Pannalal Rathore v. M/S W.H. Deeth (Ballabgarh) & Co.

8. The plaintiffs claimed that they are in possession of the suit property as lawful purchasers having already paid a sum of Rs.1,25,00,000 as an advance with the remaining balance consideration of Rs.2,75,12,500/- to be paid at the time of execution of the Sale Deed in the name of the plaintiff or the nominee of their choice.

9. Hence, the present suit for Specific Performance has been filed seeking the execution of the Sale Deed in favour of the plaintiffs aside from directing the defendant to hand over the peaceful and lawful title in favour of plaintiff No.2 and to restrain the defendant from interfering into the lawful and peaceful possession of the plaintiffs. In the alternative, a prayer is made for refund of Rs.1.25 crores and also damages as may be granted along with the interest @ 24% per annum.

10. The defendant in his Written Statement has taken the preliminary objection of the suit being barred by limitation and not disclosing any cause of action. It is asserted that the suit had been filed only on 19.04.2012 in respect of the Agreement to Sell dated 12.06.2008. The possession of the plaintiff No.1 is illegal and he has been occupying the same without paying the rent. The defendant has claimed that the suit property already stands sold to Mr. Kunal Adlakha and Smt. Namita Adlakha vide registered Agreement to Sell dated 01.04.2012 i.e. even prior to the filing of the suit. Further, the plaintiffs have already filed a separate Suit No.CS(OS) Bi,2167/2013 for declaration of Cancellation of Agreement to Sell dated 01.04.2012 against the defendant and subsequent purchasers of the suit property.

11. It is further claimed that recently the defendant has received a Notice dated 06.08.2014 from the Court of the Estate Officer (SEZ), DDA stating that the Perpetual Lease granted in favour of the Lessee for the whole building, had been revoked way back on 28.04.1995 and the proceedings under Section 4(1) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 has been initiated against the defendant. It was claimed that defendant for the first time became aware about the Perpetual Lease after the service of the aforesaid Notice. The objections have been filed by the defendant before the Court of Estate Officer, DDA. It was thus, claimed by the defendant that because of the revocation of the Lease Deed for the entire building, the present suit is not maintainable.

12. On merits, it had been explained that the defendant in the year 1978 had purchased two properties bearing property No.GF-1, Ground Floor, 75- 76, Manisha Building, Nehru Place admeasuring 1067 sq. ft (suit property) and GF-2, Ground Floor, 75-76, Manisha Building, Nehru Place, admeasuring 683 sq. ft. By virtue of registered Lease Agreement dated 05.12.2002, suit premises was let out to M/s Salem Handloom Textiles which is the proprietorship concern of plaintiff No.1 for the period of three years from 01.01.2003 till 31.12.2005, at a monthly rent of Rs.70,000/-.

13. A Partnership Deed dated 05.05.2003 was entered between the plaintiff No.1 Pannalal Rathore and one Mr. Vijay Adlakha for running the partnership in the name of “AWESOME”. The registered Rectification Deed dated 26.05.2003 was executed vide which the Lease Deed dated 05.12.2003 was modified to the extent that the possession of the suit property was delivered on 01.05.2003 and the period of three years expired by efflux of time on 30.04.2006. The tenancy between defendant and M/s Salem Handloom Textiles came to an end on 30.04.2006 though the tenant continued to remain in the premises and started paying enhanced rate of rent @ Rs.85750/-. However, no document was executed between the landlord and the tenant.

14. The tenancy was terminated vide Notice dated 03.06.2008 w.e.f. 30.06.2008 and the tenant i.e. M/s Salem Handloom Textiles was requested to hand over the vacant and peaceful possession of the tenanted premises. The Notice was duly delivered on 06.06.2008 to plaintiff No.1 being the proprietor of the tenant firm, despite which plaintiff No.1 failed to vacate and hand over the possession of the premises to the defendant. It also failed to pay the monthly rent of Rs.95,750/- plus service tax of Rs.10,599/- i.e. Rs.96,349/- w.e.f 01.08.2008. Since then, M/s Salem Handloom Textiles/plaintiff No.1 is in unauthorized occupation of the suit property and is liable to pay the damages for use and occupation of the premises w.e.f. the said date @ Rs.[3] lakhs per month.

