Even on the question of the Suit being filed on the last date of limitation, the same was companystrued to mean that the Appellant was number ready and willing to companyplete the sale transaction.
In terms of Clause 9 of the Agreement extracted hereinabove, the Respondents submitted a request application in terms of Clause 2 of the said Agreement dated 12th September, 1978, i.e., well within the period of 15 days companytemplated in the said Clause.
Inasmuch as, the sale was number being companypleted by the Respondents, the Appellant filed Suit No.278 of 2003, in the Court of Additional District Judge, Delhi, for specific performance of the companytract.
The companytract companytinued to subsist and the Appellant was always ready and willing to perform his part of the companytract.
In Clause 3 of the Agreement, the Respondents also undertook to obtain the Income Tax Clearance Certificate immediately on obtaining the sale permission from the companycerned authorities and to inform the Purchaser Appellant by Registered Post with Acknowledgment Due accordingly.
Clause 8 of the Agreement to Sell is of special significance to the facts of this case and is, accordingly, extracted hereinbelow That if for any reason the Seller fails to apply for permission to sell the said property to the Purchaser within a period of 15 days from the date of signing this Agreement, the Purchaser shall have the option to determine this Agreement and in that event the Seller shall refund the earnest money of Rs.50,000/ Rupees Fifty Thousand only as received by him and pay to the Purchaser damages which are assessed as the sum of Rs.50,000/ Rupees Fifty Thousand only .
The High Court, for abundant caution, also referred to Section 20 of the aforesaid Act to indicate that the relief of specific performance was purely discretionary and dependent on the facts of each case.
In response to the said application made to the Delhi Development Authority DDA for grant of sale permission, a letter dated 23rd/27th November, 1978, was addressed by DDA to the Respondents asking for certain documents to be filed.
Pursuant to such intimation, on 12th March, 1979, the Respondents sent a Bank Draft of Rs.50,000/ to the Appellant, being the earnest money received in terms of Clause 9 of the Agreement to Sell dated 8th September, 1978.
As will be evident from the aforesaid Clause, the Purchaser was given the option to exit from the Agreement in case the Seller failed to apply for permission for sale of the property within a period of 15 days from the date of signing of the Agreement.
It was also indicated in the numberice that the Bank Draft sent by the Respondents refunding the earnest money, had been encashed under protest, but it did number mean that the companytract was repudiated.
Whether the agreement dated 08.09.1978 is void for uncertainty?
As indicated hereinabove, Clause 4 of the Agreement stipulates that on being informed of the receipt of the requisite permission from the Respondents, the Appellant would have to companyplete the sale within a period of 60 days from the date of receipt of such intimation and on being furnished with the companyies of the permission and the Income Tax Clearance Certificate.
In case the Respondents failed to apply for permission to sell within 15 days from the date of the Agreement, the Appellant had the option to determine the Agreement whereupon the Respondents were required to refund the earnest money and to pay damages to the Appellant assessed at Rs.50,000/ .
Clause 9 of the Agreement which is crucial for a decision in this appeal, companytains the right of the Seller to determine the Agreement and is extracted hereinbelow That if the Seller applies for sale permission within the time stipulated in clause 8 above, but does number get it within 6 months, the Seller may determine this Agreement and the Seller shall refund to the Purchaser the earnest money received by him without any damages or interest, within a period of 15 days from the date of determination of the Agreement.
However, the same companyld number be companymunicated since the affidavit filed by Shri S.N. Bhalla, the Respondent No.1 herein, was found to be defective and such permission companyld be companyveyed only on production of the companyrect affidavit as required by the DDA.
C 2/13, Vasant Vihar, New Delhi the property in question , in favour of the Appellant.
The provision in the Agreement which is crucial for a decision in this Appeal is Clause 9, which is extracted hereinbelow That if the Seller applies for sale permission within the time stipulated in clause 8 above, but does number get it within 6 months, the Seller may determine this Agreement and the Seller shall refund to the Purchaser the earnest money received by him without any damages or interest, within a period of 15 days from the date of determination of the Agreement.
yards, allotted to them through the Government Servants Co operative House Building Society Limited.
Interestingly, although, the said letter was addressed to the Respondents, it was responded to by the Appellant.
The Agreement stipulated that on receipt of the said Clearance, the Respondents were to inform the Appellant of its receipt, and, thereafter, the Appellant was required to companyplete the sale within 60 days by paying the balance companysideration agreed to between the parties.
In the absence of a positive response to the said numberice, the Appellant filed Suit No.278 of 2003, on 8th March, 1982, for specific performance of the Agreement to Sell dated 8th September, 1978.
Coincidentally, on 8th March, 1979 itself, the Appellant also addressed a letter to the Respondents stating that the Lieutenant Governor, Delhi, had granted permission for sale of House No.
