BLISS CITY DEVELOPERS PVT LTD Vs. KRISHAN SINGH

JUDGEMENT

(1.) The plaintiffs' case in brief is that the plaintiff is a company constituted under the Companies Act having its head office at SCO 215-216-7, Sector 34- A, Chandigarh. The plaintiff company passed a resolution of 25.12.2012, and, hence authorised its Director Sh. Satish Lal Arora to institute the instant civil suit before this Court, hence, Shri Satish Lal being an authorized person is competent to file the instant suit. It has been averred that the defendant along with other co-sharer is owner in possession of land comprised in Khata/Khatauni No. 1/1 min, Khasra No.227/164 situated in Mauza Kheel Jesli, Pargana Bharlali, District and Tehsil Solan, H.P. It is pleaded that as per jamabandi for the year 2005-2006, the defendant is owner in possession to the extent of 1/3rd of his share measuring about 2-18 bighas. It has been averred that the defendant was interested in selling his share, and, after negotiations and settlement the defendant entered into a formal agreement to sell qua the suit land with the plaintiff for a total sale consideration of Rs.50,75,000.00. It has been averred that it was agreed that the purchaser will be at liberty to get the land transferred in its own name or to some other company. It has been further averred that in pursuance to the agreement to sell of 10.02.2012, the plaintiff paid a sum of Rs.10,50,000.00 to the defendant as earnest money, amount whereof duly acknowledged by the defendant. The aforesaid amounts were paid through two different cheques, respectively bearing cheque No.640703 of 10.02.2012 amounting to Rs.Nine Lakhs and cheque No. 640708 of 7.5.2012, amounting to Rs.1,50,000.00. It has been averred that the defendant has also obtained NOC from other co-sharers qua sale of land in favour of the plaintiff or to some other person. It has been averred that as per the terms and conditions of the agreement to sell entered into the plaintiff and the defendant, it was agreed that the balance amount would be paid by the plaintiff at the time of execution of sale deed. It is averred that since the plaintiff being the non agriculturist of the Himachal Pradesh, hence required to obtained necessary registration certificate and permissions under Sec. 118 of the H.P. Tenancy and Land Reforms Act before execution of the sale deed. The plaintiff company applied for the requisite registration certificate. However, during the pendency of the same, unfortunately the H.P. Apartment and Property Regulation Act, 2005 is repealed and hence the application of plaintiff company came to a stand still. The plaintiff company through its authorised person kept on visiting and inquiring about the fate of these pending applications and it was intimated that proposals for the new Act have been almost finalized and is likely to be enacted shortly. The plaintiff company remained under bonafide impression that the new Act would be enacted and requisite permission would be granted in favour of the plaintiff. It has been further averred that the time qua the execution of sale deed was fixed till 31.12.2012. However, owing to repealing of old Act, the plaintiff company could not get itself registered and as such requisite permission under Sec. 118 of the H.P. Tenancy and Land Reforms Act was not issued to it, hence, the sale deed could not be executed. The plaintiff is keen to purchase the suit land, however, due to repealing of the Act, the necessary sanction could not be obtained. Under these compelling circumstances, it has become very difficult to the plaintiff to execute the sale deed and the plaintiff company is circumvented by adverse circumstances, as such, the agreement to sell requires its rectification for enlargement of time for getting the sale deed executed. It has been further averred that the plaintiff company has made many requests to the defendant for modification/rectification of the agreement, and, to enlarge the time for executing of the sale deed, but all in vain. However, the defendant is taking an undue advantage of the compelling circumstances of the plaintiff, and, is intending to grab plaintiffs money being paid as part of sale consideration. It has been averred that the plaintiff is ready and willing to complete transaction of purchase, however, due to the afore circumstances, the sale could not be executed. Consequently, it has been prayed that a decree be passed for specific performance for rectification of agreement, directing the defendant to rectify the agreement of 10.02.2012 to enlarge the time for further period of three months from the date of enactment of new Act in place of repealed H.P Apartment and Property Regulation Act, 2005 and in the alternative a decree be passed for refund of an amount of Rs.10,50,000.00, amount whereof paid as earnest money to the defendant, along with interest @18% per annum. Hence the suit.

