BHARAT BHUSHAN KAPUR Vs. NEHA DEEP CONSTRUCTION

JUDGEMENT

(1.) Rfa No.113/2006 and C.M. Appl. Nos. 2629-30/2006

(2.) At the outset I would like to note that the trial court has observed that it does not have to decide issue nos. 2 to 4 because the suit is held to be barred by limitation as per decision on issue no.1, but this is not a correct approach of the trial court because all issues have to be decided by the trial court in view of Order XIV Rule 2 CPC unless the trial court held that it lacked jurisdiction. There is no issue of lack of jurisdiction of trial court and therefore trial court should not have only decided the issue of limitation and dismissed the suit and the trial court should also have decided issue nos. 2 to 4.

(3.) The facts of the case are that the appellant/plaintiff filed the subject suit for specific performance with respect to the suit properties pleading existence of two Agreements to Sell dated 17.1.1983 for a total sale consideration of Rs.4,50,000/- i.e. Rs.2,25,000/- for each of the spaces H-7 and H-8. The application which is termed as the Agreements to Sell by the trial court, and dated 17.1.1983, was followed by a proper Agreement to Sell dated 16.3.1983. Appellant/plaintiff has pleaded in the plaint that he regularly waited for receiving intimation with respect to various payments to be made in installments inasmuch as the respondent/defendant was to construct the entire property at 1, Rajendra Place, New Delhi, but ultimately finding no response of the respondent/defendant, the appellant/plaintiff issued his Letters dated 30.12.2003 and 7.3.2004 that the respondent/defendant must receive the balance payment and hand over possession of the suit properties to the appellant/plaintiff, but in spite of the appellant/plaintiff being ready and willing to perform his part of the contract the respondent/defendant did not transfer the suit properties to the appellant/plaintiff and hence the subject suit was filed by the appellant/plaintiff for specific performance and injunction.