SHRI VISHWA NATH SHARMA versus SHYAM SHANKAR GOELA AND ANR.

Citation: [2007] 3 S.C.R. 268 · Decided: 26-02-2007 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Dismissed

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

1111111
A 
SHRI VISHW A NA TH SHARMA 
• 
v. 
SHY AM SHANKAR GOELA AND ANR. 
FEBRUARY 26, 2007 
B 
[DR. ARIJIT PASA Y AT AND T ARUN CHATTERJEE, JJ.) 
Specific performance-Suit for specific performance of sale-Allegation 
.. 
by plaintiff that after agreement of sale, unilateral cancellation thereof by the 
c defendant-Plaintiff ready and willing to perform his past of agreement-
Denial of agreement by defendant-Plea that plaintiff was defendant's building 
contractor and since transfer of the plot was prohibited, the agreement could 
not have been enforced by decree for specific performance-Several document 
on record showing intention of the defendant to sell the plot-Courts below 
decreed the suit-On appeal, held: Permission from the Authority is not a 
D condition precedent for grant of decree for specific performance-Hence, 
decree for specific performance could have been granted in the present 
case-But in view of long passage of time, direction to defendant to pay a 
sum of Rs. 5 lakh to the plaintiff. 
,. 
The property in question was granted on sub-lease to defendant-No. 1 
E (a member of a Cooperative House Building Society) by the Society out of a 
plot granted to the Society by Delhi Development Authority (DDA). Plaintiff-
respondent filed a suit against defendant No. 1 for specific performance of 
agreement to sell alleging that defendant no. 1 agreed to sell the property in 
question with the plaintiff. A sum of Rs. 8,500/- was received by him towards 
F pa.rt payment. Defendant No. 1 also agreed to execute necessary documents. 
Thereafter, defendant No. 1 unilaterally cancelled the agreement to sell and 
returned the advance amount by cheque. Plaintiff declined to accept the cheque 
.... 
and filed the suit calling upon defendant No. 1 to execute the sale deed. 
Defendant No. 1 denied to have agreed to sell or transfer the plot in question 
to the plaintiff. According to him, plaintiff was only a building contractor, who 
G had agreed to build his house through a broker. Plaintiff had deposited a sum 
of Rs. 8,500/- with him as part security for carrying out the construction. As 
the plaintiff did not send him agreement for building construction, he gave 
~ 
back the amount of Rs. 8,500/-. The transfer of the property was prohibited. 
He bonafide gifted the property to his son (defendant No. 2) after obtaining 
H 
268 
> 
VISHW A NA TH SHARMA v. SHY AM SHANKAR GO ELA 
269 
necessary permission for the same from ODA Trial Court decreed the suit. A 
First appeal against the order of trial court was dismissed ·by High Court 
making reference to the lease deed and several letters showing that he 
intended to sell the property. Hence the present appeal. 
Appellant contended that since the transfer was prohibited by DOA, 
agreement could not have been enforced by a decree in suit for specific B 
performance. 
1 
... 
Dismissing the appeal, the Court 
HELD: I. In this case the trial Court as well as the High Court have 
categorically found that the plaintiff was ready and willing to perform his part c 
of the arrangement. In fact, if DDA refused to grant permission a suit for 
damages can be filed. The plea that the plaintiff was merely a contractor was 
also not accepted and it was found that the finding of fact that the plaintiff was 
not a contractor as claimed by the appellant. [Paras 11 and 12) 
[274-H; 275-A-B) D 
2. If the vendor had agreed to sell the property which can be transferred 
only with the sanction of some government authority, the court has jurisdiction 
to order the vendor to apply to the authority within a specified period, and if 
the sanction is forthcoming, to convey to the purchaser within a certain time. 
There is always an implied covenant on the part of the vendor to do all things E 
necessary to effect transfer of the property regarding which he has agreed to 
sell the same to the Vendee. Permission from the Land and Development 
Officer is not a condition precedent for grant of decree for specific 
performance. If after the grant of the decree of specific performance of the 
contract, the Land and Development Officer refused to grant permission for 
F 
sale the decree holder may not be in a position to enforce the decree but it 
• 
cannot be held that such a permission is a condition precedent for passing a 
decree for specific performance of the contract. Proper form of decree in a 
case like the instant one would be to direct specific performance of the contract 
between defendan

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