RAVINDRA KISHORE SINHA Vs. MANJULA BHUSHAN

JUDGEMENT

(1.) APPELLANT 's suit for specific performance of an Agreement of Sale of 31st March, 2005 in respect of second and third floor (including terrace) as well as servant quarters of Property bearing No. E -1, East of Kailash, New Delhi, has been held to be not maintainable by the learned Single Judge vide order of November 09, 2009, which is impugned in this appeal.

(2.) UPON completion of the pleadings, at the stage of framing of issues, learned Single Judge has taken note of the objection of the Respondent regarding maintainability of the suit raised in the written statement, which is as follows: Para 15 is denied. No cause of action accrued at any time. The suit is not maintainable.

(3.) THE factual position as noticed by the learned Single Judge in paragraphs 8 and 9 of the impugned order is herein as under: 8. It is an undisputed fact that in this case at the time of entering into the agreement in respect of entire property, the parties had assessed the market value of the two portions of the property, one part consisting of basement, ground floor and first floor and the second part consisting of second floor and particularly built third floor with terrace. The agreement itself provides that the amount of Rs. 4.15 crore was a reasonable market value of basement, ground and first floor and Rs. 2 crore was proper value of second and third floor. Even in case of second floor and third floor, the value was put at Rs. 1 crore for each floor since plaintiff had agreed, for convenience sake that in respect of these two floors he could get the sale deed executed either in his or in favour of his nominee for this value. Defendant who was the owner of the property had to remain in occupation of the second floor and third floor all along since she had agreed to receive the consideration of second and third floor within a period of three years. It is apparent that it was in the minds of the parties that the prices of the property keep on increasing. To compensate this, the parties had agreed that defendant will continue to receive 6% interest over the unpaid consideration on interval of every six months. Rs. 4 lac was to remain as earnest money with her for second floor and third floor. 9. It is an undisputed fact that the plaintiff did not keep even that Rs. 4 lac with the defendant as a token of his surviving interest for second floor and third floor. If the interest of the plaintiff had still been there after 11th October 2005 when he got the sale deed executed in respect of one portion, he would have at least kept that token amount of Rs. 4 lac with defendant against the total sale consideration of Rs. 2 crore. It cannot be presumed that a person who could spend Rs. 4.15 crore on purchasing basement, ground floor and first floor would not spare Rs. 4 lac to keep his interest surviving in rest of the property. It only shows that looking at the market situation at that time, plaintiff thought that the deal in respect of part of the property was good enough and he scrapped rest of the agreement and did not keep even Rs. 4 lac with defendant. The agreement provided that the plaintiff had to pay every six months interest on balance consideration @ 6% per annum, which to my mind was a very moderate interest and six monthly interest on Rs. 2 crore amounted to Rs. six lac. If the plaintiff had not abandoned the agreement he would have paid Rs. 6 lac every six months to the defendant to show that his interest was surviving. The first payment of interest of the agreement had become due on 1st October, 2005 and the second payment of Rs. 6 lac had become due on 1st April, 2006, third payment on 1st October 2006 and the 4th payment on 1st April, 2007. Plaintiff had not offered any of these dues on account of interest to defendant. No cheque or draft was sent and even in the letter written by plaintiff dated 28th March 2007, there is no talk of interest payable by the plaintiff to the defendant after every six months. Plaintiff only talked of Rs. 1.96 crore being ready with him although even Rs. 4 lac was not lying with defendant and had already been adjusted. It is not mentioned in the letter that the defendant at any point of time refused to receive the interest or had asked for the adjustment of the interest. A subsequent reply given to the response of the defendant is not reflective of the true intention of plaintiff. If it had been agreed by defendant as is alleged in the subsequent reply of plaintiff that the accumulated interest was to be paid along with the consideration, then plaintiff in its letter dated 28th March 2007 would have made this offer to defendant. It only shows that the plaintiff, looking at the rise in real estate price wanted to revive an abandoned contract and wanted to drag defendant in unnecessary ligation thinking that under the coercion of litigation, defendant may come to some compromise.