Delhi High Court
Matadin Yadav (Deceased Through ... vs M/S Midas Lids P. Ltd.(Now ... on 18 November, 2013
Author: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 18th November, 2013
+ RFA No.47/2005 & CMs No.11835/2013 & 12906/2013
MATADIN YADAV
(Deceased Through Legal Representatives) ..... Appellant
Through: Mr. R.M Bagai & Mr. Vipin K. Singh,
Advs.
Versus
M/S MIDAS LIDS P. LTD.
(Now amalgamated into Preeti Vanijya Pvt. Ltd.) .....Respondent
Through: Mr. Anoop George Chaudhari and Mrs.
June Chaudhari, Sr. Advs. with Ms.
Meenaxi Midha & Mr. Abhinav Jain,
Advs.
AND
RFA No.48/2005 & CM No.13031/2013
AND
RFA No.49/2005 & CM No.13024/2013
AND
RFA No.50/2005 & CM No.13022/2013
AND
RFA No.57/2005 & CM No.13019/2013
AND
RFA No.84/2005 & CM No.13017/2013
RFAs No.47, 48, 49, 50, 57, 84, 90 & 102 all of 2005 Page 1 of 51
AND
RFA No.90/2005 & CM No.13016/2013
AND
RFA No.102/2005 & CM No.13058/2013
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J.
1. These eight appeals impugn the common judgment and decree dated 24 th
August, 2004 of the Court of the Addl. District Judge, Delhi in eight suits
bearing no.13/04 (old no.2894/90), 2/04 (old no.2926/90), 3/04 (old
no.2928/90), 4/04 (old no.2930/90), 10/04 (old no.2895/90), 32/04(old
2921/90), 111/04/(old no. 2905/90) and 118/04 (old 2923/90) filed by the
respondent against the predecessor-in-interest of the appellant namely Sh.
Prabhu for specific performance of eight different Agreements of Sale of by the
predecessor in interest of the appellant in favour of the respondent/plaintiff of
different parcels of land in the Revenue Estate of Village Kapashera, Delhi.
The learned Addl. District Judge, vide the impugned judgment and decree, has
decreed the suits and directed the predecessor-in-interest of the appellant to
apply for permissions under Section 27 of the Delhi Land (Restrictions on
Transfer of Land) Act, 1972 and Section 230 of the Income Tax Act within two
months, to pursue the same diligently, obtain permissions at the earliest and
inform of the same to the respondent/plaintiff; the respondent/plaintiff has been
directed to pay to the predecessor-in-interest of the appellant or deposit in the
Court the balance sale price within three months thereof; the predecessor-in-
interest of the appellant has also been directed to thereafter execute and register
Sale Deeds in favour of the respondent/plaintiff. The predecessor-in-interest of
the appellant namely Sh. Prabhu died on 27th September, 2004 and these
appeals were filed by the appellant as his legal representative.
2. The appeals were admitted for hearing and vide order dated 1st March,
2005 the operation of the impugned judgment and decree stayed and the
appellant directed to maintain status quo with regard to the nature, title and
possession of the subject land and also restrained from carrying out any
construction thereon. The appellant, during the pendency of these appeals, in or
about the year 2009 applied for amendment of the written statement to the suit
filed by the respondent/plaintiff. However the senior counsel appearing for the
appellant on 23rd September, 2010 stated if this Court allows the appellant to
address arguments on the legal issue in respect of bar to sell the land in
question under Section 33 of the Delhi Land Reforms Act, 1954 then the
appellant will not press the applications for amendment of the written
statement. This Court, observing that since the objection though not taken in
the written statement, is legal, allowed the appellant to address arguments on
the same with liberty to the respondent/plaintiff to reply thereto. Accordingly
the applications for amendment were disposed of. Settlement talks initiated
between the parties thereafter failed. The appellant died during the pendency of
the appeal and his legal heirs permitted to be substituted, though amended
memo of parties has not been filed till now. Thereafter the respondent/plaintiff
filed applications under Order 41 Rule 27 of the CPC which were ordered to be
heard along with the appeal. The counsel for the appellant and the senior
counsel for the respondent/plaintiff have been heard. They have argued all the
appeals as one, without any factual difference in the eight suits from which
these appeals arise.
3. The respondent/plaintiff, in or about September, 1990 instituted the suits
from which these appeals arise, pleading:-
(a). that the predecessor of the deceased appellant namely Shri Prabhu
(appellant/defendant) had, vide eight Agreements to Sell all dated
28th June, 1989, agreed to sell different parcels of land at Village
Kapashera, Delhi to the respondent/plaintiff for a total
consideration of Rs.6,25,000/- under each of the Agreement and
out of which at the time of Agreement to Sell the
appellant/defendant received a sum of Rs.62,500/- as earnest
money and part money and the balance sale consideration was
agreed to be paid by the respondent/plaintiff at the time of
execution and registration of the Sale Deed;
(b). that the appellant/defendant had represented and assured the
respondent/plaintiff that the said lands formed part of lal dora of
Village Kapashera and it was on this assurance and representation
that the respondent/plaintiff entered into the aforesaid Agreements
to Sell;
(c). that before the time given to the respondent/plaintiff to pay the
balance sale consideration could expire, the respondent/plaintiff
reliably learnt that the land which was agreed to be sold to the
respondent/plaintiff was not comprised in and did not fall within
the lal dora of Village Kapashera as represented and assured by
the appellant/defendant;
(d). that the respondent/plaintiff also reliably learnt that consolidation
proceedings were in progress and pending final adjudication
before the Consolidation Department and as such the nature and
classification of land was still described as „agricultural‟ and the
said lands could not be sold as lal dora land;
(e). that the appellant/defendant had willfully concealed the said
material facts and fraudulently and with mala fide intentions and
ulterior motives misrepresented that the land agreed to be sold
formed part of the lal dora of Village Kapashera whereas in fact it
was not so, thereby making wrongful gain to himself and causing
wrongful loss to the respondent/plaintiff;
(f). that in case the said lands were not sold as lal dora lands, there
would be a contravention of the provisions of the Delhi Land
Reforms Act and as such the finalization of the consolidation
proceedings was a must and the land could not be sold till such
time the consolidation proceedings were finalized as it would only
be confirmed after the Scheme under the consolidation was
finalized, whether the said lands would be included in the lal dora
or not;
(g). that the appellant/defendant had specifically agreed that in case he
failed to transfer the lands as lal dora land, the respondent/plaintiff
would be at liberty to get the Sale Deed executed/registered
through the Court of law;
(h). that the respondent/plaintiff, from the date of Agreement to Sell
had been ready and willing to perform its part of the Agreement
provided the appellant/defendant transferred a marketable title in
the land as lal dora land to the respondent/plaintiff;
(i). that the appellant/defendant had miserably failed to perform his
part of the obligations under the Agreement to Sell as he had failed
to sell the lands to the respondent/plaintiff as lal dora land; and,
(j). that the respondent/plaintiff had served legal notice to the
appellant/defendant on 27th August, 1990 calling upon him to
perform the Agreement to Sell after having the said lands included
in the lal dora of Village Kapashera from the Consolidation
Officer.
