Ayang Rinpoche vs Smt Suraksha Gupta And Another
2008 Latest Caselaw 900 Del

           THE HIGH COURT OF DELHI AT NEW DELHI

%                                Judgment delivered on: 02.07.2008

+      CS (OS) 1690/1995

AYANG RINPOCHE                                                    ... Plaintiff

                                  - Versus -

SMT SURAKSHA GUPTA AND ANOTHER                                 ... Defendants
Advocates who appeared in this case:-
For the Plaintiff        : Ms Gurmeet Bindra
For the Defendants       : Mr H.S. Phulka, Sr Advocate with Mr Jasmeet Singh

CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED

1.

Whether Reporters of local papers may be allowed to see the judgment ? YES

2. To be referred to the Reporter or not ? YES

3. Whether the judgment should be reported in Digest ? YES

BADAR DURREZ AHMED, J

1. The plaintiff seeks a decree for specific performance of the

agreement to sell dated 24.01.1995 in respect of the entire second floor

of the property bearing No. II/O-59, Lajpat Nagar, New Delhi

(hereinafter referred to as „the suit premises‟) alongwith proportionate

share of the leasehold rights in the land beneath the building. The

plaintiff also prayed for a decree of possession in respect of the suit

premises as well a decree of perpetual injunction restraining the

defendants from alienating, selling, letting out or parting with

possession of the suit property in any manner whatsoever.

2. It is alleged in the plaint that sometime in the month of January,

1995, the plaintiff came to know that the defendants were interested in

selling the suit premises. The plaintiff contacted the defendants

through Mr Pradeep Sharma (PW-4), a property dealer, and after

negotiations, the said agreement dated 24.01.1995 (Exhibit PW-1/A)

was executed. The sale consideration for the suit premises was fixed at

Rs 25,00,000/- out of which the plaintiff made a part payment of Rs

5,00,000/- on 24.01.1995 itself. The said sum of Rs 5 lakhs comprised

of Rs 3 lakhs in cash and a sum of Rs 2 lakhs by way of cheque bearing

No.313815 dated 24.01.1995 drawn on Bank of America, Hansalaya

Building, Barakhamba Road, New Delhi. It is further averred that the

balance sale consideration was to be paid by the plaintiff at the time of

registration of the sale deed. However, a further sum of Rs 5,00,000/-

was paid by the plaintiff to the defendants on 07.03.1995. It is also

alleged that the plaintiff spent Rs 87,651.72 on fittings and fixtures and

that the defendants had agreed to adjust this amount towards the total

sale consideration. It was stated in the plaint that the parties had agreed

that possession of the premises would be handed over by the defendants

to the plaintiff on or before 05.03.1995. However, on account of non-

completion of the construction, the same could not be handed over to

the plaintiff. It is also alleged that though the timely delivery of the

possession was one of the conditions of the agreement, owing to the

delay in construction, the plaintiff agreed to grant further time of two

months for completing the same. It is averred that the construction of

the suit premises, the second floor of the said property, was completed

in the first week of June, 1995.

3. It is further alleged that on completion of construction, the

plaintiff approached the defendants alongwith Mr Pradeep Sharma

(PW-4), the property dealer for handing over the possession and the

final documentation and payment of the balance amount as agreed. It is

alleged that the defendants declined to hand over possession and started

demanding a further sum of Rs 5 lakhs over and above the agreed sale

consideration of Rs 25 lakhs. It is alleged that the defendants have

declined to comply with the agreement and hand over possession of the

suit premises unless and until a further payment of Rs 5 lakhs was

made to them by the plaintiff, who, left with no other option, sent a

legal notice on 10.07.1995 by registered post calling upon the

defendants to perform their part of the agreement within three days

failing which the plaintiff would have to seek legal remedies. The

plaintiff did not receive any reply to the legal notice. It is also averred

that the plaintiff has at all times been and is still willing to perform his

part of the contract by paying the balance sale consideration as soon as

the sale deed is executed and registered in his favour. It is on the basis

of these allegations and averments that the present suit for specific

performance of the agreement dated 24.01.1995 has been filed.

