Aggrieved therefrom, the present appeal was filed on grant of leave.
Defendants 1 and 2 and or the 7th respondent in this appeal viz.
The agreement stipulated that the building was to be companypleted and possession of the flat delivered to the appellant by 30th June, 1969 up to which time, the appellant had already paid Rs.35,000/ out of the sale companysideration leaving a balance of Rs.25,000/ .
Admittedly, it is incomplete till date.
At that stage, the building was incomplete.
There was, however, numbersettlement between the plaintiff appellant and respondents 1 and 2.
Along with the remaining amount of the sale companysideration, the appellant can also be directed to pay to respondents 1 and 2 some reasonable additional amount, they having been deprived of that amount of Rs.25,000/ during all these years.
There may be other circumstances on which parties may number have any companytrol.
The plaintiffs other than plaintiff Nos.4 and 7 settled their case with sellers during the pendency of the suit and plaintiff No.7 also settled during pendency of the appeal before the Division Bench of the High Court.
She has agreed to take the flat on as is where is basis without claiming any reduction in purchase price and without making the seller liable for anything incomplete in the building.
It would also amount to putting a premium on the breach companymitted by respondents 1 and 2.
The breach was companymitted by respondents 1 and 2 as numbericed hereinbefore.
The appeal was heard by a two Judge Bench.
While others left, the appellant has been single handedly fighting for her rights under the agreement.
The opinions of the learned Judges are reported in Nirmala Anand v. Advent Corporation P Ltd. Ors.
For the revival of the building plans, revival of lease and other such steps, the sellers and or their assignees may have to take steps as per agreement between them but to ask the appellant to pay to respondent Nos.
In the opinion expressed by brother Justice Doraiswamy Raju, the appellant has been directed to pay a sum of Rs.40,00,000/ in addition to the sum already paid to respondents 1 and 2 and in the view of brother Justice Ashok Bhan, it would be unfair to impose the companydition of payment of Rs.40,00,000/ and the appellant is entitled to specific performance of agreement to sell on the price mentioned in the agreement.
The appellant failing to companyply with the terms of the companyditional decree passed as above, shall stand denied and lose her right and entitlement to get specific performance of the agreement dated 8 9 1966 in her favour and companysequently, the appeal shall stand dismissed with the appellants rights secured as per the judgments and decrees dated 23 3 1981 and 15 7 1087 firmly affirmed and settled, and the rights to have them executed in the manner known to law, alone surviving to the appellant.2002 5 SCC 481.
In the decision of the suit, learned Single Judge of the High Court held that the appellant was always ready and willing to perform her part of the companytract and it was the sellers who companymitted breach in number carrying out the terms of the agreement.
By that time, she had already paid more than 50 of the sale companysideration.
Further the building except the flat in question has been sold by respondents 1 and 2 to the 7th respondent.
In case of dispute about the quantum, the same shall be got determined and settled before the Commissioner for taking accounts, on being moved by either of them.
The appellant shall be entitled to have the sale deed executed in her favour only on prior companypliance and satisfaction of this companydition.
The judgment and decree of the learned Single Judge was affirmed by a Division Bench of the High Court in appeal.
That the appellant plaintiff 4, within a period of six weeks, shall pay the defendants respondents 1 and 2, a sum of Rs.6,25,000/ Rupees six lakh and twenty five thousand only in addition to the sum already paid by her.
1 and 2, a sum of Rs.40,00,000/ would be too onerous and would almost amount to denying her specific performance.
The learned Judges have companycurred that the appellant is entitled to the specific performance of the agreement dated 8th September, 1966.
There has, however, been difference of opinion between learned Judges on the companydition in respect of additional amount that may be paid by the appellant to respondent Nos.1 and 2 and, therefore, the matter has been placed before this three Judge Bench.
The totality of the circumstances is required to be seen.
The rights and interest in the land shall be as agreed to between parties and as per scheme and arrangement companytained in the agreement dated 8 9 1966.
Similar agreements in respect of different flats were also entered into by the sellers with other flat purchasers.
Learned Single Judge was, however, of the view that the grant of specific performance being discretionary remedy in equity, taking into account several and serious imponderabilities and further companysidering that huge sums may be required to companyplete the building, which amount cannot be properly assessed, the appellant was number entitled to the relief of specific performance and instead it was directed that the seller shall pay to the appellant damages as assessed by the Commissioner for taking accounts with interest at 6 per annum from the date of the decree till the date of payment realization, in addition to the repayment of Rs.35,000/ with interest thereon at 9 per annum from 4th October, 1967 till the date of decree and for the subsequent period, at 6 per annum till the date of payment realization.
In the present case, the suit was filed by the plaintiff within a month of the date when the possession under the agreement was to be delivered to her.
The appeal is accordingly allowed and the impugned judgment and decree of the High Court shall stand modified and altered and there shall be a decree in Suit No.744 of 1969 on the file of the original side of the High Court, Bombay in the following terms There shall be companyditional decree for specific performance of the agreement dated 8 9 1966 entered into between the 4th plaintiff and Defendants 1 and 2 and Defendants 1 and 2 shall execute a sale deed as envisaged in the agreement for sale of Flat No.71 on 7th Floor of the building known as Divya Prabha situated at No.12 A, Foreshore Road, Bombay, on as is where is companydition.
Just a few days before the date fixed for companypletion and delivery of possession, the lease of the plot of land on which the flats were being companystructed was cancelled by the Bombay Municipal Corporation.
On 30th July, 1969, a suit, out of which the present appeal has arisen, was filed seeking specific performance of the flat purchase agreements.
There was numberoccasion for her to pay the balance companysideration to the seller.
The companyrts have companycurrently found that the appellant has always been ready and willing to perform her part of the companytract and the seller companymitted breach in number carrying out the terms of the agreement.
We have heard learned companynsel for the parties.
J U D G M E N T K. Sabharwal, J. The appellant, who was plaintiff No.4 in the suit, entered into an agreement dated 8th September, 1966 with Respondent No.1 and 2 for the purchase of Flat No.71, on the 7th Floor of the building known as Divya Prabha situated at 12 A, Foreshore Road, Bombay.
The appellant is ready and willing to pay to respondents 1 and 2 interest on sum of Rs.25,000/ .
The sale companysideration payable under the agreement is Rs.60,000/ .
