M/S. GREATER ASHOKA AND LAND DEVELOPMENT COMPANYversusKANTI PRASAD JAIN (D) THROUGH LRS.

                 [2023] 16 S.C.R. 933 : 2023 INSC 1055



                            CASE DETAILS

     M/S. GREATER ASHOKA AND LAND DEVELOPMENT
                      COMPANY
                                     v.
            KANTI PRASAD JAIN (D) THROUGH LRS.
                      (C.A. No.7990-7991 of 2023)
                          DECEMBER 06, 2023
          [VIKRAM NATH AND RAJESH BINDAL, JJ.]
                             HEADNOTES

     Issue for consideration: Whether in a matter pertaining to specific
performance of the contract for allotment of plot, the refund of earnest
money after a period of sixty years was reasonable.

     Specific performance – Contract for allotment of plot – Suit
for specific performance of the contract – Decreed by the trial court
directing execution of sale deed – However, set aside by the lower
appellate court, directing refund of earnest money with interest – High
Court set aside the said order passed by the lower appellate court,
upholding that of the trial court – Correctness:

      Held: 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 buyer claimed adequate damages, which may include
refund of the earnest money along with interest – Merely refunding
the earnest money paid, after sixty years would be unreasonable as the
respondent, after booking the plot, has been waiting all along as even in the
litigation since 1986 – Price of the land in the area has increased manifold
for the last sixty years – In the interest of justice, 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, the contractor to pay stipulated amount
as full and final settlement of claim in the suit. [Paras 11, 13]


                                    933
934             SUPREME COURT REPORTS                               [2023] 16 S.C.R.



         LIST OF CITATIONS AND OTHER REFERENCES
      Kanshi Ram v. Om Prakash Jawal and others (1996) 4 SCC 593 –
referred to.
         OTHER CASE DETAILS INCLUDING IMPUGNED
                ORDER AND APPEARANCES
     CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 7990-7991
of 2023.
     From the Judgment and Order dated 02.05.2018 of the High Court
of Punjab & Haryana at Chandigarh in RSA No.2956 of 1998 (O&M) and
CO No.16-C/1998.
       Appearances:
    Vikas Singh, Sr. Adv., Ms. Deepika Kalia, Keshav Khandelwal, Gaurav
Sharma, Dhawal Mohan, Prateek Bhatia, Paranjay Tripathi, Advs. for the
Appellant.
     Neeraj Kumar Jain, Sr. Adv., Umang Shankar, Aniket Jain, Sanjay
Singh, Vidyut Kayarkar, Advs. for the Respondents.
         JUDGMENT / ORDER OF THE SUPREME COURT
                                     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.



1     Order dated 02.05.2018.
2     Punjab & Haryana High Court at Chandigarh
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
M/S. GREATER ASHOKA AND LAND DEV. COMPANY v. KANTI 935
   PRASAD JAIN (D) THROUGH LRS. [RAJESH BINDAL, J.]


      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 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.


7   Case No, 342 of 1986
8   Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development
    Act, 1963
9   Haryana Restriction of Development and Regulation of Colonies Act, 1971
936          SUPREME COURT REPORTS                       [2023] 16 S.C.R.


      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 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 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
 M/S. GREATER ASHOKA AND LAND DEV. COMPANY v. KANTI 937
    PRASAD JAIN (D) THROUGH LRS. [RAJESH BINDAL, J.]


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 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 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.



10 (1996) 4 SCC 593.
11 Regular Second Appeal No. 293 of 2003
938          SUPREME COURT REPORTS                        [2023] 16 S.C.R.


      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 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
 M/S. GREATER ASHOKA AND LAND DEV. COMPANY v. KANTI 939
    PRASAD JAIN (D) THROUGH LRS. [RAJESH BINDAL, J.]


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 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.
940            SUPREME COURT REPORTS                        [2023] 16 S.C.R.


      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 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.


Headnotes prepared by:                                        Appeals disposed of.
Nidhi Jain