Delhi High Court
Shri B.B. Sabharwal & Anr. vs M/S. Sonia Associates on 14 January, 2011
Author: V.K. Jain
Bench: V.K. Jain
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 10.01.2011
Judgment Pronounced on: 14.01.2011
+ CS(OS) No. 998/1998
SHRI B.B. SABHARWAL & ANR. .....Plaintiff
- versus -
M/S. SONIA ASSOCIATES .....Defendant
Advocates who appeared in this case:
For the Plaintiff: Mr Sandeep Sethi, Sr Adv. with
Mr Nikhil Bhalla.
For the Defendant: Mr Girdhar Govind, Adv.
CORAM:-
HON'BLE MR JUSTICE V.K. JAIN
1. Whether Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported Yes
in Digest?
V.K. JAIN, J
1. This is a suit for specific performance of Agreement
to Sell dated 20th June, 1997 or in the alternative for
recovery of Rs.40,00,000/- as damages.
CS(OS)No. 998.1998 Page 1 of 45
2. The case of the plaintiffs is that on 20th June,
1997, the defendant agreed to sell the entire first floor of
property No.D-144, New Rajinder Nagar, New Delhi to them
for a consideration of Rs.40,00,000/-. A sum of
Rs.5,00,000/- was paid to the defendant towards earnest
money and the balance amount of Rs.35,00,000/- was
agreed to be paid within 15 days from the date of the
agreement. The defendant was required to obtain NOC as
also Income Tax Clearance certificate required for execution
and registration of the sale deed in favour of the plaintiff.
According to the plaintiffs, the balance sale consideration
was to be paid after the defendant had obtained necessary
sale permission, Income Tax Clearance etc., had presented
the sale deed for registration and delivered possession of the
property to the plaintiff. A further sum of Rs.15,00,000/- is
alleged to have been paid by the plaintiffs to the defendant
on 25th June, 1997. The case of the plaintiffs is that despite
receiving the aforesaid sums from them, the defendant did
not apply for Income Tax Clearance Certificate and
necessary permission from Land and Development Office for
execution and registration of the sale deed in their favour.
3. It is also alleged that the amount of Rs 15 lacs,
CS(OS)No. 998.1998 Page 2 of 45
which the defendant took from the plaintiffs on 25th June,
1997, was invested by her in purchasing a shop where she
is running business under the name and style of M/s Tilak
Exclusif. The plaintiff has accordingly sought specific
performance of the agreement dated 20th June, 1997. It is
further prayed that if on account of any unavoidable
circumstance the sale of the aforesaid property is not
admissible and performance of the agreement dated 20 th
June, 1997 is not permissible, a decree for damages to the
tune of Rs 40 lacs be passed.
4. The defendant has contested the suit. He has
admitted having entered into an agreement dated 20 th June,
1997 to sell the first floor with roof rights of Property No. D-
144, New Rajinder Nagar, to the plaintiffs, for a sale
consideration of Rs 40 lacs and receipt of Rs 5 lacs as the
earnest money. It is claimed in the written statement that
the agreement provided that in case of failure of the
defendant to execute the sale deed or hand over vacant
possession of the property or to get NOC or Income-tax
Clearance Certificate from the Competent Authority, the
plaintiffs were to get double the amount of earnest money
and in the case of failure of the plaintiffs to make the
CS(OS)No. 998.1998 Page 3 of 45
balance payment of the sale consideration, the earnest
money was to stand forfeited. It is also alleged that the
plaintiffs failed to make payment of the balance sale
consideration within the time stipulated in the agreement in
this regard and, therefore, the earnest money paid by them
stood forfeited. It is also claimed that since the suit property
was a freehold plot, no permission from Land &
Development office was required for its sale. The defendant
has denied receiving a sum of Rs 15 lacs from the plaintiffs
and has claimed that she is not the owner of the shop Tilak
Exclusif which was taken on lease by her husband in the
year 1984-85. It is further stated that the plaintiff No.1 had
also entered into an agreement with the defendant in the
name of their daughters in respect of the basement and
store of D-144, New Rajinder Nagar vide Agreement dated
20th June, 1997 and the sale in respect of the aforesaid
portion was concluded on 04th July, 1997.