4. In their written statement, the defendants have taken the plea that

time was of the essence of the agreement and as the plaintiff had failed

and / or neglected to discharge his obligations within the time specified,

he has forfeited his right to specific performance and possession in

terms of the agreement dated 24.01.1995. It was alleged that the

plaintiff has committed breach of contract and has defaulted in making

the payment of balance sale consideration of Rs 20,00,000/- and thus

the plaintiff has forfeited his right to possession. It was stated on

behalf of the defendants that the plaintiff had paid a sum of Rs 5 lakhs

as earnest money at the time of execution of the agreement to sell. The

defendants denied that any further sum of Rs 5 lakhs was paid in cash

apart from the said earnest money. It was alleged that under the

agreement to sell, the plaintiff was required to make the payment of

balance amount of Rs 20 lakhs by 05.03.1995. But, the plaintiff did not

have the money and requested for some more time. The plaintiff

offered to pay an amount of Rs 5 lakhs and requested for more time to

arrange the balance money. It is alleged that the property dealer (Mr

Pradeep Sharma) brought a receipt to the defendants and stated that the

plaintiff has arranged Rs 5 lakhs and is prepared to pay in cash and

requested the defendants to sign the receipt so that he can collect the

money from the plaintiff. Subsequently, Mr Pradeep Sharma informed

the defendants that the plaintiff had taken the receipt from him but had

not made the payment. The defendants further stated that it is totally

wrong and denied that the defendants were paid an amount of Rs 5

lakhs on 07.03.1995 and that the plaintiff has spent any amount

towards fittings and fixtures. The defendants also denied that the

construction was not complete on 05.03.1995. It is also averred by the

defendants that the plaintiff was requested a number of times to make

the balance payment, but the plaintiff failed to pay the balance sale

consideration. The defendants also denied that they had demanded a

further sum of Rs 5 lakhs over and above the agreed sale consideration

of Rs 25 lakhs. On the basis of these averments, the defendants

submitted that the suit was liable to be dismissed with costs.

5. In the replication filed by the plaintiff, the contents of the plaint

were reiterated. With regard to the receipt dated 07.03.1995, it was

stated that the defendants have concocted the story that the property

dealer (Mr Pradeep Sharma) took the signature on a receipt without

payment to them. It was reiterated that the defendants failed to hand

over vacant physical possession of the suit premises due to non-

completion of construction and that the plaintiff was ready to take over

the possession after making final payments and no request was made by

him for extension of time for making the payments.

6. On the basis of the aforesaid pleadings, the following issues were

framed on 03.12.1997:-

"1. Whether the suit is not maintainable in the present form ? OPD

2. Whether the suit is not maintainable on the ground that agreement violates provisions of 269 of Income Tax Act ? OPD

3. Whether the suit is properly valued ? OPP

4. Whether the suit is barred as no permission from the lessor i.e. President of India to sell a portion of the property has been obtained ? OPD

5. Whether the plaintiff paid an amount of Rs 5 lacs to defendants on 7.3.95 ? OPP

6. Whether the plaintiff compiled (sic) all the terms and conditions of the agreement to sell ? OPP

7. Whether the plaintiff was ready and willing to perform his part of the contract ? OPP

8. Whether the plaintiff is entitled to relief of specific performance to the agreement to sell dated 24.1.95 ? OPP

9. Relief."

7. The plaintiff has produced the following documents:-

1) Exhibit PW-1/A: Agreement to Sell dated 24.01.1995;

2) Exhibit PW-1/B: Original Receipt for the sum of Rs 5 lakhs

dated 24.01.1995;

3) Exhibit PW-1/C: Original Receipt for the sum of Rs 5 lakhs

dated 07.03.1995;

4) Exhibit PW-1/D: Carbon Copy of the legal notice dated

10.07.1995;

5) Exhibit PW-1/E: Original Postal Receipts dated

10.07.1995.

The following persons filed affidavits by way of evidence on behalf of

the plaintiff:-

1) Mr Ayang Rinpoche [Plaintiff (PW-1)];

2) Ms True Lhamo [Plaintiff‟s wife (PW-2)];

3) Mr Dorjee Wangdi Deweatshang [Plaintiff‟s friend and

witness to the agreement (PW-3)];

4) Mr Pradeep Sharma [Property dealer and witness to the

agreement (PW-4)].

