Tara Chand vs Jaggi
1998 Latest Caselaw 195 Del

JUDGMENT

S.N. Kapoor, J.

1. The above named plaintiff seeks a decree under Order 8, Rule 10, CPC in abovementioned suit seeking specific performance of an agreement to sell. According to the plaintiff's case, land of the defendant was acquired vide Award Nos. 1935 and 1436 dated 27th January, 1967. Under the scheme of Large Scale Acquisition (Development and Disposal) of Land Delhi, 1961. The case of the defendant was recommended for allotment of the alternative plot of land measuring 400 sq. yards in South Zone by Delhi Administration vide letter No. F.32(27)/4/98/ L&B/Alt. dated 8th October, 1992 to the Delhi Development Authority. In July, 1995, after negotiations in between the parties the defendant agreed to sell her rights in the said recommendation letter alongwith the plot of land to be allotted thereunder in favour of the plaintiff on total sale consideration of Rs. 3.5 lakhs. Accordingly/agreement to sell dated 5th July, 1995 was executed. An amount of Rs. 2.5 lakhs was paid. Balance sale consideration of Rs. 1 lakh remained unpaid and was payable by the plaintiff to the defendant at the tune of entering into the possession of the land and execution of the, registration of the sale in his favour. Simultaneously, the defendant was also required to execute and get the documents of title registered in favour of the plaintiff in regard to the land to be allotted by the Delhi Development Authority. Finally, the Delhi Development Authority had issued an allotment letter dated 12th January, 1996 bearing No. 27/(56)/92/ LSB(R)/940 in favour of the defendant inter alia allotting the plot No. 28 in Sector 10, measuring 325.54 sq. meters in Dwarka Residential Scheme in the name of the defendant at a provisional rate of Rs. 2,061.26p. per sq. meter. The Delhi Development Authority also demanded an amount of Rs. 2,34,857.90p. being 35% of the sale price and the balance was to be deposited in terms of the conditions mentioned in the said letter. Despite receipt of the said allotment-cum-demand letter issued by the Delhi Delhi Development Authority and the contacts made by the plaintiff in the last week of February, 1996, the plaintiff was kept in dark by the defendant. On 12 March, 1996 for the first time a photocopy of the said allotment-cum-demand letter was supplied. The plaintiff wanted to deposit the amount but it transpires that the requisite amount has already been deposited by the plaintiff. When the amount deposited with the Delhi Development Authority was also tendered to the defendant by the plaintiff, the defendant refused to receive the money and declined to complete the transaction in question. Dishonest and mala fide intentions of the defendant had become apparent since the rate of the land has increased. The plaintiff had always been ready and willing to perform his part of the obligation. The plaintiff also served a legal notice through his Counsel Mr. Ravi Gupta, Advocate. The defendant has refused/neglected to perform her part of the obligation and to complete the transaction in question.

2. In this background suit has been filed for specific performance directing the defendant to perform her part of the agreement under the agreement dated March 12, 1990 entered in between the parties and to execute all such necessary documents of title in regard to plot of land going to be allotted by the Delhi Development Authority bearing plot No. 28, Sector-10 measuring 325.54 sq. meters in Dwarka residential scheme in favour of the plaintiff. The plaintiff also seeks alternative relief.

3. The defendant was duly served. Learned Counsel for the defendant appeared and sought time to file written statement as far back as 12th December, 1996. The defendant was given six weeks' time to file written statement on 12th December, 1996, but he failed to file it. On 9th May, 1997, again six weeks' time was sought and it was granted. On 26th September, 1997, four weeks' time was granted by way of last opportunity. The defendant had not filed the written statement so far.

4. Learned Counsel for the defendant sought further time to file written statement, for the defendant was in Bangalore. Learned Counsel for the defendant also stated that he had also sent a draft written statement to the defendant long long ago, but he had not received it back. It appears that there is virtually no satisfactory reason to grant further time. Any defendant who does not want to file written statement and does not give appropriate instructions, no indulgence could be shown to him, who sought and granted time thrice during the last more than one year but failed to file written statement.

5. In such a circumstance, this Court has no option but to proceed under Order 8, Rule 10, CPC and to pronounce judgment accordingly in absence of any written statement.

6. Failure of the defendant to file a written statement as required by this Court means, that he by default admits the allegations made in the plaint. However, if the allegations made in the plaint are to be acted upon then it is required to be seen whether the plaint itself discloses such facts which would justify passing a decree of specific performance, as prayed.

7. What was agreed to be sold was an actionable claim, for plot which was sought to be sold was not in existence and rights in the allotment recommendation were sought to be sold to a sale consideration of Rs. 3.5 lacs vide agreement to sell dated 5th July, 1995. Rs. 1,00,000/- are still payable. The plaintiff was supposed to obtain necessary permission from the Competent Authority at his own expense and was supposed to pay all lease money, levies, fees charges, premium, cost of land etc. charged by the Delhi Development Authority for such allotment directly. In terms of the agreement to sell, the plaintiff was supposed to pay a sum of Rs. 2,34,857.90p. within 60 days from the date of issue of the allotment letter dated 12th January, 1996. If the matter was to be pursued by the plaintiff in terms of the agreement to sell and he was aware of it and if the amount has already been deposited it could only mean one thing that either the plaintiff was not pursuing the matter diligently or he was not in a position to deposit the amount

8. According to the plaintiff, the defendant refused to receive the money. The notice was sent only on 11th June, 1996. Seeing that Rs. 2,34,857.90p. were to be paid by the plaintiff in addition to unpaid sale consideration and Rs. 1,00,000/- are yet to be paid by the plaintiff, it appears desirable that the plaintiff may be directed to deposit the above sum in Court within two weeks alongwith interest at the rate of 12% per annum on Rs. 2,34,857.90P. from 1st March, 1996 and in case the amount is deposited then a decree for specific performance shall stand passed directing the defendant to perform the obligation under the agreement dated 12th March, 1990 by executing all such necessary documents of title in regard to plot of land No. 28 in Sector-10, admeasuring 325.54 sq. meters in Dwarka Residential Scheme in favour of the plaintiff. In case the plaintiff fails to deposit the amount then it will have to be deemed that the plaintiff is not ready and willing to perform his part of the contract and then he will be just entitled to recover Rs. 2,50,000/- with interest at the rate of 12% per annum. In the peculiar facts and circumstances of this, parties are left to bear their own costs.

9. IA No. 5614/96 and Suit No. 1489/96 both stand disposed of accordingly.