M/S. H. Dohil Construction Com. ... vs Mr. Thakur Dass Malhotra & Anr.
2009 Latest Caselaw 1122 Del

*          HIGH COURT OF DELHI : NEW DELHI

+                   RFA (OS) No.17/1981

%                     Judgment reserved on : 18th August, 2008

                      Judgment pronounced on :     2nd April, 2009

M/s. H. Dohil Construction Com. Pvt. Ltd.            ...Appellant
                            Through :     Mr. Sandeep Sethi, Sr.
                                          Adv. with Ms. Kanika
                                          Agnihotri, Mr. Vaibhav
                                          Agnihotri and Mr. Aseem
                                          Chaturvedi, Advs.

                      Versus

Mr. Thakur Dass Malhotra & Anr.                       ....Respondents
                          Through :         Mr. Abhinav Vasisht
                                            with Ms. Harshita Priyanka &
                                            Mr. Debojyoti
                                            Bhattacharya, Advs.

Coram:

HON'BLE MR. JUSTICE A.K. SIKRI
HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                                   Yes


2. To be referred to Reporter or not?                                Yes

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

MANMOHAN SINGH, J.

1. This Regular First Appeal has been filed against the

judgment and decree dated 28th November, 1979 passed by this Court

whereby the suit C.S. (OS) No.438/1976 of the respondents

(hereinafter referred to as „plaintiff) was decreed in their favour and

against the appellant (hereinafter referred to as „defendant‟). It was

held that the contract dated 3rd February, 1973 is subsisting and

binding on the defendant, and plaintiff was further entitled to transfer

the possession of flat No.201 in Dohil Chambers, 46 Nehru Place, New

Delhi herein referred to as „Suit Property‟.

2. Brief facts relevant for the decision of this appeal are that

on 3rd February, 1973 an agreement was entered into between the

plaintiff and the defendant for the purchase of suit property measuring

480 sq. ft. @ Rs. 121/- sq. ft. The total consideration for the property

was agreed to be Rs.58,080/-. This consideration was to be paid in the

instalments as mentioned under Clause 3 of the said agreement Exb.

D-2/2. The said Clause provides as under :

"3. The Buyer agrees to acquire office/shop/storage space No.201 on the Second Floor, facing of the said Building as per plans and specifications inspected seen and approved by him/her/them for Rs.58080/- (Rupees Fifty- eight thousand and Eighty only) having a covered area of 480 sq. ft. @ Rs.121/- sq. ft. If the covered area differs at the time of possession of office/shop/storage space the price will be adjusted accordingly. Covered area includes the area under periphery walls and half the under common walls between two flats. Individual Electric Service connection charges fans and light fixtures are not included in the cost of the flat. The price will be paid as follows :

          Instalment No.      Payable on                 Percentage of Total Price

          1.               On booking                                          15%
          2.               On 15th Feb. 1973                                   10%
          3.               On Completion of
                           Building Foundations                                10%
          4.               On completion of Basement Structure                 10%
          5.               On completion of 1st floor             10%
          6.               On completion of 2nd floor             10%
          7.               On completion of 3rd floor             10%
          8.               On completion of 4th floor             10%
          9.               On completion of 5th or 6th floor                   10%
          10.              On possession                                       5%
                                                                               -------
                                                                               100%
                                                                               -------

3. In the said agreement, Clause 4 provided for the possession

to be handed over by 31st day of December, 1974 subject to the

availability of cement, steel or other building materials etc. The

plaintiff booked the flat through Central Estate agency (agents on

behalf of defendant) and paid Rs.2,000/- at the time of booking of the

flat and Rs.26,616/- till 16th September, 1975. However, when the

defendant gave notices dated 20th March, 1975, 1st May, 1975 and 29th

August, 1975 being Ex. D-45, D-49, and D-8 for the payment of 7th, 8th

and 9th instalments respectively, the plaintiff failed to pay the

instalments on time and here the controversy arose.

4. The defendant gave final notice dated 21 st November, 1975

Ex. D-10 to the plaintiffs requiring the plaintiff to pay the amount of

Rs.18,560/- alongwith interest @ 18% p.a. by 5th December, 1975

failing which the allotment would be cancelled. On failure of the

plaintiff to pay the due instalments by final notice, the defendant

cancelled the said agreement/allotment of the suit property and entered

into a fresh agreement dated 25th January, 1976 with one Shri Avtar

Singh for the purchase of flat.

