Delhi High Court
M/S. H. Dohil Construction Com. Pvt. ... vs Mr. Thakur Dass Malhotra & Anr. on 2 April, 2009
Author: Manmohan Singh
Bench: A.K. Sikri, Manmohan Singh
* HIGH COURT OF DELHI : NEW DELHI
+ RFA (OS) No.17/1981
% Judgment reserved on : 18th August, 2008
Judgment pronounced on : 2nd April, 2009
M/s. H. Dohil Construction Com. Pvt. Ltd. ...Appellant
Through : Mr. Sandeep Sethi, Sr.
Adv. with Ms. Kanika
Agnihotri, Mr. Vaibhav
Agnihotri and Mr. Aseem
Chaturvedi, Advs.
Versus
Mr. Thakur Dass Malhotra & Anr. ....Respondents
Through : Mr. Abhinav Vasisht
with Ms. Harshita Priyanka &
Mr. Debojyoti
Bhattacharya, Advs.
Coram:
HON'BLE MR. JUSTICE A.K. SIKRI
HON'BLE MR. JUSTICE MANMOHAN SINGH
1. Whether the Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported Yes
in the Digest?
MANMOHAN SINGH, J.
1. This Regular First Appeal has been filed against the judgment and decree dated 28th November, 1979 passed by this Court whereby the suit C.S. (OS) No.438/1976 of the respondents (hereinafter referred to as „plaintiff) was decreed in their favour and against the appellant (hereinafter referred to as „defendant‟). It was RFA (OS) No.17/1981 Page 1 of 18 held that the contract dated 3rd February, 1973 is subsisting and binding on the defendant, and plaintiff was further entitled to transfer the possession of flat No.201 in Dohil Chambers, 46 Nehru Place, New Delhi herein referred to as „Suit Property‟.
2. Brief facts relevant for the decision of this appeal are that on 3rd February, 1973 an agreement was entered into between the plaintiff and the defendant for the purchase of suit property measuring 480 sq. ft. @ Rs. 121/- sq. ft. The total consideration for the property was agreed to be Rs.58,080/-. This consideration was to be paid in the instalments as mentioned under Clause 3 of the said agreement Exb. D-2/2. The said Clause provides as under :
"3. The Buyer agrees to acquire office/shop/storage space No.201 on the Second Floor, facing of the said Building as per plans and specifications inspected seen and approved by him/her/them for Rs.58080/- (Rupees Fifty- eight thousand and Eighty only) having a covered area of 480 sq. ft. @ Rs.121/- sq. ft. If the covered area differs at the time of possession of office/shop/storage space the price will be adjusted accordingly. Covered area includes the area under periphery walls and half the under common walls between two flats. Individual Electric Service connection charges fans and light fixtures are not included in the cost of the flat. The price will be paid as follows :
Instalment No. Payable on Percentage of Total Price
1. On booking 15%
2. On 15th Feb. 1973 10%
3. On Completion of Building Foundations 10%
4. On completion of Basement Structure 10%
5. On completion of 1st floor 10%
6. On completion of 2nd floor 10%
7. On completion of 3rd floor 10%
8. On completion of 4th floor 10%
9. On completion of 5th or 6th floor 10%
10. On possession 5%
-------
100%
-------
RFA (OS) No.17/1981 Page 2 of 18
3. In the said agreement, Clause 4 provided for the possession to be handed over by 31st day of December, 1974 subject to the availability of cement, steel or other building materials etc. The plaintiff booked the flat through Central Estate agency (agents on behalf of defendant) and paid Rs.2,000/- at the time of booking of the flat and Rs.26,616/- till 16th September, 1975. However, when the defendant gave notices dated 20th March, 1975, 1st May, 1975 and 29th August, 1975 being Ex. D-45, D-49, and D-8 for the payment of 7th, 8th and 9th instalments respectively, the plaintiff failed to pay the instalments on time and here the controversy arose.