Accordingly, a decree for specific performance, by directing the
appellant/defendant to sell/perform the sale by executing the Sale Deed of the
land as lal dora, in favour of the respondent/plaintiff and by getting the Sale
Deed registered, was claimed.
4. A perusal of the Trial Court record shows that while issuing summons of
the suits, vide ex parte order dated 20th September, 1990 the
appellant/defendant was restrained from alienating, encumbering or parting
with the possession of the suit lands, without imposing any condition on the
respondent/plaintiff of deposit of balance sale consideration etc. in the Court.
5. The appellant/defendant contested the suits, by filing the written
statements, on the grounds:-
(i). that the respondent/plaintiff had not performed its part of the
contract and had not taken any steps to get the Sale Deed executed
and registered;
(ii). that under the terms of the Agreement to Sell the
respondent/plaintiff was under an obligation to procure at his own
cost and expense, apply and obtain the No Objection Certificates
(NOCs) from the Tehsildar, Notification, Delhi and/or from any
other concerned authority for the sale of the suit lands;
(iii). that the respondent/plaintiff neither obtained the NOCs nor did he
approach the appellant/defendant or paid him the balance amount
of sale consideration by 27th October, 1989 as stipulated in the
Agreements;
(iv). that the respondent/plaintiff did not have the necessary funds at his
disposal to pay the balance sale consideration; about Rs.50 lacs
were to be paid by the respondent/plaintiff to the
appellant/defendant as sale consideration under all the eight
Agreements and the appellant/defendant "apprehended" that the
respondent/plaintiff was not possessed of sufficient funds to make
the payment;
(v). that the respondent/plaintiff even at the time of filing the suits did
not have sufficient funds to make payment to the
appellant/defendant and hence the suits were not maintainable;
(vi). that the respondent/plaintiff having failed to pay the balance
amount of sale consideration by 27th October, 1989, was a
defaulter and had no right to sue;
(vii). that the respondent/plaintiff had dishonestly and mischievously
pleaded that the lands agreed to be sold were not situated within
the lal dora of the Village; that the subject lands had been
earmarked as residential plot within the Lal Dora/Red Lines/Abadi
Deh/ Circular Road of the village at the time of drafting and
confirmation of the Scheme of Consolidation and it was so evident
from the Aks Shajra filed by the appellant/defendant with the
written statements also;
(viii). that the aforesaid lands had been allotted to the
appellant/defendant between 13th July, 1988 to 20th August, 1988
during repartition under Section 21 of the East Punjab Holdings
(Consolidation & Prevention of Fragmentation) Act, 1948;
(ix). that the respondent/plaintiff at the time of entering into the
Agreements to Sell had satisfied itself after going through all
relevant records that the said lands were situated within the lal
dora;
(x). the allegations in the plaint of the lands being not situated in the
lal dora were false;
(xi). that the respondent/plaintiff was required to obtain the NOCs from
the competent authorities and in case of its failure to obtain the
NOCs, the respondent/plaintiff was under an obligation to pay the
balance sale consideration and in that eventuality the
appellant/defendant was under an obligation to give the physical
vacant possession and to sign the relevant documents such as Will,
Agreement to Sell, General Power of Attorney, Special Power of
Attorney, receipts, affidavits etc. as mentioned in clause 4 of the
Agreements to Sell; the respondent/plaintiff had failed to perform
any of the obligations which it was obliged to perform;
(xii). that the Agreements to Sell had fixed four months time for both
the parties to perform their respective duties and obligations; it
was during the four months time that the respondent/plaintiff had
to apply for and obtain at its own cost the NOCs from the
Tehsildar, Notification, Delhi and/or from any other concerned
authorities; the respondent/plaintiff had to obtain the certificates
from the competent authorities within the stipulated period of four
months ending 27th October, 1989; in case of failure of the
respondent/plaintiff to obtain the NOCs from the competent
authorities, the respondent/plaintiff was bound to approach the
appellant/defendant to pay the balance sale consideration against
delivery of vacant physical possession of the land and signing of
Agreement to Sell, Power of Attorney etc; the respondent/plaintiff
did not perform its part of the agreements in terms of the
Agreements;
(xiii). time was the essence of the Agreement;
(xiv). the Scheme of Consolidation showing the said land in the lal dora
was published on 22nd June, 1987 and confirmed on 24th July, 1987
and there was no change since then;
(xv). that the respondent/plaintiff had not disclosed the source and
means of the information that the lands were not situated in the lal
dora and the said plea had been taken merely to wriggle out of the
Agreements to Sell;
(xvi). that the appellant/defendant had not practiced any concealment or
misrepresentation;
(xvii). that the lands were not agricultural and were exempt from the
provisions of the Delhi Land Reforms Act, having been allotted to
the appellant/defendant for non-agricultural purposes and there
was no law barring the appellant/defendant from selling such
lands;
(xviii) that the plea of the respondent/plaintiff that it would be known
only after finalization of consolidation operation whether the said
lands are in lal dora or not was controvered;
(xix). that the respondent/plaintiff did not take any steps whatsoever to
get the Sale Deed or the other documents executed;
(xx). that the respondent/plaintiff had been sleeping since the date of the
Agreements to Sell, till the filing of the suits;
(xxi). that the appellant/defendant was then not ready to sell the property
on the old rate as on account of passage of time and for no fault of
the appellant/defendant there had been steep rise in the prices of
land and then the market value of the land was Rs.4,000/- per sq.
yd.;
(xxii). that the earnest monies paid by the respondent/plaintiff to the
appellant/defendant stood forfeited;
(xxiii) that of about Rs.50 lacs towards balance sale consideration
payable by the respondent/plaintiff under the eight agreements, the
respondent/plaintiff did not pay a single penny; and,
(xxiv) that though the notices dated 27th August, 1990 had been received
but being based on wrong facts, there was no necessity to reply
thereto.