5. It is averred in the plaint that the plaintiff had obtained two

bank drafts in the amount of Rs.18,560/- in favour of the defendants,

one for Rs.13,560/- from Oriental Bank of Commerce and the other

for Rs.5,000/- from Punjab National Bank on 27th December, 1975. He

alongwith his brother-in-law PW-7 Mr. A.C. Talwar went to the

defendant to hand over the bank drafts who promised to give a

receipt in due course of time. However, on 14 th May, 1976 the plaintiff

received a letter dated 10th May, 1976 from the defendant intimating

that the booking of the flat was cancelled vide notice dated 22 nd

December, 1975 and the bank drafts were not being encashed by the

defendant.

6. It was mentioned in the plaint that in the agreement entered

into between the parties one of the mode of payments was by cheque

and the defendant has been accepting earlier instalments by cheque.

The demand made by the defendant in terms of bank draft was not

legal. Even the plaintiff paid the due instalments by bank draft within

the time given by the agent and thus the cancellation of the booking of

the flat was wholly illegal and unjustified. It is also alleged that the

defendant did not deliver the possession in time as per contract to the

plaintiff by 31st December, 1974 but the possession was given only in

July, 1977. This failure on the part of the defendant in delivering the

possession of the suit property within the stipulated time and other

circumstances on record show that time was not the essence of the

contract.

7. It is urged by the plaintiff that the defendant is bound by the

agreement and the plaintiff was always ready and willing to perform

their part of the contract. It was contended that the agreement with

Avtar Singh entered by the defendant on 28 th January, 1976 was a

sham transaction.

8. Learned counsel for the plaintiff argued that the payment

for the 7th, 8th and 9th instalment was duly made in response to the

notice Ex. D-10 by issuing three cheques for the amount of

Rs.18,560/- to PW-11 for payment to the defendants but the defendant

after a few days returned the cheques with a direction that the payment

should be made by a bank draft.

9. It is alleged by the defendant that no payment was received

by him by means of cheque Ex. P-38 to P-40 on 4th December, 1975 or

at any time thereafter until 22nd December, 1975. It was submitted that

the Central Estate Agency was entitled to realise only the payment

upto 25% of the total amount of flat on behalf of the defendant. On

10th May, 1976 the plaintiff was again intimated of the cancellation of

the booking of flat. It was pleaded that the building could not be

completed within the period mentioned in Clause 4 of the agreement,

due to shortage of cement, steel and other building materials. It was

categorically submitted that the time schedule regarding the payment

mentioned in Clause 3 was the essence of the contract. The plaintiffs

were habitual defaulters in the payment of instalments. The

transaction entered with Avtar Singh was a genuine and bonafide

transaction.

10. It is also contended that since there was deposit of

Rs.10,000/- lying with him on behalf of the plaintiff towards the other

flat No.206 situated at the same place which was later on cancelled,

therefore defendants did not press to pay the earlier instalments by

due time. There was a clear consent of the plaintiffs in adjusting the

said amount for the suit property. The defendant also raised

preliminary objections that a mere suit for declaration and

injunction without claiming any consequential relief is not

maintainable.

11. The following issues were framed by the court:-

"1. Whether the suit as laid is maintainable?

2. Whether the defendant has entered into an agreement with Avtar Singh for the sale of flat in dispute on 28th January, 1976? If so is the suit bad for non-joinder of Avtar Singh? OPD

3. Whether the defendant committed breach of contract dated 3rd February, 1973?

4. Whether the plaintiffs were willing and ready at all the material times to perform their part of the agreement?

5. Whether time was not the essence of the contract?

6. Whether the plaintiffs did not pay the instalments as per term no. 3 of the agreement dated 3rd February, 1973?

7. Whether the defendant could not complete the building within the time schedule given in the agreement for reasons stated in the written statement? If so, to what effect?

8. Whether, any payments were made by the plaintiffs to M/s Central Estate Agency, Flat No. 13, Shankar Market, Connaught Circus, New Delhi alleged to be the agents of the defendant? If so whether those payments were valid payments?

9. Whether the plaintiffs had delivered to the pay orders in the amount of Rs. 18560/- in December, 1975? If so with what effect? OPP

10. Whether the contract was cancelled by the defendant by means of letter dated 21 st November, 1975 and 22nd December, 1975. If so with what effect?

