A.M.A.Wahab Vs. Nadar Elementary Padasalai - Court Judgment

SooperKanoon Citationsooperkanoon.com/1168141
CourtChennai High Court
Decided OnDec-20-2013
JudgeR.S.RAMANATHAN
AppellantA.M.A.Wahab
RespondentNadar Elementary Padasalai
Excerpt:
in the high court of judicature at madras dated:20. 12.2013 coram: the honourable mr. justice r.s.ramanathan appeal suit no.1186 of 1994 and c.m.p.no.17279 of 1994 a.m.a.wahab .. appellant vs. 1.nadar elementary padasalai, represented by its secretary, nanjundrapuram, coimbatore  36. 2.k.venugopal nadar 3.rangaraja nadar 4.nanjundamurthy 5.t.ramanathan 6.t.ramakrishnan 7.venkataraghavan 8.lakshmi ammal 9.g.t.ramanathan 10.g.t.ramakrishnan 11.g.t.ramanarayanan 12.ramamurthy 13.tmt.kanchanadevi 14.tmt.yasoda devi 15.tmt.usha devi 16.tmt.mariyayi 17.sakunthala .. respondents appeal suit filed under section 96 of the civil procedure code against the judgment and decree dated 01.12.1993 in o.s.no.177 of 1984 on the file of the ii additional subordinate judge, coimbatore. for appellant : mr. satish parasaran for respondents 1, 3, 5, 6 11 and 12 : mrs.mythili suresh for m/s.sarvabhuman associates judgment the plaintiff in o.s.no.117 of 1984 on the file of the second additional subordinate judge, coimbatore is the appellant. the plaintiff/appellant filed the suit for directing the defendants to execute the sale of the property to the plaintiff for a sum of rs.1,40,000/- as per the order passed in o.p.no.156 of 1980 dated 25.8.1980 on the file of the district court, coimbatore and for the costs. the suit was dismissed and aggrieved by the same, this appeal is filed.2. the case of the plaintiff is as follows:- the first defendant is the trust and defendants 2 to 9 are the trustees and the second defendant is the secretary of the first defendant. the first defendant is running a school at nanjundapuram in the name of nadar higher elementary school and it owns the schedule property. the schedule property was endowed by one mr.govindaswamy nadar under a trust deed dated 25.4.1983 in favour of the first defendant for the purpose of providing education by running a school at nanjundapuram. the trust found it difficult to maintain the building as the building was very old one and therefore, decided to sell the building and utilise the sale proceeds for the purpose of offering education. on coming to know of the same, the plaintiff approached the defendants and offered to buy the property for a sum of rs.1,40,000/- and considering the highest offer made by the plaintiff, the trust and the trustees accepted the offer and agreed to sell the property to the plaintiff for a sum of rs.1,40,000/- subject to the permission to be obtained from the district collector, coimbatore. therefore, the defendants filed o.p.no.156 of 1980 on the file of the district judge, coimbatore seeking permission to sell the property for a sum of rs.1,40,000/- and after paper publication, the learned district judge granted permission to the defendants to sell the suit property for a sum of rs.1,40,000/- to the plaintiff on or before 30.09.1980 stating that the defendants should get permission, if any, from the education department before executing the sale. as the defendants were not able to get the permission from the education department, the order dated 25.8.1980 directing the defendants to complete the sale on or before 30.9.1980 was modified and the learned district judge, by order dated 24.4.1981 deleted the time limit for completing the sale transaction and made it clear that the sale should be subject to sanction being accorded by the education department. even during pendency of o.p.no.156 of 1980, the plaintiff deposited a sum of rs.1,00,000/- in the indian overseas bank in the name of his counsel and informed the defendants about the deposit. on 23.2.1981, board of trustees of the first defendant trust also unanimously resolved to accept the offer of the plaintiff to purchase the suit property for a sum of rs.1,40,000/- and also, communicated the same to the plaintiff and therefore, a concluded contract came into existence between the plaintiff and the defendants. the plaintiff was always ready and willing to perform his part of the contract and he was also having sufficient means to complete the sale transaction. however, the defendants changed their attitude and they failed to take any steps with the education department for getting permission to sell the property and tried to take advantage of the revised order dated 24.4.1981 and were coming out that they were not bound to execute the sale deed as permission from education department had not been forthcoming. the plaintiff understood that the education department also expressed their view that their sanction was not necessary. therefore, the plaintiff filed i.a.no.189 of 1983 in o.p.no.156 of 1980 to implead himself as a party so as to get the order modified and to delete the clause which requires permission from the education department as a condition precedent to purchase the property and that petition was dismissed and the revision was filed before the high court and the same was pending. in the meanwhile, taking advantage of the lapse of time, and appreciation of value of the immovable properties, third parties tried to intervene and also quoted higher price to purchase the property. the tenant, by name, edward raja filed an application in i.a.no.638 of 1983 in o.p.no.156 of 1980 to implead himself as a party to purchase the suit property and that was dismissed and after that, no steps were taken by the defendants to sell the property to the plaintiff. therefore, the plaintiff sent a notice dated 19.9.1993 to the defendants calling upon them to sell the suit property after receiving the balance sale consideration and the defendants sent reply dated 17.10.1993 stating that the property cannot be sold without getting permission from the education department. according to the plaintiff, the sale is not subject to the grant of permission from the education department and the plaintiff was informed by the defendants that they applied for permission only by way of abundant caution from the education department and induced the plaintiff to purchase the suit property and believing their representation, the plaintiff also deposited a sum of rs.1,00,000/- by reason of the promise made by the defendants, and the plaintiff also did not buy any other property in that locality as he was under the impression that he was going to get the suit property from the defendants. therefore, the defendants 2 to 9 are personally liable to make good the loss suffered by the plaintiff by their false promise and conduct. as per the order passed by the district judge in o.p.no.156 of 1980 dated 24.4.1981, the defendants are bound to execute the sale deed in favour of the plaintiff for a sum of rs.1,40,000/- and therefore, the suit was filed for that purpose.3. the first and fourth defendants filed a statement admitting the allegation that the suit property belonged to the trust and also stated that the application was filed before the district court to sell the suit property for the highest bidder and also to the maximum advantage of the trust and the sale price ought to be fixed by conducting public auction and mere deposit of any amount by the plaintiff in his name cannot confer any right on the plaintiff to purchase the suit property. it is also stated that the said suit property is situate in rangai gowder street, wherein properties are sold on square feet basis and the transaction between the plaintiff and the defendants is not complete as alleged by the plaintiff. as per the order dated 24.4.1981 made in o.p.no.156 of 1980, the sale was subject to the permission to be granted by the education department and it was also made clear that the sanction by the education department was a condition precedent for offering sale and therefore, till sanction is obtained, the contract cannot be enforced. they also denied the allegation that they changed their attitude after the order was passed on 24.4.1981. it is further stated that the education department have not granted any permission and in the meanwhile, there were more offers offering more than the price offered by the plaintiff and the trustees are bound to sell the property for the highest price and therefore, they are not bound to sell the property to the plaintiff for a sum of rs.1,40,000/-. further, the plaintiff filed an application in the year 1983 to modify the order passed on 24.4.1981 by filing i.a.no.189 of 1983 and the same was also dismissed and therefore, the plaintiff cannot seek specific performance of the sale transaction as per the order dated 24.4.1981. they also stated that the tenant offered to purchase the suit property for the higher price and also made an application to the district court and offered a higher price and that petition was also dismissed and aggrieved against that order, the tenant filed c.r.p.nos.4666 and 4667 of 1983 on the file of the high court. it is also stated that the first defendant being a public trust, it cannot