TARUN SAWHNEY Vs. UMA LAL

JUDGEMENT

(1.) THIS is an application filed by defendants 3 and 5 for rejection of the plaint on the ground that it does not disclose any cause of action to file the present suit. Relying on Clause 20 of the first agreement and Clause 17 of the second agreement dated 16th September 2009, defendant No.5, who also represents defendant No.3 in this case contends that since the agreements were not implemented within twelve calendar months, they stood automatically terminated and consequently the plaintiff has no cause of action to seek their enforcement. The second contention of the applicants is that there is no averment in the plaint that the defendants committed breach of agreement and in the absence of such an averment, the plaint does not disclose a cause of action to file a suit for specific performance of the agreement dated 16th September 2009. The third contention is that though Clause 18 of the first agreement, which is identical to Clause 15 of the second agreement provided for the parties agreeing on a mutually convenient time and date for execution and registration of the sale deed and delivery of possession to the vendee in case the L&DO were to covey the property directly in the name of the vendee and this was to be done within 30 days of the vendee informing the vendor that the sale deed was ready for the execution and in the other case it was to be done within 30 days of the vendee informing the vendor that he was ready to receive execution and make payment for execution of the conveyance deed in his name by L&DO, no notice envisaged in the above referred clause of the agreements was given and, therefore, the plaintiff has not proved that he was ready to perform his obligation in terms of the contract.

(2.) THE application has been opposed by the plaintiff, who has taken a preliminary objection that such an application is not maintainable in view of the consent order of the Division Bench dated 3rd May 2011 in FA(OS) 104/2011.

(3.) FOR the reasons given by this Court in its order dated February 4, 2011, I find it difficult to hold at this stage that the agreements dated 16 th September 2009 stood terminated and became incapable of enforcement on expiry of 12 months from the date on which they were executed. In the facts and circumstances of the case, this question, in my view can be finally decided only after recording evidence of the parties though I would not altogether rule out the interpretation suggested by defendants 3 and 5 to the aforesaid clause of the agreement being ultimately accepted by the Court. As noted by this Court, while passing the order dated 4th February 2011, the Court needs to keep in mind that the mutation and/or conversion of leasehold rights into freehold was not in the competence of the plaintiff who could only have made sincere and honest efforts to pursue the matter with L&DO, in terms of his agreement with the vendor. If the plaintiff did all that he could have done in this regard and the conversion still did not happen within the stipulated time of one year for completion of the transaction, it may be difficult to deny the specific performance of the agreements to the plaintiff on this ground. Also the Court needs to examine the effect of the application of defendants 1, 2 and 5 for conversion of leasehold rights into freehold being accepted by 15th September 2010 which according to them was the last date for implementation of the agreements dated 16th September 2009. While passing the order dated 4 th February 2011, this Court has taken a prima facie view that deadline stipulated in the agreements dated 16 th September 2010 had been met on L&DO having accepted the application of leasehold rights into freehold rights and having communicated its decision to defendant No.5 vide its letter dated 15th September, 2010. I have also taken a prima facie view that the time lag of few days between issue of communication dated 15th September 2010 by L&DO and execution of sale deed by the defendants would not frustrate the agreements between the parties particularly when the plaintiff had made unequivocal effort to defendants on 15 th September 2010 to deposit the balance sale consideration into an escrow account.