5. The following issues were framed on the pleadings
of the parties:-
1. Whether the plaintiff is entitled to
a decree for specific performance of the
agreement dated 20.06.1997, directing
the defendant to execute the sale deed in
respect of first floor and the roof rights of
CS(OS)No. 998.1998 Page 4 of 45
the first floor of the property bearing No.
D-144, New Rajinder Nagar, New Delhi,
as prayed in the suit? OPP
2. Whether the plaintiff was always
ready and willing to perform his
obligations under the agreement? OPP
3. Whether the defendant purchased
the shop "Tilak Exclusif" for Rs 15 lakh
paid by the plaintiff to the defendant on
25.06.1997? OPP
4. Whether in the alternative
plaintiff is entitled to the damages of Rs
40 lakh due to non-performance of the
agreement dated 20.06.1997 by the
defendant? OPP
5. Whether the plaintiff failed to pay
the balance consideration, as per the
agreement and defendant was entitled to
forfeit the earnest money? OPD.
6. Relief
Issue No. 1
6. It was contended by the learned counsel for the
defendant that since clause 4 of the agreement stipulated
refund of the earnest money of Rs 5 lacs to the plaintiffs
alongwith penalty of Rs 5 lacs in case of the failure of the
defendant to complete the sale transaction, the plaintiff, at
best, is entitled to an amount of Rs 10 lacs from the
defendant and specific performance of the contract cannot
be granted to them. I, however, find no merit in this
CS(OS)No. 998.1998 Page 5 of 45
contention. Payment of Rs 10 lacs to the plaintiffs, including
the amount of earnest money, was only an alternative
remedy made available to the plaintiffs, which they could
avail at their option, but it does not disentitle them from
seeking specific performance of the contract if it is otherwise
made out in the facts and circumstance of the case.
7. In Man Kaur (dead) by LRS. Vs. Hartar Singh
Sangha 2010 (9) UJ 4569 (SC), one of the terms of the
agreement for sale of immovable property provided that if
the vendor committed a default, he was to pay the double of
the earnest money to the purchaser and if the purchaser
committed any default, the sum of Rs 10 lacs paid as
earnest money would be forfeited. The contention of the
appellant before the Supreme Court was that since the
agreement of sale only provided for damages in the event of
breach by either party and did not provide for specific
performance in the event of breach of by the vendor, their
intention was that in the event of breach by the vendor, the
purchaser will be entitled to double the earnest money and
nothing more and, therefore, the vendee was not entitled to
specific performance of the contract. Repelling the
contention, the Supreme Court held that for a plaintiff to
CS(OS)No. 998.1998 Page 6 of 45
seek specific performance of a contract of sale relating to
immovable property and for a Court to grant such specific
performance, it is not necessary that the contract should
contain a specific provision that in the event of breach, the
aggrieved party will be entitled to specific performance. It
was further held that if the legal requirements for seeking
specific performance of a contract are made out, it could be
enforced even in the absence of a specific term for specific
performance in the contract. Legal position was clarified by
the Supreme Court giving the following illustrations (not
exhaustive):
"(A). The agreement of sale provides that in
the event of breach by the vendor, the
purchaser shall be entitled to an amount
equivalent to the earnest money as
damages. The agreement is silent as to
specific performance. In such a case, the
agreement indicates that the sum was
named only for the purpose of securing
performance of the contract. Even if there
is no provision in the contract for specific
performance, the court can direct specific
performance by the vendor, if breach is
established. But the court has the option,
as per Section 21 of the Act, to award
damages, if it comes to the conclusion that
it is not a fit case for granting specific
performance.