6. The respondent/plaintiff filed replications to the written statements
aforesaid:-
(A). denying that it was the respondent/plaintiff who was required to
obtain permissions from the Tehsildar or from any other concerned
authority for sale of the suit land;
(B). pleading that it was the appellant/defendant who was required to
obtain the necessary permissions under the Delhi Land
(Restrictions on Transfer of Land) Act and the necessary Income
Tax Clearance Certificate;
(C). denying that the lands were within the lal dora and pleading that
the Department had misrepresented to the respondent/plaintiff that
the lands were in lal dora when the same were classified as
„agricultural‟ and consolidation proceedings were still underway;
(D). pleading that the sale consideration was to be paid to the
appellant/defendant only upon the appellant/defendant obtaining
necessary permissions/clearances;
(E). denying that the respondent/plaintiff was bound to approach the
appellant/defendant and to pay the balance sale consideration by
27th October, 1989 against delivery of physical possession of the
land;
(F). denying that the respondent/plaintiff at the time of Agreements to
Sell had satisfied itself; and,
(G). pleading that the respondent/plaintiff had acted purely on the
assurances and the representations of the appellant/defendant.
and otherwise generally denying the contents of the written statement
and reiterating the contents of the plaint.
7. It may however be highlighted that inspite of the appellant/defendant in
the written statement expressly pleading that the respondent/plaintiff neither
within the time fixed under the Agreement to Sell nor at any time thereafter nor
then was possessed of Rs.50 lacs being the balance sale consideration under all
the eight agreements and that the respondent/plaintiff had not disclosed the
source of its information that the lands were not situated within the lal dora, the
respondent/plaintiff in the replication did not give any further particulars on
either of the said two aspects.
8. A perusal of the order sheet also shows that though vide order dated 13 th
December, 1994 the counsel for the respondent/plaintiff had undertaken to
bring on the next date Banker‟s Certificate to show that there was money
available with the respondent/plaintiff for payment of balance sale
consideration but the subsequent orders do not record the counsel for the
respondent/plaintiff having produced any such certificate. No such certificate
was pointed out on the Trial Court records during the hearing also and no such
certificate has been found on the file of suit No.13/2004 on perusal whereof the
judgment is being dictated.
9. On the pleadings aforesaid of the parties, the following issues were
framed on 21st November, 1995:-
"1. Whether the plaintiff proves that he was ready and
willing to perform his part of contract?
2. Whether the plaintiff has committed breach of the
terms of the contract between the plaintiff and the
defendant?
3. Whether the plaintiff proves that the defendant has
misrepresented to the plaintiff that the land was part
of Lal Dora of village Kapashera on the date of
agreement between the parties though in fact it was
not the part of Lal Dora of Village Kapashera?
4. Whether time was the essence of the contract in
question?
5. Whether the plaintiff is entitled to get the specific
performance of the agreement to sell dt. 28/6/89?
6. Whether the plaintiff proves that the sale in question
is barred by the provisions of East Punjab Holding
(Consolidation and Prevention of Fragmental) Act? If
Yes, what the consequences?
7. What order and decree?"
10. The trial of all the suits was consolidated and expedited and in view
thereof the ex parte ad interim order continued.
11. The respondent/plaintiff examined five witnesses i.e. its Directors Mr.
Manoj Kumar and Mr. Surender Sehgal, its Chartered Accountant Mr.
Shailendra Dixit, Manager (Credit) of United Bank of India and the Patwari
(Notification) Branch, NCT of Delhi. The appellant/defendant examined three
witnesses i.e. the deceased appellant being son and attorney of the original
defendant namely Sh. Prabhu, the Patwari and the Kanungo.
12. The learned Addl. District Judge has vide the impugned judgment
decreed the suits of the respondent/plaintiff as aforesaid,
finding/observing/holding:-
(a). the argument of the counsel for the respondent/plaintiff, that the
pleading of the respondent/plaintiff in the plaint and the deposition
of the Director of the respondent/plaintiff that the
respondent/plaintiff was ready and willing to perform its part of
the contract was sufficient to prove the readiness and willingness
of the respondent/plaintiff, was accepted;
(b). that the respondent/plaintiff was not required to produce ready
cash or to show that it had the necessary funds; all that was
required to be shown was the capability of the respondent/plaintiff
to raise funds and which had been shown by the deposition of the
Director of the respondent/plaintiff that Mr. R.K. Jain and his
family who held substantial holdings in the respondent/plaintiff
Company had assets worth Rs.10 crores and fixed deposits to the
tune of Rs.45 lacs, were sufficient to show that the
respondent/plaintiff could have made the necessary arrangements;
(c). that the argument of the counsel for the appellant/defendant that
the respondent/plaintiff had not pleaded or proved any resolution
of Board of Directors (which was admitted to be necessary for
raising funds) was not accepted holding that the stage of passing a
Resolution would come only when actual borrowing was to be
done and the respondent/plaintiff could not be expected to pass a
Resolution in advance or to keep the money with it in advance ---
accordingly, issue No.1 was decided in favour of the
respondent/plaintiff and against the appellant/defendant;
(d). the contention of the counsel for the respondent/plaintiff that
permission for sale could be obtained by the seller i.e. the
appellant/defendant only and the respondent/plaintiff could neither
apply for permission nor obtain the permission and the agreement
between the parties to the said effect was in violation of statutory
obligations placed on the seller and thus void under Section 23 of
the Contract Act (made by drawing support from Bishambhar
Nath Aggarwal Vs. Kishan Chand AIR 1988 Allahabad 195) was
accepted; it was held that any agreement in violation of law is
ipso facto bad and Court cannot expect a party to do something
which is beyond its control; application for permission has to be
submitted by the seller; how can a purchaser move the application
without signatures of the seller; it would amount to expecting to
make impossible things a possibility and which was found to be
absurd;
(e). that the question of payment would have arisen only after the
appellant/defendant had obtained the permissions--accordingly
issue No.2 was decided in favour of the respondent/plaintiff and
against the appellant/defendant and it was held that the
respondent/plaintiff did not commit any breach of the terms of the
contract;
(f). that the Patwari examined by the appellant/defendant had deposed
that the land was situated in the extended lal dora and had been
allotted to the appellant/defendant between 13th July, 1988 and 20th
July, 1988;
(g). the argument of the counsel for the respondent/plaintiff that since
the records of consolidation were consigned in 1997, the
proceedings of consolidation stood completed only in 1997 was
not accepted and it was held that consolidation is done after the
Schemes of the entire village are finalized and there can be more
than one Scheme in one village and the first Scheme could not be
kept pending till the last Scheme was finalized and it is the relative
finalization which is material;
(h). the argument of the appellant/defendant that as per Section 20(2)
of the Consolidation Act if no objections are received to the draft
Scheme published under Section 19(1) by the Consolidation
Officer, the Scheme is to be confirmed was accepted and it was
held that since it was not the case of any of the parties that any
objections were filed, the Scheme became final in 1987 itself;
(i). it was accordingly held that the appellant/defendant had not
misrepresented to the respondent/plaintiff that the land was part of
lal dora on the date of Agreements to Sell--accordingly, issue
no.3 was decided against the respondent/plaintiff and in favour of
the appellant/defendant;
(j). that though the Agreements to Sell provided that even if the
respondent/plaintiff failed to obtain the NOCs it shall pay the
balance sale consideration to the appellant/defendant against
delivery of physical possession of the land and execution of
Agreement to Sell, Power of Attorney, Will etc. but it was unjust
to expect the purchaser to pay the amount without having any Sale
Deed, as title in immovable property could not be transferred
except by way of registered Sale Deed and mere Agreement to Sell
coupled with Will, Power of Attorney etc. was not enough;
(k). in case of immovable property generally time is not the essence of
the contract, reliance in this regard was placed on Chand Rani Vs.