The defendants‟ witnesses were:-

1) Mr Saudagar Shah Gupta [DW-1];

2) Mr Vijay Kumar [Official from BSES (DW-2)];

3) Mr Anil Gupta [Defendant No.2‟s son (DW-3)];

8. At the time of commencement of final arguments, the counsel for

the parties agreed that Issue No.2 does not survive for consideration.

Furthermore, the learned counsel for the defendants did not press issue

Nos. 1, 3 and 4. This leaves Issue Nos. 5 to 8. Issue No. 9 being -

relief.

Issue No.5

9. As noted above, the plaintiff has prayed that a sum of Rs 5 lakhs

was paid to the defendants on 07.03.1995. The original receipt (Exhibit

PW-1/C) has been produced and proved by the plaintiff. The said

receipt has been signed by both the defendants. The witnesses to the

said receipt are Mr Anil Gupta [Defendant No.2‟s son (DW-3)] and Mr

Pradeep Sharma [property dealer (PW-4)].

10. In his cross-examination, Mr Saudagar Shah Gupta (DW-1) has

identified his signature at point „Y‟ in Exhibit PW-1/C. The said

receipt Exhibit PW-1/C clearly states that a sum of Rs 5 lakhs was

received from Mr Ayang Rinpoche Lama (plaintiff) in cash as part

payment towards the sale of the entire second floor of the property

bearing No. II/O-59, Lajpat Nagar, New Delhi as per the terms and

conditions of the agreement to sell dated 24.01.1995. The receipt is

stated to have been signed at New Delhi on 07.03.1995. The said

document as well as the signatures thereon have been admitted. No

contrary evidence has been produced by the defendants to indicate that

the sum of Rs 5 lakhs was not received by them from the plaintiff as

indicated in the receipt. The only conclusion that can be drawn is that

the plaintiff paid an amount of Rs 5 lakhs to the defendants on

07.03.1995. This issue is, therefore, decided in favour of the plaintiff

and against the defendants.

11. These three issues are being dealt together inasmuch as they are

interlinked. The plea of the plaintiff is that he was ready and willing to

complete the transaction as agreed upon by virtue of the agreement to

sell dated 24.01.1995. The transaction could not be completed because

the defendants had resiled from their commitment to complete the

construction in time and to hand over actual physical possession thereof

to the plaintiff. On the other hand, the defendants had taken the plea

that time was of the essence of the contract and as per the agreement,

the due date of performance was 05.03.1995. The plaintiff did not

come up with the money by that date and, therefore, is not entitled to

seek specific performance of the agreement dated 24.01.1995. It is also

alleged on behalf of the defendants that the plaintiff was not ready and

willing to perform his part of the contract and was not ready with the

payment on 05.03.1995. It was contended that the plaintiff has not

discharged the onus of proving his readiness on 05.03.1995 as no

evidence in the form of bank passbook or a bank statement has been

produced to indicate that the plaintiff had the funds available with him.

The learned counsel for the defendant also referred to the cross-

examination of PW-1 where he refused to answer the question with

regard to his bank statements as well as with regard to filing of income

tax returns and source of cash amounts. The learned counsel appearing

on behalf of the defendants placed reliance on Section 114 of the

Evidence Act to submit that if a man refuses to answer a question, then

a presumption unfavourable to him can be drawn. Since the plaintiff

refused to answer the question with regard to his bank statement,

income tax returns and source of funds, the presumption can be drawn

that the plaintiff had no money in the account. It was, therefore,

contended that the plaintiff has not been able to establish his readiness

and willingness.

12. It was also contended that on 09.04.1999, this court had directed

the plaintiff to deposit the balance consideration of Rs 15 lakhs within

six weeks. The plaintiff had sought extension of time for making the

deposit and by an order dated 17.05.1999, the court granted the

extension of a further six weeks as a last opportunity. It was contended

that though the plaintiff deposited the amount of Rs 15 lakhs within the

extended period, the important thing to note is that the plaintiff did not

have the necessary funds when the order dated 09.04.1999 was made.