(B). The agreement provides that in the
event of the vendor failing to execute a sale
CS(OS)No. 998.1998 Page 7 of 45
deed, the purchaser will not be entitled for
specific performance but will only be
entitled for return of the earnest money
and/or payment of a sum named as
liquidated damages. As the intention of the
parties to bar specific performance of the
contract and provide only for damages in
the event of breach, is clearly expressed,
the court may not grant specific
performance, but can award liquidated
damages and refund of earnest money.
(C). The agreement of sale provides that in
the event of breach by either party the
purchaser will be entitled to specific
performance, but the party in breach will
have the option, instead of performing the
contract, to pay a named amount as
liquidated damages to the aggrieved party
and on such payment, the aggrieved party
shall not be entitled to specific
performance. In such a case, the
purchaser will not be entitled to specific
performance, as the terms of the contract
give the party in default an option of
paying money in lieu of specific
performance."
Noticing that in the case before it, the agreement
did not specifically provide for specific performance nor did
it bar specific performance and it provided for payment of
damages in the event of breach by other party, Supreme
Court was of the view that the provision for damages in the
agreement was not intended to provide the vendor an option
of paying money in lieu of specific performance and,
CS(OS)No. 998.1998 Page 8 of 45
therefore, the plaintiff was entitled to seek specific
performance even in the absence of a specific provision
therefor, subject to his proving breach by the defendant and
that he was ready and willing to perform his obligation on
the contract in terms of the contract.
8. In P. D'Souza Vs. Shondrilo Naidu (2004) 6 SCC
649, the relevant clause in the agreement of sale read as
under:
"7. That if the vendor fails to discharge the
mortgage and also commits any breach of
the terms in this agreement and fails to
sell the property, then in that event he
shall return the advance of Rs. 10,000/-
paid as aforesaid and shall also be liable to
pay a further sum of Rs. 2,000/- as
liquidated damages for the breach of the
agreement."
It was held by Supreme Court that it was for the
plaintiff to file a suit for specific performance of a contract,
despite having an option to invoke the option provision and
it would not be correct to contend that only because such a
clause exists a suit for specific performance of a contract
would not be maintainable.
9. In M.L. Devender Singh and Ors. Vs. Syed 1973
(2) SCC 515, the terms of the contract between the parties
provided that in case of failure to comply with the terms of
CS(OS)No. 998.1998 Page 9 of 45
the agreement, the vendor shall be liable not only for the
refund of the advance received by him, but also to pay a
similar amount as damages to the vendee. There was no
mention anywhere in the contract that a party to it will have
the option either to fulfil the contract or pay the liquidated
damages stipulated for a breach, as an alternative to the
performance of the contract. The Supreme Court divided the
contracts into the following three classes:
(i) Where the sum mentioned is
strictly a penalty-a sum named by way of
securing the performance of the contract,
as the penalty is a bond :
(ii) Where the sum named is to be
paid as liquidated damages for a breach
of the contract :
(iii) Where the sum named is an
amount the payment of which may be
substituted for the performance of the act
at the election of the person by whom the
money is to be paid or the act done.
It was held that where the stipulated payment
comes under either of the two first-mention heads, the
Court enforce the contract, but where it comes under the
third head, the Court is satisfied by payment of money and
there is no ground to compel the specific performance of the
other alternative of the contract.
CS(OS)No. 998.1998 Page 10 of 45
In the case before this Court, the contract between
the parties would fall either under category (i) or category (ii)
and, therefore, the Court is required to enforce the contract
if the plaintiff is otherwise entitled to such a relief in law.
10. In Manzoor Ahmed Margray Vs. Gulam Hassan
Aram & Ors. 1997 (7) SCC 703, the default clause provided
for payment of Rs 10,000/- as penalty in case of violation of
the terms and conditions of the agreement by either party. It
was held that this was a penalty clause for securing
performance of the contract and would not mean that the
contract is not to be performed. I, therefore, hold tht the
penalty clause contained in the agreement does not by itself
disentitle the plaintiffs from claiming specific performance of
the contract, provided they were always ready and willing to
perform their part of the contract. The issue is decided
accordingly.