sell the property for a lesser price and the trustees are bound to see that maximum price is obtained for sale of the trust property and therefore, the plaintiff is not entitled to the relief prayed for. it is also stated that the sale had to be completed by 30.9.1980 and the suit was filed only in march, 1984 and, in the meanwhile, no steps were taken to complete the transaction, and therefore, the suit is also barred by limitation.4. the 11th defendant filed a statement and that was adopted by the defendants 10 and 12 to 17. they contended that they are not necessary parties to the suit and one g.thirumalai swamy nadar, the third defendant was one of the trustees and he was not having any personal interest and on his death, defendants 11 to 17 were impleaded and therefore, they are unnecessary parties and no relief can be obtained against them.5. on the basis of the above pleadings, the following issues were framed:- (i) whether the suit is maintainable having regard to the order passed in slp no.3837 of 1987 dated 31.07.1987?. (ii) whether the plaintiff is entitled to the relief of specific performance?. (iii) to what other relief, the plaintiff is entitled to?.6. on the side of the plaintiff, he examined himself as pw.1 and marked 24 exhibits. on the side of the defendants, no witness was examined and no document was marked. the trial court held that the tenant, edward raja, filed an application in i.a.no.638 of 1983 in o.p.no.156 of 1980 to implead himself as a party with a view to purchase the suit property and that was dismissed and aggrieved by the same, he filed civil revision petition nos.4666 and 4667 of 1983 and those revisions were disposed of and the district judge was directed to sell the suit property to the said edward raja, for a sum of rs.4,00,000/- and the plaintiff challenged the same by filing slp (civil) no.3837 of 1987 and the trust also filed slp (civil) no.3563 of 1987 against the order passed in c.r.p.nos.4666 and 4667 of 1983 and the hon'ble supreme court passed an order in slp (civil) no.3563 of 1987 that the suit property need not be sold immediately and if, in the near future, any such need arises for the trust to sell the property, the same can be sold by public auction at the minimum price of rs.4,00,000/- and also made it very clear that the said order is without prejudice to the right and contention of the plaintiff in the suit. the trial court also held that the plaintiff cannot file a suit directing the trustees to sell the suit property for a lesser price and under section 20 of the specific performance act, any sale by the trustees would cause serious hardship to the trust and when the hon'ble supreme court directed the trust to sell the property by quoting the minimum price of rs.4,00,000/-, the plaintiff cannot seek direction of the court to purchase the property for a sum of rs.1,40,000/- and that the plaintiff has also not proved any damages sustained by him and held that the plaintiff is not entitled to the relief of specific performance and dismissed the suit. aggrieved by the same, this appeal is filed.7. the learned counsel appearing for the appellant/plaintiff submitted that the curt below without properly appreciating the provisions under section 20 of the specific relief act, 1963 and also the order passed in slp (civil) no.3563 of 1987 dated 31.7.1987, erred in holding that under section 20 of the specific relief act, 1963, the court has no discretion to grant the decree of specific performance and even the grant of specific performance is lawful, the court is not inclined to grant such relief as section 20 of the specific performance act cannot be applied to the facts of this case. as a matter of fact, if applied, it is in favour of the plaintiff/appellant and relied on the division bench order of this court reported in 2010 (2) ctc751in the matter of b.nemi chand jain v. g.ravindran. he also submitted that there is a concluded contract between the plaintiff and the first defendant and acting upon the contract, the plaintiff also deposited a sum of rs.1,00,000/- in his counsel's name, that would show the bona fide of the plaintiff and the district court after giving public notice, granted permission to sell the property in favour of the plaintiff for a sum of rs.1,40,000/- and at that time, that was the proper price and the plaintiff was prepared to purchase the property subject to the approval of the education department and the defendants cannot take advantage of their own wrong and later on, contend that the price of the property has gone up and therefore, it is not in the interest of the trust to sell the property to the plaintiff for a sum of rs.1,40,000/- and submitted that the price escalation cannot be a ground to deny the relief of specific performance and relied upon the judgment reported in (2002) 8 supreme court cases 146 in the matter of nirmala anand v. advent corpn.(p)ltd; (2004) 6 supreme court cases 649 in the matter of p.d'souza v. shondrilo naidu, in support of his contention. he also submitted that, merely because, the plaintiff has stated in the plaint that he is entitled to claim damages and that would not disentitle the plaintiff to claim the relief of specific performance and relied on the judgment reported in (1979) 4 supreme court cases 393 in the matter of prakash chandra v. angadlal.8. on the other hand, the learned counsel for the first respondent submitted that there was no concluded contract between the parties and even as per the order of the district court in o.p.no.156 of 180 dated 24.4.1981, the sale was subject to the confirmation by the education department and it was also made clear that consent from the education department was a condition precedent for execution of the sale deed and admittedly, consent was not obtained and therefore, there was no concluded contract between the parties. she also submitted that the plaintiff also filed an application for modification of the condition with respect to sanction from the education department by filing i.a.no.189 of 1983 and that was dismissed and the revision filed against that order was also dismissed. she also submitted that the tenant, edward raja, filed an application in i.a.no.638 of 1983 in o.p.no.156 of 1980 to get himself impleaded and to purchase the property and these applications were dismissed and he filed revisions before this court in c.r.p.nos.4666 and 4667 of 1983 and that were ordered and the trust was directed to sell the property to the tenant, edward raja, for a sum of rs.4,00,000/- and that was challenged by the trust before the hon'ble supreme court in slp (civil) no.3563 of 1987 wherein the plaintiff was deprived of the relief as against the respondents and the hon'ble supreme court made it clear that if in the near future, if the trust wants to sell the property, the property can be sold only by public auction by quoting rs.4,00,000/- as the minimum price and the slp filed by the appellant was also dismissed. even though the hon'ble supreme court observed in slp (civil) no.3563 of 1987 that the order was without prejudice to the right of the present appellant that would not give any cause of action for him to purchase the property for rs.1,40,000/- and being the trust property, the trustees are bound to sell the property for proper price which is beneficial to the trust. having regard to the lapse of time, if the property is sold to the appellant for rs.1,40,000/- fixed in the year 1980 that would not be in the interest of justice and considering all these aspects, the trial court rightly dismissed the suit.9. on the basis of the above submissions, the following points for consideration arise in this appeal:- (i) whether there was a concluded contract between the plaintiff and the first defendant for the sale of the suit property for a sum of rs.1,40,000/-?. (ii) whether the first defendant is bound to sell the property for a sum of rs.1,40,000/- to the plaintiff/appellant in the light of the order in slp (civil) no.3563 of 1987?. (iii) whether the court below was right in denying the relief of specific performance in favour of the plaintiff/appellant?.10. admittedly, the suit property is a trust property and the trust in the year 1980 wanted to sell the property having realised that the property was in dilapidated condition and it would not be advisable to keep the property in that position and by selling the same, the sale proceeds of the property could be utilised for better use. the plaintiff/appellant also approached the first defendant and offered to purchase the property for rs.1,40,000/- and considering the fact that there was no higher offer than the offer made by the plaintiff/appellant, the first defendant filed o.p.no.156 of 1980 before the district court, coimbatore, seeking permission to sell the property for a sum of rs.1,40,000/-. in that petition, public notice was ordered and considering that there was no offer from the public to purchase the property for more than rs.1,40,000/-, permission was granted by the district judge to the first defendant to sell the property to