Referring to the Supreme Court decision in the case of Ambika Prasad

Thakur and Others etc. v. Ram Ekbal Rai (dead) by his legal

representatives and others etc.: AIR 1966 SC 605, the learned counsel

for the defendants submitted that a presumption can be drawn both

forwards and backwards with regard to the readiness of the plaintiff.

Though, this presumption would weaken through passage of time. It

was, therefore, contended that if the plaintiff did not have money in

1999, it could be presumed that he did not have money in 1995 also. It

was further contended that this presumption was rebuttable. But, the

plaintiff has not produced any evidence to rebut the same. The learned

counsel also referred to the following decisions:-

1) P.G. Sinha (Panchu Gopal Sinha) v. Commodore K.C.

Chatterjee and Others: AIR 1991 Cal. 327;

2) His Holiness Acharya Swami Ganesh Dassji v. Sita Ram Thapar: 1996 (4) SCC 526;

3) Erikkil Thavatha Basheer v. Poopurambath Kaithal Khadeeja: AIR 2001 Kerala 346.

These decisions essentially indicate that the plaintiff must plead and

prove that he was ready and willing from the date of the contract till the

date of hearing and that readiness and willingness must both be

established by specific evidence such as availability of the balance

amount.

13. With regard to the allegation that the suit property was not ready

on the due date, i.e., 05.03.1995, the learned counsel for the defendants

submitted that the electricity meter had been applied for in respect of

the suit premises on 06.02.1995. The electricity meter for the suit

premises was installed / energized on 03.04.1995. He referred to the

evidence of DW-2 Vijay Kumar who was the Assistant Manager,

Power Supply, BSES which does indicate that the application was

deposited on 06.02.1995 and that an inspector had visited the premises

on 27.03.1995. The evidence of DW-2 also indicates that the meter

was energized after verifying that construction of the second floor had

been completed. The learned counsel also referred to the decision of

the Supreme Court in the case of P.R. Deb and Associates v. Sunanda

Roy: 1996 (4) SCC 423 to submit that the claim of the plaintiff was

unreasonable and, therefore, there was no question of specific

performance of the agreement.

14. The learned counsel appearing on behalf of the plaintiff

submitted that it was specifically averred in the plaint that the

construction was not completed and the possession had not been

handed over. It is because of this that the balance consideration was

not paid. The plaintiff was ready and willing at all times to complete

his part of the contract. The learned counsel also submitted that the

plaintiff was a Budhist monk and spoke only in Bhutia and required a

translator for the purposes of cross-examination. She submitted that

this factor must also be kept in mind while looking at his conduct and

evidence. It was contended that the defendants turned dishonest and

attempted to resile from the contract. It was submitted that this can be

easily demonstrated from the fact that the defendants in their written

statement had denied having received the sum of Rs 5 lakhs on

07.03.1995, when, in fact, it has been established that the defendants

did receive the sum of Rs 5 lakhs against a written receipt (Exhibit PW-

1/C) on 07.03.1995. She submitted that it is because the defendants

denied having received the said sum of Rs 5 lakhs that they were

demanding the balance of Rs 20 lakhs, when, in fact, the balance

consideration was only Rs 15 lakhs. The plaintiff has pleaded that the

defendants were demanding a sum of Rs 5 lakhs over and above the

sum of Rs 25 lakhs agreed upon. This was being done because the

defendants were denying having received the sum of Rs 5 lakhs on

07.03.1995.

15. With regard to the plaintiff‟s refusal to answer the questions

relating to the sources of cash, income tax returns, etc., the learned

counsel for the plaintiff submitted that the refusal was in connection

with the sum of Rs 5 lakhs cash which was paid on 07.03.1995. The

learned counsel submitted with reference to the evidence of PW-2 that

the plaintiff had the money in 1999 also, immediately upon the passing

of the order dated 09.04.1999, but the balance of Rs 15 lakhs could not

be deposited in the first instance because the plaintiff was travelling. It

was also pointed out by the learned counsel for the defendants that the

defendants cannot contest this suit after the counsel for the defendants,

on instructions from the defendants, had made the categorical statement

that "the defendants are ready and willing to execute the sale deed

provided the balance amount due and payable pursuant to the

agreement to sell is paid and deposited by the plaintiff in this court

within four weeks from today alongwith reasonable interest". It is

upon this statement that the court directed the plaintiff to deposit Rs 15

lakhs within six weeks in order to show the bona fides of the plaintiff.

