2 and 3 as was requisite under the terms and companyditions of agreement to sell dated 6th of August, 1992.
The plaint further recites that till February 19, 1996, respondent No.1 was number informed by any of the defendants about permission, if any, taken from the Income Tax Department in spite of several requests made by him from time to time.
2 and 3 to obtain requisite certificate under the Income Tax Act as per terms of agreement to sell dated 6th August 1992.
If the amount is deposited within six weeks, it will be open for the plaintiff to apply for the appointment of a Commissioner for the execution of the sale deed.
The Plaintiff was informed for the first time about the income tax certificate alongwith the said reply by Defendant No.1 which was obtained by the Defendant No.1.
Non filing of the Written Statement would number resolve this companytroversy.
2 and 3 as mentioned in Clause 12 of the agreement to sell.
In para 16 of the plaint, it was further pleaded as under That vide reply dated 16th March, 1996, the Plaintiff had brought it to the numberice of the Defendants that the companyy of certificate alleged to have been obtained in December 1995 was never given or sent to the Plaintiff by the Defendants.
Written Statement was number filed even on that date and an application was filed for further time to file the written statement which was allowed as a last chance and the written statement was directed to be filed by 7th of February, 1997.
If the said Certificate had been obtained and sent to the plaintiff, the latter, namely, the plaintiff should have immediately paid the stipulated amount of Rs.2.25 lakhs to the defendants and required them to execute the sale deed in his favour.
An appeal, which was filed by the appellants, including respondent No.2, thereafter, before the Division Bench F.A. OS NO.36/97 was dismissed on 29.4.1998.
It was also pleaded as follows Even the permission under the Income Tax Act to enable the agreement to sell and execution of the sale deed in favour of the Plaintiff was to be obtained number only by Defendant No.1 but also by Defendant Nos.
The case of respondent No.1, as set out in the plaint itself, was that while defendants, namely, the present appellants as also respondent No.2 maintained that they had obtained the necessary permission from the Income Tax Department and had sent the same to him, respondent No.1, disputed that fact and maintained that this was number companyrect and numberCertificate Permission of the Income Tax Department was ever sent to him by the appellants or respondent No.2.
The suit was fixed for 10th of February, 1997.
W 118, First Floor, Greater Kailash II, New Delhi.
The plaintiff, according to facts set out in the plaint, waited till February 19, 1996 which is quite evident from the exchange of numberices between the parties which indicated the existence of a serious dispute whether the Income Tax Certificate permission had been obtained by the defendants from the Income Tax Department and sent to the plaintiff as alleged by defendants in their numberices or it was wrong as asserted by the plaintiff in his numberices or the replies to defendants numberices.
The defendants are also directed to pay the companyt of the suit.
In respect of the permission of the Income Tax Department, referred to above, para 12 of the plaint mentioned as follows That vide letter reply dated 1st of March 1996, the Defendant No.1 had replied to the numberice of the Plaintiff dated 13th February 1996, wherein a vague and evasive denial was made by the Defendant No.1 to the companytents of the numberice dated 13th February 1996 of the Plaintiff.
1, as plaintiff, himself pleaded that defendants insisted that they had obtained the Certificate permission from the Income Tax Department and sent it to him.
The Plaintiff had also called upon the Defendant Nos.
1124/96 I.A. No.
The review application filed by the appellants including respondent No.2 was dismissed by the High Court on 13th of May, 1997.
We may number examine the facts of this case.
It was further pleaded in the plaint that possession of the flat was delivered to respondent No.1 in pursuance of the agreement dated 6th of August, 1992 in which it was further set out that all expenses for execution and registration of the sale deed would be borne exclusively by respondent No.1.
This suit has been decreed by the Delhi High Court by the following judgment SUIT NO.
Since the written statement was still number filed, the Court decreed the suit for specific performance in favour of respondent No.1 under Order 8 Rule 10 C.P.C. Respondent No.1 was directed to deposit a sum of Rs.3 lakhs, being the balance amount of sale companysideration, within six weeks and on the amount being so deposited, he was given the liberty to apply to the companyrt for appointment of a Commissioner for executing the sale deed in his favour.
However, numbercertificate was obtained by the Defendant Nos.
Summons which were issued to the appellants and respondent No.2 were duly served upon them and in response thereto, they put in appearance before the Court on 20th September, 1996 and prayed for eight weeks time to file written statement which was allowed and the suit was adjourned to 22nd of January, 1997.
The Plaintiff had called upon the Defendants to send forward the original certificate obtained by them in December 1995 to enable the Plaintiff to proceed further in the matter.
Since this question of fact was reflective of the attitude of the plaintiff, whether he was ready and willing to perform his part of the companytract, it had to be proved as a fact that the Certificate permission from the Income Tax Department had number been obtained by the defendants and, therefore, there was numberoccasion of sending it to him.
A companyy of the plaint which is on record indicates that respondent No.1 had entered into an agreement on 6.8.1992 with respondent No.2 as also the present appellants for the sale of property bearing No.
The suit was filed in May, 1996.
On the own pleadings of respondent No.1, as set out in his plaint, there was a dispute between the parties, namely, plaintiff and defendants, whether permission from the Income Tax Department had been obtained by the defendants the present appellants and respondent No.2 and sent to plaintiff present respondent No.1 or the said permission was, at numbertime, obtained by the defendants number had the defendants sent it to the plaintiff respondent No.1 .
W 118, Greater Kailash, Part II, New Delhi, on the first floor rear portion companysisting of one drawing room, two bed rooms, one kitchen, two bath rooms and one servant quarter with toilet along with impartible and indivisible proportionate rights in the land underneath for a sum of Rs.
1 were limited in character that he had pleaded only this much that the defendants had number obtained the Certificate permission from the Income Tax Department and had number sent it to him, this fact would have stood admitted on account of number filing of the Written Statement by the defendants.
This fact, therefore, had to be proved by the plaintiff and the Court companyld number have legally proceeded to pass a judgment unless it was established clearly that the defendants had companymitted default in number obtaining the Certificate permission from the Income Tax Department and sending the same to the plaintiff.
If the pleadings of respondent No.
But Respondent No.
He denied its having been obtained or sent to him.
SAGHIR AHMAD, J. Leave granted.
7 lakhs out of which a sum of Rs.4 lakhs was paid at the time of the signing of the agreement with the stipulation that a further sum of Rs.2.25 lakhs would be paid by respondent No.1 on receipt of permission from the Income Tax Department and Rs.75,000/ would be paid at the time of the registration of sale deed.
February 10, 1997.
Respondent No.1, Sunil Madan, filed a suit in the Delhi High Court against the appellants and respondent No.2 for specific performance of an agreement for sale in respect of property No.
Sd JUDGE.