the plaintiff/appellant for a sum of rs.1,40,000/- subject to the permission to be granted by the education department and also fixed the time frame for completing the sale. as per the order in o.p.no.156 of 1980 dated 29.8.1980, the sale has to be completed on or before 30.9.1980. the first defendant applied for extension and that was granted by order dated 1.10.1980 extending time till 14.11.1980 and thereafter, time was further extended by 4 weeks. in the mean while, i.a.no.826 of 1981 was filed to modify the order and the order dated 25.8.1980 was modified on 24.4.1981, and the time stipulated in the earlier order was deleted and it was made clear that obtaining of the permission from the education department shall be a condition precedent for the sale. admittedly, permission was not obtained from the education department and it is not the case of the plaintiff/appellant that the first defendant deliberately did not take any steps to get the permission from the education department and the only allegation made by the plaintiff/appellant was that there was no necessity to get the permission from the education department for executing sale and therefore, the first defendant was bound to execute the sale deed in favour of the plaintiff for a sum of rs.1,40,000/-. it is seen from the order dated 24.4.1981 made in o.p.no.156 of 1980 that obtaining permission from the education department was made a condition precedent for effecting sale. therefore, whenever a contract is made subject to any condition to be fulfilled, in the absence of fulfilment of such condition, it cannot be said that a completed contract has come into existence between the parties. the plaintiff/appellant also filed i.a.no.189 of 1983 for modification of the condition regarding permission to be obtained from the education department and that was dismissed and the revisions filed against that order was also dismissed. therefore, the plaintiff/appellant was also aware that without getting permission from the education department, the property cannot be sold by the first defendant and therefore, it cannot be contended by the appellant that the condition stated in the order dated 24.4.1981 in o.p.no.156 of 1980 that the permission to be obtained from the education department was not a condition precedent and it will not stand in the way of getting the sale deed executed and therefore, there exists a concluded contract between the parties.11. i, therefore, hold that having regard to the condition imposed by the court below stating that the permission from the education department was a condition precedent for getting the sale deed executed, no concluded contract came into existence between the parties and in the absence of any permission granted by the education department, the plaintiff is not entitled to get the sale deed executed in his favour as per the order dated 25.8.1980 made in o.p.no.156 of 1980 directing the first defendant to sell the property to him for a sum of rs.1,40,000/-. point no.(i) is answered against the appellant.12. as stated supra, the tenant, edward raja, filed an application before the district court to get himself impleaded and to purchase the property and those applications were also dismissed and he filed c.r.p.nos.4666 and 4667 of 1983 and those revisions were ordered directing the district judge to grant permission to the first defendant to sell the property to edward raja for a sum of rs.4,00,000/-. the first defendant challenged that order by filing slp (civil) no.3563 of 1987 in which the present appellant was the second respondent. by order dated 31.7.1987, the hon'ble supreme court passed the following order:- ".this order is without prejudice to the right and contention of respondent no.2 in the suit filed by it. the property is a trust property. the trust does not want to sell the property as it does not consider them to be sold immediately. in the premises of the trust the property in question need not be sold immediately. if in the near future any such need arises the property will be sold by public auction at the minimum price of rs.4 lacs. the petitioner be refunded the deposit of rs.3,000/- deposited in court. the special leave petition is disposed of with these observations.".13. it is also admitted that the slp filed by the plaintiff/appellant was also dismissed. therefore, as per the order of the hon'ble supreme court dated 31.7.1987, there was no necessity for the trust to sell the property immediately and if the trust decides to sell the property, in the future, the trust was directed to sell the property on public auction by quoting the minimum price of rs.4,00,000/-. even though it was stated that the order passed in slp was without prejudice to the right of the appellant herein that would not enable the appellant to purchase the property for a sum of rs.1,40,000/-. hence, as per the order dated 31.7.1987 passed by the hon'ble supreme court in slp (civil) no.3563 of 1987, the plaintiff is not entitled to purchase the property for a sum of rs.1,40,000/- and the property can be sold by quoting the minimum price of rs.1,40,000/- and it cannot be sold for rs.1,40,000/-. in this connection, the judgment of the hon'ble supreme court, reported in 1989 supp. (2) scc356[r.venugopala naidu and others vs. venkatarayulu naidu charities and others]., air1990sc444 [r.venugopala naidu vs. venkatgarayulu naidu charities]. 2008 (1) ctc279[ p.arumugam vs. the state of tamil nadu rep. by its secretary, commercial taxes & religious endowments department, chennai]. are to be considered having regard to the fact that the property is a trust property and the trust properties are to be protected.14. in the judgment reported in 1989 supp (2) scc356[r.vengopalla naidu and others vs. venkatarayulu naidu charities and others]. relying upon the judgment reported in (1986) 3 scc391[chenchu rami reddy vs. government of andhra pradesh]., the hon'ble supreme court held that the property of religious and charitable endowments or institutions must be jealously protected and care must be taken to fix the reserve price after ascertaining the market value for safeguarding the interest of the endowment.15. in air1990sc444(r.venugopala naidu vs. venkatarayulu naidu charities]., the judgment reported in air1986s.c. 1158 [c.rami reddy vs. government of a.p.]. was followed and the property was directed to be sold in public auction by giving wide publicity regarding the date, time and place of public auction and directed that the reserve price also be after ascertaining the market value.16. in the judgment reported in 2008 (1) ctc279 in the case of p.arumugham vs. the state of tamil nadu, by its secretary, commercial taxes & religious endowments department, fort st.george, chennai 600 009 and others, the hon'ble division bench of this court in a similar situation, set aside the auction holding that the earlier auction lost its significance in view of the passage of time and the land value had also increased in the mean time. further, having regard to the nature of the property, namely, temple property, the court has to protect the interest of the temple.".17. therefore, a duty is cast upon the court to protect the interest of the trust and even assuming that the trust entered into an agreement of sale of the trust property for consideration, that was also disapproved by the court. having regard to lapse of time and taking into consideration the interest of the trust, the court below is justified in refusing to sell the property for the price fixed 30 years earlier. therefore, i also hold that the appellant/plaintiff is not entitled to insist that the court to execute the sale deed or direct the first defendant to sell the property in his favour for a sum of rs.1,40,000/- and point no.2 is also answered against the appellant.18. learned counsel for the appellant relied upon various judgments with respect to interpretation of section 20 of the specific relief act and contended that the court erred in dismissing the suit without exercising the discretion properly. according to me, even accepting the case of the appellant as per the judgment reported in 2010 (2) ctc751cited supra, wherein the entire case law was discussed, the court has to exercise discretion properly.19. having regard to the fact that the suit property is the trust property and a duty is cast upon the court to protect the trust property and to see that the property is sold for a good price and having regard to the answers given to the points for consideration 1 and 2, the court below also rightly exercised the discretion and refused to grant the discretionary relief of specific performance. point no.3 is also answered against the appellant.20. in the result, the judgment and decree of the trial court are confirmed and the appeal is dismissed. the connected miscellaneous petition is closed. no order as to costs. 20.12.2013 index : yes / no internet: yes / no asvm to the ii additional subordinate judge, coimbatore. r.s.ramanathan, j (asvm) a.s.no.no.1186 of 1994 and c.m.p.no.17279 of 1994 20.12.2013
Judgment:

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:

20. 12.2013 CORAM: THE HONOURABLE MR. JUSTICE R.S.RAMANATHAN APPEAL SUIT No.1186 of 1994 and C.M.P.No.17279 of 1994 A.M.A.Wahab .. Appellant vs. 1.Nadar Elementary Padasalai, represented by its Secretary, Nanjundrapuram, Coimbatore  36. 2.K.Venugopal Nadar 3.Rangaraja Nadar 4.Nanjundamurthy 5.T.Ramanathan 6.T.Ramakrishnan 7.Venkataraghavan 8.Lakshmi Ammal 9.G.T.Ramanathan 10.G.T.Ramakrishnan 11.G.T.Ramanarayanan 12.Ramamurthy 13.Tmt.Kanchanadevi 14.Tmt.Yasoda Devi 15.Tmt.Usha Devi 16.Tmt.Mariyayi 17.Sakunthala .. Respondents Appeal Suit filed under Section 96 of the Civil Procedure Code against the Judgment and Decree dated 01.12.1993 in O.S.No.177 of 1984 on the file of the II Additional Subordinate Judge, Coimbatore. For appellant : Mr. Satish Parasaran For respondents 1, 3, 5, 6 11 and 12 : Mrs.Mythili Suresh for M/s.Sarvabhuman Associates JUDGMENT