11. Relief."

12. The plaintiff in support of its contention and to prove its case examined 11

witnesses, on the other hand, the defendant examined 7 witnesses. The plaintiff has

also to prove its case on the basis of the statements and documents which are

exhibited as P-1 to P-48. Similarly, the defendant has exhibited its documents as

Ex. D1 to D-64.

13. Learned Single Judge decreed the suit in favour of the plaintiffs in the

following terms:-

"(a) It is declared that the contract dated 3rd Febraury 1972 in respect of flat No.201 in Dohil Chambers, 46 Nehru Place, is subsisting and binding upon the defendant;

(b) That the plaintiffs shall be entitled to the transfer and possession of flat No.201 in Dohil Chambers, 46 Nehru Place, New Delhi subject to their paying a court fee on the value of Rs.58,080/- within one month.

(c) The plaintiffs are further entitled to be member of the Co-oprative Society or a limited company or an association that may be formed in terms of the contract dated 3rd February 1972 with all the rights and privileges attendant thereon.

(d) The plaintiffs shall deposit the full purchase price of Rs.58,080/- in the Court within one month and on their depositing the said amount, the defendant shall take steps to perform all the acts that are necessary for effecting the transfer of the property in favour of the plaintiffs.

(e) In case any sale deed is to be executed and registered and the defendant fails to execute the sale deed then the Registrar of the Court shall execute the deed and have it registered on behalf of the defendant.

(f) The plaintiffs shall have the costs of the November 28, 1979."

14. The finding of the learned trial Judge on issue nos. 3 to 6 and 8 to 10 were

(1) that the plaintiffs had given the cheques P-38 to P-40 to the Central Estate

Agency, Shanker Market, New Delhi, who were the agents of the defendant, and

the agents had further delivered the cheques to the defendant and the payments so

made were valid payments; (2) that the plaintiffs had given the bank drafts in the

amount of Rs. 18,560/- to the defendant on or about 28th December, 1975 and it

was a valid tender of the money; (3) that the defendant had given the notices dated

21st November, 1975 and 22nd December, 1975 to the plaintiffs, but in view of my

findings on issue nos. 8 and 9, the said notices did not legally terminate the

agreement Ex. D-2. The issue no. 5 as to whether the time was the essence of the

contract, was also decided by the learned Single Judge against the defendant.

15. While deciding issue no. 2, the learned Single Judge has determined that

Avtar Singh was neither a necessary nor the proper party to the suit as Avtar Singh

had no interest in the property in question.

16. Section 54 of the Transfer of Property Act provides that the contract for sale

of immovable property is a contract for the terms on which the sale shall take place,

but it does not, of itself, create any interest or charge on such property. The

agreement entered between the defendant and Sh. Avtar Singh thus does not confer

any interest in the suit property to Sh. Avtar Singh. Therefore, issue no. 2 has

been rightly decided by the learned Single Judge and we agree with the finding

thereof.

17. On issue no. 1, the learned trial court decided the issue against the

defendant on the reason that there was an ample evidence that on the date when the

suit was instituted, the building was not complete and the possession could not

have been delivered to the plaintiff. The trial court found that there is no legal bar

to the Court allowing the relief of possession as well subject to the plaintiff‟s

paying the court fee on the valuation of the property.

18. The defendant challenged the judgment and decree of the trial court mainly

on the ground, (a) that the trial court ought to have held that the time was the

essence of the contract and the parties in addition to the specific intention in the

agreement adhered to the schedule provided therein as far as was possible in the

circumstances of the case; and (b) that the suit of the plaintiff was barred by

Section 34 of the Specific Relief Act since the plaintiff had failed to claim the

consequential relief available to him originally and also had subsequent time since

the said relief was not claimed and it is further contended that the learned trial

court while allowing the relief of possession, which was not prayed for, is in

violation of the principle of natural justice.

