SARDARILAL Vs. SHRIMATI SHAKUNTLA DEVI

JUDGEMENT

(1.) This is a defendant's appeal from the decree and judgment passed by Sub Judge 1st Class, Delhi, decreeing the plaintiff's suit for Rs. 28,000/-but ordering the parties to bear their own costs. The defendants (appellants) are five in number and they are the sons of Shri Rup Lal proprietors of the firm of Messrs. Ushnak Mal Mul Chand of Lahore, now carrying on business in Delhi. The suit was instituted by the plaintiff, Shrimati Shakuntala Devi against the defendants for the recovery of Rs. 35,970/-. The plaintiffs case was that by an agreement dated 3rd March, 1947, (Exhibit P. 1) the defendants bad agreed to sell to her a house bearing No. 138-C, with land thereunder and attached thereto, measuring 4 Kanals, situated at Model Town, Lahore, which they had purchased from one Ishwar Dat. The defendants had entered into an agreement to sell the said house to the plaintiff for Rs. 58,000/-. A sum of Rs. 5,000/-bad been received by them on that date as earnest money. After the execution and completion of the sale deed in respect of the house in vendee's favour the defendants undertook to get it registered within three months and they were to receive the balance of the sale money, amounting to Rs. 53,000/-, at the time of the registration of the sale deed,. If the vendee did not get the sale of the house effected within the said period the earnest money would be forfeited and the agreement to sell would be considered as cancelled. In case the defendants failed to get the sale effected in favour of the plaintiff within the stipulated period the plaintiff would have the right to get the sale effected compulsorily through Court. Possession was to be delivered to the vendee at the time of the registration. It was also stipulated that the term regarding three months' time limit would be deemed as vital and of the essence of the contract.

(2.) On 29th of March, 1947, Shrimati Shakuntala Devi paid a sum of Rs. 18,000/-, out of the sale money, and obtained receipt Exhibit P. 2. On 15th of April, 1947, she paid another sum of Rs. 10,000/-to the defendants. Thus, in all, she had paid Rs. 33,000/-, inclusive of the earnest money, to the defendants. On 14th of April, 1948, a registered notice was sent by the plaintiff's lawyer on her behalf stating that in consequence of the communal riots in Lahore on 4th of May, 1947, some Of the defendants had left Lahore and, therefore, the transaction of sale could not be completed within the stipulated period although the vendee was, at all time, ready and willing to perform her part of the contract. It was alleged that as the bargain had failed she was entitled to a refund of the earnest money besides the refund of the advance amount of Rs., 28.000/, i.e. Rs. 33,000/-in all, along with interest. On 3rd of May, 1948, reply was sent by the defendants through their counsel. They maintained that it was the plaintiff who left Lahore without leaving any information with the defendants and that it was she who intentionally committed breach of the contract. It was also said that the defendants had always been willing to perform their part of the contract and were even still ready to do so but she had intentionally committed breach of the contract and hence was liable to make good the loss caused to the defendants. It was also maintained that in consequence of the breach committed by Shrimati Shakuntala Devi the defendants had suffered a loss of over Rs. 33,000/-which, it was incumbent upon her to make good. It was also stated that the defendants were still ready to execute the sale deed at the plaintiff's cost against payment of the price.

(3.) The present suit was instituted on 4th of January, 1949, claiming that the plaintiff was entitled to the return of Rs. 33,000/-paid by her to the defendants. It was pleaded that the defendants had left Lahore and sale was not completed and registered within the period agreed upon despite her always having been ready and willing to pay the balance of the price and to get the sale completed. Alternatively it was said that even on the assumption that the defendants were not at fault the agreement of sale had come to an end on 3rd of June, 1947, and as the plaintiff was not at fault the earnest amount could not be forfeited by the defendants. In any case the amount of Rs. 28,000/-having been deposited in trust with the defendants with the specific object of adjusting it towards the balance of the price at the time of registration on 3rd of June, 1947, when the agreement came to an end, she was entitled to the return of the entire sum of Rs. 33,000/ She also claims a sum of Rs. 2,970 towards interest.