The plaintiff in O.S.No.117 of 1984 on the file of the Second Additional Subordinate Judge, Coimbatore is the appellant. The plaintiff/appellant filed the suit for directing the defendants to execute the sale of the property to the plaintiff for a sum of Rs.1,40,000/- as per the order passed in O.P.No.156 of 1980 dated 25.8.1980 on the file of the District Court, Coimbatore and for the costs. The suit was dismissed and aggrieved by the same, this appeal is filed.

2. The case of the plaintiff is as follows:- The first defendant is the Trust and defendants 2 to 9 are the trustees and the second defendant is the Secretary of the first defendant. The first defendant is running a school at Nanjundapuram in the name of Nadar Higher Elementary School and it owns the schedule property. The schedule property was endowed by one Mr.Govindaswamy Nadar under a Trust Deed dated 25.4.1983 in favour of the first defendant for the purpose of providing education by running a school at Nanjundapuram. The Trust found it difficult to maintain the building as the building was very old one and therefore, decided to sell the building and utilise the sale proceeds for the purpose of offering education. On coming to know of the same, the plaintiff approached the defendants and offered to buy the property for a sum of Rs.1,40,000/- and considering the highest offer made by the plaintiff, the Trust and the trustees accepted the offer and agreed to sell the property to the plaintiff for a sum of Rs.1,40,000/- subject to the permission to be obtained from the District Collector, Coimbatore. Therefore, the defendants filed O.P.No.156 of 1980 on the file of the District Judge, Coimbatore seeking permission to sell the property for a sum of Rs.1,40,000/- and after paper publication, the learned District Judge granted permission to the defendants to sell the suit property for a sum of Rs.1,40,000/- to the plaintiff on or before 30.09.1980 stating that the defendants should get permission, if any, from the education department before executing the sale. As the defendants were not able to get the permission from the Education Department, the order dated 25.8.1980 directing the defendants to complete the sale on or before 30.9.1980 was modified and the learned District Judge, by order dated 24.4.1981 deleted the time limit for completing the sale transaction and made it clear that the sale should be subject to sanction being accorded by the Education Department. Even during pendency of O.P.No.156 of 1980, the plaintiff deposited a sum of Rs.1,00,000/- in the Indian Overseas Bank in the name of his counsel and informed the defendants about the deposit. On 23.2.1981, Board of Trustees of the first defendant Trust also unanimously resolved to accept the offer of the plaintiff to purchase the suit property for a sum of Rs.1,40,000/- and also, communicated the same to the plaintiff and therefore, a concluded contract came into existence between the plaintiff and the defendants. The plaintiff was always ready and willing to perform his part of the contract and he was also having sufficient means to complete the sale transaction. However, the defendants changed their attitude and they failed to take any steps with the Education Department for getting permission to sell the property and tried to take advantage of the revised order dated 24.4.1981 and were coming out that they were not bound to execute the sale deed as permission from Education Department had not been forthcoming. The plaintiff understood that the Education Department also expressed their view that their sanction was not necessary. Therefore, the plaintiff filed I.A.No.189 of 1983 in O.P.No.156 of 1980 to implead himself as a party so as to get the order modified and to delete the clause which requires permission from the Education Department as a condition precedent to purchase the property and that petition was dismissed and the revision was filed before the High Court and the same was pending. In the meanwhile, taking advantage of the lapse of time, and appreciation of value of the immovable properties, third parties tried to intervene and also quoted higher price to purchase the property. The tenant, by name, Edward Raja filed an application in I.A.No.638 of 1983 in O.P.No.156 of 1980 to implead himself as a party to purchase the suit property and that was dismissed and after that, no steps were taken by the defendants to sell the property to the plaintiff. Therefore, the plaintiff sent a notice dated 19.9.1993 to the defendants calling upon them to sell the suit property after receiving the balance sale consideration and the defendants sent reply dated 17.10.1993 stating that the property cannot be sold without getting permission from the Education Department. According to the plaintiff, the sale is not subject to the grant of permission from the Education Department and the plaintiff was informed by the defendants that they applied for permission only by way of abundant caution from the Education Department and induced the plaintiff to purchase the suit property and believing their representation, the plaintiff also deposited a sum of Rs.1,00,000/- by reason of the promise made by the defendants, and the plaintiff also did not buy any other property in that locality as he was under the impression that he was going to get the suit property from the defendants. Therefore, the defendants 2 to 9 are personally liable to make good the loss suffered by the plaintiff by their false promise and conduct. As per the order passed by the District Judge in O.P.No.156 of 1980 dated 24.4.1981, the defendants are bound to execute the sale deed in favour of the plaintiff for a sum of Rs.1,40,000/- and therefore, the suit was filed for that purpose.

