Nand Kishore Lalbhai Mehta Vs. New Era Fabrics Pvt. Ltd. & Ors.
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Head Note
The Code of Civil Procedure, 1908 - Order XIII Rule (4)
Specific Performance - Evidence Beyond Pleadings - In the plaint filed by the appellant, the plea set up was that at the instigation of the defendants and in collusion with them, the Mill Mazdoor Sabha has refused to give its permission to the sale of the mill premises of Defendant No. 1 to the plaintiff - It was not a case set up by the appellant that the Mill Mazdoor Sabha had agreed to the proposed sale on certain conditions offered by the respondents -Held that fresh pleadings and evidence which is in variation to the original pleadings cannot be taken unless the pleadings are incorporated by way of amendment of the pleadings - Division Bench of the High Court was perfectly justified in holding that unless the plaint is amended and a specific plea is taken that the Mill Mazdoor Sabha had agreed for the proposed sale on certain terms and conditions offered by the respondents herein, the two letters viz., Exh Nos. P-27 and P-28 could not have been taken into consideration at all.
The Code of Civil Procedure, 1908 - Order XIII Rule (4)
Specific Performance - Evidence Beyond Pleadings - Proof of contents of document - It is the case of the appellant that the two letters Exh Nos. P-27 and P-28 were given by one 'M' -a former Director of the Respondent No. 1 but he has not been produced as a witness so as to establish that these two letters were in fact given by the Mill Mazdoor Sabha - In the statement of PW-2 it is only stated that the letter must have been sent by the Mill Mazdoor Sabha and the post- script might have been written by 'P' as it bears his signature - He had not stated that it was written in his presence - Mere identifying the signature of 'P' does not prove the contents of the said letter which is being relied upon by the appellant.
The Specific Relief Act, 1963 - Section 20
Agreement of Sale - Contingent Contract - Specific performance - Damages - Submission that the appellant-plaintiff has waived the condition regarding taking of consent from the labour for the proposed sale and, therefore, this could not be a ground for cancelling the contract held to be misconceived - In the agreement dated 19.10.1977, it was specifically mentioned that the sale also be subject to defendants being able to settle with their labour and their labour agreeing to the sale contemplated failing which defendants will not be bound to complete the sale - Held that the moment labour do not agree to the sale contemplated, under the terms of the contract, the respondents were not bound to complete the sale -Maximum period of nine (9) months does not mean that once the labour had declined to give their consent for the proposed sale, the contract subsists for a period of nine (9) months and it cannot be terminated before that period - Agreement for sale is a contingent agreement depending upon obtaining permission under Section 22 and Section 27 of the ULC Act, property being converted from industrial zone to residential use and settlement with the labour and the labour agreeing to the sale contemplated therein - If any of the conditions are not fulfilled, the respondents were not bound to complete the sale and the appellant was only entitled for return of the money with interest @ 18% per annum from the date of refusal of any of the permission or consent or agreement mentioned above - As the Mill Mazdoor Sabha has not given its consent to the proposed sale, agreement for sale could not have been performed and had ceased - The appellant is only entitled to refund of the amount along with interest @ 18% per annum stipulated therein.
Topic(s)-Specific Performance - Evidence beyond pleadings cannot be considered ,