15. The defendant has further explained that soon after receipt of Termination Notice dated 03.06.2008, the plaintiffs offered to buy the suit property and eventually they entered into an Agreement to Sell dated 12.06.2008 whereby it was agreed that plaintiff No.1 and plaintiff No.2 shall jointly purchase the suit premises for the agreed sale consideration and Rs.25 lakhs were paid as the earnest money.

16. The defendant has further claimed that the defendant and plaintiff No.2 also entered into a separate Agreement to Sell dated 16.06.2008 for the second property of the defendant i.e. GF-2, Ground Floor, 75-76, Manisha Building, Nehru Place, New Delhi having a total area of 683 sq. ft. (hereinafter referred to as the second property). This second property was in possession of M/s Awesome which is the partnership firm of plaintiff No.1 and Mr. Vinay Adlakha.

17. The plaintiffs herein in collusion, filed a false and frivolous suit in respect of the second property for possession which was neither contested by plaintiff No.1 nor any Written Statement was filed. Further, plaintiff No.2 filed a suit against plaintiff No.1 before the Patiala House Court, New Delhi for possession which suit was neither contested by plaintiff No.1 nor any Written Statement was filed. He was proceeded ex-parte and judgment dated 16.08.2010 was decreed against plaintiff No.1 for possession and mesne profits. The plaintiff No.2 then filed an Execution Petition for execution of the decree dated 16.08.2010 wherein the plaintiff handed over the possession of the suit premises to plaintiff No.2. It is claimed that the collusion and the malafide are writ large on the face of it.

18. The defendant then came to know that Mr. Vijay Adlakha has filed an application for setting aside ex-parte judgment and decree dated 16.08.2010 and for impleadment. The judgment and decree dated 16.08.2010 was consequently set aside.

19. In terms of Agreement to Sell dated 12.06.2008 the plaintiffs failed to make the payment of balance amount aside from the earnest money. The time was essence of the contract and because the plaintiffs failed to abide by the terms of the Agreement to Sell despite repeated requests the defendant No.1, the Agreement to Sell was terminated by the defendant by serving a Legal Notice dated 07.11.2008.

20. The defendants have explained that despite service of Legal Notice of termination of ATS, since the plaintiff No.1 failed to hand over the possession the defendant filed Suit No. CS(OS) 211/2009 for possession and mesne profits against plaintiff N.[1] on 30.01.2009. The plaintiff No.1 was restrained from creating any third party interest by Order dated 02.02.2009. The plaintiff No.1 in the said suit in the Written Statement acknowledged the receipt of the Legal Notice dated 03.06.2008.

21. It is claimed by defendant that plaintiff No.1 continues to be in illegal possession of the suit property without paying the rent to the defendant despite being aware that Agreement to Sell stands terminated by the defendant. All the averments thus, made by the plaintiffs has been denied.

22. The plaintiffs in their replication/rejoinder have reaffirmed the assertions made in the plaint and denied the allegations made in the written statement.

23. Issues on the pleadings were framed on 18.01.2017 as under:

(i) Whether the suit is barred by limitation? OPD

(ii) Whether the defendant has rightly terminated the agreement dated 12.06.2008 and forfeited the earnest money? OPD

(iii) Whether time was the essence of the contract?

(iv) Whether the suit is not maintainable in view of the plaintiffs filing separate substantive suit being CS(OS) No.2167/2013 for declaration and cancellation of registered agreement to sell dated 01.04.2012 against the defendant and the purchasers of suit property?