3. The first and fourth defendants filed a statement admitting the allegation that the suit property belonged to the Trust and also stated that the application was filed before the District Court to sell the suit property for the highest bidder and also to the maximum advantage of the Trust and the sale price ought to be fixed by conducting public auction and mere deposit of any amount by the plaintiff in his name cannot confer any right on the plaintiff to purchase the suit property. It is also stated that the said suit property is situate in Rangai Gowder Street, wherein properties are sold on square feet basis and the transaction between the plaintiff and the defendants is not complete as alleged by the plaintiff. As per the order dated 24.4.1981 made in O.P.No.156 of 1980, the sale was subject to the permission to be granted by the Education Department and it was also made clear that the sanction by the Education Department was a condition precedent for offering sale and therefore, till sanction is obtained, the contract cannot be enforced. They also denied the allegation that they changed their attitude after the order was passed on 24.4.1981. It is further stated that the Education Department have not granted any permission and in the meanwhile, there were more offers offering more than the price offered by the plaintiff and the trustees are bound to sell the property for the highest price and therefore, they are not bound to sell the property to the plaintiff for a sum of Rs.1,40,000/-. Further, the plaintiff filed an application in the year 1983 to modify the order passed on 24.4.1981 by filing I.A.No.189 of 1983 and the same was also dismissed and therefore, the plaintiff cannot seek specific performance of the sale transaction as per the order dated 24.4.1981. They also stated that the tenant offered to purchase the suit property for the higher price and also made an application to the District Court and offered a higher price and that petition was also dismissed and aggrieved against that order, the tenant filed C.R.P.Nos.4666 and 4667 of 1983 on the file of the High Court. It is also stated that the first defendant being a public Trust, it cannot sell the property for a lesser price and the trustees are bound to see that maximum price is obtained for sale of the trust property and therefore, the plaintiff is not entitled to the relief prayed for. It is also stated that the sale had to be completed by 30.9.1980 and the suit was filed only in March, 1984 and, in the meanwhile, no steps were taken to complete the transaction, and therefore, the suit is also barred by limitation.

4. The 11th defendant filed a statement and that was adopted by the defendants 10 and 12 to 17. They contended that they are not necessary parties to the suit and one G.Thirumalai Swamy Nadar, the third defendant was one of the trustees and he was not having any personal interest and on his death, defendants 11 to 17 were impleaded and therefore, they are unnecessary parties and no relief can be obtained against them.

5. On the basis of the above pleadings, the following issues were framed:- (i) Whether the suit is maintainable having regard to the order passed in SLP No.3837 of 1987 dated 31.07.1987?. (ii) Whether the plaintiff is entitled to the relief of specific performance?. (iii) To what other relief, the plaintiff is entitled to?.

6. On the side of the plaintiff, he examined himself as PW.1 and marked 24 Exhibits. On the side of the defendants, no witness was examined and no document was marked. The Trial Court held that the tenant, Edward Raja, filed an application in I.A.No.638 of 1983 in O.P.No.156 of 1980 to implead himself as a party with a view to purchase the suit property and that was dismissed and aggrieved by the same, he filed Civil Revision Petition Nos.4666 and 4667 of 1983 and those revisions were disposed of and the District Judge was directed to sell the suit property to the said Edward Raja, for a sum of Rs.4,00,000/- and the plaintiff challenged the same by filing SLP (Civil) No.3837 of 1987 and the Trust also filed SLP (Civil) No.3563 of 1987 against the order passed in C.R.P.Nos.4666 and 4667 of 1983 and the Hon'ble Supreme Court passed an order in SLP (Civil) No.3563 of 1987 that the suit property need not be sold immediately and if, in the near future, any such need arises for the Trust to sell the property, the same can be sold by public auction at the minimum price of Rs.4,00,000/- and also made it very clear that the said order is without prejudice to the right and contention of the plaintiff in the suit. The Trial Court also held that the plaintiff cannot file a suit directing the trustees to sell the suit property for a lesser price and under Section 20 of the Specific Performance Act, any sale by the trustees would cause serious hardship to the Trust and when the Hon'ble Supreme Court directed the Trust to sell the property by quoting the minimum price of Rs.4,00,000/-, the plaintiff cannot seek direction of the Court to purchase the property for a sum of Rs.1,40,000/- and that the plaintiff has also not proved any damages sustained by him and held that the plaintiff is not entitled to the Relief of Specific Performance and dismissed the suit. Aggrieved by the same, this Appeal is filed.

7. The learned counsel appearing for the appellant/plaintiff submitted that the Curt below without properly appreciating the provisions under Section 20 of the Specific Relief Act, 1963 and also the order passed in SLP (Civil) No.3563 of 1987 dated 31.7.1987, erred in holding that under Section 20 of the Specific Relief Act, 1963, the Court has no discretion to grant the decree of specific performance and even the grant of specific performance is lawful, the Court is not inclined to grant such relief as Section 20 of the Specific Performance Act cannot be applied to the facts of this case. As a matter of fact, if applied, it is in favour of the plaintiff/appellant and relied on the Division Bench order of this Court reported in 2010 (2) CTC751in the matter of B.Nemi Chand Jain v. G.Ravindran. He also submitted that there is a concluded contract between the plaintiff and the first defendant and acting upon the contract, the plaintiff also deposited a sum of Rs.1,00,000/- in his counsel's name, that would show the bona fide of the plaintiff and the District Court after giving public notice, granted permission to sell the property in favour of the plaintiff for a sum of Rs.1,40,000/- and at that time, that was the proper price and the plaintiff was prepared to purchase the property subject to the approval of the Education Department and the defendants cannot take advantage of their own wrong and later on, contend that the price of the property has gone up and therefore, it is not in the interest of the trust to sell the property to the plaintiff for a sum of Rs.1,40,000/- and submitted that the price escalation cannot be a ground to deny the relief of specific performance and relied upon the judgment reported in (2002) 8 Supreme Court Cases 146 in the matter of Nirmala Anand v. Advent Corpn.(P)Ltd; (2004) 6 Supreme Court Cases 649 in the matter of P.D'Souza v. Shondrilo Naidu, in support of his contention. He also submitted that, merely because, the plaintiff has stated in the plaint that he is entitled to claim damages and that would not disentitle the plaintiff to claim the relief of specific performance and relied on the Judgment reported in (1979) 4 Supreme Court Cases 393 in the matter of Prakash Chandra v. Angadlal.

