Vikas Aggarwal vs Bal Krishna Gupta & Ors.
2014 Latest Caselaw 2222 Del

$~28
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+        CS(OS) 2353/2013
         VIKAS AGGARWAL                           ..... Plaintiff
                     Through: Mr.Amit Sibal, Sr.Adv. with
                     Mr.T.A.Siddiqui and Mr.Suryajyoti Singh, Advs.

                            versus

         BAL KRISHNA GUPTA & ORS                  ..... Defendants
                      Through: Mr.P.D.Gupta, Mr.Abhishek Gupta and
                      Mr.Atul Gupta, Advs.

         CORAM:
               HON'BLE MR. JUSTICE G.S.SISTANI
                      ORDER

%                     02.05.2014

IA No. 4955/2014

1. By the present application plaintiff seeks refund of Rs.6.24 crores deposited in the Court.

2. Plaintiff has filed the present suit for specific performance of contract dated 01.02.2013 and for mandatory injunction arising out of an agreement to sell dated 01.02.2013 between the plaintiff and defendant No.1 and 2 with respect to the half share of property measuring 38 bigha 5 biswa comprised in Khasra No.38/24/1 (3-8), 41/4 (4-12), 5/1 (1-5), 7 (4-

16), 13 (4-16), 27 (0-4), 56/19/2 (3-19), 20/2 (4-8), 21 (4-16), 22/2/2 (1-

1), 23 (4-16) and 28 (0-4) four acres situated within the revenue estate of village Bakhtawar Pur, New Delhi.

3. As per the agreement to sell the total sale consideration was fixed at Rs.9.24 crores. It is not in dispute that the plaintiff paid the defendants a sum of Rs.1 crore on the date of signing of the agreement to sell. Receipt of Rs.1.0 crore was acknowledged by the defendants in the agreement to

sell as also separately in the form of a receipt. It was further agreed between the parties that another sum of Rs.1.5 crore would be paid to the defendants by 25.04.2013. Further Rs.50 lakhs was to be paid in May 2013. The entire transaction was to be completed within a period of 6 months from 1st February 2013. In the plaint the plaintiff has given details of payments made to the defendant i.e. Rs.75 lakhs was paid to defendant No.1 in cash on 24.04.2013. A separate receipt was issued. Another sum of Rs.25 lakhs was paid in cash to defendant No.2 for which a receipt was issued. 5 cheques of Rs.10 lakhs each, dated 25.04.2013, 26.04.2013, 27.04.2013, 28.04.2013, 29.04.2013 were handed over to the defendant No.2. Another sum of Rs.50 lakhs was paid to the defendant No.2 on 04.06.2013 for which a separate receipt was signed. Plaintiff has placed copies of receipts on record evidencing payment of a total sum of Rs.3 crores to the defendants as per the schedule fixed in the agreement to sell. Receipt of payments is not in dispute.

4. Reliance is placed on clause-9 of the agreement to sell by Mr.Sibal, learned senior counsel for the plaintiff, to show that an NOC was to be obtained by the defendants under Section 8 of the Delhi Land (Restriction on Transfer) Act 1972 from the Tehsildar Notification/ADM/DC concerned authority by the defendants. This NOC was to be applied before 01.06.2013. It is further submitted by Mr.Sibal that the defendants applied for the NOC on 07.06.2013 after a delay of about one week. A copy of the application was handed over to the plaintiff for their record and thus the plaintiff was under an impression that NOC had not been received. It is also the case of the plaintiff that after paying Rs.3 crores, the plaintiffs kept on visiting the house of the defendants to inquire about receipt of the NOC. However, no satisfactory response was received. It is also the case of the plaintiff that nearing the date of completion of the

transactions one of the defendants being defendant No.1 had gone abroad and therefore was not in the country for the execution of the sale deed. It is also the case of the plaintiff that meanwhile in the month of August 2013 the plaintiff again approached defendants No.1 and 2 and fresh set of documents for obtaining NOC were signed on 15.08.2013. The plaintiff was under a bona fide impression that NOC had not been received by the defendants.

