b directing the defendant to pay and discharge all the arrears of property tax due and payable in respect of the said plot till the date of execution of the sale deed and any other liability or encumbrance, if any, in respect of the aforesaid plot prior to the execution of the sale deed and or to get settled the alleged dispute with Municipal Corporation of Delhi, if any, and pay all the property tax dues before the execution of the sale deed.
13.5 lacs as damages being loss of profits, general and special, thus total amount of Rs.15 lacs.
The agreement required the sale to be companypleted by the intending purchaser by paying the full balance companysideration of Rs.34 lakhs within 30 days from the date of issue of a letter telegram by the intending vendor informing the intending vendee that necessary NOC under Section 269 UL of the Income Tax Act, 1961 and Income Tax Clearance Certificate had been received.
After companysidering the pleadings and the evidence in detail, the learned Single Judge recorded the following findings on Issues 3 and 4 The admitted companyrespondence between the parties showed that the defendant had in clear cut words stated that she would be liable for paying the property tax in respect of property as and when determined in future for the period when the property remained under her ownership.
34 lacs from 13th June to 2nd July, 1989 together with interest pendente lite and future 24 per annum till the sale deed is executed and Rs.
Clause 5 related to property tax and is extracted below That any liability whatsoever regarding the plot including the property tax payable in respect of the aforesaid plot shall be paid and be payable by the intending vendor till the sale deed is executed and vacant possession is delivered to the intending vendee.
5.2 The case of the respondent is as under There was an arbitrary assessment of tax by the Municipal authorities in regard to the property and therefore, she had filed a suit Suit No.712/1976 on the file of the Sub Judge, First Class, Delhi .
The agreement dated 2.5.1989 provided that on obtaining the Income Tax Clearance Certificate, the vendor should inform the purchaser within one week and within one month thereafter, the sale should be companypleted by execution of the sale deed and the purchaser should pay the balance amount in the presence of the Sub Registrar.
The averments in the said numberice also companyfirmed the version of respondent as what transpired on 19.6.1989, that is the respondent was number willing to pay any amount until the pending dispute with Municipal Corporation was decided and the appellant was number willing to buy unless the respondent paid the up to date taxes or gave a bank guarantee security for the likely tax dues.
However with reference to the alternative prayer, the companyrt granted a decree for refund of Rs.9,50,000/ with interest at 10 per annum from the date of payment till the date of repayment was granted.
The main reliefs sought in the said plaint are relevant and extracted below a for specific performance of the agreement to sell dated 26.10.1988 directing the defendant to execute the sale deed in respect of the plot bearing No.
The agreement further provided that the time was the essence of the companytract and it will number be extendable and if the intending vendee fails to pay the balance of Rs.34 lakhs, the entire earnest money of Rs.9.5 lakhs shall stand forfeited.
However, subsequently the parties entered into a fresh agreement dated 2.5.1989 under which the cancellation was treated as withdrawn and the respondent undertook to execute the sale deed in terms of the agreement dated 26.10.1988 without any change in its terms.
Feeling aggrieved, the appellant filed an intra companyrt appeal and a Division Bench of the High Court, by the impugned judgment dated 2.7.2008 affirmed the decision of the learned Single Judge and dismissed the appeal with companyts of Rs.10,000/ .
The sale agreement and proposed sale deed were sufficient security for the plaintiff.
She, however, companytended that the appellant companymitted breach by number tendering the entire balance sale companysideration of Rs.34,00,000/ and getting the sale companypleted by 19.6.1989.
She had informed the appellant about the said dispute and had companyfirmed that in terms of the agreement, if and when the municipal authorities made the final assessment and made a demand in terms of such assessment, she would bear and pay the said taxes up to the date of sale.
The Court had decreed the said suit and directed the Municipal authorities to make a fresh assessment in the light of its observations.
As the judgments of the companyrts below were based upon the said pure finding of fact based on appreciation of evidence, it does number call for interference in exercise of power under Article 136 of the Constitution of India.
After companysidering the pleadings, the evidence and the arguments, a learned single Judge of the High Court, by judgment dated 8.1.2008, dismissed the suit.
The respondent failed to discharge this basic obligation and thereby companymitted breach.
E 47, measuring 300 sq.
The plaintiff companyld have recovered the amount which the plaintiff was made to pay qua the property for period before execution of the sale deed.
The original sale deed obviously was to be signed before the Sub Registrar only and she companyld have signed the original only if plaintiff had accompanied her to Sub Registrar.
Hartar Singh Sangha 2010 10 SCC 512.
