B L JOSHI Vs. NITIN JAIN

JUDGEMENT

(1.) THE challenge by means of this Regular First Appeal filed under Section 96 of the Code of Civil Procedure, 1908 (CPC) is to the impugned judgment of the Trial Court dated 16.7.2007 decreeing the suit for specific performance filed by the respondents/plaintiffs with respect to a shop admeasurinig 18.79 sq. metres bearing no.161, Block Nos.4 & 5, Rajindra Place (District Centre), New Delhi.

(2.) THE facts of the case are that the respondent no.1/plaintiff no.1 as a proposed buyer and the appellants/defendants as proposed sellers entered into an agreement to sell dated 4.2.2005. THEre is no dispute that there is an agreement to sell which was entered into. THE total sale consideration under the agreement to sell was Rs.5,40,000/-, and out of which price a substantial amount of Rs. 3,70,000/-, i.e. approximately 68% was paid to the appellants/defendants. This also is not disputed. As per paragraph no. 2 of the agreement to sell, the balance price of Rs.1,70,000/- was to be paid within 15 days of entering into the agreement to sell, however, this clause makes it clear that simultaneously the appellants/defendants will hand over physical vacant possession of the suit property and also execute the necessary legal documents such as either a sale deed or a registered agreement to sell, power of attorney, Will, etc. Pursuant to the agreement to sell, the original title documents of the suit property were also handed over by the appellants/defendants to the respondent no.1/plaintiff no.1. THE title documents which are to be executed by the appellants/defendants were to be either in the name of the respondent no.1/plaintiff no.1 or his nominee, and for which purpose respondent no.1/plaintiff no.1 had appointed his mother-in-law, Smt. Sunita Jain and who was arrayed as plaintiff no.2 in the suit. THE respondent no.1/plaintiff no.1contended that the appellants/defendants failed to hand over vacant peaceful possession within 15 days and also did not receive the balance price and did not execute the sale documents. It was also pleaded that the respondent no.1/plaintiff no.1 prepared a pay order dated 28.4.2005 for the balance sale consideration of Rs.1,70,000/- in the name of the appellants/defendants but the appellants/defendants failed to vacate the suit property as a result of which the respondent no.1/plaintiff no.1 sent a legal notice dated 27.5.2005 calling upon the appellants/defendants to perform their part of obligation in terms of the agreement to sell. Reply was sent to this legal notice by the appellants/defendants on 31.5.2005 alleging default on the part of the respondent no.1/plaintiff no.1. THE subject suit for specific performance thereafter came to be filed.

(3.) THE main issues which were decided by the Trial Court with respect to the entitlement to specific performance were issue nos. 4 and 5. With regard to these issues, the Trial Court has held as under:-