(v) Whether the plaint has not been properly valued? OPP

(vi) Whether the plaintiffs have paid

(vii) Whether the plaintiffs have always been ready and willing to perform their part of the contract? OPP

(viii) Whether the plaintiffs are entitled to a decree for specific performance of agreement to sell dated 12.06.2008? If so, on what terms and against whom? OPP.

(ix) Whether, in the alternative, the plaintiff is entitled for recovery of Rs.1,25,00,000/- and also damages and, if so, to what extent?

(x) Relief.

24. The PW[1] Pannalal Rathore (plaintiff No.1) tendered his evidence by way of affidavit Ex.PW1/A and reaffirmed the assertions made by him in the plaint.

25. PW[2] Mr. Vinay Gugnani (plaintiff No.2) corroborated the assertions made in the plaint in his affidavit of evidence Ex.PW2/A.

26. DW[1] Sh. Mahesh Chand Joshi the Account Manager of the defendant deposed about the defence as taken in the written statement in his affidavit of evidence Ex.DW1/A.

27. Learned counsel for the plaintiffs in the written arguments has submitted that there were two Agreement to Sell executed; one was in respect of the suit premises with the two plaintiffs, while the second Agreement to Sell was in respect of the second property in the same premises, as has already been detailed above. The sale consideration for the second property was Rs.2,52,00,000/- against which an initial payment of Rs.[1] crore was made on 16.06.2008. The Agreement to Sell in respect to the second property got materialized and the property was sold.

28. In regard to the suit premises, the plaintiff No.2 sought extension by four months consequently, the defendant served the Notice of Termination. It is explained that after the issues were framed on 18.01.2017, no evidence could be led by the plaintiffs and the evidence was closed vide Order dated 15.01.2018 in O.A. No. 7/2018 against which an Appeal FAO No.41/2018 was preferred before the Division Bench, but the same got dismissed on 27.09.2018. Therefore, though the affidavit of evidence had been tendered, but there was no cross-examination and consequently, there is no evidence of the plaintiffs on record.

29. The defendant in support of its case examined DW1/Shri Mahesh Chand Joshi.

30. It is claimed that the first objection taken is that the suit is beyond limitation which is incorrect. The suit was initially filed on 03.06.2011, but because the Court Fee was not paid within time, the plaintiffs took back the suit from the Registry on 30.03.2012. Thereafter the suit was filed on 19.04.2012. It is thus, asserted that the suit of the plaintiff has been filed within limitation.

31. It is further argued that the unilateral termination of the Agreement by the defendant was illegal and the plaintiffs have always been ready and willing to perform their part of the Agreement. It is claimed that the defendant had suppressed the present Agreement to Sell dated 16.06.2008 as well as the Legal Notice dated 07.11.2008 while filing a Civil Suit No. CS(OS)211/2009 claiming the possession of the suit property. It is asserted that once the Agreement to Sell was executed, the status of plaintiff No.1 as a tenant ceased and he became the prospective buyer.

32. It is further argued that defendant has examined DW[1] Shri Mahesh Chand Joshi Accountant who has admitted that he has been working with the defendant for the last three years i.e. since 2015 while the Agreement to Sell is dated 12.06.2008. Furthermore, he has admitted in his crossexamination that there was another Agreement to Sell in respect of second property. He also admitted that he could give no explanation as to why Mr. Sunil Sahni, partner who had signed the Agreement to Sell dated 12.06.2008 could not appear as a witness.

33. It is argued that the maintainability of the present suit is not affected by the filing of Civil Suit CS(OS) No.2167/2013, which in any event has been dismissed, though the Appeal is still pending.

34. In the suit filed by the plaintiffs bearing CS(OS)No.211/2009, an Application under Order I Rule 10 CPC was filed by Kunal Adlakha and Namita Adlakha to be made a party claiming to have entered into an Agreement to Sell with defendant No.1 on 01.04.2012. The application of Kunal Adlakha and Namita Adlakha was dismissed on 25.10.2013 stating that no transfer of title can be claimed merely on the basis of an Agreement to Sell. The two applicants thereafter filed CS(OS) No.2167/2013 seeking execution of the Sale Deed, but the same was disposed of vide judgement dated 16.05.2018 against which RFA No.70/2018 has been filed, which is still pending.

