SANJAY VATS Vs. ATTRO

JUDGEMENT

(1.) In a suit for specific performance and perpetual injunction filed by the plaintiff against the defendant on the basis of an agreement to sell the agricultural land in village Mundka, Delhi dated 9th October: 1987 he has also filed an application under Order 39 Rules I and 2 read with Section 151 of the Code of Civil Procedure praying therein that the defendant should be restrained from selling, transferring, alienating or otherwise encumbering the land in dispute and also interfering in any manner with peaceful possession of the plaintiff over such land.

(2.) The relevant facts stated in the plaint by the plaintiff are that the defendant has entered into an agreement to sell the agricutural land bearing Khasra Nos. 111/13 (2-14), 111/17 (4.16), 111/18 (5-06) and 111124 (4-16), total measuring 37 bighas 12 biswas with the plaintiff on 9th October, 1987. The defendant having entered into the agreement to sell received a sum of Rs. 2,38,000 in advance by way of part payment from the plaintiff out of the total sale consideration of Rs 23,83,330 and the defendant executed 'a separate receipt for the amount so received by him. The balance consideration was to be paid by the plaintiff to the defendant at the time of registration of the sale deed within a period of twelve months from the date of execution of the said 'agreement. Pursuant to the agreement to sell, the possession of the suit land was delivered to the plaintiff on the spot by the defendant on the date of the agreement itself and the plaintiff has been in possession of the suit land since then. It was also agreed to and stipulated in the agreement that the defendant shall obtain ths necessary Income Tax Clearance Certificate as well as No Objection Certificate from the competent authorities and execute the regular sale deed in favour of the plaintiff within the stipulated time. As mentioned above, the sale deed was to be executed by the defendant in favour of the plaintiff within a period of twelve months from the date of the 'agreement, i.e., 9th October, 1987. It was also specifically agreed that if the defendant failed to execute the sale deed after obtaining the necessary certificates/documents for execution and registration of the sale deed within a period of twelve months from the date of the agreement, the plaintiff shall be entitled to seek enforcement of the agreement through the court of law, in addition to the right to recover double the advance money paid by the palintiff to the defendant. It appears that the defendant because of escalation in prices has backed out from the agreement and does not want to sell the land in accordance with the agreement to sell. However, the plaintiff has all along been willing to perform his part of the agreement and is still willing for the same. The plaintiff has approached the defendant to effect the sale deed in .accordance with the terms of the agreement to sell but of no use. Hence this suit.

(3.) The defendant, on the other hand, has emphatically stated that notwithstanding the alleged admission in the agreement to sell that vacant physical possession has been handed over to the plaintiff, in fact no possession whatever has been handed over. In fact it was agreed between the parties that the dehorse the said clause, the possession would remain with the defendant till the entire sale consideration was paid. In the revenue records till date the defendant continues to be shown as owner . in possession in the Khasra Girdawari for kharif 1988-89 prepared by the patwari after inspection of the site. The plaintiff admittedly not in possession is not entitled to any decree restraining the defendant from interfering with the non-existent possession of the plaintiff. Furthermore the case set up by the defendant is that the sale would be completed within six mouths of the execution of the agreement to sell. The plaintiff within this period neither paid nor tendered the balance sale consideration and to get out of his non-performance of his part of his contract made illegal interpolations in the agreement by changing the word "six" to "twelve". The plaintiff was never ready and willing to perform his part of the agreement/contract and hence he is not entitled to sue for specific performance much less obtain a decree thereunder. The time, according to the defendant, was the essence of the contract and, therefore, the suit merits dismissal.