19. To deal with the argument of learned counsel for the defendant whether in

the present case time was the essence of the contract or not, the learned Single

Judge has given the following finding which reads as under:-

"The question whether or not time was of the essence of the contract would essentially be a question of the intention of the parties to be gathered from the terms of the contract and other circumstances. Clause 3 no doubt provided that the time fixed in the clause for payment of the various instalments is of the essence of the contract, but the record shows that at no point of time the time schedule set down in clause 3 for payments was observed or adhered to by the parties. The first payment of 15% was to be made at the time of the booking of the flat, but only Rs. 2000/- were paid by the plaintiffs, the next 10% was to be paid by 15th February 1973 but no payment was made by that date. The subsequent dates of the demand notices and the payments also show that payments were accepted after a lapse of number of months of the due dates of payment. Ex. D-63 dated 27th August, 1973 is a registered letter sent by the defendant to the plaintiff Thakur Dass Malhotra and in this letter it is written that the payment of 25% was to be made by 15th March, 1973 but Rs. 3520/- are still payable and Malhotra was asked to pay Rs. 3520/- alongwith Rs. 464/- as interest by 3rd September, 1973. Interest at 16% was also claimed in the notice dated 21 st November, 1975. The defendant was to deliver possession of the flats to the purchasers by 31 st December, 1974 but he could deliver possession only in July, 1977. The above facts clearly indicate that the time was not the essence of the contract. I find issue no. 5 against the defendant."

20. Section 55 of the Contract Act is relevant in this regard

which provides as under :-

"55. Effect of failure to perform at a 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 such things 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 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."

21. It is not disputed that the Central Estate Agency of which

Mr. Mahinder Singh was a partner were the agents for booking the

flats on behalf of the defendant and the plaintiffs had booked both the

flats through the Central Estate Agency. There was evidence on record

to show that the defendant was sending copy of the demand notices to

the Central Estate Agency. However, there is nothing on the record to

show that the plaintiffs were ever told that the agent was only

authorized to receive the first 25% of the amount and thereafter the

payment should be made direct to the defendant. There is no word

which conveys the above idea for the payment to the defendants after

25% being paid to the agents in the agreement between the parties.

22. PW-11 partner of Central Estate Agency clearly stated that the plaintiffs

had given cheques Ex. P-38 to P-40 on 4th December, 1975 which were handed

over by him to the defendant who had returned the same after few days stating that

the payment should be made by bank draft. It is also on record that plaintiff had

obtained two bank drafts in the sum of Rs.18,560/- on 27th December, 1975.

There is no reason why the plaintiff prepared the bank drafts and keep them with

himself.

23. PW-7 Sh. A.C. Talwar also supported the case of the plaintiff fully. The

learned Single Judge held that the bank drafts were delivered to the defendants by

the plaintiffs.

24. Learned counsel for the defendant has referred the judgments reported in

AIR 1985 Delhi 45 Andard Mount (London) Ltd., England, v. Curewel

(India) Ltd., New Delhi and (2001) 5 SCC 629 Sikkim Subba Associates vs.

State of Sikkim.

25. There is a contradiction existing between the statement made in the written

statement of the defendant and the statement/deposition made before the Court. In

the written statement, the defendant submitted that cheques were delivered to him

and it was sent back with a direction to give the bank drafts for the same amount.

However, defendant in his deposition before the court denied to have received any

bank draft. It is not the case of the defendant that the plaintiffs had brought the

bank drafts and he had refused to accept them because earlier to that booking of

the flat had been cancelled.

26. The demand notices for the 7th, 8th and 9th instalment by the defendant

dated 20th March, 1975, 1st May, 1975 and 29th August, 1975 respectively provides

for the Note in the following terms :-

"Note : i) Cheques may kindly be made in favour of H. Dohil Construction Co. (Pvt.) Limited, New Delhi.

ii) Outstation cheques will not be accepted

iii) Outstation buyers are required to remit their instalment by way of Demand Draft only."

27. It is apparent from the above provision that even if in the contract, the time

was made the essence of the contract, in case there is is no intention of the parties

to follow it, it will make the clause regarding time as redundant. In the present

case, it is not in dispute that there was failure on the part of plaintiffs to pay the

instalments on due time. All the instalments are paid by the plaintiff after due

dates when the demand notices were sent by the defendants to the plaintiff. The

defendant also accepted all the instalments after due date without any hesitation

or taking any steps for forfeiting the amount deposited by the plaintiffs after due

dates as provided under the agreement. Thus according to Section 55 (3) of the

Contract Act, the defendant himself failed to perform his promise at the time

agreed and accepted performance i.e. the payment after due dates. He cannot now

takes steps for cancellation of the agreement in question.