35. The plaintiff has argued that he has always been ready and willing to perform his part of the Agreement and that major part of the sale consideration stood duly paid. Furthermore, the possession of the plaintiff No.1, after the termination of tenancy, got converted into one of proposed purchaser pursuant to the Agreement to Sell of the suit property. It is asserted that despite receiving major part of the sale consideration, the defendant has failed to execute the Sale Deed, to which he is entitled.

36. Learned counsel for the defendant has argued that the Agreement to Sell dated 12.06.2008 is not stamped and is unregistered and is, therefore, not enforceable. It is further claimed that plaintiff No.1 was inducted as a tenant in the suit premises and his status as a tenant never got converted into that of a proposed purchaser of the suit premises. Moreover, the defendant has already filed Civil Suits to seek possession of the suit premises from the plaintiff in the capacity of a tenant.

37. It is further explained that though the plaintiff is claiming to have paid a subsequent amount of Rs.[1] Crore as part payment, but the said Rs.[1] Crore pertained to the second Agreement to Sell and not to the present Agreement to Sell. The only amount paid was Rs.25 lakhs as earnest money which has been forfeited on account of non-discharge of obligations by the plaintiffs under the Agreement to Sell.

38. It is asserted that the plaintiff has failed to adduce any evidence to prove its readiness and willingness in regard to the Agreement dated 12.06.2008. The defendant, however, has proved in its evidence that the Agreement to Sell was rightly terminated by service of Legal Notice of Termination on account of non-compliance of the terms and conditions by the plaintiffs. It is asserted that the suit is liable to be dismissed.

39. Submissions heard and the Record perused.

40. The issue wise findings are as under: Issue No.1: Whether the suit is barred by limitation? OPD

41. The subject matter of the present suit is the Agreement to Sell dated 12.06.2008 in respect of the suit premises. According to this Agreement to Sell, the plaintiffs were liable to honour their part of the Agreement and pay the balance consideration by 30.10.2008 i.e. within four months of execution of Agreement to Sell. Moreover, it was specifically agreed between the parties that there would be no extension of time beyond 30.10.2008. Since the plaintiffs have failed to abide by the terms of the Agreement to Sell and failed to pay the balance consideration, the Agreement to Sell was terminated and the earnest amount forfeited.

42. At this stage, it may be observed that the Legal Notice dated 07.11.2008 for termination of Agreement to Sell, was admittedly served on the plaintiffs. The cause of action thus, arose from the date of termination of the Legal Notice i.e. 07.11.2008. However, the present suit has been filed on 23.04.2012 i.e beyond the period of three years.

43. The plaintiffs had tried establish that they had in fact filed the suit on 03.06.2011 i.e. within the period of limitation, but because the Court Fee was not paid, it was taken back from the Registry on 30.03.2012. The present suit has been refiled on 19.04.2012. The question which arises is whether the plaintiffs are entitled to the benefit of the period between 03.06.2011 to 30.05.2012, during which its Suit remained in objections in the Registry.

44. As per the record, the suit filed on 03.06.2011, had been withdrawn on account of non-clearance of the objections in regard to payment of the Court Fee. Pertinently, as per the Court Fee papers annexed with the suit, the same has been purchased on 04.05.2012 i.e subsequent to the filing of the present suit on 19.04.2012. In these circumstances, it cannot be held that the suit had been filed validly on 03.06.2011.

45. Had the Court Fee been paid and made good and the suit then had got listed before the Court, the plaintiff may have been able to avail the benefit of this period from 03.06.2011 to 30.05.2012. However, the suit got withdrawn from the Registry and thereafter filed afresh on 19.04.2012. The plaintiff, therefore, cannot avail the benefit of the period from 03.06.2011 to 30.05.2012 since it was neither a valid filing nor the objections got rectified and the proposed suit infact, got withdrawn. The suit having been instituted on 19.04.2012 is clearly barred by limitation.