Kamal Rani (1993) 1 SCC 519 and P. Purushottam Reddy Vs.
Pratap Steels Ltd. (2002) 1 Apex Decision (Supreme Court)
546--accordingly issue no.4 was decided in favour of the
respondent/plaintiff and against the appellant/defendant;
(l). that since the possession of the land had remained with the
appellant/defendant and he had been reaping the fruits thereof, he
could not be said to be a loser, if asked in the year 2004 to perform
the agreement entered into by him in the year 1989;
(m). that specific performance of the agreements could be directed by
obtaining permission--accordingly issue no.5 was decided in
favour of the respondent/plaintiff and against the
appellant/defendant;
(n). though it was the plea of the respondent/plaintiff that Section 30 of
the Consolidation Act prohibited an owner from transferring his
land during the pendency of the consolidation proceedings but the
reply of the appellant/defendant thereto that Section 30 did not
apply to allotments made after finalization of consolidation
scheme was correct and since consolidation had already been
completed and the land was a lal dora land at the time of
Agreements to Sell, so the bar of Section 30 did not apply--
accordingly issue No.6 was decided against the
respondent/plaintiff and in favour of the appellant/defendant; and,
(o). that the argument of the appellant/defendant that the
respondent/plaintiff had been blowing hot and cold, by on the one
hand contending that the sale was hit by Section 30 of the
Consolidation Act and on the other hand seeking specific
performance, was not accepted and accordingly the suit was
decreed as aforesaid.
13. The counsel for the appellant/defendant commenced his argument by
stating that the respondent/plaintiff having not filed any cross objections
challenging the findings on the issues decided in favour of the
appellant/defendant, the said findings have become final and in view thereof
specific performance could not have been granted and the decree is liable to be
set aside.
14. The senior counsel for the respondent/plaintiff responded, though not
challenging the findings in the impugned judgment against the
respondent/plaintiff, but by contending that the same do not disentitle the
respondent/plaintiff from the relief of specific performance.
15. However finding the reasoning given by the learned Addl. District Judge
to be contrary to the law laid down/reiterated by the Supreme Court in
Saradamani Kandappan Vs. S. Rajalakshmi (2011) 12 SCC 18, attention of
the counsels was drawn thereto and the Agreements to Sell perused. The
Agreements to Sell in all the suits are stated to be identical and the
appellant/defendant is described therein as the first party and the
respondent/plaintiff as the second party and they inter alia provide as under:
"Whereas the first party is the owner and in possession of
lal dora land measuring 10 Biswas, falling in Khasra
No.1007, situated in Village, Kapashera, Tehsil Mehrauli,
New Delhi."
"1. That in pursuance of the said agreement and in
consideration of Rs.62,500/- (Rupees Sixty thousand five
hundred only) received by the first party from the second
party, as advance/earnest money vide cheque No.341874
dated 27.6.1989, drawn on Citi Bank, N.A., Delhi, and the
receipt of the same is hereby admitted and acknowledged in
respect of the sale of the said land at the rate of Rs.1,170/-
(One thousand one hundred seventy) per sq. yds. and the
balance amount shall be received by the first party from the
second party, by 27.10.1989 and shall give the physical
vacant possession of the said land to the second party.
4. That the second party shall at its own costs and
expenses shall apply and obtain the NOC from the Tehsildar
Notification, Delhi, or any other concerned authority for the
sale of the said land. However the first party undertake to
sign all the documents and papers at the demands and
request of the second party. The second party shall obtain
the NOC within the said stipulated period mentioned as
above. In case, the second party fails to obtain the NOC,
then the second party or its nominees shall pay the balance
sale consideration and the first party shall give the physical
vacant possession and shall sign the relevant documents
and papers such as Will, Agreement to Sell, General Power
of Attorney, Special Power of Attorney, Receipt, Affidavit,
etc. etc.
5. That all the dues, demands, taxes, etc. etc. payable in
respect of the said land shall be paid by the first party upto
the date of giving the possession, and thereafter the same
shall be paid by the said party or its nominee/s.
7. That whenever all the formalities are completed, the
first party shall execute and register the sale deed in favour
of the second party or its nominee/s, failing which the
second party or its nominees / s, shall be fully competent to
get the sale deed executed and registered through the Court
of law at the cost and expenses of the first party.
9. That the second party or its nominee/s shall pay the
stamp duty, transfer duty and registration fees at the time of
registration of the Sale Deed."
16. The agreement, thus between the parties was:-
(i). for payment by the respondent/plaintiff to the appellant/defendant
of the balance sale consideration by 27th October, 1989;
(ii). of the respondent/plaintiff at its own cost and expense applying for
and obtaining NOCs from the Tehsildar, Notification, Delhi or any
other concerned authority for sale of the land;
(iii). of the appellant/defendant, at the request of the
respondent/plaintiff signing all the documents and papers required
by the respondent/plaintiff for obtaining such NOCs for sale;
(iv). of the respondent/plaintiff obtaining the NOCs on or before 27 th
October, 1989;
(v). that if the respondent/plaintiff failed to obtain the NOCs, the
respondent/plaintiff to be still liable for payment of balance sale
consideration by 27th October, 1989;
(vi). the only obligation placed on the appellant/defendant at the time of
receipt of balance sale consideration from the respondent/plaintiff
by 27th October, 1989 was to deliver vacant possession of the land
to the respondent/plaintiff and if NOCs had been obtained, to
execute the Sale Deed and if NOCs had not been obtained, to
execute Will, Agreement to Sell, General Power of Attorney,
Special Power of Attorney, Receipt etc. with respect to the land in
favour of the respondent/plaintiff or its nominees; and,
(vii). that in the event of NOCs being not obtained by the
respondent/plaintiff and the balance sale consideration being paid
by the respondent/plaintiff as aforesaid, the appellant/defendant
was to thereafter also remain bound to execute the Sale Deed as
and when the NOCs were obtained.
