(1.) THE present suit has been filed by plaintiff Rajesh Kumar Sood for specific performance of an agreement to sell immovable property, allegedly executed by late Shri N.N. Nowrojee. The cause of action, as disclosed in the plaint, may be summed up thus.
(2.) LATE Shri N.N. Nowrojee was the exclusive owner of property bearing Khasra Nos. 463 to 472 and 474, measuring 0-16-92 Hectares, situate in Up-Mohal Mcleodganj, Mauza Dharamshala, as per Jamabandi for the year 1992-93 (hereinafter referred to as first property). He was also a co-owner, along-with defendant No. 1 Jamshed Nowrojee and defendant No. 4 Navaz Nowrojee, of the property comprised in Khasra Nos. 475, 476, 477 and 251, measuring 0-23-71 Hectares, situate in the same Mohal and entered in the same Jamabandi as his exclusive property described earlier and hereinafter referred to as second property. He entered into an agreement with the plaintiff for the sale of the first property as also his share in the second property. Acting as the attorney of defendants No. 1 and 4, he also entered into an agreement to sell their shares in the second property to the plaintiff. He showed the instruments of power of attorney executed by the above said two defendants No. 1 and 4 in his favour, at the time he executed the agreement in favour of the plaintiff. The agreement was executed on 17.7.2000. Sale consideration of both the properties was fixed at Rupees forty lacs. Rupees ten lacs were paid in cash, as part of the sale consideration, at the time of the execution of the agreement. The remaining amount was agreed to be paid on or before 16.7.2002, an outer time limit fixed for the execution of the sale deed. Unfortunately late Shri N.N. Nowrojee expired on 24.10.2000. Soon after his death, the plaintiff issued notices to defendants No. 1 and 4, who are co-owners of a part of the suit property, agreed to be sold to the plaintiff, as also to defendants No. 2, 3 and 5, who are the sons and widow of late Shri N.N. Nowrojee, informing them that late Shri Nowrojee had executed agreement to sell the properties in his favour and that they should not alienate or encumber the same. In response to the said notice, the defendants denied that late Shri N.N. Nowrojee executed any agreement. At the same time they asked for a copy of the agreement. The plaintiff supplied them a copy of the agreement, but thereafter there was no response from the defendants. The properties agreed to be sold consist of some vacant land and some land under structures. The possession of the vacant land was delivered to the plaintiff at the time of the execution of the agreement. The possession of the land on which structures stand, was agreed to be delivered at the time of the execution and registration of the sale deed and on payment of the remaining sale consideration of Rupees thirty lacs. The plaintiff had always been ready and willing and was still ready and willing to perform his part of the contract, when he filed the suit for specific performance. In the alternative he prayed for passing a decree for a sum of Rupees forty lacs or such amount as the Court might determine, on account of refund of earnest money along-with interest at the rate of 24%.
(3.) THE plaintiff filed replication in which he denied all the allegations of the defendants and reiterated his own version. He admitted that late Shri N.N. Nowrojee had offered to lease out the suit property to Punjab National Bank on 20.7.2000, but pleaded that it was at his instance that Shri Nowrojee made the offer to the bank, because he (plaintiff) too had offered his own property, situated close by, to the bank on lease basis and since the property had been agreed to be sold to him by late Shri Nowrojee, he wanted that this property was also leased to the banks, so that he could start getting income immediately after the execution of the sale deed in his favour.