4. The defendant gave final notice dated 21 st November, 1975 Ex. D-10 to the plaintiffs requiring the plaintiff to pay the amount of Rs.18,560/- alongwith interest @ 18% p.a. by 5th December, 1975 failing which the allotment would be cancelled. On failure of the plaintiff to pay the due instalments by final notice, the defendant cancelled the said agreement/allotment of the suit property and entered into a fresh agreement dated 25th January, 1976 with one Shri Avtar Singh for the purchase of flat.
5. It is averred in the plaint that the plaintiff had obtained two bank drafts in the amount of Rs.18,560/- in favour of the defendants, one for Rs.13,560/- from Oriental Bank of Commerce and the other for Rs.5,000/- from Punjab National Bank on 27th December, 1975. He alongwith his brother-in-law PW-7 Mr. A.C. Talwar went to the defendant to hand over the bank drafts who promised to give a RFA (OS) No.17/1981 Page 3 of 18 receipt in due course of time. However, on 14 th May, 1976 the plaintiff received a letter dated 10th May, 1976 from the defendant intimating that the booking of the flat was cancelled vide notice dated 22 nd December, 1975 and the bank drafts were not being encashed by the defendant.
6. It was mentioned in the plaint that in the agreement entered into between the parties one of the mode of payments was by cheque and the defendant has been accepting earlier instalments by cheque. The demand made by the defendant in terms of bank draft was not legal. Even the plaintiff paid the due instalments by bank draft within the time given by the agent and thus the cancellation of the booking of the flat was wholly illegal and unjustified. It is also alleged that the defendant did not deliver the possession in time as per contract to the plaintiff by 31st December, 1974 but the possession was given only in July, 1977. This failure on the part of the defendant in delivering the possession of the suit property within the stipulated time and other circumstances on record show that time was not the essence of the contract.
7. It is urged by the plaintiff that the defendant is bound by the agreement and the plaintiff was always ready and willing to perform their part of the contract. It was contended that the agreement with Avtar Singh entered by the defendant on 28 th January, 1976 was a sham transaction.
8. Learned counsel for the plaintiff argued that the payment for the 7th, 8th and 9th instalment was duly made in response to the RFA (OS) No.17/1981 Page 4 of 18 notice Ex. D-10 by issuing three cheques for the amount of Rs.18,560/- to PW-11 for payment to the defendants but the defendant after a few days returned the cheques with a direction that the payment should be made by a bank draft.
9. It is alleged by the defendant that no payment was received by him by means of cheque Ex. P-38 to P-40 on 4th December, 1975 or at any time thereafter until 22nd December, 1975. It was submitted that the Central Estate Agency was entitled to realise only the payment upto 25% of the total amount of flat on behalf of the defendant. On 10th May, 1976 the plaintiff was again intimated of the cancellation of the booking of flat. It was pleaded that the building could not be completed within the period mentioned in Clause 4 of the agreement, due to shortage of cement, steel and other building materials. It was categorically submitted that the time schedule regarding the payment mentioned in Clause 3 was the essence of the contract. The plaintiffs were habitual defaulters in the payment of instalments. The transaction entered with Avtar Singh was a genuine and bonafide transaction.
10. It is also contended that since there was deposit of Rs.10,000/- lying with him on behalf of the plaintiff towards the other flat No.206 situated at the same place which was later on cancelled, therefore defendants did not press to pay the earlier instalments by due time. There was a clear consent of the plaintiffs in adjusting the said amount for the suit property. The defendant also raised preliminary objections that a mere suit for declaration and RFA (OS) No.17/1981 Page 5 of 18 injunction without claiming any consequential relief is not maintainable.
11. The following issues were framed by the court:-
"1. Whether the suit as laid is maintainable?
