AYANG RINPOCHE Vs. SURAKSHA GUPTA

JUDGEMENT

(1.) THE plaintiff seeks a decree for specific performance of the agreement to sell dated 24.01.1995 in respect of the entire second floor of the property bearing No. II/O-59, Lajpat Nagar, New Delhi (hereinafter referred to as 'the suit premises') alongwith proportionate share of the leasehold rights in the land beneath the building. The plaintiff also prayed for a decree of possession in respect of the suit premises as well a decree of perpetual injunction restraining the defendants from alienating, selling, letting out or parting with possession of the suit property in any manner whatsoever.

(2.) IT is alleged in the plaint that sometime in the month of January, 1995, the plaintiff came to know that the defendants were interested in selling the suit premises. The plaintiff contacted the defendants through Mr Pradeep Sharma (PW-4), a property dealer, and after negotiations, the said agreement dated 24.01.1995 (Exhibit PW-1/A) was executed. The sale consideration for the suit premises was fixed at Rs 25,00,000/- out of which the plaintiff made a part payment of Rs 5,00,000/- on 24.01.1995 itself. The said sum of Rs 5 lakhs comprised of Rs 3 lakhs in cash and a sum of Rs 2 lakhs by way of cheque bearing No.313815 dated 24.01.1995 drawn on Bank of America, Hansalaya Building, Barakhamba Road, New Delhi. It is further averred that the balance sale consideration was to be paid by the plaintiff at the time of registration of the sale deed. However, a further sum of Rs 5,00,000/- was paid by the plaintiff to the defendants on 07.03.1995. It is also alleged that the plaintiff spent Rs 87,651.72 on fittings and fixtures and that the defendants had agreed to adjust this amount towards the total sale consideration. It was stated in the plaint that the parties had agreed that possession of the premises would be handed over by the defendants to the plaintiff on or before 05.03.1995. However, on account of non-completion of the construction, the same could not be handed over to the plaintiff. It is also alleged that though the timely delivery of the possession was one of the conditions of the agreement, owing to the delay in construction, the plaintiff agreed to grant further time of two months for completing the same. It is averred that the construction of the suit premises, the second floor of the said property, was completed in the first week of June, 1995.

(3.) IN their written statement, the defendants have taken the plea that time was of the essence of the agreement and as the plaintiff had failed and / or neglected to discharge his obligations within the time specified, he has forfeited his right to specific performance and possession in terms of the agreement dated 24.01.1995. It was alleged that the plaintiff has committed breach of contract and has defaulted in making the payment of balance sale consideration of Rs 20,00,000/- and thus the plaintiff has forfeited his right to possession. It was stated on behalf of the defendants that the plaintiff had paid a sum of Rs 5 lakhs as earnest money at the time of execution of the agreement to sell. The defendants denied that any further sum of Rs 5 lakhs was paid in cash apart from the said earnest money. It was alleged that under the agreement to sell, the plaintiff was required to make the payment of balance amount of Rs 20 lakhs by 05.03.1995. But, the plaintiff did not have the money and requested for some more time. The plaintiff offered to pay an amount of Rs 5 lakhs and requested for more time to arrange the balance money. It is alleged that the property dealer (Mr Pradeep Sharma) brought a receipt to the defendants and stated that the plaintiff has arranged Rs 5 lakhs and is prepared to pay in cash and requested the defendants to sign the receipt so that he can collect the money from the plaintiff. Subsequently, Mr Pradeep Sharma informed the defendants that the plaintiff had taken the receipt from him but had not made the payment. The defendants further stated that it is totally wrong and denied that the defendants were paid an amount of Rs 5 lakhs on 07.03.1995 and that the plaintiff has spent any amount towards fittings and fixtures. The defendants also denied that the construction was not complete on 05.03.1995. It is also averred by the defendants that the plaintiff was requested a number of times to make the balance payment, but the plaintiff failed to pay the balance sale consideration. The defendants also denied that they had demanded a further sum of Rs 5 lakhs over and above the agreed sale consideration of Rs 25 lakhs. On the basis of these averments, the defendants submitted that the suit was liable to be dismissed with costs.