5. The plaintiff was, however, shocked to receive a legal notice dated 09.09.2013 from the defendants wherein the plaintiff was informed that the NOC had been received way back on 04.07.2013 and the plaintiff was further informed that the earnest money stood forfeited. A detailed reply to the legal notice was issued by the plaintiff on 18.9.2013. While refuting the allegations made in the notice dated 09.09.2013 plaintiff denied knowledge of receipt of NOC and made a categorical assertion that papers for grant of NOC were again signed by the defendants on 15.08.2013 and even on that date plaintiff was not informed about the receipt of NOC. Plaintiff reiterated that he was ready and willing to perform his part of the agreement and balance sale consideration of Rs.6.24 crores was ready with him. A further reply was received from the counsel of the defendants refuting all allegations made in the communication dated 18.09.2013 and contents of notice dated 09.09.2013 were reiterated. However, since the defendants did not come forward the present suit was filed.

6. On the first date of hearing counsel for the plaintiff volunteered to deposit in Court the balance sale consideration (Rs.6.24 crores). While issuing summons in the suit by an order dated 06.12.2013 defendants were directed to maintain status quo with regard to title and possession subject to the plaintiff depositing Rs.6.24 crores. It was made clear that

the injunction order would become operative from the date of deposit of the amount. The plaintiff thereafter filed an application being IA No.20815/2013 seeking variation of the injunction order and volunteered to furnish a bank guarantee in place of depositing the amount. The aforesaid application was dismissed on 19.12.2013 which led to filing of FAO(OS) No.23/2014 by the plaintiff. It may be noticed that notice was issued in the FAO (OS) No.23/2014, at that stage neither the bank guarantee was furnished by the plaintiff nor the amount was deposited. On the first date of hearing the defendant appeared and a statement was made that the status quo would be maintained with regard to title and possession. It may also be noticed that thereafter the matter was adjourned from time to time to enable the parties to arrive at an amicable settlement. No settlement could be arrived at. Resultantly, on 30.01.2014, the following order was passed by the Division Bench:-

"The parties have not been able to settle. Renotify on 20.02.2014. The appellant shall deposit the sum of Rs.6.24 crores with the Registrar General of this Court which shall be placed in a fixed deposit in the first instance for a period of 91 days. This direction has been given inasmuch as the learned counsel for the appellant has stated that since the respondents are raising doubts about the fact that the appellant has the money, therefore, the appellant has volunteered that the said amount be deposited in the court to show that he has wherewithal to conclude the transaction. This is without prejudice to the rights and contentions of the parties."

7. The matter was thereafter adjourned to 20.02.2014 when the appeal was disposed of by the Division Bench. The following order was passed:-

"The appellant has deposited the sum of Rs.6.24 crores with the Registrar General of this court. Thereby, the appellant has demonstrated his bona-fide. Initially the learned Single Judge by virtue of an order dated 06.12.2013 had directed that subject to the

appellant/plaintiff depositing the sum of Rs.6.24 crores within four weeks, there would be an interim order directing the defendant to maintain status quo as regards title and possession of the suit property till the next date of hearing. Before the expiration of the period of four weeks, the appellant/plaintiff moved an application being IA No.20815/2013 under Order IX Rule 7 CPC seeking a modification of the order to the effect that instead of requirement of depositing the sum of Rs.6.24 crores, the plaintiff be permitted to furnish a bank guarantee for the said amount. The learned Single Judge declined from varying the previous order dated 06.12.2013.

After hearing the learned counsel for the parties and considering the fact that the appellant/plaintiff has demonstrated his bona-fide by depositing the said sum of Rs.6.24 crores, we direct that the defendants shall maintain the status quo as regards title and possession of the suit property during the pendency of the suit. We are also of the view that the appellant/plaintiff would be at liberty to move an application before the learned Single Judge for withdrawal of the said amount of Rs.6.24 crores in view of the provisions of explanation to Section 16(1)(c) of the Specific Relief Act, 1963. If such an application is made, the learned Single Judge would decide the said application after hearing the parties but without being influenced by the earlier orders dated 06.12.2013 and 19.12.2013 in accordance with law.

