KULDIP GANDOTRA Vs. SHAILENDRA NATH ENDLAY

JUDGEMENT

(1.) This is suit for specific performance of an agreement to sell dated 31 -3-2004 and for possession in respect of Flat No. C-9/9551, Vasant Kunj, New Delhi-110070 (hereinafter referred to as 'the said flat').

(2.) In the plaint, the plaintiff has averred that on 31-3-2004, an agreement to sell in respect of the said flat was entered into by the plaintiff as the intending purchaser and the defendant No. 1 as the intending seller. The said agreement was entered on behalf of the defendant No. 1 by the defendant No. 2 who held a general power of attorney in her favour. It is further stated in the plaint that the defendant No. 1 had acquired the said flat on allotment from the Delhi Development Authority (DDA) and the same was a leasehold property. It is averred that the same was eligible for conversion into freehold on payment of the prescribed charges as per the policy of the DDA. It is further stated that the said flat was in occupation of a tenant who had been inducted by the defendant No. 1 and that the sale would be completed after the property is vacated by the tenant and that at the time of registration, vacant possession of the said flat would be handed over to the plaintiff by the defendants. As per the plaint, the salient and important terms of the agreement to sell dated 31-3-2004 were that the sale consideration was fixed at Rs. 32,50,000/- out of which a sum of Rs. 1,00,000/- had been paid to be defendant No. 1 through the defendant No. 2 at the time of entering into the said agreement. The balance sale price of Rs. 31,50,000/- was payable at the time of registration of the sale deed. Vacant possession of the said flat was to be delivered by the defendants 1 and 2 to the plaintiff at the time of registration of the sale deed. The date of vacation of the flat by the tenant was indicated as 30-6-2004. The flat was to be got vacated by the defendants. The defendants, according to the plaintiff, also undertook the obligation of getting the said flat converted into freehold as per the prevalent policy. However, the necessary fees/charges for such conversion were to be borne by the plaintiff. It is further averred that the plaintiff deposited a sum of Rs. 80,000/- or so on account of conversion fee and the charges in May, 2004 at the behest and instance of the defendant. It is further averred that the plaintiff declared that he was prepared to do all other acts, if any, that were necessary in connection with the conversion of the status of the property from leasehold to freehold. According to the plaintiff, this was the most significant obligation undertaken by the defendants as it, inter alia, implied that the defendants had clear and absolute title to pass to the plaintiff.

(3.) The plaint further discloses that the defendants did take some steps towards the discharge of the obligation towards conversion of the said flat, into free hold and kept the plaintiff informed with the assurance that the needful would be done expeditiously. The plaintiff averred that a legal notice dated 13-7-2004 was sent to the plaintiff on behalf of the defendant stating that the defendants had got the flat vacated from the tenant on 15-5-2004 and that the plaintiff was informed of this telephonically as well as personally by the defendant No.2. It was further stated in the legal notice dated 13-7-2004 that the plaintiff was required to make the payment of the balance sale consideration of Rs. 31.5 lakhs on or before 15-7-2004 and in case the plaintiff failed to do so, the amount of Rs. 1 lakhs deposited in advance would be forfeited by the defendant No. 2. It was further averred that in the said letter dated 13-7-2004, the defendants had indicated that in terms of the agreement, it was the liability and responsibility of the plaintiff to get the flat converted into free hold and that the plaintiff was also liable to pay all the expenses for that. The plaintiff has averred in the context of these allegations contained in the letter dated 13-7-2004 that the same are untrue. The plaintiff has averred that he was not notified of the vacation of the said flat. The plaintiff has also stated that the payment of the balance amount of Rs. 31.5 lakhs was to be made on or before 15-7-2004, but, subject to the defendants getting the said flat converted to freehold and, for this, the responsibility lay on the defendants. The plaint further refers to the notice dated 27-7-2004 sent on behalf of the defendants and received by the plaintiff. As per this notice, the defendants have alleged that time was of the essence of the contract and the plaintiff was required to make the payment of the balance sale consideration by 15-7-2004. The notice also provided that the plaintiff having failed to make the said payment, the amount of Rs. 1 lakh stood forfeited by the defendants and the agreement to sell dated 31-3-2004 stood cancelled.