.15,000/- but the possession of the plot or some other plot must be handed over to him. However, the fact remains that the amount of Rs.15,000/- towards the remaining 75% of the development charges and the amount @ Rs.62.50 per annum towards economic rent was not deposited by plaintiff within the prescribed period of 90 days, as asked by appellant RIICO vide allotment letter dated 29.1.1981 (Ex.4) and even thereafter. It is also an admitted position that in terms of the condition No.5 imposed vide this letter, the period for depositing the above said amount was never extended by RIICO. Even the plaintiff did not make any effort to get the aforesaid period extended.12. Still, this fact also cannot be ignored that RIICO could not hand over the possession of the plot to plaintiff for which demand was raised by it to deposit the amount. Reason behind this gets clarified by perusal of the letter dated 21.10.1982 (Ex.A/2) written by RIICO to respondent plaintiff wherein it was informed to plaintiff that plot No.E-477-A was allotted to you but in the litigation filed by some persons, Hon'ble Rajasthan High Court has decided the matter in their favour and declared them as 'khatedars', hence, RIICO is not in position to hand over the possession thereof to you as RIICO does not have the actual possession over the plot. The original allotment order was withdrawn by RIICO on account of above circumstances. It was also requested to plaintiff to get the amount back, which was deposited by him.13. It is pertinent to note that PW-1 Rajmal has admitted in his cross examination that he received the letter Ex.A/2. He also read and understood the contents thereof. He has also admitted that after receiving letter Ex.A/2, he never went to get back the amount deposited by him but of course, he went to get the plot. He has also stated that he wrote letter Ex.A/1 in response to the letter Ex.A/2. On perusal of letter Ex.A/1, it comes out that plaintiff requested RIICO that if they were unable to give possession of plot No.E-477A, then he requested them to allot him any other plot of the same size. This letter was written by plaintiff on 11.11.1982. During cross examination, the plaintiff has admitted that after the letter dated 11.11.1982, he next wrote to RIICO on 18.09.1986. He has also admitted that there was no reason not to write any letter for five years. It is also pertinent to note that the alleged letter dated 18.09.1986 has not been produced in evidence by plaintiff.14. Letter dated 07.01.1988 (Ex.11) written by RIICO to plaintiff is also material to be considered whereby the plaintiff was asked to deposit Rs.15,000/- towards 75% development charges along with interest @ 19%, amounting to Rs.20,363.83 within ten days and not later than 31.1.1988 positively otherwise this offer will be withdrawn automatically. Plaintiff has admitted to have received this letter Ex.11 and has also tendered this in evidence. He has also narrated that in reference to letter Ex.11, he offered to deposit Rs.15,000/- only but the defendant refused to accept the same without depositing the interest amount of Rs.20,000/-. It is, thus, clear that the offer made vide Ex.11 was not accepted by the plaintiff by complying with its conditions in to.15. In view of above factual matrix, now it is to be seen whether the conclusion arrived at by learned trial Court in respect of the issues framed by it is correct or not.16. Issue No.1 framed by the trial Court is "whether the plaintiff is entitled to get an industrial plot of 2000 sq. mtrs. @ Rs.10 per sq. mtr towards development charges and annual rent @ Rs.62.50."17. Issue No.4 framed by the trial Court is "whether the defendant has rescinded the contract vide letter dated 21.10.1982."18. Since both these issues are closely inter-related and the evidence produced in respect thereof is also intermixed, therefore, analysis regarding them is done jointly.19. After discussing the oral as well as documentary evidence in its judgment, learned trial Court, on the ground that no evidence was produced by the defendant, hence, adverse inference needs to be drawn against him under Section 114 of the Indian Evidence Act, has come to the conclusion that the plaintiff has succeeded in proving Issue No.1. But, learned trial Court has failed to take into account letter Ex.A/2, which has been admitted by plaintiff, as having been received, read and understood by him whereby the said allotment was withdrawn because of the reason mentioned therein that RIICO is not in actual possession of the plot etc.20. Learned counsel for the appellant has drawn attention of this Court to provision contained in Section 56 of the Contract Act, relevant part of which is as follows :-"56 Agreement to do impossible act.