VIJAY KUMAR SHARMA Vs. DEVESH BEHARI SAXENA

JUDGEMENT

(1.) CHALLENGE in this appeal is to the judgement and decree dated 18-04-1998, passed by 3rd Additional Civil Judge (Senior Division)Ghaziabad, in O. S. No. 436 of 1995 (Devesh behari Saxena v. Vijay Kumar Sharma), whereby the suit has been decreed for mandatory injunction directing the defendant to get the agreement to sell dated 22-1-1993 registered before registering authority within one month and then to execute sale deed in favour of the plaintiff in terms of this agreement after receiving balance sale consideration of Rs. 13,21,000/- (Rupees Thirteen lac Twenty One Thousand only) and hand over possession of the disputed plot to the plaintiff after getting the sale deed registered. It is further held in the impugned decree that if due to pendency of appeal in Hon'ble supreme Court or non-availability of no objection certificate from the competent authority, specific performance of the said agreement becomes impossible, then the plaintiff would be entitled to get back his earnest money of Rs. 7,00,000/- (Rupees seven lac) from defendant with interest @ 18% per annum from 22-1-1993 to 14-4-1995 and thereafter @ 6% per annum from 15-4-1995. FACTS

(2.) THE plaintiff-respondent instituted o. S. No. 436 of 1995 in the court of Civil Judge (Senior Division) Ghaziabad, for specific performance of the agreement for sale dated 22-1-1993 and possession over the disputed plot. It was also prayed that if due to any legal requirement, registration of the agreement is considered necessary, then the same be got registered first and, thereafter, transfer deed be got executed and registered in favour of the plaintiff. In the alternative, relief for decree of refund of earnest money of Rs. 7,00. 000/- and recovery of Rs. 13,21,000/- as damages with interest @ 18% per annum was also claimed. Shorn of unnecessary details, the case of the plaintiff, in brief, is that the defendant agreed to sell his plot No. 133 (Block A) area 465 Sq. Mtrs. , situate in Sector 15-A, noida, Paragana and Tehsil Dadri, District ghaziabad for consideration of Rs. 20, 21,000/- and after receiving Rs. 7,00,000/-in part payment through cheque No. 857877 of Canara Bank, Green Park Extension, new Delhi as earnest money, executed an agreement to sell on 22-01-1993. The balance sale consideration was agreed to be paid at the time of execution/registration of transfer deed, which was to be executed by 2-4-1993 after obtaining all necessary permissions from NOIDA and concerned departments. It is alleged that in terms of the said agreement both the parties submitted form no. 37-1 for getting permission from Income tax Department under section 269 UC (2) (3) of Income Tax Act 1961 and defendant also submitted form No. 34a under section 230a of Income Tax Act, but permission was not granted by the Income Tax Department and order for purchase of the disputed property by Central Government was passed on 24-3-1993. That order was challenged by the plaintiff in High Court in Writ Petition No. 619 of 1993, which was dismissed on 15-04-1993 on the ground that purchaser has no right to get permission from Income Tax department for purchasing the property. Thereafter, the defendant filed Writ Petition no. 669 of 1993, which was allowed on 20-09-1994 and order dated 24-3-1993 of Income Tax Department was quashed. It is further alleged that after decision of the aforesaid writ petition, the defendant neither informed the plaintiff about clearance certificate from Income Tax Department and no objection certificate etc. , nor he executed transfer deed in favour of the plaintiff, due to which the plaintiff got a notice served on the defendant on 24-1-1995, but inspite of that notice, the defendant did not execute the transfer deed of the disputed property in favour of the plaintiff in terms of the agreement to sell dated 22-1-1993, whereas the plaintiff was always ready and willing to get the transfer deed executed after making payment of the balance sale consideration. Hence this suit.

(3.) THE defendant filed written statement in which he admitted that Rs. 7,00,000/- (Rupees Seven lac) were paid to him as earnest money. Execution of the agreement to sell dated 22-01-1993 has also not been denied by the defendant in his written statement, but the suit has been contested by him with the averments that there was no completed, final, legal and binding agreement to sell between the parties and the said agreement cannot be received as evidence of the alleged contract. It is further averred that the agreement to sell, the specific performance of which is being sought, is unregistered document, though as per the provisions of section 54 of Transfer of Property act, as amended in the State of Uttar pradesh, any agreement to sell regarding immovable property can be effected only through registered document and hence the alleged agreement being unregistered is illegal and unenforceable and the plaintiff is not entitled to get any relief in the suit, which is also barred by section 16 of Specific Relief Act, as the plaintiff was not ready and willing to get the sale deed executed after the order passed by the Income Tax Department for acquisition of the disputed property. It is further alleged that according to the plaintiff himself, the transaction was to be finalized by 2nd April 1993 and due to acquisition of the disputed plot by the central government, the alleged agreement stood terminated and came to an end, because it is specifically mentioned in the said document that if an order is passed by the government to purchase the property, the agreement would come to an end and earnest money shall be refunded. The plaintiff after april 1993 was not interested to purchase the plot and his attorney Sri Ashok Behari saxena in April 1993 had expressed his desire to receive back the earnest money. The plaintiff or any one on his behalf after the beginning of April 1993 did not ask the defendant to execute the sale deed or return the earnest money. The plaintiff had no arrangement of money to pay the balance sale consideration and he never contacted the defendant after February 1993 to get the sale deed executed and registered in his favour. The plaintiff as NRI is living in U. K. since march 1993 and is not interested to purchase the plot. It is also averred that since there was no legal and binding agreement to sell between the parties, the defendant after the order dated 20-9-1994 passed by this Court in Writ Petition No. 669 of 1993, did not apply to get Income Tax clearance and no objection certificate from the concerned departments and he had sent a letter on 30-03-1993 to the plaintiff asking him to collect the cheque for Rs. 7,00,000/- (Rupees Seven lac ). In the alternative and without prejudice to the aforesaid averments it is further averred by the defendant that the agreement in question had come to an end in March 1993 when permission was not granted by the Income Tax Department and plaintiff had sought to receive back the amount paid by him and had rescinded the agreement, due to which the defendant is not under any legal obligation to execute the sale deed with respect to the disputed plot.