SUSHEIL AHLUWALIA Vs. DHARAM PAL MALHOTRA

JUDGEMENT

(1.) THIS Notice of Motion has been taken out in a suit for specific performance of an agreement to sell the flat bearing No. 601 on the 6th floor along with the car parking space No. 6, in the building known as Shivala situated at the junction of Sobhani and Khatan Road, Colaba, Bombay 400 005.

(2.) UNDER an agreement dated 26th June, 1991 the defendants, who are described therein as the owners of the said flat and the car parking space, agreed to sell the same to the plaintiffs on the terms and conditions mentioned therein. The total price agreed to be paid by the plaintiffs has been Rs. 51,50,000/- out of which as sum of Rs. 50,000/- was agreed to be paid on or before the execution of the said agreement and the balance amount of Rs. 51 lakhs on obtaining no objection certificate from the Appropriate Authority as required under Chapter XX-C of the Income-tax Act, 1961.

(3.) IT is the case of the plaintiffs that in respect of the sum of Rs. 50,000/- required to be paid on or before the execution of the said agreement, the plaintiffs had already handed over to the defendants a cheque bearing No. 504998 dated 24th June, 1991 for Rs. 50,000/- prior to the execution of the said agreement. The fact that the said cheque was handed over by the plaintiffs to the defendants is not in dispute. However, according to the defendants, the said cheque was not put in the bank as per the instructions of the plaintiffs, which fact has been denied by the plaintiffs. It is the case of the defendants that since the plaintiffs did not have sufficient funds in the bank account, the request was made by the plaintiffs for not presenting the said cheque of Rs. 50,000/- for encashment and accordingly the said cheque was not presented for encashment. I have perused the bank statement of the account of the 3rd plaintiff. I find from the said statement that at the material time sufficient amount was lying to the credit of the 3rd plaintiff in the said account and accordingly it is not possible to accept the allegations of the defendants that the said cheque for Rs. 50,000/- was not presented to the bank for realisation as per the alleged understanding arrived between the parties.