2. Whether the defendant has entered into an agreement with Avtar Singh for the sale of flat in dispute on 28th January, 1976? If so is the suit bad for non-joinder of Avtar Singh? OPD
3. Whether the defendant committed breach of contract dated 3rd February, 1973?
4. Whether the plaintiffs were willing and ready at all the material times to perform their part of the agreement?
5. Whether time was not the essence of the contract?
6. Whether the plaintiffs did not pay the instalments as per term no. 3 of the agreement dated 3rd February, 1973?
7. Whether the defendant could not complete the building within the time schedule given in the agreement for reasons stated in the written statement? If so, to what effect?
8. Whether, any payments were made by the plaintiffs to M/s Central Estate Agency, Flat No. 13, Shankar Market, Connaught Circus, New Delhi alleged to be the agents of the defendant? If so whether those payments were valid payments?
9. Whether the plaintiffs had delivered to the pay orders in the amount of Rs. 18560/- in December, 1975? If so with what effect? OPP
10. Whether the contract was cancelled by the defendant by means of letter dated 21 st November, 1975 and 22nd December, 1975. If so with what effect?
11. Relief."RFA (OS) No.17/1981 Page 6 of 18
12. The plaintiff in support of its contention and to prove its case examined 11 witnesses, on the other hand, the defendant examined 7 witnesses. The plaintiff has also to prove its case on the basis of the statements and documents which are exhibited as P-1 to P-48. Similarly, the defendant has exhibited its documents as Ex. D1 to D-64.
13. Learned Single Judge decreed the suit in favour of the plaintiffs in the following terms:-
"(a) It is declared that the contract dated 3rd Febraury 1972 in respect of flat No.201 in Dohil Chambers, 46 Nehru Place, is subsisting and binding upon the defendant;
(b) That the plaintiffs shall be entitled to the transfer and possession of flat No.201 in Dohil Chambers, 46 Nehru Place, New Delhi subject to their paying a court fee on the value of Rs.58,080/- within one month.
(c) The plaintiffs are further entitled to be member of the Co-oprative Society or a limited company or an association that may be formed in terms of the contract dated 3rd February 1972 with all the rights and privileges attendant thereon.
(d) The plaintiffs shall deposit the full purchase price of Rs.58,080/- in the Court within one month and on their depositing the said amount, the defendant shall take steps to perform all the acts that are necessary for effecting the transfer of the property in favour of the plaintiffs.
(e) In case any sale deed is to be executed and registered and the defendant fails to execute the sale deed then the Registrar of the Court shall execute the deed and have it registered on behalf of the defendant.
(f) The plaintiffs shall have the costs of the November 28, 1979."
14. The finding of the learned trial Judge on issue nos. 3 to 6 and 8 to 10 were (1) that the plaintiffs had given the cheques P-38 to P-40 to the Central Estate Agency, Shanker Market, New Delhi, who were the agents of the defendant, and the agents had further delivered the cheques to the defendant and the payments so made were valid payments; (2) that the plaintiffs had given the bank drafts in the amount of Rs. 18,560/- to the defendant on or about 28th December, 1975 and it RFA (OS) No.17/1981 Page 7 of 18 was a valid tender of the money; (3) that the defendant had given the notices dated 21st November, 1975 and 22nd December, 1975 to the plaintiffs, but in view of my findings on issue nos. 8 and 9, the said notices did not legally terminate the agreement Ex. D-2. The issue no. 5 as to whether the time was the essence of the contract, was also decided by the learned Single Judge against the defendant.
15. While deciding issue no. 2, the learned Single Judge has determined that Avtar Singh was neither a necessary nor the proper party to the suit as Avtar Singh had no interest in the property in question.
16. Section 54 of the Transfer of Property Act provides that the contract for sale of immovable property is a contract for the terms on which the sale shall take place, but it does not, of itself, create any interest or charge on such property. The agreement entered between the defendant and Sh. Avtar Singh thus does not confer any interest in the suit property to Sh. Avtar Singh. Therefore, issue no. 2 has been rightly decided by the learned Single Judge and we agree with the finding thereof.