46. The issue is decided in favour of the defendant. Issue No.2: Whether the defendant has rightly terminated the Agreement dated 12.06.2008 and forfeited the earnest money? OPD

47. The parties admittedly entered into an Agreement to Sell dated 12.06.2008, the relevant terms and conditions of which are detailed as under: …

1. Rs.25,00,000/- Twenty Five Lacs as advance received on 12.06.2008 vide cheque no.577643 of Oriental Bank of Commerce, G.K. Main.

2. Balance amount to be paid by 30th Oct. 2008, in four months time.

3. Documents to be transferred on receipt of full payment.

48. It is thus, evident that Rs.25,00,000/- were paid as advance on 12.06.2008 vide cheque No. 577643 while the balance amount was liable to be paid by 30.10.2008. The plaintiff in his plaint had claimed that plaintiff No.2 had subsequently made payment of Rs.[1] Crore vide cheque NO. 577646. However, it has been explained by the defendant in their Written statement that there were two Agreement to Sell; one in respect of the suit property and the other in respect of the second property. The cheque of Rs.[1] Crore was received in respect of the Agreement to Sell for the second property for which the Sale Deed already stands executed.

49. While the plaintiffs have claimed that they had made an additional payment of Rs.[1] Crore, but have failed to controvert the explanation tendered by the defendant or that the additional payment of Rs.[1] Crore was towards the present Agreement to Sell. The plaintiffs have failed to step into the witness box or to adduce any cogent evidence to prove that aside from Rs.25 lakhs which was paid initially at the time of entering into Agreement to Sell, it had made any subsequent payments. Not an iota of evidence has been led on behalf of the plaintiffs to rebut the assertions of the defendant.

50. The plaintiff has also relied upon a letter dated 25.10.2008 written by plaintiff No.2 to Mr. Sahni of the defendant Company, to state that the plaintiffs want vacant possession of the suit property free from all the encumbrances and on the assurance “that you would be able to do the needful in four months i.e. February 2009, they are willing to pay additional amount of Rs.5,00,000/- vide cheque No.577674 dated 21st October, 2008 as per their request”.

51. The plaintiff No.2 thereafter, has written an email dated 30.10.2008 seeking a clarification of the rumours in the market that the property already stands sold to the third party. It was also stated that “we feel that this is not a case and that your property is absolutely unencumbered...the vacant possession and a letter of assurance from you would be a necessary prerequisite for us to make the balance payment to you”.

52. Pertinently, these two letters though filed on behalf of the plaintiff, have not been proved. Even otherwise, in the letter dated 25.10.2008 by plaintiff No.2 there is no mention of payment of Rs.[1] Crore towards this Agreement to Sell in respect of the suit property. Secondly, it is talking of getting the vacant possession and an assurance that the property was free from encumbrances. As per the case of the plaintiffs, the possession of the suit property was with plaintiff No.1 Shri Pannalal who was a joint signatory to the Agreement to Sell. There is no denying that the possession was with plaintiff No.1 and subsequently, the defendant had sought the recovery of possession from plaintiff No.1 by filing Civil Suit C.S. (OS) No. 211 of 2009 which was filed after termination of the Agreement to Sell vide Legal Notice dated 07.11.2008.

53. The ground taken by plaintiff No.2 of the property not being in vacant possession, is not tenable on the fact of it. Therefore, its insistence on getting vacant possession and seeking extension of time by four months is absolutely not justified in the present case.

54. The plaintiffs having failed to honour the commitment under the Agreement to Sell dated 12.06.2008, were served with the Legal Notice of termination of the Agreement to Sell on 07.11.2008 vide which the defendant clearly stated that the sum of Rs.[5] lacs tendered along with the email dated 30.10.2008 seeking extension of time was not acceptable and the cheque was admittedly not encashed. Since, the commitment was not met and there was no willingness or readiness shown by the plaintiffs, the Agreement to Sell was terminated.

