R S ARYA Vs. T R DEWAN

JUDGEMENT

(1.) The plaintiff filed this suit for specific performance of an agreement to sell dated August 26, 1995 whereby the defendant had agreed to sell plot No.63-D, Dilshad Garden-1, Delhi - 110 095 for a total sum of Rs.7,95,000.00 . A receipt dated August 26, 1995 was executed by the defendant acknowledging a sum of Rs.20,000.00 in cash and Rs.75,000.00 by means of a cheque towards sale consideration of the said plot. In terms of the said receipt, last date for registration of the sale deed was October 15, 1995 and it is also stated that thereafter the agreement would be invalid. On October 12, 1995 the plaintiff handed over two cheques for Rs.3,22,500.00 and Rs.3,77,500.00 towards the balance sale consideration of Rs.7,00,000.00 . One of the said cheques, however, for Rs.3,77,500.00 when presented to the bank was dishonoured. The case of the plaintiff is that after the said cheque had been dishonoured, he went to the residence of the defendant on October 15, 1995 and offered a. sum of Rs.3,77,500.00 in cash to the defendant and further requested him to execute the sale deed in his favour, however, the defendant showed his inability to execute the sale deed on Monday on the ground that he would not be able to obtain income-tax clearance certificate by that time. It is alleged that on the request of the defendant to extend the time for execution of sale deed upto October 18, 1995 by which time the defendant was likely to obtain the income-tax certificate, the plaintiff agreed to the alleged request of the defendant. The plaintiff is alleged to have got a bank draft prepared on October 17, 1995 and the defendant promised to come to the office of the Sub-Registrar on October 18, 1995. It is alleged that the plaintiff came to know on October 19, 1995 that the defendant was negotiating for the sale of the property to some other person and the present suit was, therefore, filed by. the plaintiff for specific performance of the agreement to sale and for an injunction restraining the defendant from dispossessing the plaintiff from the suit property. One of the allegations made in the plaint are that on October 12, 1995 when the plaintiff had handed over two cheques to the defendant for a total sum of Rs.7,00,000.00 , possession of the suit property was handed over to the plaintiff by the defendant. It was on these allegations that this Court vide an ex parte order of injunction restrained the defendant on October 27, 1995 from transferring, alienating or creating any third party interest or dispossessing the plaintiff from the property in suit.

(2.) Defendant, after being served, has filed written statement as well as an application under Order 39 Rule 4 Civil Procedure Code for vacation of the ex parte stay. The case of the defendant is that time was essence of the contract and as the plaintiff had failed to make entire payment by October 15, 1995, the agreement came to an end and the same cannot be specifically performed. The defendant has also denied that possession of the property was delivered by him to the plaintiff on October 12, 1995 or on any other date. It is alleged that unless entire consideration was paid to the defendant, there was no question of the defendant handing over possession of the plot to the plaintiff. On a request of the defendant, a local commissioner was appointed on November 23, 1995 to go to the spot and give his report about the state of affairs existing therein.

(3.) The local commissioner after visiting the spot on November 24, 1995 has submitted his report stating that one Mr.R.K.Srivastava had met him at site who informed the local commissioner that he had been awarded the work of digging and filling the foundation in the plot in question by Mr. Sanjay Gupta and Mr. Mukesh Gupta. On being asked as to when did he start the work, the local commissioner was informed that the work had started the same day i.e. 24th November, 1995. On making enquiries from residents of the adjacent plot, the local commissioner was informed that a week earlier a man had come to the spot and had fixed a board bearing the particulars "Owner of the plot D-63, Dilshad Extension, Mr.R.S.Arya, Branch Manager, LIC of India, contact Ph.2208337". On being asked by the neighbourers from the said person who was fixing the board as to who he was and on whose behalf he was fixing the board, the man replied that defendant was the owner of the plot in question and that man had purchased the same from him. When commission proceedings were continuing, Mr.Mukesh Gupta and Mr.Sanjay Gupta also came to the plot in question with one Mr.Khanna, however, they refused to sign the proceedings.