VIPAN KUMAR TYAGI Vs. SUKHDEV SINGH

JUDGEMENT

(1.) Having failed in both the Courts below, the plaintiff is before this Court whereby his suit for specific performance of agreement to sell, was dismissed. Briefly, the facts as have been noticed by the Courts below are that respondent No. 1/defendant entered into an agreement with the appellant to sell plot bearing No. 62, Sector-10, Urban Estate, Gurgaon, on 7.5.2004, for a total sale consideration of Rs. 10,90,000/-. Earnest money of Rs. 60,000/- was paid. The last date for execution of sale-deed was fixed on or before 30.7.2004. The vendor was to complete the formalities for transfer of the plot in favour of the appellant/vendee. It has further been pointed out by the appellant that the communication was sent to respondent No. 1/vendor that he is ready with the balance sale consideration and get the sale-deed executed between 21.7.2004 to 23.7.2004 on which the vendee informed the appellant that he will get the necessary formalities completed by 21.7.2004. The appellant-plaintiff got two demand drafts of Rs. 50,000/- and Rs. 2,95,000/- prepared in favour of HUDA and for Rs. 2,00,000/- in favour of the vendor. As the vendor failed to get the sale deed executed, legal notice was sent on 5.8.2004. The appellant initially filed a suit for permanent injunction on 17.9.2004. The present suit for specific performance was filed on 3.10.2005. The suit for specific performance having been dismissed by both the Courts below, the appellant-plaintiff is before this Court.

(2.) Learned counsel for the appellant submitted that in terms of the agreement to sell, the respondent-defendant was to get all necessary formalities completed for transfer of plot from HUDA. The sale deed was to be executed within 23 days thereof or on or before 30.7.2004, whichever was later. Defendant No. 1 did not complete the requisite formalities. The appellant when came to know that vendor was trying to dispose of the plot to some other person, initially a suit for permanent injunction was filed. However, later on as the appellant was already ready and willing to get the sale-deed registered, the suit for specific performance was filed which has wrongly been dismissed. Order II Rule 2 CPC was not applicable in the present case as cause of action to file the suit for specific performance had not arisen on the date when the suit for permanent injunction was filed.

(3.) On the other hand, learned counsel for the respondent-vendor submitted that a perusal of the plaint in the suit filed for permanent injunction and the suit for specific performance shows that final date on which the cause of action arose has been mentioned as 7.9.2004. Once it is own pleaded case of the appellant that the cause of action arose on 7.9.2004 and the suit for permanent injunction having been filed thereafter on 17.9.2004, the relief for specific performance being available on that day should have been claimed therein and any suit filed subsequently claiming that relief was clearly barred in law. It was further submitted that as per the agreement to sell, out of the total sale consideration of Rs. 10,90,000/-, only Rs. 60,000/- were paid as earnest money. The balance was Rs. 10,30,000/-. Even as per the case of the appellant, he had demand draft worth Rs. 3,45,000/- in favour of the HUDA and Rs. 2,00,000/- in favour of the vendor (total Rs. 5,45,000/-). There is nothing on record to show the availability of the balance sale consideration. Taking into consideration the totality of the circumstances, no illegality has been committed by the learned courts below in dismissing the suit filed by the appellant.