17. The Supreme Court in Saradamani Kandappan supra has held:-
(a). that the question, whether time is the essence of the contract, with
reference to the performance of a contract, may arise for
consideration either with reference to the contract as a whole or
with reference to a particular term or condition of the contract
which is breached;
(b) in a contract relating to sale of immovable property, if time is
specified for payment of the sale price but not in regard to the
execution of the sale deed, time will become the essence only with
reference to payment of sale price but not in regard to execution of
the sale deed;
(c) normally in regard to contracts relating to sale of immovable
properties, time is not considered to be the essence of the contract
unless such an intention can be gathered either from the express
terms of the contract or impliedly from the intention of the parties
as expressed by the terms of the agreement;
(d). the intention to make time, stipulated for payment of balance
consideration, will be considered to be essence of the contract
where such intention is evident from the express terms or the
circumstances necessitating the sale, set out in the agreement;
(e). even if the urgent need for the money within the specified time is
not set out, if the words used clearly show an intention of the
parties to make time the essence of the contract, with reference to
payment, time will be held to be the essence of the contract.
(f). though in the absence of contract to the contrary, the purchaser is
bound to tender the balance consideration only at the time and
place of completing the sale but if it is found that there is a
conscious effort to delink the terms relating to payment of balance
price from the term relating to execution of sale deed and making
the time of essence only in regard to the payment of the balance
sale consideration, it is a clear indication that while time would be
the essence of the contract in regard to the terms relating to
payment of balance price, time would not be the essence of the
contract in regard to the execution of the sale deed;
(g). the precedents from an era, when high inflation was unknown,
holding that time is not of the essence of the contract in regard to
immovable properties, may no longer apply because the
circumstances that existed when the said principle was evolved, no
longer exist;
(h). the principle that time is not of the essence of contracts relating to
immovable properties took shape in an era when market value of
immovable properties were stable and did not undergo any marked
change even over a few years; however there has been a galloping
inflation and prices of immovable properties have increased
steeply, by leaps and bounds; market values of properties are no
longer stable or steady; the steep increase in prices is a
circumstance which makes it inequitable to grant the relief of
specific performance where the purchaser does not take steps to
complete the sale within the agreed period and the vendor has not
been responsible for any delay or non-performance; in such
circumstances a purchaser can no longer take shelter under the
principle that time is not of essence in performance of contracts
relating to immovable property, to cover his delays, laches,
breaches and `non-readiness'.
(i). to hold, that a vendor who took an earnest money of say about
10% of the sale price and agreed for three or four months as the
period for performance, did not intend that time should be the
essence, will be a cruel joke on him, and will result in injustice;
(j). in these circumstances, the greater scrutiny and strictness has to be
applied in considering whether the purchaser was ready and
willing to perform his part of the contract.
18. Applying the aforesaid ratio to the subject Agreements to Sell, the parties
thereto not only expressly delinked the term relating to balance price from the
term relating to execution of Sale Deed but also, though specified the last date
for payment of balance sale consideration, did not specify any time for
execution of Sale Deed. Therefrom, the intent to make time of payment the
essence is clearly borne out. It is not the plea of the respondent/plaintiff in the
plaints that the respondent / plaintiff on or before 27th October, 1989 offered or
tendered the balance sale consideration to the appellant / defendant. On the
contrary, the respondent / plaintiff set up a case in the plaints, which is
diametrically different from the Agreements to Sell. While under the
Agreements to Sell, (I) the respondent / plaintiff was to apply for and obtain
NOCs from the Tehsildar Notification and other authorities at its own cost and
expense; and, (II) to pay the balance sale consideration to the appellant /
defendant on or before 27th October, 1989 irrespective of whether such NOCs
were available or not and irrespective of whether sale deeds could be executed
and registered at that time or not, the respondent / plaintiff in the plaints set up
the case of, (III) the appellant / defendant being liable to apply for and obtain
NOCs; and, (IV) the balance sale consideration being payable only against
execution and registration of sale deed. It is also not the case of the respondent
/ plaintiff in the plaints that the appellant / defendant on 27th October, 1989 was
not in a position to, against receipt of balance sale consideration, deliver vacant
physical possession of the land or execute Powers of Attorney, Will etc. with
respect thereto. From such stand itself of the respondent / plaintiff, in the suits
from which these appeals arise, it is evident that the respondent / plaintiff was
not ready and willing to perform his part of the Agreements to Sell, not only on
27th October, 1989, but even at the time of filing the suits and pursuing the
same for nearly fourteen years with a claim in obvious contravention of the
terms and conditions of Agreements to Sell. Not only so, the respondent /
plaintiff even in these appeals, now pending for the last nearly eight years, has
persisted with the same stand.
19. There cannot be a more gross case of a purchaser of immovable property,
inspite of not acting in terms of the Agreements to Sell, setting up a claim for
purchase not by specific performance of what had been agreed upon but in
another manner, so holding up the property of the seller. I am also appalled at
the fact that inspite of such apparent inconsistency in the claim with the
Agreements to Sell, the respondent / plaintiff has succeeded before the suit
Court.
20. Though the senior counsel for the respondent / plaintiff has not referred
to any evidence but I have nevertheless perused the testimony of both the
Directors of the respondent / plaintiff. Though, they in their statements
admitted that the balance sale consideration was to be paid on or before 27 th
October, 1989, but explained that the same was not paid owing to the appellant
/ defendant having failed to get the agricultural land converted into lal dora
land and because the appellant / defendant could not obtain the requisite NOCs.
The statement of the appellant / defendant having not converted the land to lal
dora was again in contravention to the case set up in the suits. Neither was it
the agreement between the parties that the land was required to be converted
into lal dora nor was the payment of the balance sale consideration dependent
thereon. The said witnesses in cross-examination also admitted that the
respondent / plaintiff had not applied for obtaining the NOCs and volunteered
that the same was the duty of the appellant / defendant and which was again
diametrically opposite to what was agreed in the Agreements to Sell.