- An agreement to do an act impossible in itself is void.Contract to do act afterwards becoming impossible or unlawful. – A contract to do an act which, after the contract is made, becomes impossible, or, by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful.""… … … … … … … … … … … … … … … … …""… … … … … … … … … … … … … … … … …"21. Undoubtedly, appellant RIICO could not have prevented the judgment in the litigation relating to the said plot of land, which rendered the agreement impossible and thus void. The situation was completely changed after issuance of the provisional offer of allotting the plot No.E-477-A vide letter dated 09.12.1980 (Ex.2) and allotment letter dated 29.1.1981 (Ex.4). Thus, the agreement became void as per Section 56 of the Contract Act. Moreover, condition No.5 mentioned in letter dated 29.1.1981 (Ex.4) to deposit 75% of development charges and economic rent @ Rs.62.50 was also never complied with by the plaintiff. Appellant RIICO also rescinded the agreement vide letter dated 21.10.1982 (Ex.A/2), which has been admitted by PW-1 during his cross examination. These aspects have not been properly appreciated by the learned trial Court while coming to the conclusion with regard to Issues No.1 and 4. Thus, the conclusion drawn by learned trial Court upon these issues is not found correct and is liable to be set aside.22. Issue No.2 framed by the trial Court is "whether plaintiff is entitled to get the interest @ 19% on Rs.5,000/- till he gets the possession of the plot and to get it adjusted towards development charges."23. In respect of this issue, learned trial Court has again failed to take into consideration letter dated 21.10.1982 (Ex.A/2). This letter is admitted to have been received by plaintiff whereby he was asked to get his deposited amount back. He has also admitted that despite having received Ex.A/2, I did not go to get my deposited money back. No explanation has also been provided by him in this regard. Hence, it cannot be inferred that the plaintiff was entitled to get interest @ 19% on the amount for which he was asked to come and collect. Moreover, no reasons have been assigned by learned trial Court to award the interest @ 19% per annum. The conclusion drawn by learned trial Court in respect of this issue is also not found correct.24. Issue No.3 framed by the trial Court is "whether the plaintiff was always willing and ready to comply with the contract."25. Learned trial Court has also found this issue proved in favour of plaintiff but it has failed to take into consideration the fact that the condition No.5 of the allotment letter dated 29.1.1981 (Ex.4) was never complied with by the plaintiff by depositing Rs.15,000/- and the amount towards the economic rent within stipulated period. He did not even make any effort to get the said period extended for depositing the amount. The reason, whatsoever, explained by plaintiff for not depositing the said amount cannot prove his willingness and readiness to comply with the condition of agreement.26. Even if it is considered that offer was again made to plaintiff by appellant RIICO vide letter dated 7.1.1988 (Ex.11), then also the condition of depositing Rs.15,000/- along with interest amount of Rs.20,363.83 was not complied with though it was specifically mentioned therein that if he fails to comply with the condition, the offer will be automatically withdrawn. In these circumstances, it is clear that the respondent plaintiff could not prove his readiness and willingness in complying with the conditions of contract. Thus, the inference drawn by learned trial Court regarding this issue is also erroneous and is liable to be set aside.27. Issue No.5 framed by the trial Court is "whether the suit is barred by limitation."28. Learned trial Court has decided this issue in favour of the plaintiff on the ground that the offer made by the appellant/defendant vide letter dated 7.1.1988 was open to be accepted by respondent/plaintiff upto 31.1.1988. Taking this date as a reference point regarding the cause of action, the suit filed on 5.11.1988 has been found to be within limitation.29. On the discussions made herein above, it is clear that appellant defendant made one more provisional offer to the plaintiff vide letter dated 7.1.1988 (Ex.11), so the suit filed on 5.11.1988 is well within the limitation period. Hence decision arrived at by learned trial Court regarding this issue is found to be correct.30. In view of above mentioned discussions in respect of Issues No.1 to 4, it is found that the decision arrived at by learned trial Court is not found legally tenable and in accordance with the evidence available on record. Hence, the judgment and decree dated 03.02.1995 passed by learned trial Court is liable to be set aside. The appeal is consequently allowed and the judgment and decree dated 3.2.1995 passed by Addl. District & Sessions Judge No.3, Jodhpur in Civil Original Suit No.244/94 is quashed and set aside.Appeal allowed.
"2017 (1) RAJLW 761,"