The appeal is allowed in part."

8. Based on the observations of the Division Bench the present application has been filed seeking leave of this Court for withdrawal of a sum of Rs.6.24 crores. Leave was also granted to the appellant/plaintiff to rely on an explanation to Section 16(1)(c) of the Specific Relief Act. It was also observed in the order dated 20.2.2014 that this Court would hear the application uninfluenced by the orders dated 06.12.2013 and 19.12.2013.

9. While it is the case of the plaintiff that the plaintiff has always been ready and willing to perform his part of the agreement and was always ready with the balance sale consideration which is evident from his conduct which would show that all payments as agreed between the parties were

made as per schedule in the agreement to sell, the plaintiff was pursuing the matter with the defendant and further no communication was issued by the defendants to the plaintiff with regard to receipt of NOC and in case the NOC had been received, there was no reason for the defendant no.1 to leave the country. Mr.Sibal submits that even in the month of August 2013, the defendant signed another application for NOC, which gave the impression to the plaintiff that NOC had not been received till that date. Mr.Sibal, submits that as per clause-9 of the agreement to sell, the onus to obtain the NOC was on the defendant and in case the defendant had obtained the NOC the defendant should have informed the plaintiff.

10. Mr.Sibal has drawn the attention of the Court to the order dated 06.12.2013 passed by the Single Judge of this Court while issuing summons in the suit. Mr.Sibal contends that out of the total sale consideration of Rs.9.24 crores, the plaintiff has paid a sum of Rs.3 crores and thus in all probability, the learned Single Judge would have granted interim protection but the counsel for the plaintiff on instructions from the plaintiff, to show his bona fide, made a voluntary statement that the plaintiff was prepared to deposit in Court the balance sale consideration. It is further submitted that deposit of balance sale consideration by the plaintiff was not mandatory, however, since the plaintiff volunteered to deposit the balance sale consideration, the Court in its wisdom passed a conditional order of status quo subject to deposit.

11. Further in support of the above submission, it is further pointed out by Mr.Sibal, that even before the Division Bench without deposit of the balance sale consideration or furnishing the bank guarantee the status quo order was passed although on the statement of counsel for the defendant.

12. It is further submitted that when the matter was listed before the Division

Bench, to show his bona-fides the plaintiff voluntarily deposited Rs.6.24 crores in the Registry which is evident upon reading of order dated 30.01.2014, wherein it has been so recorded.

13. Mr.Sibal has also contended that deposit of the entire sale consideration is not mandatory as per law. Reliance is placed on the explanation to Section 16(1)(c) of the Specific Relief Act.

14. It is further contended that the plaintiff has all along being ready and willing to pay the balance sale consideration and in case the NOC had been received the defendant would have informed the plaintiff of the same. Moreover, it is contended that admittedly one of the defendants was not in the country on the relevant date and thus his conduct would show that the agreement could not have been completed on the dates which were fixed as per the agreement to sell.

15. Counsel further submits that the defendant has already enjoyed Rs.3 crores paid to the defendant between April to May 2013 onwards together with possession of the property. While the plaintiff has parted with Rs.3 crores at the first instance and also deposited the balance sale consideration, the purpose of which was solely to prove his bona-fides and to show that he had the money to complete the transaction. He submits that should the plaintiff succeed the defendant would not be prejudiced as he would receive the balance sale consideration and also during the pendency of the suit enjoy the possession. However, should the plaintiff not succeed in the suit the defendant would have continued to enjoy the possession of the suit property as also Rs.3 crores which stand paid to him and the interest which would accrue thereon. To the contrary as of today the plaintiff neither has the benefit of possession of the suit property, Rs.3 crores already stand paid in the month of April and May 2013. Another Rs.6.24 crores in February 2014.