21. Per contra, the son / attorney of the appellant / defendant in his
examination-in-chief, with reference to the contents of the Agreements to Sell
deposed that the NOCs were to be obtained by the respondent / plaintiff; that
the respondent / plaintiff had not taken any steps for applying for or for
obtaining the NOCs; that the respondent / plaintiff had not paid the balance sale
consideration of approximately about Rs.45,00,000/- under all the eight
Agreements for the reason of being not possessed of the said monies; that the
plots of land were in possession of the appellant / defendant even then i.e. on
22nd December, 2001 when the said statement was being recorded; that the said
plots at the time of entering into the Agreements to Sell and till then remained
in the lal dora. Though the respondent / plaintiff neither in the suit nor in his
evidence has set up a case of having paid or tendered the balance sale
consideration to the appellant / defendant on or before 27th October, 1989 but
in the cross examination of the son / attorney of the appellant / defendant, faced
with the said stand in the examination-in-chief suggested that the appellant /
defendant and his son / attorney who was deposing were not ready and willing
to accept the balance sale consideration and execute the sale deed and which
suggestion was denied by the son / attorney of the appellant / defendant.
22. The respondent / plaintiff in the suits from which these appeals arise not
only set up a case different from the terms and conditions of the Agreements to
Sell but also set up a further case of the representations made by the appellant /
defendant of the plots of land being situated in lal dora having been "reliably
learnt" to be false.
23. Though the Agreements to Sell while describing the property subject
matter of sale, described the same as "lal dora land" but otherwise do not
contain any express representation of the appellant / defendant as seller, of the
land being situated in lal dora. Mr. Manoj Kumar, Director of the respondent /
plaintiff appearing as PW1 in his examination-in-chief however did not stand
by the case set up in the plaints of having after the Agreements to Sell, learnt of
the land being not situated in lal dora and being agricultural but deposed that
the appellant / defendant was contractually obliged to get the land converted to
lal dora. In view of such change in stand, the occasion for him to disclose as to
from whom the respondent / plaintiff had reliably learnt of the land being not
situated in lal dora did not arise. He however in his cross-examination
admitted having seen the land prior to entering into the Agreements to Sell and
having seen and verified the original documents of the purchase of the land.
Upon being further quizzed in cross-examination as to whether the respondent /
plaintiff upon learning that the land was not within the lal dora had given
anything in writing to the appellant / defendant, he stated that the same was not
done.
24. The Agreements to Sell as aforesaid do not provide for any conversion of
the land into lal dora. The learned Additional District Judge has also rendered a
finding in this regard in favour of the appellant / defendant i.e. that the
respondent / plaintiff had failed to prove his pleas of having after the
Agreements to Sell learnt of the land being not situated in lal dora or of the
land in fact being not situated in lal dora. Not only has the respondent /
plaintiff not challenged the said findings of the learned Additional District
Judge but has expressly stated that the respondent / plaintiff is not challenging
the same. With the same, the edifice on which the suits were filed i.e. of the
appellant / defendant having misrepresented to the respondent / plaintiff of the
lands being situated in lal dora and of owing to the lands being not so situated
in the lal dora sale being not possible, falls. The conclusion is inescapable that
the respondent / plaintiff approached the Court with a false case. A plaintiff
especially in a suit for specific performance of an Agreement of Sale of
immovable property and grant of which relief is discretionary, if found to have
approached the Court with a false case is likely to be disentitled from the relief
of specific performance. I have recently in Rajender Singh Dabas Vs.
Ramjano MANU/DE/3004/2013 dealt with this aspect and thus do not feel the
need to elaborate further. There is no reason not to apply the said principle to
the facts of the present case especially when the respondent / plaintiff in the
plaints itself mis-quoted the terms of the Agreements to Sell. I have also
perused the evidence and find the case set up by the respondent / plaintiff, of
entertaining any doubts of the land being not situated in a lal dora, to be
without any basis. The only conclusion is that such false case was set up
merely to create a basis for a suit for specific performance to be entertained and
to embroil the appellant / plaintiff in litigation. Not only so, the respondent /
plaintiff persisted with such a case in contravention of the terms and conditions
of the Agreements to Sell in his replication also.
25. The learned Additional District Judge being conscious, of the obligation
to obtain the NOCs under the Agreements to Sell being of the respondent /
plaintiff and it being the admitted position that the respondent / plaintiff had not
taken any steps therefor, still held the respondent / plaintiff to be ready and
willing to perform his part of the Agreement to Sell by holding the term of the
Agreement to Sell requiring the respondent / plaintiff to apply for and obtain
NOCs to be void under Section 23 of the Contract Act. However, as the
aforesaid narrative would show, there was neither any plea nor any evidence to
the said effect. In the absence of the respondent / plaintiff pleading and setting
up a case of any of the terms of the Agreement to Sell being void, it was not
open to the learned Additional District Judge to return a finding, even if on an
argument of the counsel for the respondent / plaintiff raised for the first time at
the time of addressing arguments. The said reasoning of the learned Additional
District Judge is liable to be set aside on this ground alone.
26. The senior counsel for the respondent / plaintiff, when confronted with
the same, argued that the Agreements to Sell between the parties to the extent
provided for the respondent/plaintiff to apply for and obtain NOCs /
permissions for sale were "seemingly changed", with the appellant/defendant
taking the said burden upon himself; that statutorily it is the seller who has to
apply for and obtain permissions.
27. It was however enquired from the senior counsel for the respondent /
plaintiff whether there is any plea of the respondent/plaintiff, of the written
agreement between the parties having changed or of the appellant/defendant
having waived any of the clauses thereof; whether not such a plea of the written
Agreements to Sell having been changed or any of the clauses thereof being
void, even if were to be held to have been raised, would make the entire
agreement unenforceable and under what law the agreement of which specific
performance is claimed could be so dissected.
28. The senior counsel for the respondent / plaintiff has contended that the
Agreements to Sell to the extent provide for NOCs to be applied for and
obtained by the respondent/plaintiff is void under Section 23 of the Indian
Contract Act, 1872 in as much it is impossible for the purchaser to apply for
and obtain the permissions as the same under the law can be done by the seller
only.
29. However it was enquired from the senior counsel for the
respondent/plaintiff whether not such NOCs are to be applied for on prescribed
forms generally available with the offices from which NOCs are to be obtained
and whether not the respondent/plaintiff could have obtained the signatures of
the appellant/defendant on the said forms, papers, affidavits etc. required to be
filed therewith or taken a Power of Attorney from the appellant/defendant for
obtaining such permissions, especially when under the Agreements to Sell, the
appellant/defendant had specifically undertaken to sign all documents/papers at
the request of the respondent/plaintiff for the said purpose.
