KAMLESH AGARWAL Vs. E C E INDUSTRIES LTD

JUDGEMENT

(1.) THE short question which arises in this appeal is whether the suit filed by the appellants primarily for specific performance of an 'agreement to Sell was barred by the law of limitation. The learned Additional District Judge who tried the suit has held the same to have been instituted after the expiry of the period of limitation. The appellants feel it was filed within limitation. Before I come to the point in issue, it is necessary to refer to a few facts:

(2.) IT is not in dispute between the parties that an Agreement to Sell dated june 15, 1977 was entered into between them and thereby the respondent had agreed to sell and transfer to the appellants flat measuring 634 Sq. ft. on the first floor of building known as ECE House (Main Building) situated at 28, Kasturba Gandhi Marg, New Delhi inclusive of 49. 70 Sq. ft. of proportionate area in the passage and WC together with all manners or rights, liberties, easements, privileges, advantages, emoluments, appendages and appurtenances whatsoever but subject to the tenancy of M/s. Macneill and Magor Limited. It is also not in dispute that the entire sale consideration of the flat amounting to Rs. 1,80,690/- was paid in full to the respondent at the time of execution of the Agreement to Sell and that as the flat was under the tenancy of M/s. Macneill and Magor Limited only symbolic possession of the same was delivered to the appellants. It transpires from the averments made in the plaint that the respondent had not only entered into an agreement to Sell with the appellants, but also with 41 other persons in respect of the entire first floor of the aforementioned premises. It also transpires that the respondent had been acting as Estate Manager to all the purchasers including the appellants inasmuch as it was collecting rent on their behalf and had been disbursing the same in proportionate shares to each one of them. The respondent in the written statement filed by it did not dispute this fact but denied that it was acting as an Estate Manager. As per the respondent, since it had only entered into Agreements to Sell, it remained the absolute owner of the property and thus could not be referred to as Estate Manager.

(3.) IT is the case of the appellants that they had approached the respondent on various occasions to execute the sale deed in their favour but to no avail. Initially, the respondent avoided on the pretext that permission was required to be obtained under the provisions of the Urban Land (Ceiling and regulation) Act, but subsequently it conceded that no such permission was required. And yet, no sale deed was executed. On september 01, 1989 the appellants were told by means of a letter from the respondent that since they had not purchased proportionate land of their flat, the sale deed could not be executed immediately. Nothing much happened thereafter till February 28, 1995 when the appellants sent a legal notice to the respondent calling upon it to approve the draft sale deed annexed thereto and take further necessary steps for execution and registration of the sale deed. The notice so given evoked no response from the respondent. Hence, the suit for specific performance of the agreement to sell dated June 15, 1977 as well as for a decree of declaration that the appellants were the sole and absolute owners of the aforementioned flats and a decree for permanent and mandatory injunction restraining the respondent from selling, disposing of, transferring or alienating the flat in question. In the alternative, appellants claimed the relief for refund of the entire sale consideration of Rs. 1,80,690/-along with interest @ 18% per annum and the difference between the agreed price and market price of the flat on the date of passing of the decree. The suit was filed on July 07, 1995.