16. Mr.Sibal has placed reliance on a decision of Single Bench of this Court in the case of Mahesh Singhal vs. Bhupinder Narain Bhatnagar CS(OS) No.354/2012, wherein in similar circumstances after deposit of the amount the plaintiff had sought withdrawal. The learned Single Judge after considering the judgments of the Supreme Court, Division Bench and Single Bench of this Court permitted the plaintiff to withdraw the amount.

17. Mr.P.D.Gupta, learned counsel appearing for the defendant has vehemently opposed this application. He submits that once the learned Single Judge had passed an order of deposit the order cannot be varied or vacated unless the plaintiff is able to show change of circumstances for variation of the order, however, the plaintiff has not been able to show any change of circumstance. He also submits that the order by the learned Single Judge was a conditional order and in case the plaintiff wishes the interim order to continue he cannot be permitted to seek refund of Rs.6.24 crores. He further contends that it is the plaintiff who defaulted and did not pay the balance sale consideration, as per the terms of the agreement to sell and thus the earnest money paid by the plaintiff stands forfeited. It is also contended that the defendant was only to sign the papers for grant of NOC and it was agreed that the follow up was to be done by the plaintiff and the plaintiff was in fact instrumental in obtaining the NOC and thereafter the plaintiff had informed the defendants that the NOC was ready and the same should be collected. Thus, to show that he has no knowledge or he was not informed of grant of NOC is factually incorrect.

18. It is also contended by Mr.Gupta that the defendant was in dire need of money and it is for this reason that he wanted to sell his property which is also admitted by the plaintiff in para 5 of the plaint and furthermore, in case the property is injuncted the defendant would suffer irreparable loss.

Learned counsel has placed strong reliance on a decision of a Division Bench of this Court reported in 169 (2010) DLT 487 titled Mohan Overseas P. Ltd. v. Goyal Tin & General Industries wherein the Division Bench set aside the order of a Single Judge which permitted release of the sale consideration to the plaintiff. Relying on the aforesaid judgment counsel submits that firstly there is no occasion for variation of the condition imposed in the interim order dated 20.02.2014 and secondly continuing the interim order without deposit of entire sale consideration would lead to injustice against the defendants as the sale transaction would be frozen to the disadvantage of the defendants. Mr.P.D.Gupta further clarifies that although defendant No.1 was not available in the country between 28.07.2013 to 31.07.2013 but he was back on 01.08.2013 and he had only travelled to Bhutan after ascertaining from the plaintiffs that they were not ready with the balance sale consideration. Mr.Gupta has also denied signing of papers for grant of NOC in August, 2013. Another submission made by Mr.Gupta is that on the date of filing of the suit no material was placed on record to show that the plaintiff had the resources to pay the balance sale consideration.

19. I have heard the learned counsel for the parties and considered their rival submissions.

20. The arguments of learned counsel for the plaintiff can be summarised as under:

(i) Plaintiff volunteered to deposit the balance sale consideration on the first date of hearing when summons were being issued, to show his bona fide;

(ii) In all probability even in the absence of the balance amount ex parte injunction would have been granted by the Single Judge, as substantial payment (Rs.3.0

crores) already stood paid by the plaintiff;

(iii) There is no mandatory requirement to deposit the balance sale consideration in view of explanation to Section 16(1)(c) of Specific Relief Act;

(iv) Conduct of the plaintiff would show that he made payment on time and was all along ready and willing to complete the transaction and pay the balance money;

                   (v)     Having proved his bonafide by deposit of Rs.6.24
                           crores the balance amount should be returned; and
                   (vi)    No notice of receipt of NOC was given by the

defendants and, thus, the defendants are the defaulting party;

21. The arguments of Mr.P.D. Gupta, learned counsel for the defendants, can be summarised as under:

(i) The plaintiff did not have the means to pay the balance sale consideration therefore transaction could not be completed;

(ii) The plaintiff was aware of grant of No Objection Certificate;

(iii) No change of circumstances for variation of the order of the learned Single Judge;

(iv) The property of defendants cannot be frozen while the plaintiff enjoys the balance sale consideration; and

(v) The amount cannot be refunded in view of the decision of the Division Bench in the case of Mohan Overseas P. Ltd. (supra).

