K L SETHI Vs. S KISHAN SINGH

JUDGEMENT

(1.) The plaintiff seeks modification of the order dated 6th April, 2009 to the extent directing the plaintiff to furnish undertaking to this Court to, in the event of failing in his case for specific performance, pay to the defendant the difference of the admitted agreed price of Rs. 1,82,50,000/- and Rs. 2.50 crores which was disclosed by the counsel for the plaintiff himself on 6th April, 2009 to be the present market value of the property.

(2.) The said order was made because in this case, the plaintiff, out of agreed sale consideration of Rs. 1,82,50,000/- has paid only Rs. 10 lacs to the defendant. The written agreement to sell dated 4th July, 2007 provides that the balance Rs. 1,72,50,000/- shall be paid by the plaintiff to the defendant within 90 days of 4th July, 2007; that the defendant shall execute sale deed/document in favour of the plaintiff at the time of receiving full consideration and also deliver vacant, peaceful, physical possession of property and title documents of property. It is also a term of the agreement that if the defendant does not pay the balance consideration, then earnest money of Rs. 10 lacs shall be forfeited and agreement stand cancelled. Admittedly the balance sale consideration was not paid within 90 days; according to the plaintiff because the defendant did not get freehold conversion and according to the defendant because the plaintiff had no money. There is no term in the agreement to sell requiring the defendant to get free hold conversion before receiving balance consideration. Execution of sale deed or other document at the time of receiving balance consideration was envisaged. Prima facie it appears that had freehold conversion had taken place within 90 days, sale deed would have been executed and if not, other documents which could be executed even without such conversion.

(3.) Prima facie finding this weakness in the case of the plaintiff, while confirming the interim order restraining the defendant from dealing with the property, condition was imposed on the plaintiff to file undertaking to the Court in the form of affidavit, to, in the event of failing in his suit, make good to the defendant, the loss caused to the defendant by injunction restraining the defendant from dealing with his property.