55. The plaintiffs have failed to step into the witness box to either explain or justify why they failed to honour their obligations under the Agreement to Sell by 30.10.2008, or that they had validly sought extension of time. Therefore, it is held that the Agreement was validly terminated by the

56. The Issue is decided in favour of the defendant. Issue No.6: Whether the plaintiffs have paid Rs.1,25,00,000/- as earnest money? OPP

57. The payment of Rs.25 lakhs as earnest money at the time of execution of Agreement to Sell dated12.06.2008, stands admitted. As already discussed above, though the plaintiffs have claimed that they have paid an additional payment of Rs.[1] Crore, but have failed to controvert the explanation tendered by the defendant that the payment of Rs. One Crore was towards the second ATS.

58. The plaintiffs have failed to prove that the additional payment of Rs.[1] Crore was towards the present Agreement to Sell. The plaintiffs have failed to step into the witness box or to adduce any cogent evidence to prove that aside from Rs.25 lakhs which was paid initially at the time of entering into Agreement to Sell, it had made any subsequent payments.

59. It is therefore, held that the plaintiff had paid only Rs.25 lakhs under the present Agreement to Sell.

60. The Issue is decided accordingly. Issue No.7: Whether the plaintiffs have always been ready and willing to perform their part of the contract? OPP

61. Before evaluating the facts of the present case, it would be appropriate to first examine the principles of seeking Specific Performance in terms of an Agreement to Sell. Section 16 of the Specific Relief Act, 1963 stipulates the circumstances when a relief for specific performance shall not be granted by a court. The relevant part of the provision of it reads as under: “Section 16 Personal Bars to Relief - Specific performance of a contract cannot be enforced in favour of a person- (a) ….. (b) ….. (c) [who fails to prove] that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the Explanation - For the purpose of clause (c), -

(i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court;

(ii) the plaintiff [must prove] performance of, or readiness and willingness to perform, the contract according to its true construction.”

62. The principles relating to specific performance as contained in Sections 16(c), 20, 21, 22 and 23 of the Specific Relief Act, 1963 read with Forms 47/48 of Appendix A to C of the Civil Procedure Code, 1908 were succinctly summarized by the Supreme Court in Kamal Kumar v. Premlata Joshi, 2019 SCC OnLine SC 12 as under:

fact, performed his part of the contract and, if so, how and to what extent and in what manner he has performed and whether such performance was in conformity with the terms of the contract; Fourth, whether it will be equitable to grant the relief of specific performance to the plaintiff against the defendant in relation to suit property or it will cause any kind of hardship to the defendant and, if so, how and in what manner and the extent if such relief is eventually granted to the plaintiff; and lastly, whether the plaintiff is entitled for grant of any other alternative relief, namely, refund of earnest money etc. and, if so, on what grounds.

63. It was further observed by the Apex Court in Kamal Kumar v. Premlata Joshi (supra), that these requirements have to be properly pleaded by the parties in their respective pleadings and proved with the aid of evidence in accordance with law. It is only then the Court is entitled to exercise its discretion and accordingly grant or refuse the relief of specific performance depending upon the case made out by the parties on facts.

64. The aspect for consideration is the “readiness and willingness” of the plaintiff to pay the balance sale consideration.

65. The Apex Court in Syed Dastagir v. T.R. Gopalakrishna Setty, (1999) 6 SCC 337, while construing the connotation of “readiness” and “willingness”, observed that the compliance of “Readiness and Willingness” has to be in spirit and substance and not in letter and form. So, to insist for mechanical production of the exact words of a statute is to insist for the form rather than essence. Therefore, the absence of form cannot dissolve an essence if already pleaded. It was also observed that the plea of “readiness and willingness” is not an expression of art and science, but an expression through words to place fact and law of one's case for a relief. In order to gather true spirit behind a plea it should be read as a whole and to test whether the plaintiff has performed his obligations, one has to see the pith and substance of the plea. Unless statute “specifically require a plea to be made in any particular form, it can be in any form. No specific phraseology or language is required to take such a plea.”

