GURMEET SINGH & OTHERS Vs. JASWINDER KAUR

JUDGEMENT

(1.) The appellant-plaintiffs are aggrieved of the dismissal of their suit seeking specific performance of the agreement to sell dated 13.1.1990 and supplementary agreement to sell dated 31.1.1990 entered into between the parties to the lis for sale of land measuring 17 Bighas-0 Biswa-1 Biswani (11 acres) at the rate of Rs. 5,19,000/- per acre against the payment of earnest money of Rs. 50,000/- at the time of execution of the agreement to sell dated 13.1.1990, wherein the stipulated date for registration and execution of the agreement to sell was fixed as 30.10.1990. However, the parties, on account of their volition, entered into a supplementary agreement dated 31.1.1990, whereby the appellant-plaintiffs paid a sum of Rs. 14,50,000/- towards the part price of the sale consideration and not as earnest money.

(2.) Mr.Sumeet Mahajan, learned Senior Counsel assisted by Mr.Amit Kohar Advocate, appearing on behalf of the appellant-plaintiffs submits that the Courts below have misinterpreted and misdirected in not referring to the contents of the terms/conditions of the supplementary agreement dated 31.1.1990 and at the best could have exercised the discretion vis-a-vis 1/3rd share of the land as a sum of Rs. 14,50,000/- against the total price of Rs. 55,00,000/- had been paid, i.e., the suit could have been decreed for land measuring 3 acres approximately. The Court can always mould the relief in the absence of primary relief and cannot be thrown out for want of specific prayer. The moulding of relief is permissible under the Civil Procedure Code and in law. In support of the aforementioned contention, he has also relied upon the provisions of sub-section (4) of Section 12 of the Specific Relief Act, 1963 (for short "1963 Act"). The appellant-plaintiffs can not be shunted out for want of readiness and willingness, for, the suit was filed on 2.11.1993. There is no denial of the documents vis-a-vis receipt of payment of Rs. 14,50,000/-, which was paid towards part payment of total sale consideration. Certain reminders were sent by the appellant-plaintiffs for executing the sale deed, but the defendants put off the matter on one pretext or the other.

(3.) He further submits that the suit property was mortgaged with the Bank and unless and until the defendants did not redeem the property, the same could not have been sold. The legal notice (Ex.P-9) intimating the redemption of the property was not accompanied by the letter of NOC issued by the Bank, much less the defendants failed to prove on record any letter, except a letter Mark-A purported to have been sent by the Bank, in essence, no official of the Bank has been examined to prove the authenticity/ contents of the aforementioned letter. The alleged forfeiture, vide telegram dated 30.10.1990, is rendered redundant, as vide letter dated 6.12.1990 (Ex.P14), the defendants again showed their willingness. The story coined by the defendants vis-a-vis non-construction of the boundary wall was an attempt to wriggle out from the supplementary agreement, much less for not performing their part of the contract. In support of his contention, much less in order to supplement the argument while relying upon the provisions of sub-section (4) of Section 12 of 1963 Act, relied upon the judgment of the Hon'ble Supreme Court rendered in Shree Hanuman Cotton Mills and others Versus Tata Air Craft Limited, 1969 3 SCC 522.