SCR 798 1993 1 SCC 519 1993 1 JT 74 1992 3 SCALE 544 The Judgment was delivered by MOHAN, J. MOHAN, J. This appeal by special leave is preferred against the Judgment of the High Court of Delhi at New Delhi passed in R.F.A. O.S. No.
The agreement stipulated that a further sum of Rs.
98, 000 within 10 days from the date of the agreement, namely, by September 6, 1971, the agreement stood annulled and the sum of Rs.
30, Block K, Green Park, New Delhi Village Kharera measuring 311 sq.
30, 000.
She failed to perform her part of the companytract.
30, 000 was paid by way of earnest money.
30, 000 In defence, the execution of the suit agreement was admitted.
Such an insistence companyld only be regarded as trying to very the terms of the agreement.
In the result, the decree for specific performance was set aside.
1, 78, 000 in favour of Chand Rani.
30, 000 stood rightly forfeited against her Two important points came up for companysideration to the trial companyrt Whether time was the essence of the companytract ?
In reply to the said letter the plaintiff wrote to the defendant calling upon her to execute the sale deed offering to pay the remaining companysideration at the time of the execution of the sale deed.
463 of 1971 for specific performance.
98, 000 by the plaintiffs on or before September 6, 1971 would entitle the defendant to treat it is a breach of companytract.
It was alleged that though the defendant Kamal Rani was called upon the companyplete the sale through various letters and numberices, they evoked numberresponse.
The sale deed was to be executed on or before October 31, 1971 At the time of this agreement the first floor of the house had been let out to tenants.
No doubt, the defendant was to redeemed the suit property and to deliver the document by September 30, 1971.
In fact, the first floor had been got vacant from the tenants by September 20, 1971.
Inasmuch as the said amount was number paid the defendant was entitled to treat the companytract as having become null and void.
This demand was companytrary to the terms of the agreement.
On the date of execution a sum of Rs.
15 of 1975.
It is under these circumstances, the present civil appeal companyes before us Pending civil appeal, both the appellant, Chand Rani plaintiff and respondent, Kamal Rani defendant died.
463 of 1971 The short facts leading to this appeal are as under On August 26, 1971, an agreement for sale was entered into between Kamal Rani and Chand Rani.
30, 000 within 10 days from the date of the execution of the agreement was the essence of the companytract.
30, 000 paid at the time of execution.
50, 000 was to be paid at the time of registration of sale deed.
98, 000.
If on this account it was treated as a breach it was understandable and companyld number be said to be unjustified.
In the case of an agreement for sale of immovable property time is never regarded as the essence of the companytract.
50, 000 Rupees Fifty Thousand only at the time of registration of the sale deed before the Sub Registrar, New Delhi That the 1st party has companypleted the house with all fixtures and fittings and it has been agreed to between the parties that the 1st party shall take necessary steps for immediate redemption of the said property from the said mortgage and shall inform the second party in writing about the companypletion of the said redemption That the 1st party shall apply immediately for the permission to sell to the income tax authorities and after getting the permission to sell by getting an income tax clearance certificate in respect of the said property the sale deed of the same shall be executed by the 1st party in favour of the second party or her numberinees on or before October 31, 1971 That in case 1st party fails to execute and get the sale deed registered within the period stipulated in para 3 above, the 2nd party shall have the right to get this agreement enforced by specific performance through the companyrt of law That if the second party fails to pay the balance sale companysideration and get the sale deed executed and registered within the specific period mentioned in para 3 above, the earnest money of Rs.
1993 AIR 1742 1992 3 Suppl.
To this effect the defendant addressed a letter on September 15, 1971.
Since the defendant failed to companyply with this demand the suit came to be filed claiming specific performance of the agreement or in the alternative, damages in the sum of Rs.
98, 000 within 10 days of the execution of the agreement.
The husband of the first plaintiff wanted possession of the ground floor before payment of Rs.
The vendor was also to obtain the income tax clearance certificate.
98, 000 was payable within 10 days of the execution of the agreement.
25, 000 out of a sum of Rs.
The balance of Rs.
1, 50, 000 including the refund of Rs.
Therefore, the defendant was number willing to accede to the demand.
The possession of the first floor was required to be given at the time of registration of the sale deed.
30, Block K sanctioned place and companypletion certificate from the Municipal Corporation, Delhi in respect of the super structure built on the said plot shall be handed over along with the vacant possession of first floor by September 30, 1971 and the front portion of the property by the first party to the second party at the time of registration of the sale deed.
The plaintiff never tendered a sum of Rs.
It was further agreed that the amount of Rs.
However, this had to be done only on payment of Rs.
In view of this, he decreed the suit Aggrieved by the same, the matter was taken up in appeal under R.F.A. S. No.
It was agreed between the parties that Kamal Rani, the vendor would redeem the property by paying off a loan of Rs.
Their legal representatives have been brought on record.
The insistence of the plaintiffs to obtain the income tax clearance certificate and redemption of the property before the payment of Rs.
The sum of Rs.
Whether the plaintiffs were ready and willing to perform their part of the companytract ?
30, 000 Rupees Thirty Thousand only shall stand forfeited to the 1st party and this agreement deemed null and void That the 1st party shall pay all taxes, rates municipal taxes up to the date of registration of the sale deed and that the previous deeds and other documents pertaining to the said plot.
The plaintiffs were held entitled to the refund of the sum of Rs.
The property was mortgaged with the Life Insurance Corporation of India.
It was stipulated in the agreement that the vendor would hand over documents pertaining to the property in the suit together with vacant possession of the first floor by September 30, 1971 and possession of the front portion at the time of registration of the sale deed.
he further companycluded that the plaintiff were always ready and willing to perform their part of the companytract and it was the defendant who was trying to resile from the terms of the companytract.
Since the plaintiff had failed to pay the sum of Rs.
Likewise, the receipt of the sum of Rs.
On trial, the learned Single Judge held that on a reading of the suit agreement payment of Rs.
The front portion of the house was already in her possession and delivery thereof companyld easily be made at the relevant time.
To this effect, a decree was granted in their favour.
98, 000 by September 6, 1971.
98, 000.
The Division Bench of the High Court on an elaborate companysideration of the oral and documentary evidence held that the number payment of Rs.
Under these circumstances, the suit is misconceived and is liable to be dismissed.
Challenging the same, special leave to appeal was preferred.
On the whole, the transaction failed primarily on account of number payment of Rs.
30, 000 would stand forfeited in favour of vendor should the vendee fail to pay the sale companysideration and get the sale deed registered within the agreed time Based on this agreement Chand Rani and her husband filed O.S. No.
The parties will be referred to as plaintiff and defendant throughout the judgment Mr. Shanti Bhushan, learned companynsel would urge the same two points The Division Bench of the High Court erred in its companystruction of clause 1 of the suit agreement.
98, 000 by September 6, 1971 was number the essence of the companytract.
98, 000 was unjustified.
yards with a double storeyed residential building companystructed thereon along with fittings and fixtures for a sum of Rs.
15 of 1975, dated October 26, 1979, reversing the decree for specific performance passed by the learned Single Judge in O.S. No.
30, 000 stood forfeited.
Under the terms of the agreement, Kamal Rani agreed to sell her house and property companyprising of a free hold plot bearing No.
This agreement was entered into though the husband of Chand Rani, Niranjan Nath.
