RAM KISHAN DASS Vs. BHAVI CHAND SHARMA

JUDGEMENT

(1.) This appeal by defendants in the suit is directed against the judgment and decree of the Court of Shri M. K. Bansal, Sub-Judge, 1st Class Delhi passing a decree for specific performance of the agreement to sell dt. Aug. 20, 1964 in favour of the plaintiff and against defendants 1 to 4 with respect to the shares of defendants 1 to 4 which is 4/5th on payment of Rs. 17,500.00 (Rs. 500.00 already paid as earnest money).

(2.) By an agreement dt. Aug. 20, 1964 executed by S/Shri Ram Kishan Dass, son of Lala Panna Lal, Gopal Singh, Ram Kumar and Rajesh Kumar, sons of Shri Ram Kishan Dass and Ram Kishan Dass being the guardian of the minor son Mahender Kumar, the defendants contracted to sell to the plaintiff nine single storeyed shops together with two staircases and the land thereunder situate at Mandi Tel, Gudarwalan, Pahar Ganj, Delhi alleged to be owned and possessed by defendants being the ancestral property. The sale consideration was fixed at Rs. 18,000.00 and a sum of Rs. 500.00 was received by the defendants in cash as earnest money at the time of the execution of the agreement dt. Aug. 20, 1964. It was further agreed "The period for registration has been settled as one month. The vendee shall be entitled to get the sale deed executed within the stipulated period either in his own name or in the name of the persons he may like and in as many parts that he may like and get the proprietary possession after making payment of the balance amount before the Sub- Registrar". It was also a term that if the plaintiff was to fail to perform his part of the contract, then the earnest money would stand forfeited and if the defendants were to fail to perform their part of the contract, then the plaintiff would be entitled to file a suit for specific performance of the contract and get the sale deed registered through Court. According to the allegations made in the plaint, the defendants failed to specifically perform the agreement despite being called upon to do so, that the plaintiff was always ready and willing to specifically perform the agreement on his part of which the defendants had been given due notice, that by reason of the default of the defendants the plaintiff had suffered damages because of the difference between the contract and market price on the date of the breach of the contract and that it was a fit case for grant of a decree for specific performance of the contract. The defendants raised several preliminary objections and additional pleas in the written statement and they are subject-matters of the issues. One of the pleas which is pressed in appeal is that the time was the essence of the contract and since the plaintiff failed to perform his part of the contract within the specified time, the suit was legally not maintainable. It is denied that the plaintiff was always ready and willing to perform his part of the contract but the defendants failed to perform their part. It is pleaded that the plaintiff was not possessed of sufficient means to purchase the property within the period specified. The legality and validity of the agreement is also questioned.

(3.) On the pleadings of the parties, the following issues were framed by the trial Court: