ANIS AHMED RUSHDIE Vs. BHIKU RAM JAIN

JUDGEMENT

(1.) THE parties went to trial on the following eight issues:-

(2.) WHEREAS issue No.3 was given up by the parties at the final hearing of the suit, learned counsel for the appellant stated during arguments in the appeal that issue No.2, decided in favour of the plaintiffs/respondents, is also given up.

(3.) THE plaintiffs filed a suit on 03.11.1977 seeking specific performance of an agreement to sell dated 22.12.1970, pleading therein that the defendant was the owner of land and building bearing Bungalow No.4, Flag Staff Road, Civil Lines, Delhi (hereinafter referred to as the Suit Property). It was pleaded that the defendant had inducted the plaintiff No.1, as a tenant in half portion of the suit property, at a rent of Rs.300/- per month on 20.12.1970 and delivered possession of said portion to the plaintiff No.1. On 22.12.1970 an Agreement to Sell was executed between the plaintiff No.1 and the defendant, whereunder the defendant agreed to sell the suit property to the plaintiff No.1 for a sale consideration of Rs.3,75,000/- (Rupees Three Lakhs Fifty Thousand Only), out of which Rs.50,000/- (Rupees Fifty Thousand only) was paid to the defendant by the plaintiff No.1 towards part sale consideration when the agreement was executed. That vide clauses 4, 5 and 7 of the Agreement to Sell, the defendant was under an obligation to obtain a permission/certificate from the income-tax authorities to sell the suit property and deliver the same to the plaintiff No.1 within 12 months from the date of the execution of the Agreement to Sell and that the plaintiff No.1 was to pay the balance sale consideration to the defendant within 3 months of the delivery of the income tax clearance certificate to him and on the asking of the defendant, the plaintiff No.1 was obliged to pay a sum not exceeding the amount of balance sale consideration to the income-tax authorities to clear income tax dues of the defendant to facilitate sale permission being granted by the income tax authorities. It was pleaded that since plaintiff No.1 did not hear anything from the defendant regarding execution of the sale deed in respect of the property in question, the defendant wrote letter dated 27.12.1971 to the plaintiff enquiring the steps taken to obtain the necessary certificate from the income-tax authorities but did not receive any response from the defendant. Instead he received a legal notice dated 06.11.1972 issued by Mr.Ibqal Kishan, Advocate on behalf of the defendant wherein it was falsely alleged that the defendant had written letter dated 09.09.1971 to the plaintiff No.1 calling upon him to pay Rs.1,00,000/- (Rupees One Lakh Only) to enable the defendant to obtain the necessary certificate from the income-tax authorities and that the plaintiff No.1 failed to provide the amount. THE said notice called upon the plaintiff No.1 to pay the said sum of Rs.1,00,000/- to the defendant failing which it was threatened that the Agreement to Sell dated 22.12.1970 shall stand terminated and the earnest money (part sale consideration) in sum of Rs.50,000/- paid by the plaintiff No.1 shall be forfeited by the defendant. It was pleaded that in response to the notice dated 06.11.1972 the plaintiff No.1 wrote a letter dated 14.11.1972 to Mr.Iqbal Kishan Advocate, wherein plaintiff No.1 denied having received letter dated 09.09.1971 written by the defendant and stated that as per clause 7 of the Agreement to Sell dated 22.12.1970 the plaintiff No.1 was required to deposit a sum towards clearance of income-tax dues of the defendant with the income-tax authorities and not to pay said sum to the defendant as desired by the defendant. THE plaintiff No.1 further pleaded that he was always ready and willing to deposit a sum towards clearance of income-tax dues of the defendant with the income-tax authorities. It was pleaded that when the plaintiff No.1 did not receive any response to his letter dated 14.11.1972 he wrote another letter dated 15.12.1972 to Mr.Iqbal Kishan Advocate, reiterating the contents of his letter dated 14.11.1972. THEreafter there was no correspondence between the parties till about 5 years. Since the defendant was residing in London the plaintiff could not take any action against him for execution of the sale deed in respect of the suit property. On 16.09.1977 he received a notice from Mr.M.Wadhwani Advocate, on behalf of the defendant wherein the defendant sought to terminate the tenancy of plaintiff No.1 qua the suit property. Since the defendant had breached the Agreement to Sell dated 22.12.1970 by not executing the sale deed in respect of the suit property within the prescribed period, the plaintiff No.1 who was always ready and willing to perform his part of the Agreement to Sell dated 22.12.1970 and his nominees i.e. plaintiffs Nos.2 and 3 were entitled to a decree for specific performance of the Agreement to Sell dated 22.12.1970. In the alternative, a sum of Rs.1,30,120.50 calculated in the following manner was claimed from the defendant:-