Issue No. 3
11. As regards the alleged payment of Rs 15 lacs, the
case of the plaintiffs, as set out in the plaint, is that the
defendant approached them, claimed to be in financial
problems and sought money to obtain Income-tax Clearance
certificate and permission from Land & Development office
CS(OS)No. 998.1998 Page 11 of 45
for the purpose of execution and registration of sale deed
and, therefore, they paid the aforesaid sum to him on 25 th
June, 1997. This is also the case of the plaintiffs that the
aforesaid sum of Rs 15 lacs was invested by the defendant
for purchasing a shop at Azmal Khan Road, Karol Bagh,
New Delhi under the name and style of Tilak Exclusif.
12. In his affidavit by way of evidence, plaintiff No.1
stated that within a couple of days of execution of the
agreement, Sonia Ahuja approached him, represented that
she was in urgent need of funds and did not have money to
arrange the requisite permissions required for the sale and
requested him to pay her a further sum of Rs 15 lacs out of
the balance sale consideration.
He also stated that the defendant used the
aforesaid amount for renovation of a shop under the name
and style of Tilak Exclusif. The plaintiff further stated that
to enable the payment of the balance sale consideration, he
entered into an agreement for sale of a factory which he had
in Noida and that property was eventually sold and the sale
proceeds kept with the bank with the object of encashing it,
as and when required for payment to the defendant.
13. In her affidavit by way of evidence, the defendant
CS(OS)No. 998.1998 Page 12 of 45
stated that no further payment was made to her by the
plaintiff after payment of earnest money amounting to Rs 5
lacs on 20th June, 1997. She has also stated that the shop
in question was purchased by them from their own
resources in the year 1994-95.
14. There is no receipt of the alleged payment of Rs 15
lacs and no convincing reason has been given by the
plaintiffs for not obtaining the receipt of the payment,
alleged to have been made by them to the defendant on 25th
June, 1997. This is not as if the deal between the parties
was oral, based on mutual trust. The Agreement to Sell
between the parties was in writing and, therefore, in the
normal course of human conduct, the plaintiffs would have
obtained a written acknowledgement of the payment alleged
to have been made to the defendant or would have made the
payment by way of a payees account cheque/bank
draft/pay order so as to have a documentary proof of the
payment.
15. There is contradiction in the pleading and evidence
of the plaintiffs as regards the utilization of the amount of
Rs 15 lacs alleged to have been paid by them to the
defendant. The case, set up in the plaint, is that the
CS(OS)No. 998.1998 Page 13 of 45
aforesaid amount was utilized by the defendant for
purchase of the shop, whereas in his affidavit by way of
evidence, the plaintiff No. 1 has stated that the aforesaid
amount was utilized for renovating the shop.
16. The plaintiff claims to have sold a property in
Noida in order to arrange funds for payment of the balance
sale consideration to the defendant. In his cross-
examination, plaintiff No. 1 stated that the amount of Rs 15
lacs which he paid to the defendant was received by him by
sale of a property in Noida which he sold in the month of
June, 1997. He stated that under an Agreement to Sell,
executed by him in respect of Noida property, he had
received Rs 15 lacs in cash from one Mr Umesh Kapoor and
that amount was forfeited by him and the property was later
sold to one Mr Rajiv Kapoor. However, no document has
been filed by the plaintiffs to prove the receipt of Rs 15 lacs
from Mr Umesh Kapoor nor have they produced the
purchaser Mr Umesh Kapoor in the witness-box to prove
that he had paid Rs 15 lacs to the plaintiff in June, 1997. In
fact, there is no documentary proof of any such transaction.
Mr Umesh Kapoor, according to the plaintiff No.1, is
distantly related to him. Hence, there could have been no
CS(OS)No. 998.1998 Page 14 of 45
difficulty in the plaintiffs producing him in the witness-box.