17. On issue no. 1, the learned trial court decided the issue against the defendant on the reason that there was an ample evidence that on the date when the suit was instituted, the building was not complete and the possession could not have been delivered to the plaintiff. The trial court found that there is no legal bar to the Court allowing the relief of possession as well subject to the plaintiff‟s paying the court fee on the valuation of the property.
18. The defendant challenged the judgment and decree of the trial court mainly on the ground, (a) that the trial court ought to have held that the time was the essence of the contract and the parties in addition to the specific intention in the agreement adhered to the schedule provided therein as far as was possible in the RFA (OS) No.17/1981 Page 8 of 18 circumstances of the case; and (b) that the suit of the plaintiff was barred by Section 34 of the Specific Relief Act since the plaintiff had failed to claim the consequential relief available to him originally and also had subsequent time since the said relief was not claimed and it is further contended that the learned trial court while allowing the relief of possession, which was not prayed for, is in violation of the principle of natural justice.
19. To deal with the argument of learned counsel for the defendant whether in the present case time was the essence of the contract or not, the learned Single Judge has given the following finding which reads as under:-
"The question whether or not time was of the essence of the contract would essentially be a question of the intention of the parties to be gathered from the terms of the contract and other circumstances. Clause 3 no doubt provided that the time fixed in the clause for payment of the various instalments is of the essence of the contract, but the record shows that at no point of time the time schedule set down in clause 3 for payments was observed or adhered to by the parties. The first payment of 15% was to be made at the time of the booking of the flat, but only Rs. 2000/- were paid by the plaintiffs, the next 10% was to be paid by 15th February 1973 but no payment was made by that date. The subsequent dates of the demand notices and the payments also show that payments were accepted after a lapse of number of months of the due dates of payment. Ex. D-63 dated 27th August, 1973 is a registered letter sent by the defendant to the plaintiff Thakur Dass Malhotra and in this letter it is written that the payment of 25% was to be made by 15th March, 1973 but Rs. 3520/- are still payable and Malhotra was asked to pay Rs. 3520/- alongwith Rs. 464/- as interest by 3rd September, 1973. Interest at 16% was also claimed in the notice dated 21 st November, 1975. The defendant was to deliver possession of the flats to the purchasers by 31 st December, 1974 but he could deliver possession only in July, 1977. The above facts clearly indicate that the time was not the essence of the contract. I find issue no. 5 against the defendant."
20. Section 55 of the Contract Act is relevant in this regard RFA (OS) No.17/1981 Page 9 of 18 which provides as under :-
"55. Effect of failure to perform at a fixed time, in contract in which time is essential -When a party to a contract promises to do a certain thing at or before a specified time, or certain things at or before a specified time, and fails to do such things at or before a specified time, the contract, or so much of it as has not been performed, becomes voidable at the option of the promisee, if the intention of the parties was that time should be of essence of the contract.
Effect of such failure when time is not essential - If it was not the intention of the parties that time should be of the essence of the contract, the contract does not become voidable by the failure to do such thing at or before the specified time; but the promisee is entitled to compensation from the promisor for any loss occasioned to him by such failure.
Effect of acceptance of performance at time other than agreed upon - If, in case of a contract voidable on account of the promisor‟s failure to perform his promise at the time agreed, the promisee accepts performance of such promise at any time other than agreed, the promisee cannot claim compensation for any loss occasioned by the non-performance of the promise at the time agreed, unless, at the time of acceptance, he gives notice to the promisor of his intention to do so."
21. It is not disputed that the Central Estate Agency of which Mr. Mahinder Singh was a partner were the agents for booking the flats on behalf of the defendant and the plaintiffs had booked both the flats through the Central Estate Agency. There was evidence on record to show that the defendant was sending copy of the demand notices to the Central Estate Agency. However, there is nothing on the record to show that the plaintiffs were ever told that the agent was only authorized to receive the first 25% of the amount and thereafter the payment should be made direct to the defendant. There is no word which conveys the above idea for the payment to the defendants after RFA (OS) No.17/1981 Page 10 of 18 25% being paid to the agents in the agreement between the parties.