22. The basic facts are not in dispute that the parties entered into an agreement to sell on 1.2.2013 with respect to the suit property. The total sale consideration was fixed at Rs.9.24 crores. Rs.1.0 crore was paid to the defendant at the time of signing of the agreement to sell on 01.02.2013 as per schedule. Instalments were paid on 24.04.2013, 25.04.2013 and in May 2013 taking the total to Rs.3 crores. It is also not in dispute that as per clause 9 of the agreement to sell NOC was to be obtained by the defendant.

23. Mr.P.D.Gupta submits that no written information was sent to the defendant of receipt of the NOC the plaintiff had knowledge of grant of NOC as plaintiff was following up the matter for grant of NOC. Thus, the plaintiff was aware that NOC had been granted in July 2013. It is not in dispute that between 29.07.2013 and the morning of 01.08.2013 the defendant No.1 was not in the country and had travelled to Bhutan.

24. The first question which arises for consideration before this Court is whether the present application is maintainable and whether there are any change of circumstances for variation of interim order dated 20.02.2014, directing deposit of Rs.6.24 crores i.e. the balance sale consideration.

25. Mr.P.D. Gupta, learned counsel for the defendants, has placed strong reliance on the observations of the Division Bench in Mohan Overseas P. Ltd. (supra). In support of his argument that once a discretionary order had been passed there is no occasion to modify the same. It would be useful to notice the brief facts of Mohan Overseas (Supra). In the case of Mohan Overseas P. Ltd. (supra) the parties had entered into an Agreement to Sell on 4.2.2004. The sale consideration was fixed at Rs.1.77 crores, out of which only Rs.18.00 lakhs, was paid as an advance. The purchaser/plaintiff was obliged to pay a further sum of Rs.35.00 lakhs

on or before 7.3.2004. Possession was to be handed over at the time of the execution of the sale deed. The Division Bench noted that the purchaser defaulted in making payment of Rs.35.00 lakhs. Another opportunity was granted to pay the same but the purchaser did not do so. While issuing summons in the suit, the Single Judge directed the plaintiff to file statement of account to show that they possessed all requisite funds. Statement of account was filed and after several hearings the plaintiff was directed to deposit the balance sale consideration of Rs.1.59 crores, which came to be deposited by the father of the plaintiff. The Division Bench also noticed on perusal of the Court records that repeated adjournments had been consumed by the plaintiffs and evidence remain incomplete, while there was no delay on the part of the defendants. The Division Bench also noticed that once a discretionary order was passed it was not open for modification by a successor court. Since a similar argument has been raised by Mr.P.D. Gupta, I deem it appropriate to reproduce para 37 of the judgment of Mohan Overseas P. Ltd. (supra).

"37. The impugned Order has been passed by the second successor Court. We have pointed this out for the reason that the initial Order directing the plaintiffs to make deposit the balance sale consideration was a discretionary order which ordinarily would not be open to modification by a successor Court, unless circumstances had changed to such an extent that modifying the initial Order would be necessitated in the interest of justice. It could have been assailed in Appeal, but since this was not done, the ad interim arrangements had become unalterable during the pendency of the suit. In fact, it is the plaintiffs who had taken several adjournments and they could not, therefore, make a grievance that the amounts deposited were not available to the plaintiffs because of wilful defaults of the defendants."

26. Further in the case of Mohan Overseas P. Ltd. (supra), while allowing the appeal, the Division Bench held that the impugned order must be set aside

on the ground, firstly, as it was not disclosed to the Court that the circumstances had changed drastically and secondly to seek modification no flaw was found with the direction of deposit. The Division Bench had also noticed that the appellants had appeared in person and stated that they had discharged their advocates since they were not possessed sufficient funds to pay further legal fees. The Court also noticed that if the plaintiff, who was in property business was permitted to freeze the transactions it would cause an equitable imbalance.

