RAJ KISHAN KHANNA Vs. PARVATI DEVI

JUDGEMENT

(1.) By this order, I would decide the preliminary issue framed by this Court on July 9, 2015 on the following terms:

(2.) The relevant facts for considering the aforesaid issue are, that, the suit has been filed for specific performance of the agreement/receipt dated March 16, 2007, or in the alternative, for a decree of recovery of Rs. 4,60,00,000/ - (Rupees 4 Crores 60 lakhs) in favour of the plaintiff and against the defendant. The case of the plaintiff in the suit is that on March 16, 2007, the plaintiff entered into an agreement to sell/receipt dated March 16, 2007 with Parvati Devi, predecessor -in -interest of the defendants (hereinafter referred to as the 'Seller'), whereby the plaintiff had agreed to purchase land admeasuring 21 Bighas and1 Biswa out of Khasra No. 65//21/2(3 -4),78//1 (4 -16), 9/3(1 -4), 10 (4 -16), 11(4 -16), 12//l/l(0 -7),7/20(1 -8) situated in the revenue estate of Village Ujwa, Delhi recorded in the revenue records of Najafgarh, Tehsil, New Delhi - 110043 from her on various terms and conditions as contained therein. The total price of the said land was fixed in between the parties at Rs. 4,60,46,875/ -. It is the case of the plaintiff that he had paid Rs. 1 Crore at the time of the agreement, i.e. Rs. 5,00,000/ - in cash and Rs. 95,00,000/ - by way of pay order No. 142540 dated March 16, 2007. The receipt thereof was acknowledged by the seller. The plaintiff had averred that the seller was to obtain NOC from the concerned authority for sale of the land in favour of the plaintiff and shall give written intimation for the same along with the copy of the NOC to the plaintiff. The sale transaction was to be completed after obtaining valid NOC by the seller, and also against registration of valid sale document and handing over the vacant physical possession of the land to the plaintiff. It is the case of the plaintiff that after entering into the aforesaid agreement, the plaintiff did not receive any information from the seller regarding obtaining the NOC from the concerned department. He contacted the seller many a times and asked her to obtain NOC and perform her part of the obligations under the said agreement on receipt of the balance sale consideration, but, she kept the matter pending on one pretext or the other till August 2007. The plaintiff had also averred that he was shocked to receive a legal notice dated August 13, 2007 issued on behalf of the seller through her lawyer, wherein, it was stated that the entire agreed sale consideration was Rs. 10,00,00,000/ - (Rupees 10 Crores). The agreement of sell was amended on March 16, 2007 and the plaintiff was supposed to pay balance consideration of Rs. 9,00,00,000/ - (Rupees 9 Crores) by June 2, 2007. The previous agreement of sale dated March 8, 2007 stood cancelled. Though in the legal notice, it was stated that necessary no objection has been obtained, but the plaintiff was neither given any detail or copy of any such NOC at any point of time. According to the plaintiff, the averments made in the notice dated August 13, 2007 were totally false and concocted in order to wriggle out of the valid agreement of sale. The plaintiff's response to the legal notice was given on August 23, 2007, wherein, the plaintiff had stated that the total sale consideration was Rs. 4,60,46,875/ - at Rs. 1,05,00,000/ - per acre and not Rs. 10,00,00,000/ - (Rupees 10 Crores). The plaintiff denied that the time of execution of the agreement was upto June 2, 2007. The plaintiff's case in response to the legal notice was that no intimation/information was ever given to him regarding obtaining of NOC despite plaintiff's regular follow up. It was further stated by the plaintiff, the seller had, by issuing the legal notice, sought to wriggle out of the agreement. The plaintiff had expressed his readiness to perform his part of obligations under the agreement and had also demanded a copy of the NOC, if obtained and to receive the balance consideration of Rs. 3,60,46,875/ - and execute necessary sale documents in favour of the plaintiff. The plaintiff has averred that no response to the reply to the legal notice was given by the seller nor any copy of the NOC was supplied to him. He got issued another notice dated February 14, 2008 through registered post to the seller and her lawyer. In the said notice, it was clearly stated that no information had been supplied to the plaintiff and his lawyer regarding obtaining of the NOC from the concerned Tehsildar in favour of the plaintiff for the sale of land. It was further stated in the notice that the agreement between the parties is still valid, binding and subsisting and the plaintiff is always ready and willing to pay the balance sale consideration and perform his part of the contract. The said notice was duly served on the seller and her lawyer, but no response was received. The plaintiff's case was, even thereafter, he kept on telling seller to give him the copy of the NOC, receipt of balance consideration and execute the relevant documents in his favour, but, she kept the matter pending on one pretext or the other. However, due to intervention of the members of the society, the parties again sat together and after much deliberations and negotiations, the seller assured the plaintiff to remain bound by the agreement entered into between the parties and also orally agreed with the plaintiff to obtain the NOC in his favour and complete the sale consideration in terms of the original agreement dated March 16, 2007. He would also state that the oral agreement and understanding so reached in between the parties as aforesaid, was also acted upon, the seller informed the plaintiff that she had taken necessary steps for obtaining the NOC from the revenue authorities. He states, however, the seller kept the matter pending till October 2011, when, the plaintiff personally visited the house of the defendant and enquired about the status of the NOC and completion of sale, the seller had sought some more time. She again expressed her readiness and willingness to sell the property to the plaintiff as per the agreed terms and conditions. It is the plaintiff's case that later on, the plaintiff has come to know that Parvati Devi, the Seller left for heavenly abode in the month of February, leaving defendant Nos. 1 and 2 as her legal heirs, as such, the plaintiff contacted both of them to hand over the valid NOC and execute the sale document under the aforesaid agreement of sale as legal heirs of the seller. The defendant Nos. 1 and 2 assured the plaintiff to remain bound by the aforesaid agreement of sale with all the terms and obtain a valid NOC and complete the transaction. It is the plaintiff's case that despite demands and request and passing of considerable time both the defendants failed to inform the status of the NOC in favour of the plaintiff. The plaintiff also contacted them telephonically on August 1, 2014, and in terms thereof, the plaintiff was told, to sit on August 5, 2014 to do the needful but again they failed to keep their words and execute the relevant documents. Finally, one legal notice was sent on August 14, 2014 to the defendants to obtain a valid NOC from the concerned authorities, take the balance consideration, and execute the sale deed in favour of the plaintiff in terms of the agreement dated March 16, 2007. The said notice was duly served on the defendants.

(3.) The case of the defendants is that the agreement for sale of the suit property was for an amount of Rs. 10,00,00,000/ - (Rupees 10 Crores). The plaintiff was never ready and willing to perform his part of the contract. It is averred that the suit is barred by limitation as the first agreement to sell was executed between the parties on March 8, 2007 and after the earnest money issued by cheque for an amount of Rs. 95,00,000/ -, was dishonoured, the plaintiff again approached the defendants on March 16, 2007 and issued a pay order for the above amount. Agreement to sell was executed by the seller and it was specifically mentioned in the agreement that the balance amount of Rs. 9,00,00,000/ - (Rupees 9 Crores) shall be paid on or before 75 days i.e. by June 2, 2007. The plaintiff failed to pay the balance amount by June 2, 2007, as such, the legal notice was issued to the plaintiff by the seller on August 13, 2007, calling upon the plaintiff to make the balance payment within 7 days of the receipt of the legal notice with the stipulation that if the plaintiff fails to do so, then the seller would cancel the agreement and forfeit the earnest money. The plaintiff failed to pay the balance amount of the sale transaction, as such, the agreement to sell stood cancelled. According to the defendants, the facts of the matter are: -