VISHWA NATH SHARMA Vs. SHYAM SHANKAR GOELA

JUDGEMENT

(1.) CHALLENGE in this appeal is to the judgment rendered by a Division Bench of the Delhi High Court dismissing the First Appeal filed by the appellants who were defendants in the suit filed by the respondents. The regular first appeal under Section 96 of the Code of Civil Procedure, 1908 (in short the Code") was directed against the judgment and decree passed by the Additional District Judge, Delhi, in Civil Suit No. 129/80. The trial court had decreed the suit of the plaintiff for specific performance of the agreement to sale directing the defendant-appellant to execute necessary sale-deed within a particular period. Defendants were asked to take necessary steps for completing necessary formalities towards execution of the sale-deed.

(2.) BACKGROUND facts in a nutshell are as follows: On 12.12.1979 plaintiff filed the suit claiming decree for specific performance of agreement to sell dated 24th March, inter alia, alleging that Delhi Development Authority had granted a lease of a big plot of land in favour of New Friends Cooperative House Building Society and the Society had granted sub lease in favour of its members. Durga Nath Sharma, defendant No. 1 being one of the members of the Society was granted a sub lease with respect to plot No. 334 measuring 524 Sq. yards under sub lease dated 2.7.1974. The said defendant with a view to sell the said plot entered into an agreement with the plaintiff on 24.3.1978 at a fixed price of Rs. 85,000. A sum of Rs. 8,500 was received by him towards part payment of the price, the balance was payable within 15 days after receipt of approval of building plan by Delhi Development Authority. The said defendant also agreed to execute necessary documents in favour of the plaintiff such as, (a) construction agreement (b) General and Special Power of Attorney, (c) Will, (d) Agreement to Sell and (e) any other necessary document. These documents were to be executed by the defendant No. 1 in order to avoid possibility of complication in transfer of the plot to the plaintiff, although the intention of the defendant No. 1 was to sell the plot to the plaintiff for which the necessary deal was struck. The plaintiff further alleged that he got a building plan prepared from an architect to suit his requirements, which was sent alongwith draft of the other documents with a covering letter dated 17.5.1978 to the defendant No. 1. More documents were sent with another letter of the same date for signatures of defendant No. 1. Both the letters were sent under registered cover and were duly received by the defendant No. 1 but no reply was received. On 17.8.1978 another letter under registered cover was sent to the defendant No. 1, which though received was not replied to by the said defendant. The plaintiff further alleged that the defendant No. 1 appears to have changed his mind later on and in an attempt to wriggle out of the deal had fraudulently transferred the plot by way of gift in favour of his son (defendant No. 2) appellant No. 2 which the plaintiff alleged was not binding on him and for that reason appellant No. 2 was impleaded in the suit. It is further alleged that on 29.8.1978 defendant No. 1 wrote a letter to the plaintiff cancelling the agreement to sell and returned the amount of Rs. 8,510 by cheque which included bank collection charges. Since defendant No. 1 could not have unilaterally cancelled the agreement which still subsisted, the plaintiff declined to accept the cheque and did not encash it. The plaintiff had always been ready and willing to perform his part of the contract and is still ready and willing to purchase the plot on payment of the balance price but defendant No. 1 had unilaterally backed out. Therefore, plaintiff was left with no option except to send a notice on 17.8.1978 calling upon defendants to execute necessary sale deed. No steps were taken by the defendants and, therefore, the suit was filed.

(3.) CONSIDERING the evidence led, the Trial Court held that the plaintiff must succeed. In appeal, the High Court after considering the rival submissions came to hold that there were several documents which tend to suggest that defendant No. 1 was aware of the fact that there was an embargo in the lease deed that transfer could not take place without permission. It appears that he was also aware of the fact that permission, if accorded by the Delhi Development Authority for affecting transfer, would be subject to payment of unearned increase and for that reason alone, in one of the letters defendant No. 1 had specifically informed the property dealer that while making offers that aspect was to be kept in view i.e. 50% of the unearned increase should be paid by the transferee. The High Court made reference to the lease deed dated 2.7.1974 (Exhibit P-4), letter dated 27.9.77 addressed by defendant No. 1 to the property dealer indicating his intention to sell if the value would be reasonable and there was no implication in future; Exhibit P-5, i.e. letter dated 16.10.1977 by which the defendant No. 1 asked the property dealer that buyer shall have to pay 50% of the difference between original cost and the market value; Exhibit P-6 i.e. the letter dated 10.1.78 exchanged by defendant No. 1 and the property dealer to show that the amount which the prospective buyer was willing to pay was less according to defendant No. 1; Exhibit P-7 i.e. letter dated 1.2.78 by defendant No. 1 with reference to previous letter asking for more amount from the prospective purchaser. Similar was the situation in several other letters addressed by defendant No. 1 to the property dealer. The High Court was of the view that instead of performing his part of the agreement, defendant No. 1 being conscious of the fact that property prices were rising resiled from his commitment and transferred by way of gift in favour of his son after obtaining the permission for transfer. The High Court also noticed that the plaintiff was ready and willing to perform his part of the contract.