28. Though it is settled law that where no time is fixed for completion of the

contract or in other words where time is not originally of the essence, a party could

by notice serve upon other call upon him to complete the transaction within the

time fixed. Where the time is the essence, its extension should and ought to be

categorical in nature rather than being vague or in the anvil of presumptions.

When the parties knowingly gave a go-by to the stipulations as regards time, the

same may have several effects and the courts are not left with any other

conclusion but to give a finding that the parties themselves by their conduct have

given a go by to the original term of the contract as regards the time being the

essence of the contract.

29. In view of the above facts and circumstances, looking at the intention of the

parties, in the present case, we are of the considered view that contract cannot be

enforced taking time as essence, though specifically being provided under the

agreement. Failure on the part of the defendant to deliver possession and payment

for 7th, 8th and 9th instalment by the plaintiff by bank draft which was not accepted

by the defendants and cancellation of contract by defendants without even

forfeiting the amount was wrong.

30. In the case of Bangalore Development Authority Vs. Syndicate Bank,

2007; AIR SC 2198 it was held that where time is not the essence of contract if

the buyer instead of rescinding the contract on the ground of non performance

accepts belated performance in terms of contract, there is no question of any

breach or payment of damages. Where even though time was made essence of the

contract and the parties in the event of failure of performance on time provided

for the money to be forfeited, the provision relating to the time being the essence

of the contract become ineffective looking at the intention of the parties.

31. Although we agree with the principle laid down in the judgments cited by

learned counsel for the defendant in Curewel (India) Ltd.‟s case (supra) and

Sikkim Subba Associates case (supra) however, the facts and circumstances in the

present case are different. The said judgments are not applicable to the facts and

circumstances of the present case.

32. The next contention of the defendant is that the plaintiff did not pray for the

relief of possession and merely prayed for grant of a suit for declaration and thus

the suit is not maintainable in view of failure to claim consequential relief as

provided under Section 34 of the Specific Relief Act, 1963.

33. It was observed by the learned Single Judge that proviso to section 34 of the

Specific Relief Act fully applies to cases where at the date of the suit, the

consequential relief is available. It is not in dispute that the possession of the flat

was given in July, 1997. Moreover, proviso to Section 34 of the Specific Relief

Act provides for relief which is inherent in the original declaration claimed and

without which declaratory relief claimed would be meaningless and infructuous. It

is true that after the institution of the suit, the relief to the possession of the

property has become available to the plaintiffs which is not being claimed as yet,

but it is no ground to reject the suit.

34. For dealing with this contention we must first consider Section 34 of the

Specific Relief Act which provides as under :

"Section 34. Discretion of court as to declaration of status or right - Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief.

Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.

Explanation : A trustee of property is a "person interested to deny" a title adverse to the title of someone who is not in existence, and whom, if in existence, he would be a trustee.

35. Also under Order 7 Rule 7 of CPC, it is provided that it shall not be

necessary to ask for general or other relief which may always be given as the court

may think just to the same extent as if it had been asked for. It is settled law that

relief to be provided by the court is to be based on the pleadings of the plaintiff.

The Supreme Court in the case of (1982) 1 SCC 525 Babu Lal V. Hazari Lal

Kishori Lal made the following observations :

"Specific Relief Act, 1963 (47 of 1963) - Section 22 - In appropriate cases of specific performance of contract of sale of immovable property, held, court competent to order delivery of possession of the property, even if not specifically asked for, by allowing suitable amendment in the plaint - Order for delivery of possession without corresponding amendment in the plaint would be a mere omission, not fatal to the relief of possession, especially when the order made in furtherance of cause of justice and in view of applicability of Section 28(3) - Expressions "in an appropriate case" in Section 22(1) and "at any stage of the proceeding" in proviso to Section 22(2).

It may not always be necessary for the plaintiff to specifically claim possession over the property, the relief of possession being inherent in the relief for specific performance of the contract of sale. In a case where exclusive possession is with the contracting party, a decree for specific performance of the contract of sale simplicitor, without specifically providing for delivery of possession, may give complete relief to the decree-holder. In order to satisfy the decree to put the property in possession of the decree- holder. This is in consonance with the provisions of Section 55(1) of the Transfer of Property Act.