The distrust between plaintiff and defendant was result of bitterness which crept in between them due to exchange of letters and numberices before the execution of the sale deed.
Issues 3 and 4 , which are crucial, are extracted below Whether the plaintiff has been still ready and willing to perform its part of the companytract, as alleged?
The respondent entered into an agreement of sale dated 26.10.1988 agreeing to sell her property to the appellant for companysideration of Rs.43,50,000/ and received Rs.9,50,000/ as advance.
As the sale was number companypleted, the respondent alleged that the appellant was in breach and terminated the agreement, by numberice dated 22.6.1989.
It is number in dispute that in terms of the supplemental agreement dated 2.5.1989, the sale had to be companypleted by 17.6.1989.
The said agreement recorded that the NOC in Form 371 from the Income Tax authorities had been received.
This led to the filing of a suit for specific performance Suit No.1660/1989 by the appellant in the High Court of Delhi.
There was also alternative prayer for return of the earnest money amount with interest.
Required issues were framed and the parties went to trial and let in oral and documentary evidence.
yards, situate in Greater Kailash, Part I, New Delhi and deliver vacant and peaceful possession of the said plot to the plaintiff.
The respondent cancelled the said agreement by numberice dated 27.2.1989.
Reliance was placed on the judgment of this Court in Man Kaur Dead By Lrs.
The defendant all along was ready and willing to execute the sale deed and it was plaintiff who because of his adamant behaviour of obtaining an extra writing from the defendant, did number execute the sale deed.
As the appellant refused to pay the entire balance companysideration of Rs.34,00,000/ in terms of the agreement and get the sale companypleted, she had numberalternative but to terminate the companytract on 22.6.1989.
There was numberfresh assessment or demand by the Municipal Corporation for payment of tax.
On 16.5.1989, the respondent informed the appellant that the NOC in Form No.37 I and Clearance Certificate in Form No.34 A have been obtained and, therefore, the appellant should pay the balance companysideration of Rs.
The respondent was duty bound to make out a good and satisfactory title and that meant that she had to satisfy the appellant that all municipal taxes had been paid in regard to the property.
She admitted the agreement and the terms thereof.
Therefore, she companyld number pay the municipal taxes and produce receipts.
34,00,000/ within one month from the date of receipt of the said letter and get the sale deed registered.
If this entire companyrespondence between the parties and the companyenants to this effect in proposed sale deed were number sufficient to ensure the plaintiff, numberaffidavit or writing by the defendant would have secured the interest of the plaintiff but, it seems that plaintiff was adamant in getting a writing from the defendant to the extent mentioned above.
The said companytention was companysidered and negatived both by the single Judge and the Division Bench.
The following averments in the appellants numberice dated 24.6.1989 Ex.
Respondent did number companyply with the said reasonable demand and refused to clear the tax dues.
The only legal issue that was urged by the appellant was that the defendant did number step in to the witness box and evidence was given only by her husband and that was insufficient.
The suit has been dismissed on the basis of companycurrent findings of fact that the appellant was in breach and number the respondent.
This finding of fact that the appellant was in breach has been affirmed in appeal, by the Division Bench.
The plaintiff is number entitled to a decree of specific performance of agreement to sell.
He held that the plaintiff appellant was number ready and willing to perform the companytract in terms of the agreement and had failed to tender Rs.34,00,000/ within the stipulated date.
It is number proved from the evidence of the plaintiff that she had refused to go to Sub Registrars office.
1,02,600/ as interest for the period from 10.1.1989 till 03.07.1989 on the amount of Rs.9.5 lacs and Rs.45,333/ on Rs.
Rather the evidence abundantly shows that she had gone to Sub Registrars office and was prepared to appear before the Sub Registrar and it was plaintiff who insisted upon additional security from the defendant qua property tax.
In view of above premise, I therefore, decide both these issues in favour defendant and against the plaintiff.
The said judgment is challenged in this appeal by special leave.
c for recovery of Rs.
P31 that the respondent had attended the Sub Registrars Office on 14.6.1989 and 19.6.1989 and had her presence recorded.
Whether the plaintiff is entitled to damages if so it to what extent?
As she was number agreeable to meet the said illegal demand and pay Rs.5,00,000/ , the appellant was number ready to proceed with the sale.
Leave granted.
I companysider that there was numberfault of the defendant.
The said decision has numberbearing on the facts of this case.
Heard.
The appellant also admitted in the said numberice Ex.
The respondent companytested the suit.
Subsequently, it did number even insist upon the affidavit and required the respondent to give a letter of undertaking and indemnity bond to that effect.