30. The senior counsel for the respondent/plaintiff though agreeing that a
purchaser can in such a manner apply for and obtain permissions contended
that the appellant/defendant in his written statement has not taken any such plea
and the witnesses of the appellant/defendant have also not deposed so and the
counsel for the appellant/defendant in the cross examination of the witnesses of
the respondent/plaintiff did not suggest so and this Court cannot now hold the
respondent/plaintiff to be not ready and willing to perform the agreement for
such reason. He further contended that the appellant/defendant by not taking a
plea in the written statement of the respondent/plaintiff inspite of being capable
of applying for and obtaining permissions having not done so has waived such
right and/or term of the Agreement to Sell. Reliance in this regard is placed on
Krishna Bahadur Vs. Purna Theatre (2004) 8 SCC 229 (paras 9&10).
31. I am unable to agree. The appellant / defendant in the written statement
has expressly pleaded that under the terms of the Agreements to Sell, the
respondent / plaintiff was under an obligation to procure at his own costs and
expense, apply and obtain the NOCs and had neither applied nor obtained the
same. The Directors of the respondent / plaintiff in their evidence also agreed
that they had neither applied for nor obtained the NOCs. Rather the counsel for
the respondent / plaintiff in the cross-examination recorded on 05.01.2002 of
the son / attorney of the appellant / defendant suggested that the appellant /
defendant had signed and executed certain forms at the time of execution of the
Agreements to Sell. It is thus not as if the respondent / plaintiff was oblivious
of the manner in which the NOCs were to be applied for or obtained by the
respondent / plaintiff or that the respondent / plaintiff did not understand the
plea in the written statement of the appellant / defendant. I am thus unable to
hold that the appellant / defendant in his written statement has not taken the
requisite pleas or has waived the term of the Agreements to Sell whereunder the
obligation to apply for and obtain NOCs was of the respondent / plaintiff.
Moreover, I reiterate that in the absence of any pleading and evidence of such
waiver and change in Agreements to Sell, the suits cannot be decided thereon.
The reliance by the learned Addl. District Judge on the judgment supra of the
Allahabad High Court is misconceived as in that case the Agreement to Sell
was silent on who was to obtain the requisite permissions and in this context
the obligation was held to be of the seller. However, the subject Agreements to
Sell clearly provide that the respondent/plaintiff/purchaser was to apply for and
obtain the permissions and the only obligation of the appellant/defendant/seller
was to sign the requisite papers in this regard. The Supreme Court in
Saradamani supra has held that even the obligation in law of the vendor to
convey an encumbrance free good marketable title is subject to a contract to the
contrary.
32. The star argument of the senior counsel for the respondent / plaintiff to
which he kept on adverting however is that it was the appellant / defendant who
had entered into the Agreement to Sell and who was alive at the time when the
evidence of the appellant / defendant was being recorded and who alone could
have deposed in his defence failed to appear as a witness and the evidence
offered of his son and attorney is no evidence. It is argued that no explanation
has been given for non appearance of the said appellant / defendant in the
witness box and adverse inference ought to be drawn against him for this
reason. It is yet further argued that only he could have deposed that he was so
ready and willing to sign forms, documents, affidavits, power of attorney to
enable the respondent/plaintiff to apply for and obtain permissions. Reliance in
this regard is placed on Man Kaur Vs. Hartar Singh Sangha (2010) 10 SCC
512 (paras 16 & 17) and on judgment dated 10th April, 2013 of the Supreme
Court in Civil Appeals No.2885-2887/2005 titled S.Kesari Hanuman Goud Vs.
Anjum Jehan. It is argued that it has thus to be presumed that the appellant /
defendant was not ready and willing to perform his part of the Agreements to
Sell. It is yet further argued that the appellant / defendant in his written
statement nowhere stated that he was ready and willing to sign and execute
forms, papers, affidavits, power of attorney etc. to enable the respondent /
plaintiff to apply for and obtain NOCs. It is yet further contended that the
attorney in favour of the son of the appellant / defendant is of the year 1995;
thus the said son of the appellant / defendant was not the attorney at the
contemporaneous time and not competent to depose. It is yet further contended
that only the appellant who had signed the Agreements to Sell could have
deposed as to how the agreement was understood by the parties.
33. The counsel for the appellant/defendant has argued:-
(A). that the original defendant at the time of recording of the evidence
was 91 years of age and thus unable to depose;
(B). that the attorney of the original defendant who was examined was
none else than the son of the original defendant and who is a
witness of the Agreements to Sell as well as receipt and who has
deposed that he was present throughout the transaction;
(C). that the cross examination of the said son and attorney of the
original defendant also shows that he was fully aware of the fact;
(D). that it was never suggested to the son/attorney of the original
defendant that he was not aware of the facts or was not available at
the time of Agreements to Sell or transaction;
(E). that in any case it was not the case of the respondent/plaintiff that
anything had transpired between the Agreements to Sell and the
issuance of the legal notice;
(F). that the cross examination of the son/attorney of the original
defendant is on the premise that he was acting in unison with his
father;
(G). attention is invited to para 18 of Man Kaur supra laying down that
evidence of an attorney who has been involved in the affairs and
who may be a close family member and who is appearing for an
old and infirm parent can be accepted.
34. I tend to agree with the contentions aforesaid of the counsel for the
appellant / defendant. The present is not a case where it can be said that it was
the predecessor-in-interest of the appellant / defendant alone who could have
deposed or where adverse inference has to be drawn from his non appearance in
the witness box. Rather there is sufficient explanation for his non appearance
and no case of any aspect on which the appellant / defendant alone could have
deposed has been built up. Even in Saradamani supra the general principle laid
down in Man Kaur supra was held to be not applicable. Rather, the very
argument that the appellant / defendant alone could have deposed about his
readiness and willingness to sign the forms, applications, power of attorney,
affidavit to enable the respondent / plaintiff to apply for and obtain the NOCs is
misconceived inasmuch as it is nowhere the case of the respondent / plaintiff
that he was ready and willing to apply for and obtain the permissions and could
not do so because of the appellant / defendant not cooperating in the same.
Further, what has to be pleaded and proved is the readiness and willingness of
the party seeking specific performance and there is no such statutory
requirement on the defendant.