22. PW-11 partner of Central Estate Agency clearly stated that the plaintiffs had given cheques Ex. P-38 to P-40 on 4th December, 1975 which were handed over by him to the defendant who had returned the same after few days stating that the payment should be made by bank draft. It is also on record that plaintiff had obtained two bank drafts in the sum of Rs.18,560/- on 27th December, 1975. There is no reason why the plaintiff prepared the bank drafts and keep them with himself.
23. PW-7 Sh. A.C. Talwar also supported the case of the plaintiff fully. The learned Single Judge held that the bank drafts were delivered to the defendants by the plaintiffs.
24. Learned counsel for the defendant has referred the judgments reported in AIR 1985 Delhi 45 Andard Mount (London) Ltd., England, v. Curewel (India) Ltd., New Delhi and (2001) 5 SCC 629 Sikkim Subba Associates vs. State of Sikkim.
25. There is a contradiction existing between the statement made in the written statement of the defendant and the statement/deposition made before the Court. In the written statement, the defendant submitted that cheques were delivered to him and it was sent back with a direction to give the bank drafts for the same amount. However, defendant in his deposition before the court denied to have received any bank draft. It is not the case of the defendant that the plaintiffs had brought the bank drafts and he had refused to accept them because earlier to that booking of the flat had been cancelled.
26. The demand notices for the 7th, 8th and 9th instalment by the defendant dated 20th March, 1975, 1st May, 1975 and 29th August, 1975 respectively provides RFA (OS) No.17/1981 Page 11 of 18 for the Note in the following terms :-
"Note : i) Cheques may kindly be made in favour of H. Dohil Construction Co. (Pvt.) Limited, New Delhi.
ii) Outstation cheques will not be accepted
iii) Outstation buyers are required to remit their instalment by way of Demand Draft only."
27. It is apparent from the above provision that even if in the contract, the time was made the essence of the contract, in case there is is no intention of the parties to follow it, it will make the clause regarding time as redundant. In the present case, it is not in dispute that there was failure on the part of plaintiffs to pay the instalments on due time. All the instalments are paid by the plaintiff after due dates when the demand notices were sent by the defendants to the plaintiff. The defendant also accepted all the instalments after due date without any hesitation or taking any steps for forfeiting the amount deposited by the plaintiffs after due dates as provided under the agreement. Thus according to Section 55 (3) of the Contract Act, the defendant himself failed to perform his promise at the time agreed and accepted performance i.e. the payment after due dates. He cannot now takes steps for cancellation of the agreement in question.
28. Though it is settled law that where no time is fixed for completion of the contract or in other words where time is not originally of the essence, a party could by notice serve upon other call upon him to complete the transaction within the time fixed. Where the time is the essence, its extension should and ought to be categorical in nature rather than being vague or in the anvil of presumptions. When the parties knowingly gave a go-by to the stipulations as regards time, the same may have several effects and the courts are not left with any other conclusion but to give a finding that the parties themselves by their conduct have RFA (OS) No.17/1981 Page 12 of 18 given a go by to the original term of the contract as regards the time being the essence of the contract.
29. In view of the above facts and circumstances, looking at the intention of the parties, in the present case, we are of the considered view that contract cannot be enforced taking time as essence, though specifically being provided under the agreement. Failure on the part of the defendant to deliver possession and payment for 7th, 8th and 9th instalment by the plaintiff by bank draft which was not accepted by the defendants and cancellation of contract by defendants without even forfeiting the amount was wrong.
