TMI Blog2021 (5) TMI 198X X X X Extracts X X X X X X X X Extracts X X X X ..... n the face of it, is barred by law and the contravention of the law must be clear and unambiguous from the plaint itself. A Court which is called upon to decide the issue cannot engage with the alleged statutory violation or the fact to be determined beyond the limits of what the plaint discloses. The letter dated 14th December, 1989 would have served the objective of the defendant no.3 of having the suit dismissed if by such letter the Court could have come to an indisputable conclusion that Helen Wilson, a foreign national, had alienated the property by way of sale or gift or otherwise in favour of the plaintiff without first obtaining the permission from the Reserve Bank of India under Section 31(1) of FERA. This is obviously not the case since the plaintiff was constrained to file a suit on 18th July, 1990 precisely because the agreement had not been executed hence necessitating a direction on the original defendant to execute and register the deed of conveyance in terms of the agreement for sale dated 2nd January, 1989. The contention of the applicant in respect of Section 31(1) of FERA, subject to Section 49(3) of FEMA setting the time-limit for cognizance of any offenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Asha John Divianathan vs. Vikram Molhotra; in Civil Appeal No.9546 of 2010 in this regard. Counsel relies on Mayawanti vs. Kaushalya Devi; (1990) 3 SCC 1 in support of the proposition that specific performance of a contract can only be in relation to existence of a valid and enforceable contract. It is also submitted that although FERA was subsequently repealed, the said Act was in operation at the relevant point of time and hence required mandatory compliance of Section 31(1) of the Act in the absence of which the agreement would become void under Sections 23 and 24 of the Indian Contract Act, 1872. Counsel also refers to Section 6 of The General Clauses Act, 1897on the effect of repeal to submit that unless a contrary intention appears, repeal of a statute would not affect any right, privilege, obligation or liability accrued or incurred under the repealed statute. 3. Mr. Krishnaraj Thaker, learned counsel appearing for the plaintiff submits that Section 31 of FERA does not require the foreign national to obtain permission at the time of entering into the agreement for sale since the permission contemplated under the said provision is required to be obtained before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt no.3 claims to be the sole Executor of the Will of the deceased vendor Helen Wilson. Upon the demise of the original plaintiff on 22nd December, 2020, the legal heirs of the original plaintiff have also been substituted in his place and stead. 6. The present application has been filed by the defendant no.3 for dismissal of the suit and rejection of the plaint under Order VII Rule 11 of The Code of Civil Procedure, on the ground that the suit is barred by law; Order VII Rule 11(d). It is the case of the defendant no.3 that Helen Wilson, since deceased, had gifted the property in question by way of a Will to the defendant no.3. The defendant no.3 has applied for grant of probate on that basis. The application for grant of probate has been challenged by the plaintiff. 7. The ground urged by the defendant no.3 for dismissal of the suit is that the agreement for sale is hit by Section 31 of FERA, 1973 and is void which bars the suit filed by the plaintiff for specific performance of the said agreement for sale. 8. The case of the defendant no.3 applicant rests on a letter dated 14th December, 1989 which has been referred and annexed to in paragraph 10 of the plaint and was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s required to be obtained before execution of the Sale Deed and registration of the same and not before entering into an agreement for sale. 10. In Vishwa Nath Sharma, a defence was taken by the vendor that the agreement for sale was void as prior permission of the concerned Officer had not been obtained in violation of a specific condition of the lease deed which provided that no transfer was permissible without prior permission of the Land and Development Officer. The Supreme Court, relying on the decision of the Privy Council, in Motilal vs. Nanhelal; AIR 1930 PC 287, was of the view that if after the grant of the decree of specific performance of the contract, the authority refused to grant permission for sale, the decree holder may not be in a position to enforce the decree but disagreed with the view that such permission is a condition precedent for passing a decree for specific performance of the contract. The other relevant facet of the present case is Section 47(2) of FERA which provides that it shall be an implied term of every contract governed by the law of any part of India that anything agreed to be done by any term of that contract which is prohibited to be do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of judicially and clarified that the expression cognizance indicates the point when a Court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence. The aforesaid decision assists the plaintiff/respondent in limiting the Court s power to take judicial notice of the contravention of Section 31(1) of FERA at the time of entering into the agreement for sale dated 2nd January, 1989. It is relevant to state that Section 6 of the General Clauses Act, 1897, - Effect of Repeal relied on by the defendant no.3, enumerates certain instances which would remain untouched by the repeal of a Central Act or Regulation made after the commencement of the General Clauses Act (GCA). Section 6 of the GCA cannot, however, assist the applicant by reason of the expression unless a different intention appears,............. which must, by implication, be construed as the sunset period of FERA as contemplated under Section 49(3) of FEMA. Since this Court has been invited to take judicial notice of an offence under FERA in September 2020, almost 20 years after commission of the alleged offence, this Court is powerless to do so under the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intiff seeking specific performance of the agreement or in other words for the execution of the registered conveyance by the original defendant. The subject matter of challenge by the defendant no.3 for dismissal of the suit is the agreement for sale. Since the suit is for specific performance of the agreement, transfer of property had admittedly not taken place on the date of filing of the suit. Prayer (b) of the plaint makes the aforesaid position clear. By this prayer, the plaintiff has sought for a decree directing the original defendant and her assigns, etc. to execute and register in due form of law, the deed of conveyance in respect of the subject premises in terms of the agreement dated 2nd January, 1989, in favour of the plaintiff. 14. The defendant no.3 has based his challenge to the filing and continuation of the suit on the premise that the original defendant no.1 Helen Wilson could not have agreed to sell the property in favour of the plaintiff in the absence of approval granted to Helen Wilson to sell the property to the plaintiff. According to the defendant no.3, the agreement dated 2nd January, 1989 is rendered non est in view of the bar contained in Section 31 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, 1993 of the RBI granting permission to Helen Wilson under Section 31(1) of FERA. The letter of 8th October, 1993 has been brought on record by the applicant defendant no.3 as a part of the application for dismissal of the suit. Order VII Rule 11(d) applies where the plaint, on the face of it, is barred by law and the contravention of the law must be clear and unambiguous from the plaint itself. A Court which is called upon to decide the issue cannot engage with the alleged statutory violation or the fact to be determined beyond the limits of what the plaint discloses. The letter dated 14th December, 1989 would have served the objective of the defendant no.3 of having the suit dismissed if by such letter the Court could have come to an indisputable conclusion that Helen Wilson, a foreign national, had alienated the property by way of sale or gift or otherwise in favour of the plaintiff without first obtaining the permission from the Reserve Bank of India under Section 31(1) of FERA. This is obviously not the case since the plaintiff was constrained to file a suit on 18th July, 1990 precisely because the agreement had not been executed hence necessitating a direction on the origin ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
