S K NAYYAR Vs. C K ANAND

JUDGEMENT

(1.) APPELLANT -defendant No. 1 has assailed the judgment of the lower appellate Court dated April 22, 1. 996, whereby lower Court's judgment and decree dated October 29, 1993, is affirmed.

(2.) FACTUAL matrix of the case is that defendant No. l is the owner-in-possession of an industrial plot bearing No. 442 measuring 487. 50 sq. metres situated in Phase-III, Udyog Vihar, Dundahera, Tehsil and District Gurgaon. This plot was allotted to him by defendant No. 2, i. e. Haryana State Industrial Development Corporation, Chandigarh (hereinafter called the 'hsidc') vide its letter dated October 28, 1982. Its possession was delivered to defendant No. 1 on February 14, 1982. Subsequently, defendant No. 1 agreed to sell this plot to the plaintiff-respondent No. 1 for a sale consideration of Rs. 1,37,500.00 vide agreement dated March 28, 1988. Defendant No. 1 received Rs. 10,000.00 as advance part-payment from the plaintiff-respondent No. 1. He was to transfer the plot in plaintiffs favour within three weeks from March 28, 1988, i. e, on or before April 18, 1988. Defendant No. 1 undertook to apply for transfer of the plot in favour of the plaintiff or his nominee to defendant No. 2 before April 18, 1988. He also assured the plaintiff that the plot in suit was free from all encumbrances and that he had got clean and marketable title. He further undertook to execute all the necessary documents in plaintiffs favour to complete transaction and to perform all the formalities of transfer of this plot. He gave photostat copies of the allotment letter and letter of delivery of possession regarding the suit plot to the plaintiff. On April 16, 1988, the plaintiff came to know that defendant No. 1 had not paid the entire amount payable to defendant No. 2 with regard to this plot. He requested defendant No. 1 to give him original allotment letter, letter of delivery of possession, approved building site plan, if any, and 'no Dues Certificate' from defendant No. 2, but defendant No. 1 evaded to comply. Defendant No. 1 told the plaintiff that he would let him know as to when he collects all these documents and till then, it was not possible to transfer the plot. However, on April 16, 1988, defendant No. 1 sent a telegram to the plaintiff to contact him on April 18, 1988, as per the agreement, failing which the agreement shall stand cancelled. Plaintiff immediately replied telegraphically and disclosed that he was ready and willing to perform his part of the contract and defendant No. 1 should hand over the necessary documents on payment of the balance sale consideration. Plaintiff further stated that he had got the requisite money ready with him on April 18, 1988. He had purchased necessary stamp papers for getting executed the agreement of sale, general power of attorney etc. On April 18, 1988 in the hope that defendant No. 1 would be executing the requisite documents. Plaintiff also sent a registered letter to defendant No. 1 asking him to transfer the plot in his favour as agreed upon. But, the plaintiff received a letter from defendant No. 1 dated April 22, 1988, to the effect that the agreement stood cancelled.

(3.) IN his written statement, defendant No. 1 admitted to have agreed to sell the plot in question in favour of the plaintiff on March 28, 1988. He also admitted the receipt of Rs. 10,000.00, but according to him, it was not an advance payment but was earnest money. According to defendant No. 1, the act of transfer of plot was to be preceded by full payment of balance sale consideration of Rs. 1,27,500.00 by the plaintiff. It was denied that he had undertaken to apply for transfer of the suit plot before the stipulated date. The plaintiff had already made enquiries and satisfied himself that all the instalments had been paid and the plot was free from all liabilities. Defendant No. 1 also pleaded that the original allotment letter had been mislaid and the said fact was told to the plaintiff. He denied to have agreed to give original letter of allotment and other alleged documents to the plaintiff. He asserted that the plaintiff could not arrange the funds for payment of balance sale consideration and he had fabricated a baseless story in order to justify the breach of agreement. He denied that the plaintiff had the requisite funds with him for the said purpose and he was ready and willing to perform his part of the contract. According to defendant No. 1, the plaintiff had failed to perform his part of the agreement within the stipulated time, which was of the essence of the contract. Defendant No. 1 has further averred that he had sent letter dated April 22, 1988, informing the plaintiff that the agreement stood cancelled and earnest money stood forfeited.