SURESH AGGRWAL Vs. SATINDER JAIN

JUDGEMENT

(1.) The plaintiff has filed the instant suit for specific performance, of Agreement to Sell dated 2 4/04/1995 entered into between the plaintiff and defendant no.1 The Agreement to Sell is in respect of Plot No.103, Bahubali Enclave, Delhi. In the instant case as originally filed only defendant No.l was impleaded as party. Subsequently by order dated 10/12/1999 defendants 2 and 3 were also impleaded as parties.

(2.) Briefly stated the suit is based on the averments that the defendant no.l had agreed to sell the aforesaid plot(hereinafter referred to as the "suit property) to the plaintiff for a total sale consideration of Rs.26.00 lacs. Defendant No.1 was paid a sum of Rs.2.00 lacs as part sale consideration amount in part performance of the agreement to sell and was acceptEd by the defendant No.l thereby leaving a balance amount of Rs.24.00 lacs. Balance amount was payable, as agreed in the agreement to sell, by 25/6/1995. The plaintiff claims that this was subject to the defendant No.l carrying put his obligations like taking permission under Chapter XX-C of the Income Tax Act in terms of Form 37-1 and also to obtain necessary clearance of Income Tax so as to make defendant No.l fit to execute a proper and requisite sale deed for passing clean and marketable title of the plot in question. It was further agreed between the parties that the defendant No.l shall receive the balance payment as agreed and also undertake that he shall get the perpetual lease deed registered and shall hand over the possession of the plot in question. On the assurance rendered by the defendant no.l the plaintiff signed all the necessary forms, applications, papers for moving the concerned authorities under Chapter XX-C of the Income Tax Act for seeking clearance from the appropriate authority for having clean and marketable title of the suit plot as agreed upon. The plaintiff has been approaching the defendant No.I and it was being assured from time to time that the defendant has already taken steps not only with the co-op.society and the paramount lessor but also they have moved the appropriate authorities under the Income Tax Act for seeking necessary clearance for executing the conveyance deed for passing clean and marketable title of the subject plot. At the initial point of time the defendant No.l was available and has been assuring that steps have been taken and the matter wi,ll be pursued. However, he was not available subsequently. Since the defendant no.1 was avoiding to meet the plaintiff and with the intention to avoid any false plea that may be raised by the defendant No.l, on 25/6/1995 the plaintiff was available for registration of the conveyance deed. All the funds were available with the plaintiff but the defendant no.1 did not reach over there. It is further stated that the plaintiff was always ready and willing to perform his part of the contract. It .is also pleaded by the plaintiff that although the defendant No.l has been assuring that he would obtain necessary income tax clearance and then execute the sale deed but the needful was not done After some time he started avoiding the issue, when he was prolonging the matter on one pretext or the other, the plaintiff even served legal'notice in August 1996 and also asked the defendant No.l to be present before the Sub-Registrar, Seelampur, 'Shahdara, Delhi.

(3.) However the said notice was not received by the defendant no.l and was received back by the plaintiff. Another legal notice dated 25/10/1996 was sent to the defendant No.l asking him to be present before the Sub-Registrar, Seelampur, Shahdara, Delhi on 4/9 /1996 but the defendant no.l did not turn up. From the aforesaid conduct of the defendant No.l the plaintiff nurtured the doubt that the defendant No. 1 was backing out of the contract. In these circumstances, the present suit was filed seeking specific performance of Agreement to Sell dated 24/4/1995.