DURGA NATH SHARMA Vs. SHYAM SHANKAR GOELA

JUDGEMENT

(1.) Defendants have filed this Regular First Appeal under Section 96 of the Code of Civil Procedure against the judgment and decree passed by Shri R.K. Sain, Additional District Judge, Delhi in Civil Suit No.129/80 decreeing the suit of plaintiff/respondent and thereby granting a decree for specific performance of agreement to sell directing defendant/appellant to execute necessary sale deed within a period of two months during which period the defendants were asked to take necessary steps for completing necessary formalities towards execution of sale deed.

(2.) Facts in brief are that on 12/12/1979 plaintiff filed the suit claiming decree for specific performance of agreement to sell dated 24/3/1978, inter alia, alleging that Delhi Development Authority had granted a lease of a big plot of land in favour of New Friends Co-operative 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 plaintiff on 24/3/1978 at a fixed price of Rs.85,000.00. A sum of Rs.8,500.00 was received 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 in order to avoid possibility of complication in transfer of the plot to the plaintiff, although the intention of defendant No.l was to sell the plot to the plaintiff for which 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. 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 but no reply was received. On 17/8/1978 another letter under registered cover was sent to the defendant, which though received was not replied to by the defendant. The plaintiff further alleged that the defendant 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 by cheque of Rs.8,510.00 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 17/8/1976 calling upon defendants to execute necessary sale deed. No steps were taken by the defendants, therefore, the suit was filed.

(3.) The defendants contested the suit by filing a Joint written statement alleging that the suit was false and frivolous based upon incorrect allegations. Defendant No.1 never agreed to sell his plot to the plaintiff. The plot was not saleable and even if there was an agreement to sell, the same was void since there was no contract to sell the said plot, transfer of which was prohibited under Clause II, Sub-clause (6)(a) and 6(b) of the lease deed executed between President of India and the New Friends Co-operative House Building Society and of the sub lease executed between the Society and the defendant. The defendant gave his own explanation about the receipt of the amount and of the nature of transaction with the plaintiff stating that at one point of time the defendant was interested in sale of the plot, if he could get a reasonable price and in case there was no legal implication, for which purpose he contacted Pandit Brothers Estate Agency, Lajpat Nagar, a broker. when on his visit from Jamshedpur to Delhi he consulted the Society officials and was informed that he could not sell, transfer or mortgage the plot, therefore, there was no question of sale of plot. At that time the defendant thought of constructing a house on the plot. Since he was residing at Jamshedpur the said broker informed him that he could get the services of a building contractor, who could construct the building. The plaintiff agreed to construct a house on the plot according to the plan sanctioned by the authorities in favour of defendant. No.1. The plaintiff asked defendant No.1 to execute an agreement for building construction. The plaintiff also deposited with defendant No.1 a sum of Rs.8,500.00 as part security for carrying out the construction, as per the desire of the defendant within the stipulated time. The plaintiff promised to send draft of the agreement. Some rough drafts were sent by the plaintiff in May, 1978, which were not acceptable to defendant, therefore, he wrote back to plaintiff that he was not prepared to accept the same. Defendant No.1 further alleged that he came to Delhi with a draft of Rs.8,500.00. The plaintiff refused to accept the same. It was specifically pleaded that the defendant never agreed to sell or transfer or convey the plot. There was a complete prohibition in a sub lease to transfer the plot to anybody, who was not a member of the Society. Therefore, the suit was liable to be dismissed. The defendant denied the allegations of plaintiff that there was an agreement to sell or that he ever agreed to sell the plot. He stated that bona fide and in good faith he made an application to the Delhi Development Authority for permission to gift the plot to his son, defendant No.2 and accordingly after obtaining necessary a permission gift deed dated 18/7/1978 was executed, which was accepted by the donee and possession of the plot had also been handed over to defendant No.2.