HIRA LAL SHARMA Vs. DAVINDER SINGH LAMBA

JUDGEMENT

(1.) PLAINTIFF has filed this suit against the defendant, for specific performance of an Agreement to Sell dated 11th April, 2007 (hereinafter referred to as "the Agreement"), in respect of the property bearing no. F-128, Vikas Puri, New Delhi 110018 (hereinafter referred to as "suit property"), possession and permanent injunction.

(2.) PLAINTIFFS case, as set out in the plaint, is that vide above referred Agreement defendant had agreed to sell the suit property to plaintiff for a total sale consideration of RS.2.50 crores. A sum of RS.25 lacs was paid to defendant towards earnest money. Remaining sale consideration was to be paid on or before 31 st July, 2007, subject to conversion of the suit property from lease hold to free hold and execution of sale deed within 15 days from the date of conversion. It was further agreed that if there will be any delay in conversion of the suit property from lease hold to free hold, plaintiff shall make part payment of RS.75 lacs on or before 15th August, 2007. In terms of Clause 7 of the Agreement, parties had agreed that property shall be converted from lease hold to free hold and in this regard plaintiff shall make all the efforts and also bear expenses, however, defendant shall co-operate and remain present before the Competent Authority as and when required. Defendant did not co-operate and failed to appear before the Delhi Development Authority (DDA) resulting in delay in conversion of suit property from lease hold to free hold. Therefore, plaintiff did not make part payment of RS.75 lacs to defendant.

(3.) IN the written statement, defendant has alleged that plaintiff cannot seek specific performance of the Agreement, in view of Clause 9 of the Agreement, which provides that in case defendant fails to comply with the terms and conditions of the agreement then defendant shall pay double the amount of earnest money to plaintiff; whereas in case plaintiff fails to pay the balance sale consideration on the final date of payment as agreed, then the amount paid towards earnest money shall be forfeited and Agreement shall stand cancelled. It was further alleged that it is the plaintiff who had failed to perform his part of obligation, thus, was not entitled to specific performance of the Agreement. It is alleged that in terms of Clause 7 of the Agreement, though steps to get the suit property converted from lease hold to free hold were to be taken by the defendant but all the expenses were to be borne by the plaintiff. However, plaintiff did not tender any conversion charges. Defendant took the steps in this direction and, in fact, pursued the matter with DDA and got the suit property converted into free hold on 28th December, 2007. In terms of the agreement, plaintiff was to pay RS.75 lacs on or before 15th August, 2007 even if there was any delay in the process of conversion of the property into However, plaintiff failed to pay RS.75 lacs, on flimsy free hold. grounds. In fact, he had no money to make payment. Even at the time of entering into Agreement plaintiff paid RS.14 lacs in cash and RS.11 lacs through cheque (one cheque for RS.1 lac and other for RS.10 lacs). Plaintiff was not having RS.10 lacs in his bank even at that stage, therefore, on a later date he paid RS.10 lacs in cash and took back the cheque for RS.10 lacs. This shows that the Defendant has rendered full co-operation to plaintiff. Notice dated 30th July, 2007 sent by the plaintiff was duly replied by the defendant wherein, it was clearly stated that plaintiff shall pay RS.75 lacs on or before 15th August, 2007, irrespective of delay in conversion process. Plaintiff was reminded by the defendant that in case this amount was not paid on or before 15th August, 2007 the deal shall stand cancelled and earnest money of RS.25 lacs shall be forfeited. In spite of this plaintiff did not make payment resulting in forfeiture of the earnest money. Defendant has alleged that he was not in possession of the suit property even on the date when the deal was matured between him and the plaintiff. Property was in the occupation of his brother Shri Rajinder Pal Singh which fact was within the knowledge of plaintiff. Plaintiff had assured to buy the property on ,,on as is where is basis. As per the defendant, no meeting took place in the office of M/s. Kochhar & Kochhar Associates. It was denied that Rajender Pal Singh or any other relative of defendant threatened the plaintiff. Defendant alleged that the deal came to an end on non-payment of RS.15 lacs, therefore, there was no occasion for the defendant or his relatives to extend any such threats to the plaintiff.