RAKESH KUMAR JAIN Vs. DEVENDER SINGH MEHTA

JUDGEMENT

(1.) This suit was filed a score years ago complaining that though an Agreement for the sale of 35, Babar Road, Bengali Market, New Delhi for Rs. 4.90 lakhs, had undisputable been arrived at between the parties, the Dependent had refused to complete the contract. The Defendant, to the contrary, asserts in the Written Statement that it was the Plaintiff who failed to honour this Agreement and hence the Defendant had no alternative but to end it. Hence this action for the specific performance of the Written Agreement dated 8.9.1978 has come to be filed.

(2.) The plaint sets out that the Agreement was executed by the Plaintiffs and Defendant No.1 for himself and for Defendant No.2 as his duly constituted attorney. The Plaintiffs paid Rs.30,000.00 to the Defendants on 8.9.1978 itself. The balance to be paid in two stages - Rs. 2.6 lakhs at the time of possession and the execution of the Sale Deed and Rs. 2 lakhs with in two years from the date of possession, together with interest thereon at 10 percent per annum on the completion of the transaction. The payment of Rs.2 lakhs contamplated at the second stage is indeed remarkable; almost always the entire sale consideration is made over atleast by the time of the execution of the Sale Deed. It was further covenanted that actual physical possession would be handed over within three months from the date of the agreement. Presumably it has envisaged that the construction would be completed by then. Clearance from then prevailing Competent Authority under Urban Land (Ceiling and Regulation) Act, 1976, and obtainment of permission from the L. & D.O. were also mentioned as the obligation of the Defendants. It is averred in the Plaint that these obligations were not performed by the Defendants as envisaged in the Agreement the excuse by them being the ill health of the sister of Defendant No.1. After waiting for some time the Plaintiffs state that the letter dated 5.4.1979 was written to the Defendants at their Rohtak Road Address, which was received back with the endorsement that the Defendant was out of station. The next letter dated 2.5.1979 was also unserved, but this time the postal remark was "avoiding to take delivery"/"kothi was lying vacant." It is then pleaded that on learning of the Defendant's return in December 1979 the Plaintiffs approached him to complete the transaction. Notices dated 21.12.1979, 23.12.1979 were then sent, but remained undelivered. On 13.1.1980 the Plaintiff received a letter dated 8.1.1980 from Defendant No.1, stating that it was not possible to register the Sale Deed as requisite permissions had not been obtained and the sum of Rs.30,000.00 was tendered back. Admittedly, this payment has till date not been encashed by the Plaintiffs. Finally, another notice date 5.7.1980 was issued by the Plaintiffs to the Defendants but could also not be served.

(3.) In the Written Statement it is pleaded that the Agreement is " voidable, not executable and inoperative" on the grounds that the Plaintiffs were debarred, by virtue of Section 5 of the FERA, from making payment to the Defendants since they were British Nationals; and that since the Plaintiffs owned another immovable property they could not and did not sign and supply the necessary application and affidavits for the L. & D. O. permission, as well as the Clearance under the Urban Land (Ceiling & Regulation) Act, 1976. It was next pleaded that the Agreement stood " exhausted, no longer operative and in force binding upon the parties for the reason that Rs.30,000.00 was returned" that the plaintiffs were not financially ina position to pay the sale consideration; that the claim for damages of Rs.4.5 lakhs was wrong, voidable and misconceived; that only Rs.10,000.00 at the most, could be claimed as damages; that the Defendants could not apply for the clearance/permission due to the failures of the Plaintiffs; and that the letters/notices were never sent/served.