(2.) The sole defendant, contested the suit, and, filed written statement, wherein he has taken preliminary objections, inter alia, the suit being false, vexatious and being filed with ulterior motives to harass the defendant, cause of action, maintainability, etc. On merits, execution of agreement sell, of 10.02.2012 qua the suit land is admitted. It is also admitted that in pursuance to the agreement to sell of 10.02.2012, the plaintiff paid a sum of Rs.10,50,000/. It is also admitted that the defendant had obtained NOC from other co-sharer for selling the land in favour of the plaintiff. It is also submitted that in fact he also obtained the NOC from all the co-sharers regarding selling of his hare qua the above said land in favour of the plaintiff, however, the defendant has completed all formalities regarding transfer of the land in favour of the plaintiff within time, and, as per the terms of agreement to sell of 10.022012, the defendant had fully co-operated with the plaintiff for this purpose. It is further submitted that at the time of execution of the agreement, it was agreed by the plaintiff that it would pay the balance amount of sale consideration amount to Rs.40,25,000.00 at the time of registration of sale deed i.e. on or before 31.12.2012. As per the terms and conditions set out in agreement in para NO.3, it was also decided that the plaintiff would obtain necessary permission under Sec. 118 of the H.P. Tenancy and Land Reforms Act, on or before 31.12.2012. The time is the essence of the agreement for the purpose of making of payment to the seller. It is also submitted that it was also agreed that purchaser, who is non agriculturist, shall apply for grant of permission in its favour for getting the above said land transferred in its favour on or before 31.12.2012, and, the seller shall fully corporate with the purchaser in getting such permission and shall provide and make available all the document required for such purpose. It is further submitted that in para No.9 of the agreement to sell, it was also agreed that in case the seller backs out from this agreement in that event the purchaser shall be entitled to enforce this agreement through the process of law or the seller shall be liable to pay the double of the received money to the purchaser, the option shall be that of the purchaser and further in para No.10 of the agreement it was agreed and decided that in case the purchaser backs out from this agreement in that event, amount paid to the seller, as, earnest money, shall be forfeited by the seller, and, the agreement to sell come to an end. The time is the essence of the agreement to sell. It has been pleaded that in fact, the plaintiff has alleged in paragraph No.7 of the plaint that the plaintiff applied for the requisite registration certificate, however, during the pendency of the same unfortunately the H.P. Apartment and Property Regulation Act, 2005 was repealed, and, on inquiry it was intimated that the proposal for new act have bee almost finalised and is likely to be enacted shortly. The aforesaid plea as raised in paragraph No.7 of the plaint by the plaintiff is alleged by the defendant to be totally false and vague and manipulated simply to obtain extension of time of agreement in the alternatively to obtain a decree for recovery of refund of money, however, nowhere the plaintiff company has any intention to get the land transferred in their name because as per the information collected from the office of District Revenue Officer, Solan, by the defendant, it came to his knowledge that no such application has been found to be filed by M/s Bliss City Developers Pvt. Ltd. In their office in the period commencing from Feb., 2012 to Dec., 2012 for the grant of permission to purchase land under Sec. 118 of the H.P. Tenancy and Lands Reforms Act, 1972. However, the plaintiff company even also nowhere applied regarding registration in the department of Town and Country Planning or HIMUDA regarding registration under the H.P. Apartment and Property Regulation Act, 2005. So, all the contents of the para regarding taking time and extension of agreement are totally false, and, the plaintiff company under the garb of the aforesaid false plea wants to refund of the earnest money along with interest, however, it is not entitled for the aforesaid relief, since the time was the essence of the contract. It has been pleaded that the plaintiff company is itself negligent and has no intention to purchase the property, hence, now by alleging the time consuming process for getting necessary sanction and due to repealing of the Act, same could not be obtained, hence seeking the rectification of the agreement or in the alternative seeking the refund of the earnest money along with interest. It has been pleaded that the time fixed for the execution and registration of the sale deed has already expired, and, the earnest money received towards sale consideration stands forfeited in favour of the defendant, as per condition No.10 of the agreement to sell, hence, the plaintiff company nowhere has any legal right for extension of time for getting the sale deed executed in its favour. In fact, the defendant is a bonafide and genuine person, who obtained all the necessary documents/papers with regard to the execution and registration of sale deed within the time but the plaintiff company itself failed to get the sale deed executed in its favour, even also to contact the defendant and now through this suit the plaintiff company is projecting false excuses. It has been averred that the plaintiff did not even take any single step to perform his part of obligation, rather it left the matter with the State by simply saying that the Act was repealed, if it has any intention to get the sale deed executed in its favour it has to prove as to what steps were taken for the transfer of the land. Owing to the failure of the plaintiff to execute the sale deed within the time prescribed the agreement to sell, the defendant was left with no other option to invoke the clause 10 of the agreement to same, and, the agreement to sell was terminated, fact whereof was also brought to the notice of the plaintiff. Hence, the defendant prayed for dismissal of the suit.

(3.) The plaintiffs herein filed replication to the written statement of the defendant, wherein, it denied the contents of the written statement and re-affirmed and re-asserted the averments, made in the plaint.