30. In the case of Bangalore Development Authority Vs. Syndicate Bank, 2007; AIR SC 2198 it was held that where time is not the essence of contract if the buyer instead of rescinding the contract on the ground of non performance accepts belated performance in terms of contract, there is no question of any breach or payment of damages. Where even though time was made essence of the contract and the parties in the event of failure of performance on time provided for the money to be forfeited, the provision relating to the time being the essence of the contract become ineffective looking at the intention of the parties.
31. Although we agree with the principle laid down in the judgments cited by learned counsel for the defendant in Curewel (India) Ltd.‟s case (supra) and Sikkim Subba Associates case (supra) however, the facts and circumstances in the present case are different. The said judgments are not applicable to the facts and circumstances of the present case.
32. The next contention of the defendant is that the plaintiff did not pray for the relief of possession and merely prayed for grant of a suit for declaration and thus the suit is not maintainable in view of failure to claim consequential relief as RFA (OS) No.17/1981 Page 13 of 18 provided under Section 34 of the Specific Relief Act, 1963.
33. It was observed by the learned Single Judge that proviso to section 34 of the Specific Relief Act fully applies to cases where at the date of the suit, the consequential relief is available. It is not in dispute that the possession of the flat was given in July, 1997. Moreover, proviso to Section 34 of the Specific Relief Act provides for relief which is inherent in the original declaration claimed and without which declaratory relief claimed would be meaningless and infructuous. It is true that after the institution of the suit, the relief to the possession of the property has become available to the plaintiffs which is not being claimed as yet, but it is no ground to reject the suit.
34. For dealing with this contention we must first consider Section 34 of the Specific Relief Act which provides as under :
"Section 34. Discretion of court as to declaration of status or right - Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief.
Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.
Explanation : A trustee of property is a "person interested to deny" a title adverse to the title of someone who is not in existence, and whom, if in existence, he would be a trustee.
35. Also under Order 7 Rule 7 of CPC, it is provided that it shall not be necessary to ask for general or other relief which may always be given as the court may think just to the same extent as if it had been asked for. It is settled law that relief to be provided by the court is to be based on the pleadings of the plaintiff. The Supreme Court in the case of (1982) 1 SCC 525 Babu Lal V. Hazari Lal RFA (OS) No.17/1981 Page 14 of 18 Kishori Lal made the following observations :
"Specific Relief Act, 1963 (47 of 1963) - Section 22 - In appropriate cases of specific performance of contract of sale of immovable property, held, court competent to order delivery of possession of the property, even if not specifically asked for, by allowing suitable amendment in the plaint - Order for delivery of possession without corresponding amendment in the plaint would be a mere omission, not fatal to the relief of possession, especially when the order made in furtherance of cause of justice and in view of applicability of Section 28(3) - Expressions "in an appropriate case" in Section 22(1) and "at any stage of the proceeding" in proviso to Section 22(2).
It may not always be necessary for the plaintiff to specifically claim possession over the property, the relief of possession being inherent in the relief for specific performance of the contract of sale. In a case where exclusive possession is with the contracting party, a decree for specific performance of the contract of sale simplicitor, without specifically providing for delivery of possession, may give complete relief to the decree-holder. In order to satisfy the decree to put the property in possession of the decree- holder. This is in consonance with the provisions of Section 55(1) of the Transfer of Property Act.
21. If once we accept the legal position that neither a contract for sale nor a decree passed on that basis for specific performance of the contract gives any right or title to the decree-holder and the right and the title passes to him only on the execution of the deed of sale either by the judgment-debtor himself or by the court itself in case he fails to execute the sale deed, it is idle to contend that a valuable right had accrued to the petitioner merely because a decree has been passed for the specific performance of the contract. The limitation would start against the decree-holders only after they had obtained a sale in respect of the disputed property. It is, therefore, difficult to accept that a valuable right had accrued to the judgment-debtor by lapse of time. Section 22 has been enacted only for the purpose of avoiding multiplicity of proceedings which the law courts always abhor.
