JATENDER NATH SHARMA Vs. HIGHSEAS HOLDING PVT. LTD.

JUDGEMENT

(1.) PLAINTIFFS have filed this suit for specific performance of agreement dated 28.8.1995, whereby defendant No. 1, through its Director, agreed to allot flat No. C-12, Block-C, first floor, Dilshant Estate, Bharari Shimla and also for a direction to defendants No. 1 & 2 to hand over vacant physical possession of the said flat to the plaintiffs and also to execute and get registered a sale deed in respect of the said flat.

(2.) CAUSE of action, as disclosed in the plaint, may be summed up thus. Defendant No. 1 offered for allotment some flats, which it planned to construct in Dilshant Estate, Bharari Shimla. The plaintiffs made enquiries with defendant No. 1, who vide letter dated 25.8.1995, addressed to plaintiff No. 1, sent plan of Block-C, along-with the list of flats, which were available for allotment / sale. One of the flats, included in the list, was flat No. C-12, having 990 square feet area. The plaintiffs applied for the said flat No. C-12 on 28.8.1995 and also paid to defendant No. 1 a sum of Rs.50,000/- in cash. Another sum of Rs.10,000/- was paid through bank draft dated 30.8.1995. Defendant No. 1 acknowledged the receipt of both the amounts through receipt No. 227, dated 30.8.1995. Vide letter dated 6.11.1995, defendant No. 1 demanded an additional amount of Rs.50,000/-, by means of a draft, to make up the deficiency in the earnest money and assured to issue allotment letter on the receipt of the draft for the said amount. The plaintiffs, vide bank draft dated 7.12.1995, paid Rs.50,000/- to defendant No. 1 against receipt dated 11.12.1995, issued by the said defendant. On 9.9.1996 the plaintiffs were sought to be delivered a cheque for Rs.60,000/- by defendant No. 1, on account of refund of the booking money, through a letter and along-with that letter there was a draft letter purporting to have been addressed by plaintiff No. 1 to defendant No. 1, thereby expressing his desire for the cancellation of the booking due to delay in construction. The plaintiffs did not sign that draft letter and sent reply to the aforesaid letter of defendant No. 1 on 17.9.1996 through an Advocate, conveying thereby that they had never asked for the cancellation of the booking nor were they agreeable to any such proposal of cancellation of booking and also required defendant No. 1 to issue allotment letter in respect of the booked flat. That letter was duly received by defendant No. 1. Thereafter the plaintiffs received two letters dated 14.9.1996 and 26.9.1996 from defendant No. 1, reply to which was sent by the plaintiffs on 14.10.1996 through an Advocate and in that letter the contents of the aforesaid two letters, received from defendant No. 1, were denied.

(3.) DEFENDANT No. 1 at one point of time took the stand that construction of the flat had been delayed due to stay granted by the Hon'ble High Court in CWP No. 62/94 and that cancellation of the flat was contemplated by defendant No. 1 in good faith and in the interest of the plaintiffs. Defendant No. 1 kept silent for about two years after the plaintiffs sent to it through an Advocate letter dated 6.12.1996 denying therein the refund of Rs.50,000/-. The plaintiffs then sent a notice dated 7.7.1998 to defendant No. 1 calling upon it to issue the allotment letter in respect of the booked flat. When there was no response, the plaintiffs issued another notice dated 1.12.1998, wherein inter alia it was stated that in case no positive action was taken on the demand for issuance of allotment letter, the plaintiffs would seek their legal remedy. Defendant No. 1 responded to this letter, vide reply dated 7.12.1998 / 22.12.1998 through an Advocate and also sent a draft for Rs.76,125/-, which included Rs.60,000/- on account of part of earnest money and Rs.16,125/- on account of interest accrued thereon. In the said reply it was denied that there was a concluded contract between the plaintiffs and defendant No. 1, the plaintiffs had no right to have the flat as no allotment letter had been issued and no agreement had been signed between the parties and that due to recommendations of the Environment Commission, the construction of block-C and block-D had been initially stayed and then cancelled. It is alleged that the plaintiffs had always been ready and willing to perform their part of the agreement.