The order dated 09.04.1999 specifically records that the liability of

payment of interest, if any, shall be considered on the next date. By an

order dated 17.05.1999, upon the plaintiff requesting further time to

deposit the sum of Rs 15 lakhs, as a last opportunity to the plaintiff, this

court granted six weeks time to make the said deposit. It is an admitted

position that the deposit was made within the extended period of time.

The question of liability of the payment of interest has, however, not

been decided till date. In the backdrop of these circumstances and

orders of the court, the learned counsel for the plaintiff submitted that

the defendants cannot now resist this suit for specific performance after

having clearly stated before this court that they were ready and willing

to execute the sale deed provided the balance amount pursuant to the

agreement to sell is paid alongwith reasonable interest. The learned

counsel for the plaintiff also referred to the decision of the Supreme

Court in the case of Aniglase Yohannan v. Ramlatha and Others: JT

2005 (8) SC 499 in support of his case for specific performance.

16. It is an admitted position that the plaintiff and the defendants

entered into the agreement to sell dated 24.01.1995 (Exhibit PW-1/A).

The said agreement recites that the defendants are the absolute owners

of the property bearing No. II/O-59, Lajpat Nagar, New Delhi

measuring 200 sq. yds. having purchased the same from Smt. Meena

Kapur. It is also recited that the defendants were constructing the said

property and the construction was presently under progress. It was

further recited that the defendants have agreed to sell the entire second

floor of the said property along with proportionate share of the

leasehold rights in the land underneath to the plaintiff for a total sale

consideration of Rs 25 lakhs and the plaintiff has agreed to purchase

the same from the defendants. Clause 1 of the agreement clearly states

that a sum of Rs 5 lakhs (Rs 3 lakhs in cash and Rs 2 lakhs vide cheque

No.313815 dated 24.01.1995 drawn on the Bank of America,

Hansalaya, Barakhamba Road, New Delhi) has been received by the

defendants from the plaintiff as advance earnest money / part payment

at the time of signing of the agreement. It also stipulates that the

remaining balance of Rs 20 lakhs shall be received by the defendants

from the plaintiff "at the time of handing over the vacant physical

possession of the entire second floor, complete in all respects, to the

second party, on or before 5.3.1995". A receipt (Exhibit PW-1/B) was

also executed for the said sum of Rs 5 lakhs received on 24.01.1995.

17. Clause 2 of the said agreement stipulates that the defendants

undertake to hand over vacant and physical possession of the entire

second floor, complete in all respects to the plaintiff, on or before

05.03.1995 against receipt of the balance payment.

18. These stipulations in the agreement to sell (Exhibit PW-1/A) have

been sought to be interpreted by the learned counsel for the defendants

as a stipulation of time being the essence of the contract.

19. In this context, the provisions of Section 55 of the Indian

Contract Act, 1872 need to be examined. The said provision reads as

under:-

"55. Effect of failure to perform at fixed time, in contract in which time is essential.--When a party to a contract promises to do a certain thing at or before a specified time, or certain things at or before a specified time, and fails to do any such thing at or before a specified time, the contract, or so much of it as has not been performed, becomes voidable at the option of the promisee, if the intention of the parties was that time should be of essence of the contract.

Effect of such failure when time is not essential.--If it was not the intention of the parties that time should be of the essence of the contract, the contract does not become voidable by the failure to do such thing at or before the specified time; but the promisee is entitled to compensation from the promisor for any loss occasioned to him by such failure.

Effect of acceptance of performance at time other than that agreed upon.--If, in case of a contract voidable on account of the promisor's failure to perform his promise at the time agreed, the promisee accepts performance of such promise at any time other than agreed, the promisee cannot claim compensation for any loss occasioned by the non-performance of the promise at the time agreed,

unless, at the time of acceptance, he gives notice to the promisor of his intention to do so."

