RAMAN PURI Vs. K.L. SETH

JUDGEMENT

(1.) This is a suit for specific performance. It is plaintiff's case that defendant No. 1 entered into an agreement dated 11.11.2000 with him for the sale of Flat No. 106, Neelgiri, 9, Barakhamba Road, New Delhi-110 001 for a total sale consideration of Rs.68,50,000/-. A sum of Rs.7,00,000/- was paid as advance/earnest money on the same day and the balance full and final payment was agreed to be payable by 10th January 2001. The plaintiff's case is that he visited the defendant No. 1 along with the balance payment of Rs.61,50,000/- on 10.01.2001 and asked him to transfer the said flat in his favour, but the defendant No. 1 made lame excuses and asked the plaintiff to wait for some time. He submits that thereafter, he contacted defendant No. 1 many times on telephone as also personally, but the latter always made lame excuses and did not transfer the flat and continued to keep with him the advance payment of Rs.7,00,000/-. He submits that he was always ready and willing to pay the balance sale consideration. He further submits that the legal notice dated 19.11.2003 was got send by registered AD and UPC to the defendant No. 1 with the direction to him to attend the office of defendant No. 2 on 24.12.2003 between 10 am and 4 pm for collecting the balance amount and to transfer the said flat and give possession thereof to him, but the defendant No. 1 did not turn up. The legal notice was replied by the defendant No. 1 on 02.12.2003 alleging therein that since the agreement in question stood already cancelled and the advance money paid by the plaintiff forfeited, the defendant No. 1 was under no obligation to attend the office of defendant No. 2 on 24.12.2003. The plaintiff alleges that on account of steep rise in prices of the flat, the defendant No. 1 has become dishonest.

(2.) Defendant No. 2 was proceeded ex-parte on 23.01.2006. Defendant No. 1 contested the suit on various grounds. It is his case that the agreement in question was already revoked even when the plaintiff served legal notice dated 19.11.2003. The defendant submits that the plaintiff was required to pay the balance sale consideration of Rs.61,50,000/- uptill 10.01.2001, and he was also required to obtain the required permission in Form 37-I from the income tax authorities prior to the last date of payment of sale consideration i.e. 10.01.2001, about which the plaintiff was fully aware and was also notified vide legal notice dated 15.10.2001. The defendant states that the plaintiff failed in making payment of the balance amount on 10.01.2001 as also to obtain the permission in Form 37-I. He, however, instead of revoking the agreement, gave him one month time, vide notice dated 15.10.2001, to obtain the requisite permission from the income tax authorities and pay the balance amount.

(3.) The defendant No. 1 further states that despite legal notice dated 15.10.2001, the plaintiff failed to perform his part of obligation, as he neither took any step for obtaining the requisite permission from the income tax department in form 37-I, nor made the balance payment within one month from the date of service of notice. The defendant maintains that obtaining of the requisite permission in form 37-I was the plaintiff's obligation and this permission being a pre-requisite for registration of a sale deed, there was no question of the plaintiff making the balance payment.