21. If once we accept the legal position that neither a contract for sale nor a decree passed on that basis for specific performance of the contract gives any right or title to the decree-holder and the right and the title passes to him only on the execution of the deed of sale either by the judgment-debtor himself or by the court itself in case he fails to execute the sale deed, it is idle to contend that a valuable right had accrued to the petitioner merely because a decree has been passed for the specific performance of the contract. The limitation would start against the decree-holders only after they had obtained a sale in respect of the disputed property. It is, therefore, difficult to accept that a valuable right had accrued to the judgment-debtor by lapse of time. Section 22 has been enacted only for the purpose of avoiding multiplicity of proceedings which the law courts always abhor.

23. There has been a protracted litigation and it has dragged on practically for about 13 years and it will be really a travesty of justice to ask the decree-holder to file a separate suit for possession. The objection of the petitioner is hypertechnical. The executing court has every jurisdiction to allow the amendment. The only difficulty is that instead of granting a relief of possession the High Court should have allowed an amendment in the plaint. The mere omission of the High Court to allow an amendment in the plaint is not so fatal as to deprive the decree-holder of the benefits of the decree when Section 55 of the Transfer of Property Act authorizes the transferee to get

possession in pursuance of a sale deed."

36. The above proposition was again reiterated in the case reported at AIR 1961

Patna 466 Parmeshwar Mandal vs. Mahendra Nath Tewari and Ors. wherein the

court held that the relief of possession is ancillary to that for the specific

performance of the contract to sell. The right to possession springs out of the

contract of sale, and, when the court is asked to give relief by giving possession,

such a relief is comprised in the relief for the specific performance of the contract of

sale.

37. Learned senior counsel for the appellant/defendant has heavily relied on the

judgment reported at 2008 V AD (SC) 11 Bal Krishna & Anr. Vs. Bhagwan Das

(Dead) & Ors. at page 21 para 17 and (1999) 8 SCC 274 Mahabir Prasad Jain vs.

Ganga Singh at page 286 para 24 which reads as under:-

"24. As already pointed out, the decree passed by the trial court as affirmed by the High Court travels beyond the prayer in the plaint and also the scope of Section 6 of the Specific Relief Act. Apart from granting a decree for possession as prayed for by the respondent, the trial court has granted an additional relief which was not prayed for by him in that the trial court has directed the appellant to remove the construction put up by him including the dismantling of the glass. Such a relief cannot be granted under the provisions of Section 6 of the Specific Relief Act, particularly when there is no prayer therefor in the plaint."

38. We have considered the judgments referred by learned senior counsel for the

appellant. We do not agree with the submission of the learned counsel for the

defendant/appellant herein as the facts in the present case are different as it is the

admitted case between the parties that on filing of the suit, the building was not

completed and the possession could not be delivered to the plaintiff.

39. We agree with the finding of the learned single Judge that the proviso of

Section 34 of the Specific Relief Act only applies to the cases where on the date of

institution of the suit, the consequential relief is available. In the present

case, the said relief was not available to the plaintiff on the date of filing of

the suit.

40. In the present case, the plaintiff admittedly had an agreement (Exhibit

D-2) with the defendant and had a right to transfer the property on payment of

full purchase price as agreed between the parties. Therefore, we agree with

the finding of the learned single Judge that the plaintiffs filed a suit under

Section 34 for decree stating that the cancellation of the contract is illegal and

they have the right to transfer the property in terms of the agreement. There

is no legal bar to the court for granting the relief of possession as well subject

to the plaintiff‟s paying the court fee on the valuation of the property.

41. As mentioned above, the right of possession springs out of the contract

for sale. In the present case, no doubt that as per the agreement, on payment,

the sale deed/documents were required to be executed by the seller in favour

of the buyer. It appears on further reading of the agreement that on payment,

the seller was supposed to transfer the said property in favour of the buyer

and to give the possession.

42. In view of the well settled position of law, the suit of the plaintiff

cannot be rejected on the failure to specifically pray for possession in suit for

declaration for specific performance of the contract even when it became

available after around 2 yrs of filing the suit .

43. In view of the above, we are in agreement with the

aforesaid finding of the learned Single Judge and the manner in which

the same are arrived at. We do not find any force in the submissions of

the Defendants. Therefore, we find no merit in the appeal and it is

hereby dismissed. No costs.

MANMOHAN SINGH, J.

APRIL 02, 2009                            A.K. SIKRI, J.
sd