Delhi High Court
C.L. Jain vs Gopi Chand on 8 December, 1989
Equivalent citations: AIR1990DELHI280, AIR 1990 DELHI 280
ORDER Mahinder Narain, J.
1. The plaintiff has filed Suit No. 1385 of 1989 for specific performance of an agreement to sell dated 7-10-1988, by which 1/3rd out of land measuring 62 bighas 1 biswa, situated in village Bijwasan, Tehsil Mchrauli, New Delhi, was agreed to be sold. According to this agreement, the amount which was payable was at the rate of Rs. 5,05,000/- per acre. According to the plaintiff, a total sum of Rs. 25,07,690/- was payable as a total sale consideration.
2. It is asserted that some money has been paid in part to the defendant.
3. I had got the statement of the plaintiff and the defendant recorded in Court on 1-11-1989, According to the statement recorded, the plaintiff had never seen the defendant, but had paid cash money through his representative on various occasions, totalling Rs. 2,50,000/-. All these moneys were paid on different dates by cash. This money was paid through Sukhbir Singh, who was also examined in Court.
4. Statement of the defendant, Gopi Chand, was also recorded in Court. He stated that he was prepared to sell his land to the plaintiff on receiving the money due under the agreement dated 7-10-1988.
5. Deducting the amount of Rupees 2,50,000/- which has been received by Gopi Chand, defendant, the balance amount receivable by him from the plaintiff is Rupees 22,57,690/-.
6. In my view, this case has taken an unusual turn after filing of the written statement by the defendant, when he made a statement that he is ready and willing to perform his part of the bargain, i.e. to sell the land in question. In pursuant to the statement made in Court, it is not disputed that the Gopi Chand has also executed applications, which are required to be executed by him under the provisions of S. 269(UC) of the income-tax Act, to get the clearance from the authorities concerned. He has also signed the application under the provisions of the Delhi Lands (Restriction on Transfer) Act, 1972, to obtain permission from the authorities concerned. Both these applications are now, the plaintiff states, with the authorities concerned.
7. I find the instant case to be a rare case it does not happen often that the defendant agrees to do and perform his part of the bargain, that will conclude the suit.
8. At the same time, in view of the provisions of See. 16 of the Specific Relief Act, 1 consider it necessary and desirable that in this case the plaintiff be directed to deposit the entire balance consideration in this Court so that, the same can be easily and readily available to the defendant at the time the contract is performed by execution of sale deed and by taking such further actions, as may be necessary.
9. Mr. Mann has brought to my notice AIR 1928 Privy Council 208, Ardeshir H. Mama v. Flora Sassoon, in which judgment at page 216, it is stated that readiness and willingness to perform the contract has to be "continuous readiness and willingness, from the date of the contract to the time of the hearing, to perform the contract on his part. Failure to make good that averment brought with it the inevitable dismissal of his suit".
10. In my opinion, it would be very unfair if only the buyer is tied down to a price in the bargain, and the seller is unable to benefit by price escalation, if due to no fault of the seller time is taken in completion of statutory requirements. In my view, by ordering the deposit of the balance consideration amount in this Court, both the parties will be placed in an equal situation, as it will be possible for the money deposited to earn interest. In case the sale consideration is ultimately ordered to be handed over to the defendant, as he has to specifically perform the contract, he will have in addition to the interest accrued also. Equally, the money which is put in fixed deposit when ordered to be paid to the plaintiff, in the event of the failure of the suit, will be returned with interest. Both the parties' interest will be safeguarded by order of deposit of the balance consideration to an equal extent.
11. Accordingly, in exercise of the discretion, which the Court is required to exercise in terms of S. 16 of the Specific Relief Act, I direct the plaintiff to deposit the balance consideration amount of Rupees 22,57,690/- in this Court within a period of one month from today. In the event the plaintiff fails to deposit the said amount in Court, then the order of injunction granted on 31-5-1989 shall stand vacated:
12. This order should not be construed to have adjudicated on the matter with respect to the payments, which have alleged to have been made by the plaintiff to the defendant.
13. Case for 2-2-1990.
I. A. 9097/89:
14. This is an application moved by the plaintiff under Section 151 of the Code of Civil Procedure, for taking up another Suit No. 616 of 1989 along with the present suit.
15. Notice.
16. Mr. Mann accepts notices, and seeks time to file reply.
17. Let the needful be done before the next date of hearing. Advance copy is given to the counsel for the plaintiff.
18. To come up on 2-2-1990, the date already given.
19. Order accordingly.