20. In the context of the first part of Section 55, the Supreme Court,

in the case of Gomathinayagam Pillai and Others v. Palaniswami

Nadar: AIR 1967 SC 868 observed as under:-

"... It is not merely because of specification of time at or before which the thing to be done under the contract is promised to be done and default in compliance therewith, that the other party may avoid the contract. Such an option arises only if it is intended by the parties that time is of the essence of the contract. Intention to make time of the essence, if expressed in writing, must be in language which is unmistakable: it may also be inferred from the nature of the property agreed to be sold, conduct of the parties and the surrounding circumstances at or before the contract. Specific performance of a contract will ordinarily be granted, notwithstanding default in carrying out the contract within the specified period, if having regard to the express stipulations of the parties, nature of the property and the surrounding circumstances, it is not inequitable to grant the relief. If the contract relates to sale of immovable property, it would normally be presumed that time was not of the essence of the contract. Mere incorporation in the written agreement of a clause imposing penalty in case of default does not by itself evidence an intention to make time of the essence... "

It is apparent from the above extract that intention of making time of

the essence, if expressed in writing, must be in language which is

unmistakable though it may also be inferred from the nature of the

property agreed to be sold, conduct of the parties and the surrounding

circumstances at or before the contract. It must also be noted that if the

contract relates to sale of immovable property, as in the present case, it

would normally be presumed that time was not of the essence of the

contract. The Supreme Court has gone to the extent of stating that

mere incorporation in the written agreement of a clause imposing

penalty in case of default, does not by itself evidence an intention to

make time of the essence.

21. Armed with these principles, let me consider the provisions of the

agreement to sell (Exhibit PW-1/A). Clause 1 stipulates that the

balance of Rs 20 lakhs shall be received by the defendants from the

plaintiff at the time of handing over the vacant and physical possession

of the entire second floor, complete in all respects to the plaintiff on or

before 05.03.1995. Does this mean that if vacant physical possession is

not handed over by the defendants to the plaintiff on or before

05.03.1995, the plaintiff would have lost his right under the agreement

to purchase the suit premises ? This is not the intention of the parties

which can be discerned from reading the agreement (Exhibit PW-1/A).

Reading clause 1 alongwith clause 2 of the agreement, the stipulation

of 05.03.1995 is more in respect of the defendants handing over vacant

and physical possession of the suit premises, complete in all respects, to

the plaintiffs, on or before 05.03.1995 than is it a stipulation indicating

time being of the essence of the contract for performance of the

plaintiff‟s obligations under the contract. In view of the provisions of

the contract, it appears that the stipulation of 05.03.1995 was to put an

urgency on the construction of the suit premises by the defendants.

22. In any event, the question that requires consideration at this stage

is whether the suit premises was "complete in all respects" on

05.03.1995 or not ? The plaintiff has alleged that the construction of

the suit premises was not complete on 05.03.1995 and that the

construction was completed only in the first week of June, 1995. On

the other hand, the defendants have contended that the construction of

the suit premises was complete on 05.03.1995. In support of this, they

have produced Mr Vijay Kumar (DW-2) to indicate that the electricity

meter was installed and energised on 03.04.1995 and the same could

only be done when construction was complete. It was submitted that

the application for the electricity meter was made on 06.02.1995 even

prior to 05.03.1995.

23. Considering the deposition of Vijay Kumar (DW-2), all that can

be concluded is that an inspection was carried out on 27.03.1995 and

that the electricity meter in respect of the suit premises was installed

and energised on 03.04.1995. Even if it is assumed that when the

inspection was carried out on 27.03.1995, the construction had been

completed, nothing has been brought on record to establish that the

construction of the suit premises had been completed in all respects and

that it was ready for handing over of vacant physical possession on or

before 05.03.1995.

24. Therefore, the defendants cannot avoid the contract. Firstly,

because time was not of the essence of the contract as contemplated by

the learned counsel for the defendants. The normal rule as indicated in

Gomathinayagam Pillai (supra) would be applicable and which is that

in contracts relating to sale of immovable property, it has to be

normally presumed that time was not of the essence of the contract.

The mere incorporation of the date of 05.03.1995 would, also, by itself

not amount to evidence of an intention to make time of the essence.