27. Coming back to the facts of this case, the submission of learned counsel for the defendant that the present application is not maintainable as there are no change of circumstances, is without any force, as the decision in the case of Mohan Overseas P. Ltd. (supra) is not applicable to the facts of the present case as the present suit is at its initial stage. Moreover, the order of deposit was an ex parte order, which was passed in the absence of the defendants the stay application was not decided and thus, it would be open for the Court while hearing the application to either dismiss the application of the plaintiff, vary or modify the order. Moreover, the present application has been filed pursuant to leave granted by the Division Bench on 20.2.2014. The operative portion of the order dated 20.2.2014 reads as under:

"After hearing the learned counsel for the parties and considering the fact that the appellant / plaintiff has demonstrated his bona-fide by depositing the said sum of Rs 6.24 crores, we direct that the defendants shall maintain the status quo as regards title and possession of the suit property during the pendency of the suit. We are also of the view that the appellant / plaintiff would be at liberty to move an application before the learned Single Judge for withdrawal of the said amount of Rs 6.24 crores in view of the provisions of explanation to Section 16(1)(c) of the Specific Relief Act, 1963. If such an application is made, the learned Single

Judge would decide the said application after hearing the parties but without being influenced by the earlier orders dated 06.12.2013 and 19.12.2013 in accordance with law."

28. Thus the argument of Mr.P.D. Gupta that the order cannot be modified is without any force. Another factor which may be noticed that in the case of Mohan Overseas (supra) the suit was at the stage of evidence and the Division Bench noticed that the plaintiff was delaying the matter on the one hand and seeking refund of the amount deposited on the other hand, coupled with the fact that no grounds were raised seeking modification. The Division Bench also noticed that the plight of the appellants who were left with no funds to even engage a counsel and also the fact that the plaintiff was in property business. The present suit however, is in its initial stage and the plaintiff has made all the payments due to the defendant as per the terms of the agreement to sell, as noticed above.

29. Thus, in my view, the judgment of the Division Bench is not applicable to the facts of the present case. Section 16 (c) of the Specific Relief Act, 1963, is reproduced below:

"(c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant.

Explanation.--For the purposes of clause (c),--

(i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court;

(ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction."

30. It may also be noticed that the provision of Section 16(c) of Explanation (1) was not brought to the notice of the Division Bench. Section 16(c) of explanation (1), reproduced above, mandates that it is necessary to aver in proof that a purchaser has always been ready and willing to perform his terms of the contract. But explanation (1) of Section 16 clarifies that it is not essential for the plaintiff to actually deposit any amount in Court.

Thus, it can safely be said that deposit of balance sale consideration is not a mandatory requirement.

31. In the case of M/s.Ansal Properties & Industries Pvt. Ltd. v. Rajinder Singh & Anr. 1989 (17) DRJ 161, it was held that deposit of the entire sale consideration is not mandatory. It would be useful to refer to para 7, 8 and 9 which read as under:-

"7. Section 16 will apply to all suits for specific performance, including a suit falling under Section 12. It is the provisions of Section 16 which stipulate as to what has to be averred in the plaint by the plaintiff. Unless and until it is averred that the plaintiff is ready and willing to perform the contract, a suit for specific performance will not be decreed. What is important to note is that the explanation specifically provides that it is not essential for the plaintiff to actually tender to the defendant or to deposit the money in Court, except when so directed by the Court. Normally, therefore, no money is to be tendered and it is only in cases where the Court feels that, though an averment may have been made in the plaint as postulated by explanation to Section 16, the plaintiff may not actually have the money to pay the consideration therefore, in order to bind the plaintiff or to satisfy itself above the truthfulness of the averment, the Court may direct the plaintiff to deposit the money in Court. This course, in our view, should be adopted rarely, and only when the Court is of the opinion that the averment of the plaintiff being ready and willing to perform the contract may not be quite true.