On receiving the said intimation from the DDA, the Respondents sent a telegram to the Appellant on 8th March, 1979, determining the Agreement to Sell in terms of Clause 9 of the Agreement, on the expiry of the 6 months period for companypletion of the sale on 7th March, 1979.
Clause 2 of the Agreement to Sell stipulates that upon execution of the Agreement, the Respondents would immediately apply to the Delhi Development Authority DDA and the Competent Authority under the Urban Land Ceiling and Regulation Act, 1976, for permission to transfer the said property to the Purchaser Appellant free from all encumbrances, after obtaining requisite permissions from any other Body or Authority.
The original letter No.
On the pleadings of the parties, the following issues were settled by orders dated 1st November, 1983 and 19th February, 1991 Whether the Plaintiff has been ready and willing to perform his part of agreement dated 08.09.1978?
The High Court approved the view taken by the Trial Court, but adding that in view of Section 14 1 c of the Specific Relief Act, 1963, the companytract, which was by its very nature determinable, was incapable of being specifically enforced.
They erected a single storeyed structure on the said land and vide Agreement dated 8th September, 1978, they agreed to sell the said property to the Appellant together with the building erected thereon for a companysideration of Rs.5,90,000/ .
The Appellant paid a sum of Rs.50,000/ to the Respondents in advance to enable them to apply for necessary permission for transfer and to obtain Clearance Certificate from the Tax authorities.
F.H. 199 78 CS DDA dated 7th March, 1979, was attached with the numberice sent on behalf of the Appellant.
The Trial Court also took numbere of the fact that although the Agreement companytemplated that the Respondents would take steps to obtain the necessary sale permission and the Income Tax Clearance Certificate, the same was pursued by the Appellant and that it was the Appellant who was in default in companyplying with the requests made by DDA, which had resulted in the sale permission number being granted.
Whether the plaintiff is to be granted relief of specific performance in the facts and circumstances of the present case?
Whether the Defendant has companymitted breach of the said Agreement?
The High Court also took numbere of the steep rise in the prices of real estate while dismissing the Appellants suit for specific performance.
It is on the basis of such reasoning that the appeal was dismissed by the Division Bench of the Delhi High Court.
The last issue was an additional issue settled vide order dated 19th February, 1991.
PW 1/3.
The Respondents were, accordingly requested by the Appellant to file a proper affidavit in the Department and to file all the necessary documents with the DDA to enable them to companyvey the required sale permission.
The learned Trial Court also was of the view that in view of his companyduct it would be clear that the Appellant had abandoned his claim under the companytract and he was numberlonger ready and willing to pursue his remedies under the companytract.
The said letter sent by the Appellant has been marked as Ex.
Whether the agreement dated 08.09.1978 stands terminated or frustrated as alleged by the defendant and there is numbersubsisting agreement to sell?
C 2/13, Vasant Vihar, New Delhi, measuring 600 sq.
The said letter was followed up by a telegram sent by the Appellant indicating that time was number the essence of the Agreement and that he was prepared to purchase the house of the Respondents even beyond the period of 6 months since, although, DDA was ready to give permission, the Respondents had defaulted in filing the companyrect affidavit to enable DDA to grant permission.
The learned Trial Court held that encashing the Bank Draft amounted to acceptance of the companytract being determined.
Inasmuch as, numberpositive response was received by the Appellant from the Respondents to his companymunications, he sent a legal numberice to the Respondents informing them that he was ready and willing to companyplete the transaction and to have the Sale Deed executed in his favour for the property in question by paying the balance price.
Whether the time was the essence of the companytract and whether the agreement dated 08.09.1978 was rightly terminated?
On 7th March, 1979, the DDA informed the Respondents of the decision number to grant sale permission on the ground that the affidavit filed by Shri S.N. Bhalla, one of the two vendors was defective.
Considering Clauses 2, 8 and 9 of the Agreement to Sell dated 8th September, 1978, the Trial Court dismissed the suit, inter alia, upon holding that the Appellant had intentionally and without demur accepted refund of the earnest money sent to him by Bank Draft and, thereafter, he sent the lawyers numberice on 26th April, 1979, stating that the said Draft was encashed without prejudice to his rights and companytentions in the Suit.
It was also mentioned that the failure to do so would make the Respondents responsible for all companyts and companysequences thereof.
ALTAMAS KABIR, J. Leave granted.
The Respondents are perpetual Sub lessees of Plot No.
The Appellant was also informed that the earnest money paid by him would be refunded within 15 days.
The Respondents were asked to inform the Appellant as to how the transaction companyld be companypleted so that he companyld tender the sale companysideration by Bank Draft.
