Dhiraj Tokas And Another vs Chhaluram
2009 Latest Caselaw 1974 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         CS(OS) No.2166/2007

%                     Date of Decision: 11.05.2009

Dhiraj Tokas and Another                                   .... Plaintiffs
                    Through Mr.Dhruv, Advocate

                                Versus

Chhaluram                                                .... Defendant
                      Through Mr.B.S. Yadav,       Advocate for the
                              defendant.

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR

1.   Whether reporters of Local papers may be                YES
     allowed to see the judgment?
2.   To be referred to the reporter or not?                  NO
3.   Whether the judgment should be reported in              NO
     the Digest?


ANIL KUMAR, J.

*

1. A pass over was prayed on behalf of counsel for the plaintiff

Mr.Pankaj Vivek. The counsel who sought Passover was unable to

disclose whether the plaintiffs had paid the sale consideration to the

defendant for the purchase of the property in terms of previous order

After pass over, no one is present on behalf of the plaintiff. Learned

counsel for the defendant has contended that Mr.Pankaj Vivek,

Advocate on behalf of the plaintiff told him outside the Court after the

matter was passed over that the plaintiffs are not ready to pay the

balance sale consideration and, therefore, he will not appear on behalf

of the plaintiffs.

2. This is a suit for specific performance of agreement to sell dated

22nd April, 2005. The plaintiffs contended that they had always been

ready and willing to perform their part of the agreement and have the

financial means. The plaintiffs also filed a bank balance certificate with

the plaint to contend that they are still ready and willing to obtain

execution of sale deed. It was asserted by the plaintiffs that the

defendant is not executing the sale deed dishonestly and delivering the

possession of the suit property.

3. The written statement was filed by the defendant challenging the

allegations raised by the plaintiffs. After the written statement was

filed, at the instance of the parties, the matter was referred to the

Mediation Centre by order dated 20th November, 2008. On 6th January,

2009, it was intimated that the parties have reached a settlement and

an application regarding the settlement of disputes shall be filed.

However, the application incorporating the settlement between the

parties was not filed. On 17th March, 2009, the plaintiff No.1 stated that

the plaintiffs are ready to purchase the property. The learned counsel

for the defendant reiterated that the defendant is agreeable to sell the

property at the price which had been agreed between the parties.

Therefore, on 17th March, 2009 time was sought for filing the

application incorporating the settlement arrived at between the parties.

4. Despite the statements given by learned counsel for the parties on

17th March, 2009 that an application shall be filed incorporating the

settlement arrived at between the parties, the application was again not

filed. On 31st March, 2009, last opportunity was given to the plaintiffs

to get the sale deed executed in their favor as the defendant and his

counsel had contended that they are ready to execute the sale deed in

favor of the plaintiffs provided plaintiffs pay the consideration agreed

between the parties. Therefore the plaintiffs had been directed to pay

the balance sale consideration to the defendant.

5. On 17th April, 2009 it was contended by the plaintiffs that though

they are ready and willing to purchase the property at the consideration

agreed between the parties, however, on account of interim order dated

6th November, 2007 they have not been able to obtain `No Objection

Certificate', (NOC), and in the circumstances the order dated 6th

November, 2007 be modified so that the plaintiffs may obtain the NOC

and get the sale deed executed in their favor.

6. Consequently the order dated 6th November, 2007 was modified

allowing the parties to obtain the `No Objection' certificate. On behalf of

the plaintiffs it was stated that the entire sale consideration shall be

brought by the plaintiffs by a pay order in favor of the defendant on the

next date of hearing and the matter was adjourned to 4th May, 2009.

7. On 4th May, 2009 again the balance sale consideration was not

brought by the plaintiffs so as to get the sale deed executed in their

favor. Therefore, on that day at the request of the plaintiffs, last

opportunity was granted to them to pay the balance sale consideration

within one week failing which it was to be assumed that the plaintiffs do

not have consideration to pay to the defendant and in that case it would

be inferred that the plaintiffs are not ready and willing to perform their

part of the agreement.

8. Today, learned counsel for the plaintiffs has not appeared nor the

proxy counsel who had appeared on behalf of the counsel for the

plaintiffs was able to disclose whether the sale consideration has been

paid to the defendant or not. The counsel for the defendant contended

that the balance sale consideration has not been paid. Even today, the

sale consideration has not been brought to the Court for payment to the

defendant so that the defendant may execute the sale deed in favor of

the plaintiffs.

9. In the circumstances, the inevitable inference is that the plaintiffs

are not ready and willing to perform their part of the agreement and,

therefore, are not entitled for specific performance of agreement to sell

dated 22nd April, 2007.

10. The plaintiffs have not sought any other relief except the specific

performance of the agreement to sell dated 22nd April, 2007. Since the

plaintiffs are not entitled for specific performance of the agreement to

sell, for the reasons as detailed hereinabove, the suit of the plaintiffs is

dismissed. Parties are, however, left to bear their own costs.

May 11, 2009                                         ANIL KUMAR, J.
"Ravindra"