MANOJ KUMAR Vs. VINOD KUMAR

JUDGEMENT

(1.) THESE are applications by the plaintiff under Order 39 Rules 1 and 2 CPC and by the Defendant under Order 39 Rule 4 CPC in a suit for specific performance of an agreement dated 23rd August 2007 whereby the defendant agreed to sell to the plaintiff property at 381, Pocket 5, Ground Floor, Sector 22, Rohini, Delhi admeasuring 60 sq. m. The total consideration of the property was Rs. 21 lakhs. The plaintiff paid to the defendant an earnest money of Rs. 2 lakhs as part of the total consideration. It was agreed that the plaintiff would pay Rs. 2 lakhs after execution of the conveyance deed in favour of the defendant and the balance consideration would be paid at the time of the execution of final conveyance deed and handing over of the physical possession of the property. This was agreed to be done within forty- five days from the date of conversion of the property into freehold.

(2.) THE Plaintiff states that thereafter the plaintiff had been requesting the defendant verbally as well as telephonically to get the property converted into freehold. In March 2008, the plaintiff learnt that the defendant was in the process of selling the premises to a third party without informing the plaintiff. The plaintiff apprehended that the defendant was entering into a fresh transaction with the third party since the market value of the property had increased. A lawyer's notice was issued on behalf of the plaintiff on 12th March 2008 to the defendant. The notice reiterated the plaintiff's readiness and willingness to perform his part of the contract by offering to pay the balance sale consideration. Despite receipt of the notice, the defendant failed to respond. Thereafter the present suit was filed.

(3.) ACCORDING to learned counsel for the Defendant, the agreement dated 23rd August 2007 stipulates that upon the failure of the defendant to carry out his obligation thereunder twice the earnest money would be refunded to the Plaintiff and the agreement would be treated as cancelled. It is submitted that in view of such a clause in the agreement, the prayer for specific performance was not capable of being granted to the plaintiff particularly in light of the Section 14 of the Specific Relief Act, 1963 read with Section 20 thereof. Reliance has been placed on the judgment in Dadarao v. Ramarao (1999) 8 SCC 416. On the other hand, the learned counsel for the plaintiff relies upon the judgments of the Supreme Court in M.L. Devender Singh v. Syed Khaja AIR 1973 SC 2457 and the subsequent judgment in P. D'souza v. Shondrilo Naidu (2004) 6 SCC 649 in which it is held that the decision in Dadarao v. Ramarao was per incuriam. A reference is also made to the decision in P.S. Ramakrishna Reddy v. M.K. Bhagyalakshmi III (2007) SLT 704.