M K CHABBRA Vs. DAMANJIT KAUR

JUDGEMENT

(1.) Caveat No. 5/2019

(2.) The facts of the case are that the appellant/plaintiff filed the suit seeking specific performance of the Agreement to Sell dated 28.03.1993 for the suit property. It was pleaded by the appellant/plaintiff that the suit plot was allotted to the respondent/defendant but since the respondent/defendant was not successful in taking possession of the same as well as getting the Lease Deed executed, hence she approached the appellant/plaintiff for getting the needful done. The respondent/defendant was settled in Canada, and therefore, the respondent/defendant said that it was not possible for her to pursue her case before various authorities and was in need of money, and therefore, it was pleaded that the parties, hence, entered into the subject Agreement to Sell on 'as is where is' basis for a total sale consideration of Rs. 15,00,000/- being 50% of the market price of the property as on the date of the execution of the Agreement to Sell. The appellant/plaintiff paid an amount of Rs. 1,00,000/- of the total sale consideration of Rs. 15,00,000/-. A further Document dated 23.07.1993 was also executed between the parties whereby the price was increased to be 50% of the market value on the date of execution of the Lease Deed. It was pleaded by the appellant/plaintiff that he spent time, money and energy and got issued the Letters dated 14.05.1993, 22.03.1994 and 07.02.1995 from the office of the Registrar Cooperative Societies and the Society for execution of the Lease Deed. The appellant/plaintiff pleaded that the respondent/defendant wanted to back out of the Agreement to Sell and sell the suit property to someone else, and therefore a Legal Notice dated 24.07.2001 was issued to the respondent/defendant. It was pleaded that as on the date of the filing of the suit, the market value of the suit property was approximately Rs. 48,00,000/-. It was pleaded that the appellant/plaintiff was always ready and willing to perform his part of the contract/Agreement to Sell, and therefore, the suit be decreed.

(3.) Respondent/Defendant had contested the suit. Though originally the case of the respondent/defendant was that the Agreement to Sell/Receipt dated 28.03.1993 were signed by them after appellant/plaintiff had exercised misrepresentation, fraud and concealment, this issue however is not so pressed on behalf of the respondent/defendant before this Court as the trial court has given a finding that the parties with an open mind had entered into the Agreement to Sell/Receipt dated 28.03.1993 along with the Addendum dated 23.07.1993. The trial court has also held the suit for specific performance to be within limitation of three years by applying Section 15 of the Limitation Act, 1963 by excluding the period till the respondent/defendant came back to India as the respondent/defendant is a resident of Canada, and on this aspect, it is very vehemently argued by the respondent/defendant, before this Court, that the suit should be held barred by limitation because Section 15 of the Limitation Act applies only when an Indian goes abroad and then returns to India but the respondent/defendant is a permanent resident of Canada. On behalf of the respondent/defendant, it was also argued and contended that the letters which have been stated by the appellant/plaintiff in his plaint which were issued by the Registrar Cooperative Societies and Society for execution of the Lease Deed were issued in normal course and not because of any efforts of the appellant/plaintiff. It was pleaded that the Agreement to Sell was entered into as the respondent/defendant was to leave for Canada and the appellant/plaintiff had given a hint that if the respondent/defendant did not go by the advice of the appellant/plaintiff, then possibly the respondent/defendant may lose the property all together. It was denied that the appellant/plaintiff was ready and willing to perform the Agreement to Sell. The receipt of the Legal Notice dated 24.07.2001 was denied. It was contended on behalf of the respondent/defendant that the suit was filed after a gap of 8 years i.e. in December 2001 whereas the Agreement to Sell was first entered into in March 1993, and therefore, the suit was liable to be dismissed. As already stated above, the respondent/defendant had also filed a counter-claim which was dismissed by the self-same impugned judgment and an appeal filed in this Court by the respondent/defendant challenging the judgment denying grant of money decree of damages was disposed of as not pressed.