66. Similarly, in the case of K.V. Balan (Dead) Through Legal Representatives v. Bhavyanath, 2015 SCC OnLine Ker 29875 it has been explained that the Legislature has chosen to use two phrases, namely “readiness” and “willingness”. While the “willingness” indicates his state of mind which is determined through the conduct of the plaintiff, the “readiness” indicates the financial capacity of the plaintiff which is required to be proved through evidence that he had the financial capacity to perform the Agreement.

67. Further in Raghunath Rai v. Jageshwar Prashad Sharma, (1999) 50 DRJ 751 wherein it was observed that to constitute readiness, it is not essential that the appellant must produce or prove that he has money in hand but what is required is that he has a capacity to pay. Similar observations have been made in the case of in the case of Baldev v. Bhule, (2012) 132 DRJ 247.

68. The “readiness” has to be continuous as explained by the Apex Court in the case of N.P. Thirugnanam v. Dr. R. Jagan Mohan Rao, (1995) 5 SCC

115. The plaintiff is required to prove continuous readiness and willingness from the date of the contract to the time of the hearing, to perform the contract on his part.

69. Further, in H.P. Pyarejan v. Dasappa (Dead) By L.Rs., (2006) 2 SCC 496, the Apex Court observed that Failure to make good that averment, brings with it and leads to the inevitable dismissal of the Suit.

70. Likewise, the concept of “Willingness” has been examined by the Apex Court in the case of Aniglase Yohannan v. Ramlatha, (2005) 7 SCC 534, where it was observed that the court has to grant relief on the basis of the conduct of the persons seeking relief. If the pleadings manifest that the conduct of the plaintiff entitles him to get the relief on perusal of the plaint, he should not be denied the relief. The averments in the plaint as a whole must clearly indicate the readiness and the willingness.

71. The timelines to be adhered by the parties and their intention to conclude the Agreement in a time bound manner, are circumscribed by their conduct. To grant a Decree for Specific Performance lies in the discretion of the Court which the Court may not exercise due to the conduct of the plaintiff, as observed by the Apex Court in Nirmala Anand v. Advent Corporation (P) Ltd., (2002) 8 SCC 146.

72. In the present case, the onus was on the plaintiffs to prove that they were ready and willing to perform their part of the Agreement. Neither of the plaintiffs have stepped into the witness box nor have they led any evidence whatsoever. Neither any oral testimony to prove their readiness and willingness has been led nor any document of any kind has been placed or proved to show that the plaintiffs had sufficient money in their account to honour the commitment under the Agreement to Sell.

73. In so far as the willingness to honour the Agreement to Sell is concerned, reference may be had to the letter dated 25.10.2008 written by plaintiff No.2 to the defendant though not proved, that unless the vacant possession is given, it would not be able to honour its commitment under the Agreement to Sell.

74. However, as discussed above, there is no question of the handing over of the possession as the same already was with plaintiff No.1 who was the co-signatory to the Agreement to Sell. From this letter itself, the intention of the plaintiff to not honour its commitment on specious ground is quite evident. Even thereafter, there is not a word whispered in the entire pleadings that the plaintiffs ever approached the defendant for tendering the balance amount to seek execution of the Agreement to Sell. Pertinently, the present suit has also been filed and registered in the Court after about 3⅟2 years.

75. The issue, is therefore, decided against the plaintiffs. Issue No.3: Whether time was the essence of the contract? OPD

76. On the issue of whether time is of the essence for performance of Agreement to Sell the Constitution Bench of the Supreme Court in Chand Rani v. Kamal Rani, (1993) 1 SCC 519 observed that “… it is clear that in the case of sale of immovable property there is no presumption as to time being the essence of the contract. Even if it is not of the essence of the contract, the Court may infer that it is to be performed in a reasonable time from the following conditions: (1) the express terms of the contract; (2) the nature of the property; and (3) the surrounding circumstances, for example, the object of making the contract.”