35. The senior counsel for the respondent / plaintiff has also contended that
adverse inference ought to be drawn against the appellant / defendant for not
replying to the notice issued prior to the institution of the suit. It is further
argued that while in the written statement, it was pleaded by the appellant /
defendant that the notice was not replied to for the reason of the contents
thereof being wrong, in the evidence it was deposed that the summons of the
suit were received while the reply to the notice was being drafted. No merit is
found in the said contention. The notice admittedly is of a date barely 15 days
prior to the institution of the suit and itself gives 10 days time to the appellant /
defendant to comply therewith. The senior counsel for the respondent /
plaintiff could not tell as to how many days prior to the service of the summons
of the suits on the appellant / defendant, the notice was served. In these
circumstances, no question of drawing any adverse inference arises.
36. It was also enquired from the senior counsel for the respondent / plaintiff
whether the clause of the Agreements to Sell requiring the respondent / plaintiff
to apply for and obtain permissions could be held to be void without making
the entire agreement void and whether a composite agreement between the
parties could be dissected in such a manner.
37. No answer was forthcoming.
38. I am of the opinion that once the parties have agreed to complete a
transaction in a particular manner, either the transaction can be enforced in that
manner or not at all. The remedy clamed is of specific performance and when
performance claimed is in a manner other than that agreed, there can be no
specific performance.
39. I am unable to agree with the reasoning in the impugned judgment of the
readiness and willingness of the respondent / plaintiff in terms of availability of
funds. The learned Additional District Judge has held the respondent / plaintiff
to be ready and willing on the basis of the availability of funds with its majority
shareholder. The learned Additional District Judge has also wrongly rejected
the argument of the counsel for the appellant / defendant of the said plea being
unbelievable in the absence of any resolution of the Board of Directors of the
respondent / plaintiff. The counsel for the appellant / defendant is correct in
contending that the respondent / plaintiff could not have relied upon the funds
for payment of the balance sale consideration being made available by its
majority shareholder without the said majority shareholder himself stepping
into the witness box and deposing so and without there being any other
documents whatsoever to show that the said majority shareholder was ready
and willing to so lend funds to the respondent / plaintiff or that the respondent /
plaintiff had taken a decision to acquire the said land with the financial
assistance of the said majority shareholder. The respondent / plaintiff which is
a limited company and a juristic person acts and decides through its Board of
Directors which in turn acts and decides by passing resolutions and without the
Board of Directors of the respondent / plaintiff having passed a resolution to
acquire the said lands by procuring the funds from the majority shareholder and
without the said majority shareholder consenting to the same, the said version is
not believable and at best an afterthought. It is significant that the respondent /
plaintiff in the plaints did not disclose that the funds were available with it or
that they were to be made available by the said shareholder. Inspite of the
appellant / defendant expressly pleading so in the written statement, yet in the
replication no such plea was taken. The counsel for the appellant / defendant is
also correct in his contention that the testimony of the bank manager examined
by the respondent / plaintiff is of no avail, being of availability of funds with
the respondent / plaintiff on a date much after 27th October, 1989 by which
date the respondent / plaintiff under the Agreements to Sell was to pay the
balance sale consideration.
40. The learned Additional District Judge is also found to be in error in
holding that mere plea and deposition of the plaintiff of readiness and
willingness is enough. The Supreme Court in Umabai Vs. Nilkanth Dhondiba
Chavan (2005) 6 SCC 243 has held that mere bare statement in the plaint
and/or in examination-in-chief of readiness and willingness would not suffice
and the Court must take into consideration the conduct of the plaintiff prior and
subsequent to the filing of the suit along with other attending circumstances and
the amount of consideration to be paid must of necessity be proved to be
available. The learned Additional District Judge did not notice, that from the
case set up by the respondent / plaintiff in the plaints which was contrary to the
agreements and persisting therewith in the trial, the non readiness and non
willingness of the respondent / plaintiff to perform its part of the obligations
under the Agreements to Sell was writ large.
41. The learned Additional District Judge is also found to be in error in
holding that it is the statutory obligation of the seller to obtain the requisite
permissions for sale. The learned Additional District Judge has not cited any
statute in this regard and the senior counsel for the respondent / plaintiff on
whose argument such finding must have been given is also unable to support
the same. Even if certain permissions may be necessary to complete the sale /
transfer, I find no bar in law from the parties to a Agreement to Sell agreeing to
the purchaser being responsible for applying and obtaining such permissions
particularly when the seller whose signatures may be required for obtaining
such permissions agrees to sign all documents which may be required in this
regard. It was so held by this Court in S. Niranjan Singh Vs. Smt.
Parkashwati 58 (1995) DLT 215. The Division Bench of this Court also in
Shahjad Dagar Vs. Naresh Gujral MANU/DE/2439/2008 has held that the
seller has to complete all acts necessary to convey title in property unless the
terms of the Agreement to Sell record otherwise.
42. The finding of the learned Additional District Judge of the clauses of the
Agreements to Sell requiring the purchaser to pay the balance sale
consideration even without execution of the sale deed being unjust is again
without any pleading or evidence or such a case being set up by the respondent
/ plaintiff. I am even otherwise unable to find any substance in such a finding.
There is no bar in law to the purchaser paying even the entire sale consideration
to the seller in advance. Again, in Saradamani supra it was held that where the
terms of the contract make it clear that payment of the sale price did not depend
on execution of Sale Deed, the purchaser had to fulfill the obligation in regard
to payment of price and thereafter the vendors were to be required to perform
their reciprocal promise of executing the Sale Deed. In the present case, there
was sufficient consideration for payment of the balance sale consideration
without execution of the sale deed inasmuch as the same was against delivery
of possession of the land to enable the purchaser to enjoy the usufruct thereof
and execution of documents to enable the purchaser to enjoy all rights as owner
in the said land. It is not for the Courts to decide the justness or fairness of
agreements entered into by the parties specially when the party setting up such
a case has not pleaded so.
43. In the view aforesaid taken, need is not felt to deal with the legal plea
which the appellant / defendant was as aforesaid vide order dated 23rd
September, 2010 permitted to raise or with the applications of the respondent /
plaintiff under Order 41 Rule 27 of the CPC in opposition thereto.
44. The appeals therefore succeed; the impugned judgments and decrees are
set aside. The suits filed by the respondent / plaintiff claiming the relief of
specific performance, are dismissed. Though the respondent / plaintiff in the
plaints had pleaded that it was in the alternative to the relief of specific
performance entitled to the relief of damages but no such prayer was made.
Even otherwise, the respondent / plaintiff having been found to be in breach of
the Agreements to Sell and having been not been ready and willing to abide by
the same, the question of it being entitled to any damages does not arise.
45. The appeals are allowed with costs. Counsel fee assessed at Rs.25,000/-
in each appeal.
Decree sheet be drawn up.
RAJIV SAHAI ENDLAW, J.
NOVEMBER 18, 2013
pp/gsr
