CHETAK CONSTRUCTION LIMITED Vs. OM PRAKASH

JUDGEMENT

(1.) This case has a checkered history. Although the suit in question, out of which the present petition has arisen was filed by the petitioner/plaintiff in April 1993 before the Trial Court, but as of today even the issues have not been framed, on account of the matter being raised in various appeals/Courts, including the Supreme Court. Certain necessary and essential facts may be noticed as follows.

(2.) The petitioner-plaintiff filed a suit for declaration and permanent injunction. It was prayed that defendants No. 1 to 4, with 30 more persons, had executed an agreement on September 13, 1986 in favour of the plaintiff-company, agreeing to sell the property known as House No. 8 and 8- A(8/1-8/2) situated at Mahatma Gandhi Road Indore. The property comprises of one lac square feet of land with two houses constructed thereupon. One house measuring 1500 square feet was in possession of defendant No. 1 Om Prakash Khandelwal and the other house measuring 3500 square feet was in possession of defendant No. 3 Vijay Kumar Khandelwal. Defendants No. 1 and 3 are real brothers. The property in question was to be sold for an amount of Rs. 1,06,00,000/-. Out of the aforesaid sale consideration an amount of Rs. 42 lacs was paid by the plaintiff-company to the vendors on the date of the agreement. A further amount of Rs. 8 lacs was paid by the plaintiff-company to the defendants being an additional amount for addition/extensions carried to the structures and for immediately handing over the possession of the property. The property in question was also under attachment of the Sales Tax Department and Income Tax Department for the dues payable by some of the vendors. It was agreed to get the property released from attachment. The attachment was for an amount of Rs. 3,50000/-. After the release of property from attachment, the actual physical possession of the property, in furtherance of the agreement, was to be handed over to the first party i.e. the plaintiff-company. The sale deed was to be executed and registered within one year, on payment of balance amount of Rs. 64,00000/-. There was a provision for extension of the period by 6 months, on payment of the compound interest at the rate of 18% per annum. However, another clause provided that "further extension of time for payment is totally ousted and entails termination of this agreement and forfeiture of all advances".

(3.) It appears that two affidavits were furnished by Om Prakash Khandelwal and Vijay Kumar Khandelwal on September 13, 1986, supporting the claim of the plaintiffcompany and deposing that they had handed over the vacant possession of the premises to the second party (plaintiffcompany) on September 13, 1986. The vendors also executed a power of attorney in favour of the directors of the plaintiff-company. On February 17, 1988, the plaintiffcompany sent a communication to the vendors informing that they were ready and willing to fulfill their part of the contract i.e. payment of further balance consideration before the Sub Registrar at the time of the registration of the formal sale deed. The plaintiff-company required the vendors to ensure that the property was released from attachment by the Sales Tax and Income Tax Department and necessary no objection certificates are obtained from the Tax Departments and also under the Ceiling Act. The plaintiff-company requested all the vendors to come present at Indore to execute the sale deed. The defendants sent their reply on August 11, 1988 vide which the period stipulated for performance of the contract and payment of balance consideration was extended by 6 months and it was also communicated that if necessary, the period could be further extended for another 6 months. However,no further extension was to be given thereafter.