23. There has been a protracted litigation and it has dragged on practically for about 13 years and it will be really a travesty of justice to ask the decree-holder to file a separate suit for possession. The objection of the petitioner is hypertechnical. The executing court has every jurisdiction to allow the amendment. The only difficulty is that instead of granting a relief of possession the High Court should have allowed an amendment in the plaint. The mere omission of the High Court to allow an amendment in the plaint is not so fatal as to deprive the decree-holder of the benefits of the decree when Section 55 of the Transfer of Property Act authorizes the transferee to get RFA (OS) No.17/1981 Page 15 of 18 possession in pursuance of a sale deed."
36. The above proposition was again reiterated in the case reported at AIR 1961 Patna 466 Parmeshwar Mandal vs. Mahendra Nath Tewari and Ors. wherein the court held that the relief of possession is ancillary to that for the specific performance of the contract to sell. The right to possession springs out of the contract of sale, and, when the court is asked to give relief by giving possession, such a relief is comprised in the relief for the specific performance of the contract of sale.
37. Learned senior counsel for the appellant/defendant has heavily relied on the judgment reported at 2008 V AD (SC) 11 Bal Krishna & Anr. Vs. Bhagwan Das (Dead) & Ors. at page 21 para 17 and (1999) 8 SCC 274 Mahabir Prasad Jain vs. Ganga Singh at page 286 para 24 which reads as under:-
"24. As already pointed out, the decree passed by the trial court as affirmed by the High Court travels beyond the prayer in the plaint and also the scope of Section 6 of the Specific Relief Act. Apart from granting a decree for possession as prayed for by the respondent, the trial court has granted an additional relief which was not prayed for by him in that the trial court has directed the appellant to remove the construction put up by him including the dismantling of the glass. Such a relief cannot be granted under the provisions of Section 6 of the Specific Relief Act, particularly when there is no prayer therefor in the plaint."
38. We have considered the judgments referred by learned senior counsel for the appellant. We do not agree with the submission of the learned counsel for the defendant/appellant herein as the facts in the present case are different as it is the admitted case between the parties that on filing of the suit, the building was not completed and the possession could not be delivered to the plaintiff.
39. We agree with the finding of the learned single Judge that the proviso of Section 34 of the Specific Relief Act only applies to the cases where on the date of RFA (OS) No.17/1981 Page 16 of 18 institution of the suit, the consequential relief is available. In the present case, the said relief was not available to the plaintiff on the date of filing of the suit.
40. In the present case, the plaintiff admittedly had an agreement (Exhibit D-2) with the defendant and had a right to transfer the property on payment of full purchase price as agreed between the parties. Therefore, we agree with the finding of the learned single Judge that the plaintiffs filed a suit under Section 34 for decree stating that the cancellation of the contract is illegal and they have the right to transfer the property in terms of the agreement. There is no legal bar to the court for granting the relief of possession as well subject to the plaintiff‟s paying the court fee on the valuation of the property.
41. As mentioned above, the right of possession springs out of the contract for sale. In the present case, no doubt that as per the agreement, on payment, the sale deed/documents were required to be executed by the seller in favour of the buyer. It appears on further reading of the agreement that on payment, the seller was supposed to transfer the said property in favour of the buyer and to give the possession.
42. In view of the well settled position of law, the suit of the plaintiff cannot be rejected on the failure to specifically pray for possession in suit for declaration for specific performance of the contract even when it became available after around 2 yrs of filing the suit .
43. In view of the above, we are in agreement with the aforesaid finding of the learned Single Judge and the manner in which RFA (OS) No.17/1981 Page 17 of 18 the same are arrived at. We do not find any force in the submissions of the Defendants. Therefore, we find no merit in the appeal and it is hereby dismissed. No costs.
MANMOHAN SINGH, J.
APRIL 02, 2009 A.K. SIKRI, J.
sd
RFA (OS) No.17/1981 Page 18 of 18