D.P. SINGH Vs. GAGAN DEEP SINGH

JUDGEMENT

(1.) This is a first appeal against the judgment of a learned Single Judge in CS (OS) 280/2005 dismissing the suit of the Appellant. The Appellant sought a decree of specific performance of an Agreement to Sell dated 19th August, 2004, of Flat No. 97, HIG Category, Mahabhadra Kali CGHS Limited, Plot No. 6, Sector 13, Dwarka, New Delhi between the appellant/plaintiff (buyer) and the defendant/respondent (seller). The agreement stipulated that the flat was to be sold for a total consideration of Rs. 21,15,000/-, with an advance amount of Rs. 2,00,000/- paid by the buyer to the seller as earnest money in part-payment of the whole. The other obligations stipulated in the agreement were to be completed by 9th November, 2004: from the seller's side - the production of a 'No Dues Certificate' and a 'No Objection Certificate' for sale of the said flat from Mahabhadra Kali CGHS Limited Society, production and handing over of all original title documents and delivery of vacant physical possession of the said flat, and from the buyer's side: payment of the balance sale consideration of Rs. 19,15,000/- and production of non-judicial stamp paper of the requisite amount. These respective obligations were to be carried out by each party on 9th November at the office of the Sub-Registrar, Janakpuri, New Delhi at the time of execution and registration of the documents and the sale deed.

(2.) The Appellant alleged that the Respondent failed to meet his obligations under the sale agreement and did not appear before the Sub-Registrar's office on 9th November, 2004 with the required documents nor did he hand over possession of the suit property. The Appellant claims that he provided opportunities for curing this breach of contract through legal notices dated 11th November, 2004 and 17th November, 2004 calling upon the Respondent to receive the balance sale consideration from the Appellant (within one week of each of those notices), and hand over vacant possession of the flat along with the documents required under the agreement. At the other end of the obligations in question, the Appellant claims that he was, on 9th November 2004, and has been since ready and willing to fulfil his obligations under the contract - i.e. on that date, the Appellant reached the Sub-Registrar's office around noon with a banker's cheque of Rs. 19,15,000 drawn in favour of the Respondent from ICICI Bank, bearing number 114666 dated 9th November, 2004 and with judicial stamp paper of the required amount. To make out a case for specific performance under Section 16 of the Specific Relief Act, 1963, i.e. to demonstrate that the Appellant was ready and willing to perform the essential terms of the contract himself, the Appellant also relies upon a telegram sent, and a phone call made, to the Respondent on 8th November, one day before the stipulated date in the agreement, confirming that the balance payment was ready and the same shall be paid on the following day. On 9th November, however, the Appellant claims that on reaching the Sub-Registrar's office at noon, the Respondent was not present and despite getting in touch through several phone calls, the transaction could not be completed due to the Respondent's breach. The Appellant also submits that a telegram was also sent at 05.45 PM on the same day to the Respondent relating to this breach. Given these facts, the Appellant submits that first, a breach of the terms of the sale agreement by the Respondent is made out, and secondly, that the appropriate relief in this case is that of specific performance of the agreement (i.e. mandating transfer of the flat) under Section 16 of the Specific Relief Act.

(3.) The case, therefore, revolves around the performance of obligations by each party, and the consequential relief, if any, available to the appellant. The issues as framed before the Learned Single Judge in this background were as follows: