JINESH KUMAR JAIN Vs. IRIS PAINTAL

JUDGEMENT

(1.) This is suit for specific performance. The agreement to sell in question is dated 26.9.1988 (Ex.P1) entered into between the plaintiff as the prospective purchaser and the defendants as the prospective sellers. Defendant no.1 acted as an attorney for and on behalf of the defendants no. 2 to 4 at the time of the execution of the agreement to sell. The total sale consideration was Rs.48,50,000/-. The defendant no.1 for and on behalf of the defendants received a sum of Rs.4,50,000/- as advance. In the plaint, the plaintiff specifically admits that with respect to the subject land there were acquisition proceedings going under the Land Acquisition Act, 1894. There is a reference to notifications under Sections 4 and 6 of the Land Acquisition Act, 1894 in paras 3 and 5 of the plaint. Para 7 of the plaint mentions of an Award being passed acquiring the land on 6.6.1987 i.e. about 9 months before the agreement to sell was entered into between the parties on 26.9.1988. The plaintiff pleads that the defendants were guilty of breach of contract inasmuch as they failed to obtain the permissions to sell the property from the Income Tax Authority and from the appropriate authority under the Delhi Lands (Restriction of Transfer) Act, 1972 (hereinafter referred to as "Act of 1972/1972 Act"). The plaintiff pleads that the defendants failed to perform the contract because a Division Bench of this Court in a case quashed the acquisition proceedings and consequently the price of land increased, giving the reason for the defendants to back out from the contract. Plaint para 15 refers to the factum of the quashing of the acquisition notification issued for various lands, including the subject land. The plaintiff claims to have always been and continuing to be ready and willing to perform his part of contract.

(2.) Written statements have been filed by the defendants. Defendant no.1 has filed her written statement. Defendants no.2 to 4 have jointly filed their written statements separate from the defendant no.1. Whereas the defendant no.1 has taken up pleas with respect to the agreement in question being barred by the Act of 1972 as also the breach committed by the plaintiff in failing to perform his part of the contract as the sale transaction had to be completed in 45 days, it is also claimed that the plaintiff was not ready and willing to perform his part of the contract and that the discretionary relief for specific performance should not be granted in his favour. The defendants no. 2 to 4 have in their written statement in addition to pleading the aforesaid defences pleaded that the power of attorneys, if any, executed by defendants no.2 to 4 in favour of defendant no.1 were not valid or in any case were cancelled prior to the subject agreement to sell dated 26.9.1988 was entered into between the defendant no.1 and the plaintiff, and thus on the said date the defendant no.1 could not have acted as the power of attorney-holder for defendants no. 2 to 4.

(3.) The following issues in this case were framed on three separate dates i.e. 11.4.1991, 12.12.1995 and 26.9.2001:-