8. Section 12 which requires money to be paid to the defendant comes into play only at the time when the Court is

passing the decree and is deciding the rights of the parties. Section 12 nowhere states that a suit is not maintainable unless the sale consideration is deposited. The use of the expression "pays or has paid the consideration" means payment of money, as consideration, to the seller. It is inconceivable that the said section would contemplate payment of consideration to the seller at or before the time of filing of the suit. The questions of payment of consideration would arise only when the Court directs the purchaser to do so. Such a direction will be issued only after the trial of the suit and at the time when the rights of the parties are being determined. Such a direction is issued at the time when the final decree is passed and not at an earlier point of time."

32. Similar view was expressed by another Single Judge of this Court in the case of Rajesh Kumar v. Manoj Jain 1998 (47) DRJ 353, reference can be made to paragraphs reproduced hereunder:-

"The question is whether it is necessary for the plaintiff in a suit for specific performance either to deposit in Court or prove at this stage that he has got ready cash with him to show his readiness and willingness to do his part of the agreement to sell. Under Section 16(c) of the Specific Relief Act, the plaintiff seeking specific performance is to plead and prove during trial that he had performed or has always been ready and willing to perform essential terms of the contract which are to be performed by him continuously between the date of the contract and the date of the hearing of the suit. (Gomathinayagam Pillai & Ors. vs. Pallaniswami Nadar AIR 1967 SC 868 and Ardashir M. Mamam vs. Flora Sasson AIR 1928 PC 208).

In order to prove himself to be ready and willing to perform his obligation under a contract to purchase, the purchaser has not necessarily to produce the money or to vouch a concluded scheme for financing the transaction. (Bank of India vs. Jameshetji A.H.Chinoy & Ors. AIR 1950 PC 90).

In Sukhbir Singh & Ors. vs. Brijpal Singh JT 1996 (6) SC 389 also it has been held that law is not in doubt that it is not a condition that respondent should have ready cash with him.

In any case, by depositing the balance sale consideration, the plaintiff has prima facie shown his financial position, capacity to finance the purchase and his readiness and willingness. Since the defendant is not ready and willing as at present to complete the sale, the plaintiff should not be burdened with the condition that he should part with the balance sale price at this stage."

33. Similar view has been expressed by another Single Judge of this Court in the case of Mahesh Singhal Vs. Bhupinder Narain Bhatnagar decided on 6.12.2013.

34. The Court cannot lose track of the fact that the total sale consideration was fixed at Rs.9.24 crores. Rs.1.0 crore was paid to the defendant at the time of signing of the agreement to sell on 01.02.2013 as per schedule. Instalments were paid on 24.04.2013, 25.04.2013 and in May 2013 taking the total to Rs.3 crores. Total sum of Rs.3 crore which amounts to 30% of the sale consideration was paid as per the terms of the agreement to sell. The plaintiff has also proved his bonafide by depositing the balance sale consideration of Rs.6.24 crores. All the payments were made by the plaintiff on time and on the other hand there is no material on record to show that plaintiff was informed by the defendant with respect to receipt of NOC while admittedly the onus to obtain NOC was on the defendants. Prima facie, the plaintiff cannot be faulted for the transaction not being completed. Moreover, in case, the NOC had been received there was no reason for defendant no.1 to leave the country, even if he had gone to Bhutan, which is two hours away by air. In case the defendants were in dire need of money, they would have informed the plaintiff in writing that NOC had been received and would have anxiously waited to complete the transaction. It is not unusual that when the last date for completing the transaction is nearing notice/telegram and in today's day and age e-mails

and SMS are exchanged. No such steps were taken by the defendant to inform the plaintiff about receipt of the NOC. Even otherwise explanation to section 16(c) of the Specific Relief Act, does not mandate deposit of money.

35. Having regard to the facts of the case and for the reasons stated above, the present application is allowed. The sum of Rs.6,24,00,000/- deposited in this Court along with interest accrued thereon shall be returned to the plaintiff. It may also be noticed that the Division Bench had already confirmed the interim orders till the disposal of the suit.

36. Application stands disposed of.

37. It is made clear that the observations made in the present application is only for the purposes of deciding the present application and it is not an expression on the merit of the matter.

CS(OS) 2353/2013

38. List on 23.5.2014.

G.S.SISTANI, J MAY 02, 2014 dkb /ssn