The depositions of PW-1 and PW-2 also indicate that 05.03.1995 was a

date fixed for due performance of the contract on the part of the

defendants. Secondly, in any event, the defendants could only claim

avoidance of the agreement to sell (Exhibit PW-1/A) if it was

established as a matter of fact that the suit premises was ready for

handing over of vacant and physical possession, complete in all

respects, to the plaintiff, on or before 05.03.1995. This, unfortunately,

has not been established as a fact.

25. As regards the readiness and willingness of the plaintiff, it must

be seen that a sum of Rs 5 lakhs stood paid on the date of the

agreement itself, i.e., 24.01.1995. The plaintiff has pleaded that he was

ready and willing to pay the balance amount immediately upon handing

over of the possession of the suit premises. It has come in his evidence

that the defendants requested for extension of time for completing the

construction. It has also been established under Issue No.5 that a

further sum of Rs 5 lakhs was paid by the plaintiff to the defendants on

07.03.1995, two days after the so-called terminal date. This is also an

indicator that the defendants themselves did not treat 05.03.1995 as the

terminal date inasmuch as they accepted the payment of Rs 5 lakhs

towards sale consideration of the suit premises on 07.03.1995 without

any demur. The story put forth by the defendants cannot be given

much credence, if at all. This stands established from the fact that

while they had pleaded that they did not receive the sum of Rs 5 lakhs

on 07.03.1995, they admitted having signed the receipt dated

07.03.1995. It has already been held that the story behind the signing

of the receipt as pleaded in the written statement is a mere concoction

and fabrication which cannot be believed. No person would sign a

receipt of a payment received in cash without actually having received

the said amount.

26. It must also be kept in mind that in the order dated 09.04.1999,

the learned counsel for the defendants, on instructions from the

defendants, had stated that they were ready and willing to complete the

sale transaction on receipt of the balance consideration alongwith

reasonable interest thereon. It is on the basis of this statement that the

plaintiff was directed to deposit the balance amount of Rs 15 lakhs.

The plaintiff did so, though within the extended period of time. The

said amount has been lying in a fixed deposit with this court and is

earning interest thereon. The plaintiff has, therefore, done whatever it

could do to complete his part of the transaction. He has demonstrated

that he was ready and willing to comply with his part of the transaction.

At the time of signing of the agreement, a sum of Rs 5 lakhs was paid.

Though, the plaintiff was not required to pay any amount till the

possession was handed over to him, the plaintiff still made the payment

of Rs 5 lakhs on 07.03.1995. All the questions with regard to bank

account, income tax returns relate to the plaintiff‟s source of funds. His

refusal to answer such questions does not lead to the conclusion that the

plaintiff did not have the funds. The fact that the plaintiff made the

aforesaid payments indicates that he did have the funds. The plaintiff

sent a legal notice on 10.07.1995 indicating his readiness and

willingness to pay the balance amount on the defendants handing over

vacant and physical possession of the suit premises. Since that was not

forthcoming, the plaintiff was constrained to file the present suit. The

balance amount of Rs 15 lakhs has already been deposited by the

plaintiff in this court as indicated above. There is nothing left for the

plaintiff to do. The plaintiff has clearly indicated his readiness and

willingness to abide by the terms of the agreement to sell (Exhibit PW-

1/A) at all material times. It is for the defendants to comply with their

part of the agreement by parting with possession of the suit premises

and by executing the sale deed and having the same registered so as to

complete the transaction agreed upon by virtue of the said agreement to

sell dated 24.01.1995 (Exhibit PW-1/A).

27. Thus, Issue Nos. 6, 7 and 8 are decided in favour of the plaintiff

and against the defendants.

Issue No. 9 (Relief)

28. In view of the discussion in respect of Issue Nos. 5 to 8 above,

the plaintiff is entitled to a decree in terms of prayers „a‟, „b‟ and „c‟ as

set out in the plaint. Simultaneously upon such decree, the defendants

shall be entitled to the sum of Rs 15 lakhs alongwith interest thereon

deposited in court pursuant to the order dated 09.04.1999 and

17.05.1999. It is ordered and decreed accordingly.

The suit and all pending applications stand disposed of.

( BADAR DURREZ AHMED ) JUDGE July 02, 2008 dutt