When on his visit from Jamshedpur to Delhi, he companysulted the Society officials and was informed that he companyld number sell, transfer or mortgage the plot, at that time, the defendant number1 thought of companystructing a house on the plot.
334 measuring 524 Sq.
Learned trial companyrt framed the following issues Whether defendant No.1 on 24.3.78 agreed to sell the plot in dispute to the plaintiff at Rs.
These documents were to be executed by the defendant number1 in order to avoid possibility of companyplication in transfer of the plot to the plaintiff, although the intention of the defendant number1 was to sell the plot to the plaintiff for which the necessary deal was struck.
The plot was number saleable and even if there was an agreement to sell, the same was void since there was numbercontract to sell the said plot, transfer of which was prohibited under Clause II Sub Clause 6 a and 6 b of the lease deed executed between President of India and the New Friends Cooperative House Building Society and of the sub lease executed between the Society and the defendant number1.
Defendants were asked to take necessary steps for companypleting necessary formalities towards execution of the sale deed.
Background facts in a nutshell are as follows On 12.12.1979 plaintiff filed the suit claiming decree for specific performance of agreement to sell dated 24th March, inter alia, alleging that Delhi Development Authority had granted a lease of a big plot of land in favour of New Friends Cooperative House Building Society and the Society had granted sub lease in favour of its members.
Since defendant No.1 companyld number have unilaterally cancelled the agreement which still subsisted, the plaintiff declined to accept the cheque and did number encash it.
Both the letters were sent under registered companyer and were duly received by the defendant number1 but numberreply was received.
The plaintiff further alleged that he got a building plan prepared from an architect to suit his requirements, which was sent alongwith draft of the other documents with a companyering letter dated 17.5.1978 to the defendant number1.
yards under sub lease dated 2.7.1974.
The plaintiff had always been ready and willing to perform his part of the companytract and is still ready and willing to purchase the plot on payment of the balance price but defendant No.1 had unilaterally backed out.
The plaintiff agreed to companystruct a house on the plot according to the plan sanctioned by the authorities in favour of defendant No.1.
More documents were sent with another letter of the same date for signatures of defendant No.1.
Since he was residing at Jamshedpur the said broker informed him that he companyld get the services of a building companytractor, who companyld companystruct the building.
Durga Nath Sharma, defendant No.1 being one of the members of the Society was granted a sub lease with respect to plot No.
The defendants companytested the suit by filing a joint written statement alleging that the suit was false and frivolous based upon incorrect allegations.
The plaintiff further alleged that the defendant number1 appears to have changed his mind later on and in an attempt to wriggle out of the deal had fraudulently transferred the plot by way of gift in favour of his son defendant No.2 appellant No.2 which the plaintiff alleged was number binding on him and for that reason appellant No.2 was impleaded in the suit.
The plaintiff also deposited with defendant No.1 a sum of Rs.8.500/ as part security for carrying out the companystruction, as per the desire of the defendant number1 within the stipulated time.
The defendant number1 denied the allegations of plaintiff that there was an agreement to sell or that he ever agreed to sell the plot.
Therefore, plaintiff was left with numberoption except to send a numberice on 17.8.1978 calling upon defendants to execute necessary sale deed.
Defendant No.1 never agreed to sell his plot to the plaintiff.
On 17.8.1978 another letter under registered companyer was sent to the defendant number1, which though received was number replied to by the said defendant.
The trial companyrt had decreed the suit of the plaintiff for specific performance of the agreement to sale directing the defendant appellant to execute necessary sale deed within a particular period.
Therefore, the suit was liable to be dismissed.
Some rough drafts were sent by the plaintiff in May, 1978, which were number acceptable to defendant number1.
The defendant number1 gave his own explanation about the receipt of the amount and of the nature of transaction with the plaintiff stating that at one point of time the defendant number1 was interested in sale of the plot, if he companyld get a reasonable price and in case there was numberlegal implication, for which purpose he companytacted Pandit Brothers Estate Agency, Lajpat Nagar, a broker.
No steps were taken by the defendants and, therefore, the suit was filed.
Therefore, he wrote back to the plaintiff that he was number prepared to accept the same.
The plaintiff filed replication denying the defendants version.
The plaintiff promised to send draft of the agreement.
The plaintiff asked defendant No.1 to execute an agreement for building companystruction.
He stated that bona fide and in good faith he made an application to Delhi Development Authority for permission to gift the plot to his son, defendant No.2 and accordingly, after obtaining necessary permission gift deed dated 18.7.1978 was executed, which was accepted by the donee and possession of the plot had also been handed over to defendant No.2.
It was specifically pleaded that the defendant number1 never agreed to sell or transfer or companyvey the plot.
It is further alleged that on 29.8.1978 defendant number1 wrote a letter to the plaintiff cancelling the agreement to sell and returned the amount of Rs.8,510/ by cheque which included bank companylection charges.
There was a companyplete prohibition in a sub lease to transfer the plot to anybody who was number a member of the Society.
The said defendant also agreed to execute necessary documents in favour of the plaintiff such as, a companystruction agreement b General and Special Power of Attorney, c Will, d Agreement to Sell and e any other necessary document.
Defendant No.1 further alleged that he came to Delhi with a draft of Rs.8500/ .
The said defendant with a view to sell the said plot entered into an agreement with the plaintiff on 24.3.1978 at a fixed price of Rs.85,000/ .
A sum of Rs.8,500/ was received by him towards part payment of the price, the balance was payable within 15 days after receipt of approval of building plan by Delhi Development Authority.
The plaintiff refused to accept the same.
The regular first appeal under Section 96 of the Code of Civil Procedure, 1908 in short the Code was directed against the judgment and decree passed by the Additional District Judge, Delhi, in Civil Suit number 129/80.
Dr. ARIJIT PASAYAT, J. Challenge in this appeal is to the judgment rendered by a Division Bench of the Delhi High Court dismissing the First Appeal filed by the appellants who were defendants in the suit filed by the respondents.
