HARISON TRADERS LTD. Vs. RAJ BHALLA

JUDGEMENT

(1.) THE defendant herein is the owner of immovable property bearing No. 5, Babar Road, New Delhi. It appears that in collaboration with a builder, namely Mr. S.S. Satija, some flats were constructed in this building. These two suits are filed for specific performance of the contract in respect of four flats in this building. On the allegations that agreement to sell dated 17.9.1988 was entered into with the predecessor -in -interest of the plaintiff in CS (OS) No. 2860/1991, the said suit is filed for specific performance in respect of those three purported agreements. CS(OS) No. 2861/1991 is filed by another plaintiff alleging similar kind of agreement to sell dated 17.9.1988 with predecessor -in -interest of the said plaintiff. Since the facts of the two cases are common and same questions of law are also involved, the two suits were consolidated. However, for better understanding of the cases pleaded in the two suits. it will be worthwhile to take note of the averments made in the plaints filed in the two suits.

(2.) CS (OS) No. 2860/1991.

(3.) IN the written statements filed by the defendant in the two suits, identical defence is taken. The defendant has denied the very execution of the agreements to sell. It is stated that no agreement to sell in respect of the suit property was concluded and, therefore, there is no cause of action in favour of the plaintiffs. It is stated that only negotiations took place and no doubt defendant had shown her interest in selling the flats in question and also received a sum of Rs. 1,00,000/ - each in the manner mentioned by the plaintiffs in respect of each flat. However, this receipt did not contain essential terms on which the flats were to be sold by the defendant to the plaintiffs which were yet to be negotiated and settled. A formal agreement, according to such terms, was to be executed. As the parties could not agree on these essential terms, there was no concluded contract between them. It is stated that the receipt, on the basis of which suits are filed would not constitute agreement inasmuch as: (a) the consideration in respect of sale of the said property was not agreed; (b) no concluded contract was entered into between the parties; and (c) no stipulation was made regarding the time within which the sale was to be concluded. Therefore, according to the defendant, the transaction between the parties remained at the stage of proposal only. As the parties could not agree on the essential terms and particularly the consideration, the proposal was also mutually cancelled and the money received by the defendant was refunded. The defendant, in fact, returned Rs. 1,25,000/ - each (Rs. 1,00,000/ - as advance money received and Rs. 25,000/ - on account of penalty charges). This amount was paid to the plaintiffs through Mr. S.S. Satija (broker), who executed receipt determining and cancelling the proposed deal. Without prejudice to the aforesaid contentions, it is also stated that in any case this Court should not exercise the discretion and decree such a suit inasmuch as: (a) the terms of the purported agreement and the conduct of the party at the time of entering into the purported contract or the other circumstances under which the alleged contract was entered into are such that it gives the plaintiff an unfair advantage over the defendant; (b) the defendant entered into the purported contract under the circumstances making it inequitable to enforce specific performance; (c) the purpose of the contract would involve some hardship on the defendant which she did not foresee, whereas its non -performance would involve no such hardship on the plaintiff.