DEVENDER SINGH MEHTA Vs. RAKESH KUMAR JAIN

JUDGEMENT

(1.) A suit for specific performance and in the alternate for damages was filed by the plaintiffs (respondents herein) in respect of the property bearing no. 35, Babar Road, Bengali Market, New Delhi (hereinafter referred to as, 'the suit property' ). The suit was decreed for the claim for specific performance vide judgment and decree dated 01. 12. 1999. Hence, this appeal.

(2.) THE plaintiffs in the suit are four brothers. The plaintiffs entered into an Agreement for Sale dated 08. 09. 1978 (Ex. P-1) (hereinafter referred to as, 'the said Agreement') with the defendants in respect of the suit property for a total consideration of Rs. 4,90,000/ -. The said Agreement was executed by the plaintiffs on the one side and defendant No. 1 on the other side (for himself and for and on behalf of defendant No. 2 as his duly constituted attorney ). Defendant Nos. 1 and 2 are also brothers.

(3.) IN terms of the said Agreement, the defendants had received a sum of Rs. 30,000/- and the balance had to be paid in two installments, i. e. , Rs. 2,60,000/- to be paid at the time of possession of the property and execution of the Sale Deed and Rs. 2,00,000/- to be paid within 2 years from the date of possession together with interest @ 10% p. a. on completion of the transaction in all respects. It was further covenanted and agreed between the parties that actual physical possession would be handed over within 3 months from the date of the said Agreement. It was also mentioned in the said Agreement that the defendants would, before registration, obtain permission in favour of the plaintiffs from the Competent Authority under urban Land (Ceiling and Regulation) Act, 1976 (for short, 'the ULCR Act')apart from obtaining permission from Landdo to sell the suit property as also the income-tax clearance certificate. It is the case of the plaintiff, as averred in the plaint, that these obligations were not fulfilled by the defendants as envisaged in the said Agreement and the excuse given by them was the ill-health of the sister of the defendants. The plaintiffs after waiting for sometime wrote the letter dated 05. 04. 1979 (Ex. PW-2/1) to the defendants thereby requesting them to inform when possession shall be handed over as also to complete the transaction. The letter was sent to two addresses u one being at 3-C/31, Rohtak Road and the second at 35 Babar Road. The letter further stated that the plaintiffs were ready and willing to fulfill their part of the contract subject to handing over of physical possession of the building complete in all respects as per the said Agreement. This letter was received back with endorsement that the defendants were out of India/ out of station. The plaintiffs again wrote a letter dated 02. 05. 1979 (Ex. PW-2/2), which was also unserved but this time the postal endorsement in respect of Rohtak road address was "avoiding to take delivery" and in respect of the address of 35, Babar Road was "that in spite of going several times, addressee has not met and the kothi is lying vacant".