77. In other words, the court should look at all the relevant circumstances including the time-limit(s) specified in the Agreement and determine whether its discretion to grant specific performance should be exercised.

78. Thus, it may be concluded that in the present case, that though time may not be the essence for the execution of the Agreement to Sell, but it is relevant to ascertain whether the conduct of the plaintiff entitles him to this equitable Relief. In the present case, the plaintiffs have not come forth till more than three years to seek execution. Their conduct also disentitles them from seeking execution.

79. The Issue is decided accordingly. Issue No.4: Whether the suit is not maintainable in view of the plaintiffs filing separate substantive suit being CS(OS) No.2167/2013 for declaration and cancellation of registered agreement to sell dated 01.04.2012 against the defendant and the purchasers of suit property?

80. Pertinently, after the cancellation of Agreement to Sell dated 12.06.2008, the plaintiffs sol the suit property to Mr. Kunal Adlakha and Smt. Namita Adlakha vide registered Agreement to Sell dated 01.04.2012. Since the Agreement to Sell in favour of the plaintiffs stood validly terminated, the subsequent Agreement to Sell with Mr. Kunal Adlakha and Smt. Namita Adlakha or the suit No.2167/2013 filed by the plaintiffs seeking cancellation of the said Agreement to Sell is of little consequence in so far as the obligations and liabilities of the parties under the present Agreement to Sell dated 12.06.2008 are concerned. It is pertinent to observe that the said Civil Suit filed by the plaintiffs has been dismissed by this Court vide Order dated 16.05.2018, though an Appeal is pending against the same.

81. The issue is answered accordingly against the plaintiffs. Issue No.8: Whether the plaintiffs are entitled to a decree for specific performance of agreement to sell dated 12.06.2008? If so, on what terms and against whom? OPP.

82. In view of the findings on the aforesaid issues, the plaintiffs have failed to establish the readiness and willingness to perform their part of the Contract and, therefore, they are not entitled to the relief of specific performance of the Agreement to Sell dated 12.06.2008.

83. The issue is decided against the plaintiffs. Issue No.5: Whether the plaint has not been properly valued? OPP

84. The plaintiff has valued the present suit for the purpose of jurisdiction at Rs.4,72,00,000/- on which ad-velorem court fee of Rs.31,000/- had been paid by the plaintiff. An additional Court Fee of Rs.130/- had been paid for the relief of Permanent Injunction.

85. The plaintiffs have rightly valued the suit on the balance sale consideration and have affixed proper Court Fee.

86. The issue is decided in favour of the plaintiffs. Issue No.9: Whether, in the alternative, the plaintiff is entitled for recovery of Rs.1,25,00,000/- and also damages and, if so, to what extent?

87. Admittedly, the plaintiffs had paid a sum of Rs.25 lakhs as earnest money at the time of entering into Agreement to Sell dated 12.06.2018. The question which now arises is whether the plaintiffs are entitle to refund of this money on account to the Agreement to Sell not having fructified into a Sale Deed. Once the benefit of a Sale Deed has not accrued to the plaintiffs, they are held entitled to recovery of Rs.25 lakhs which had been paid by them under the Agreement to Sell. However, since the Suit has been filed beyond the period of Limitation, the recovery is barred by time.

88. The issue is decided in favour of the defendant. Relief:

89. The plaintiffs have not been able to prove their case for specific performance of the Contract and, therefore, the suit for Specific Performance is hereby dismissed. Though the plaintiffs were entitled to recovery of Rs.25 lakhs, but because the suit is barred by limitation, the plaintiffs are not entitled to refund of the said amount.

90. The suit is hereby dismissed along with pending applications. Parties to bear their own costs. Decree Sheet be prepared.

JUDGE AUGUST 28, 2024