8. On the other hand, the learned counsel for the first respondent submitted that there was no concluded contract between the parties and even as per the order of the District Court in O.P.No.156 of 180 dated 24.4.1981, the sale was subject to the confirmation by the Education Department and it was also made clear that consent from the Education Department was a condition precedent for execution of the sale deed and admittedly, consent was not obtained and therefore, there was no concluded contract between the parties. She also submitted that the plaintiff also filed an application for modification of the condition with respect to sanction from the Education Department by filing I.A.No.189 of 1983 and that was dismissed and the revision filed against that order was also dismissed. She also submitted that the tenant, Edward Raja, filed an Application in I.A.No.638 of 1983 in O.P.No.156 of 1980 to get himself impleaded and to purchase the property and these applications were dismissed and he filed revisions before this Court in C.R.P.Nos.4666 and 4667 of 1983 and that were ordered and the Trust was directed to sell the property to the tenant, Edward Raja, for a sum of Rs.4,00,000/- and that was challenged by the Trust before the Hon'ble Supreme Court in SLP (Civil) No.3563 of 1987 wherein the plaintiff was deprived of the relief as against the respondents and the Hon'ble Supreme Court made it clear that if in the near future, if the Trust wants to sell the property, the property can be sold only by public auction by quoting Rs.4,00,000/- as the minimum price and the SLP filed by the appellant was also dismissed. Even though the Hon'ble Supreme Court observed in SLP (Civil) No.3563 of 1987 that the order was without prejudice to the right of the present appellant that would not give any cause of action for him to purchase the property for Rs.1,40,000/- and being the Trust property, the Trustees are bound to sell the property for proper price which is beneficial to the Trust. Having regard to the lapse of time, if the property is sold to the appellant for Rs.1,40,000/- fixed in the year 1980 that would not be in the interest of justice and considering all these aspects, the Trial Court rightly dismissed the suit.

9. On the basis of the above submissions, the following points for consideration arise in this Appeal:- (i) Whether there was a concluded contract between the plaintiff and the first defendant for the sale of the suit property for a sum of Rs.1,40,000/-?. (ii) Whether the first defendant is bound to sell the property for a sum of Rs.1,40,000/- to the plaintiff/appellant in the light of the order in SLP (Civil) No.3563 of 1987?. (iii) Whether the Court below was right in denying the relief of specific performance in favour of the plaintiff/appellant?.

10. Admittedly, the suit property is a Trust property and the Trust in the year 1980 wanted to sell the property having realised that the property was in dilapidated condition and it would not be advisable to keep the property in that position and by selling the same, the sale proceeds of the property could be utilised for better use. The plaintiff/appellant also approached the first defendant and offered to purchase the property for Rs.1,40,000/- and considering the fact that there was no higher offer than the offer made by the plaintiff/appellant, the first defendant filed O.P.No.156 of 1980 before the District Court, Coimbatore, seeking permission to sell the property for a sum of Rs.1,40,000/-. In that petition, public notice was ordered and considering that there was no offer from the public to purchase the property for more than Rs.1,40,000/-, permission was granted by the District Judge to the first defendant to sell the property to the plaintiff/appellant for a sum of Rs.1,40,000/- subject to the permission to be granted by the Education Department and also fixed the time frame for completing the sale. As per the order in O.P.No.156 of 1980 dated 29.8.1980, the sale has to be completed on or before 30.9.1980. The first defendant applied for extension and that was granted by order dated 1.10.1980 extending time till 14.11.1980 and thereafter, time was further extended by 4 weeks. In the mean while, I.A.No.826 of 1981 was filed to modify the order and the order dated 25.8.1980 was modified on 24.4.1981, and the time stipulated in the earlier order was deleted and it was made clear that obtaining of the permission from the Education Department shall be a condition precedent for the sale. Admittedly, permission was not obtained from the Education Department and it is not the case of the plaintiff/appellant that the first defendant deliberately did not take any steps to get the permission from the Education Department and the only allegation made by the plaintiff/appellant was that there was no necessity to get the permission from the Education Department for executing sale and therefore, the first defendant was bound to execute the sale deed in favour of the plaintiff for a sum of Rs.1,40,000/-. It is seen from the order dated 24.4.1981 made in O.P.No.156 of 1980 that obtaining permission from the Education Department was made a condition precedent for effecting sale. Therefore, whenever a contract is made subject to any condition to be fulfilled, in the absence of fulfilment of such condition, it cannot be said that a completed contract has come into existence between the parties. The plaintiff/appellant also filed I.A.No.189 of 1983 for modification of the condition regarding permission to be obtained from the Education Department and that was dismissed and the revisions filed against that order was also dismissed. Therefore, the plaintiff/appellant was also aware that without getting permission from the Education Department, the property cannot be sold by the first defendant and therefore, it cannot be contended by the appellant that the condition stated in the order dated 24.4.1981 in O.P.No.156 of 1980 that the permission to be obtained from the Education Department was not a condition precedent and it will not stand in the way of getting the sale deed executed and therefore, there exists a concluded contract between the parties.

