J L GUGNANI Vs. O P ARORA

JUDGEMENT

(1.) THIS appeal is directed against the judgment dated 20th October, 2009 of the learned Single Judge whereby the suit of the appellant/ plaintiff being CS (OS) No.2906/1995 was dismissed. Facts giving rise to filing of the suit are that vide an agreement to sell dated 26th November, 1999, the property bearing number E-1/13, Vasant Vihar, New Delhi (hereinafter referred to as the suit property) was agreed to be sold by the defendant no.1 to plaintiff for a total sum of `2.6 crore. It is alleged that because the suit property was also agreed to be sold by the defendant no.1 to defendant no.2 M/s Gupta Brothers and that the suit property was mortgaged with defendant No. 3, that these parties were also arrayed as defendants. However, subsequently, defendant no.2 was deleted from the array of defendants.

(2.) PLAINTIFF?s case as set out was that the defendant no.1 had represented him that the suit property was subject to an equitable mortgage in favour of defendant no.3/Bank for an outstanding credit balance of `90 lac and he had agreed to get the same released from the Bank and thereafter to execute the sale deed in his favour. As per the agreement to sell, two cheques of `75 lac each respectively dated 26th November 1994 and 31st December, 1994 were given by plaintiff to this defendant at the time of execution of agreement on 26th November 1994. The balance sum of `1.10 crore was to be payable at the time of registration of the sale deed. In terms of the aforesaid agreement, the obligations of this defendant were to obtain:

(3.) THE cheque of ` 75 lac dated 26th November 1994 was got encashed by defendant no.1. THE dispute, however, arose with the plaintiff informing its bankers vide letter dated 31st December 1994 to stop payment of the second cheque of `75.00 lacs dated 31st December 1994. Both parties have leveled allegations and counter allegations against each other for breach of agreement. THE plaintiff also claimed that he had given `14 lac in cash to defendant No. 1, which was denied by defendant no.1. THE plaintiff also claimed that he had given verbal intimation to defendant No. 1 regarding stoppage of cheque, which was also denied by defendant No. 1. THE plaintiff also claimed that since defendant No.1 failed to apply for necessary permissions, he applied for the permission of the Appropriate Authority under Section 269 UC of Income Tax Act on 3rd January, 1995 and since the application form 37(I) was not signed by defendant No.1, the Appropriate Authority declined to give no objection. His further case was that sometime in April, 1995, defendant No.1 approached him for amicable settlement to resolve the dispute and expressed his willingness to perform his part of obligation and as a first step agreed to apply to income tax authorities for permission to sell under Section 269 UC of the Income Tax Act. It was claimed by plaintiff that they jointly signed and executed the form 37(I) and under the cover of letter dated 26th April, 1995, he again submitted the form to the income tax authorities which granted permission on 31st July, 1995.