Delhi High Court
Shahjad Dagar vs Naresh Gujral on 24 November, 2008
Author: Pradeep Nandrajog
6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No.833/2005
Date of decision: 24th November, 2008
%
SHAHJAD DAGAR ..... Appellant
Through: Mr. Kamlesh Kumar, Advocate.
versus
NARESH GUJRAL ..... Respondent
Through : None.
CORAM :-
THE HON'BLE MR.JUSTICE PRADEEP NANDRAJOG
THE HON'BLE MR. JUSTICE J.R. MIDHA
1. Whether Reporters of Local papers may
be allowed to see the Judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be
reported in the Digest?
Pradeep Nandrajog, J. (Oral)
1. The appellant who was the plaintiff could not succeed
even at an ex-parte trial in obtaining a decree for specific
performance of the agreement to sell, Ex.P-1. Unfortunately
even the earnest money paid in sum of Rs.50,000/- has not
been refunded to the appellant.
2. The respondent i.e. the defendant has chosen to abstain
even in the instant appeal in spite of being served by
publication. Thus, we proceed ex-parte against the
respondent.
3. Learned Counsel for the appellant urges that the learned
trial judge has returned findings based on illogical
presumption requiring corrective action to be taken in appeal.
But, counsel concedes that in view of the fact that the
agreement to sell, Ex.P-1, is dated 20.12.1990 and that his
client sought decree for specific performance on 16.12.1993,
after serving a notice of demand on 26.11.1993, Ex.P-2,
specific performance of the agreement to sell may not be
granted to his client. Counsel prays that at least the earnest
money paid be ordered to be returned with reasonable
interest.
4. The agreement to sell, Ex.P-1, is in the nature of a
receipt, having all features of an agreement to sell. The same
reads as under:-
"Received a sum of Rs.50,000/- (Rupees
fifty thousand only) in cash from Shri Shahzad
Dagar s/o Shri Jage Ram r/o Village and Post
Office, Madiangardi, New Delhi, towards the sale
of undivided share of advance is on account of
1/4th share of my property bearing No.D-8,
Defence Colony, New Delhi the balance sale
consideration of Rs.6 lakhs shall be paid by the
purchaser after obtaining the necessary sale and
income tax permission from the concerned
authorities.
Hence this receipt is made at New Delhi on
this 20/12/90"
5. Declining a decree for specific performance, the learned
trial judge had held that Ex.P-1 does not specify as to whether
the buyer or whether the seller has to obtain the requisite
permissions and thus the plaintiff has failed to prove that he
was ready and willing to perform his part of the contract. The
second reason given by the Judge is that till the plaintiff
served the legal notice dated 26.11.1993, Ex.P-2, there is no
evidence of the plaintiff ever approaching the defendant to
receive the balance sale consideration and thereafter execute
the sale deed, meaning thereby, the conduct of the appellant
shows his not being ready and willing to perform his
obligations under the contract.
6. Unfortunately, the learned trial court has failed to
appreciate that the seller has to complete all acts which are
necessary for him to convey title in the property forming
subject matter of the agreement to sell unless the terms of
the agreement to sell record otherwise. Indeed, the learned
trial judge has proceeded on a wrong assumption that since
Ex.P-1 does not record as to who would obtain the requisite
permission and since the appellant did not speak about him
being willing to obtain the requisite permissions on behalf of
the seller, it had to be held that the appellant was not ready
and willing to perform his obligations under the contract.
7. Limitation for seeking specific performance of an
agreement to sell is 3 years from the date when cause of
action accrued. Of course, equities may lean against a
plaintiff for having approached the court belatedly because
property prices are showing a continued rise, at least in Delhi.
But, this would be a factor to deny the relief of specific
performance which is a discretionary relief. The plaintiff may
be compensated by way of money.
8. The respondent remained ex-parte at the trial and thus
did not even challenge the testimony of the appellant of being
ready and willing to perform his obligations under the
contract.
9. We hold that the appellant is entitled to a refund of the
earnest money paid with interest @ 9% per annum from the
date the respondent received the same i.e. 20.12.1990, till
realization.
10. The appeal is allowed. Impugned judgment and decree
dated 10.08.2005 is set aside. Suit filed by the appellant is
decreed in sum of Rs.50,000/-(Rupees Fifty Thousand Only)
with interest @ 9 % per annum from 20.12.1990 till the said
sum is realized. The appellant is also entitled to propionate
cost all throughout.
PRADEEP NANDRAJOG, J
J.R. MIDHA, J
NOVEMBER 24, 2008
mk