11. I, therefore, hold that having regard to the condition imposed by the Court below stating that the permission from the Education Department was a condition precedent for getting the sale deed executed, no concluded contract came into existence between the parties and in the absence of any permission granted by the Education Department, the plaintiff is not entitled to get the sale deed executed in his favour as per the order dated 25.8.1980 made in O.P.No.156 of 1980 directing the first defendant to sell the property to him for a sum of Rs.1,40,000/-. Point No.(i) is answered against the appellant.

12. As stated supra, the tenant, Edward Raja, filed an Application before the District Court to get himself impleaded and to purchase the property and those applications were also dismissed and he filed C.R.P.Nos.4666 and 4667 of 1983 and those revisions were ordered directing the District Judge to grant permission to the first defendant to sell the property to Edward Raja for a sum of Rs.4,00,000/-. The first defendant challenged that order by filing SLP (Civil) No.3563 of 1987 in which the present appellant was the second respondent. By order dated 31.7.1987, the Hon'ble Supreme Court passed the following order:- ".This order is without prejudice to the right and contention of respondent No.2 in the suit filed by it. The property is a Trust property. The Trust does not want to sell the property as it does not consider them to be sold immediately. In the premises of the Trust the property in question need not be sold immediately. If in the near future any such need arises the property will be sold by public auction at the minimum price of Rs.4 lacs. The petitioner be refunded the deposit of Rs.3,000/- deposited in Court. The Special Leave Petition is disposed of with these observations.".

13. It is also admitted that the SLP filed by the plaintiff/appellant was also dismissed. Therefore, as per the order of the Hon'ble Supreme Court dated 31.7.1987, there was no necessity for the Trust to sell the property immediately and if the Trust decides to sell the property, in the future, the Trust was directed to sell the property on public auction by quoting the minimum price of Rs.4,00,000/-. Even though it was stated that the order passed in SLP was without prejudice to the right of the appellant herein that would not enable the appellant to purchase the property for a sum of Rs.1,40,000/-. Hence, as per the order dated 31.7.1987 passed by the Hon'ble Supreme Court in SLP (Civil) No.3563 of 1987, the plaintiff is not entitled to purchase the property for a sum of Rs.1,40,000/- and the property can be sold by quoting the minimum price of Rs.1,40,000/- and it cannot be sold for Rs.1,40,000/-. In this connection, the judgment of the Hon'ble Supreme Court, reported in 1989 Supp. (2) SCC356[R.Venugopala Naidu and others vs. Venkatarayulu Naidu Charities and others]., AIR1990SC444 [R.Venugopala Naidu Vs. Venkatgarayulu Naidu Charities]. 2008 (1) CTC279[ P.Arumugam Vs. The State of Tamil Nadu rep. By its Secretary, Commercial Taxes & Religious Endowments Department, Chennai]. are to be considered having regard to the fact that the property is a Trust property and the Trust properties are to be protected.

14. In the judgment reported in 1989 Supp (2) SCC356[R.Vengopalla naidu and others vs. Venkatarayulu Naidu Charities and others]. relying upon the judgment reported in (1986) 3 SCC391[Chenchu Rami Reddy vs. Government of Andhra Pradesh]., the Hon'ble Supreme Court held that the property of Religious and Charitable Endowments or Institutions must be jealously protected and care must be taken to fix the reserve price after ascertaining the market value for safeguarding the interest of the endowment.

15. In AIR1990SC444(R.Venugopala Naidu Vs. Venkatarayulu Naidu Charities]., the judgment reported in AIR1986S.C. 1158 [C.Rami Reddy vs. Government of A.P.]. was followed and the property was directed to be sold in public auction by giving wide publicity regarding the date, time and place of public auction and directed that the reserve price also be after ascertaining the market value.

16. In the judgment reported in 2008 (1) CTC279 in the case of P.Arumugham vs. The State of Tamil Nadu, by its Secretary, Commercial Taxes & Religious Endowments Department, Fort St.George, Chennai 600 009 and others, the Hon'ble Division Bench of this Court in a similar situation, set aside the auction holding that the earlier auction lost its significance in view of the passage of time and the land value had also increased in the mean time. Further, having regard to the nature of the property, namely, temple property, the Court has to protect the interest of the temple.".

17. Therefore, a duty is cast upon the Court to protect the interest of the Trust and even assuming that the Trust entered into an agreement of sale of the Trust property for consideration, that was also disapproved by the Court. Having regard to lapse of time and taking into consideration the interest of the Trust, the Court below is justified in refusing to sell the property for the price fixed 30 years earlier. Therefore, I also hold that the appellant/plaintiff is not entitled to insist that the Court to execute the sale deed or direct the first defendant to sell the property in his favour for a sum of Rs.1,40,000/- and Point No.2 is also answered against the appellant.

18. Learned counsel for the appellant relied upon various judgments with respect to interpretation of Section 20 of the Specific Relief Act and contended that the Court erred in dismissing the suit without exercising the discretion properly. According to me, even accepting the case of the appellant as per the Judgment reported in 2010 (2) CTC751cited supra, wherein the entire case law was discussed, the Court has to exercise discretion properly.

19. Having regard to the fact that the suit property is the Trust property and a duty is cast upon the Court to protect the trust property and to see that the property is sold for a good price and having regard to the answers given to the points for consideration 1 and 2, the Court below also rightly exercised the discretion and refused to grant the discretionary relief of specific performance. Point No.3 is also answered against the appellant.

20. In the result, the Judgment and decree of the Trial Court are confirmed and the Appeal is dismissed. The connected Miscellaneous Petition is closed. No order as to costs. 20.12.2013 Index : yes / no Internet: yes / no asvm To The II Additional Subordinate Judge, Coimbatore. R.S.RAMANATHAN, J (asvm) A.S.No.No.1186 of 1994 and C.M.P.No.17279 of 1994 20.12.2013