Even the date of the alleged receipt of money by the
plaintiffs from Mr Umesh Kapoor has not been stated in the
affidavit of the plaintiff No.1. In fact, even the name of Mr
Umesh Kapoor did not find mention in the affidavit and it
was only during his cross-examination that the plaintiff No.
1 came out with the name of Mr Umesh Kapoor. Though
plaintiff No.1 has claimed that the sale consideration
received by him on sale of the property in Noida was kept by
him in his bank, no documentary proof such as bank
statement has been filed by the plaintiffs to prove any such
receipt by plaintiff No. 1. Though the plaintiffs claim that
the defendant had utilized the amount of Rs 15 lacs
received from him in connection with the shop at Ajmal
Khan Road, Karol Bagh, New Delhi, there is no proof of the
defendant having purchased that shop or having spent a
sum of Rs 15 lacs on its renovation in or around June,
1997. In his affidavit by way of evidence, DW-2 Shri Dinesh
Ahuja, husband of the defendant has stated that the shop
named "Tilak" was taken on lease by him in the year 1984-
85 and, thereafter shop No. 6/64, Ajmal Khan Road, Karol
Bagh, New Delhi, whereas building in which the aforesaid
CS(OS)No. 998.1998 Page 15 of 45
shop was situated was purchased by Dinesh & Associates,
of which he was a partner, in the year 1996 much before the
deal between the plaintiffs and defendant. The copy of the
Partnership Deed of M/s Dinesh & Associates is Ex.DW-
2/1, whereas the copy of the sale deed of property No.6/64,
Ajmal Khan Road, New Delhi is Ex.DW-2/2. A perusal of
the Partnership Deed dated 22nd December, 1995 would
show that Shri Dinesh Ahuja and Shri Dinesh Wadhwa had
entered into a partnership to carry business under the
name and style of Dinesh & Associates at 15A/64 WEA,
Karol Bagh, New Delhi. A perusal of the Sale Deed dated
22nd March, 1996 executed by Shri Rajinder Singh Lamba
and Shri Pritam Singh Lamba in favour of Dinesh &
Associates, through its partner Shri Dinesh Wadhwa would
show that Property No.6/64, WEA, Karol Bagh was sold by
them to Dinesh & Associates vide that sale deed. These
documents leave no reasonable doubt that no money was
taken by the defendant from the plaintiffs for purchase of a
shop in Property No.15A/64 WEA and the plea taken by the
plaintiffs in this regard is totally false. Also, there is
absolutely no evidence of the defendant having even carried
out renovation in the aforesaid shop in and around June,
CS(OS)No. 998.1998 Page 16 of 45
1997 when the deal was struck between the plaintiff and
the defendant.
17. As noted earlier, the case of the plaintiffs is that
the defendant had sought further payment from them in
order to enable her to obtain Income-tax Clearance
Certificate and permission from Land & Development office
so that she could execute the sale deed in their favour and
get the same registered. It has come in the evidence that
the property subject matter of the agreement is a freehold
property. No one can expect that a sum of Rs 15 lacs would
be required for obtaining Income-tax Clearance certificate
and/or permission from Land and Development office,
assuming that the plaintiffs did not know on 25th June,
1997 that the suit property was a freehold property and no
permission from Land & Development office was required for
its sale to them. It is, therefore, difficult to accept that the
plaintiffs would have paid a sum of Rs 15 lacs to the
defendant on 25th June, 1997 (i) without obtaining any
receipt from her; (ii) without ensuring that the defendant
had actually applied for grant of Income-tax Clearance and;
(iii) without obtaining possession of the suit property or
even a part of it. No buyer is likely to make payments in the
CS(OS)No. 998.1998 Page 17 of 45
manner stated by the plaintiffs without at least obtaining a
written acknowledgment of the payment and/or possession
of a part of the property subject matter of the agreement. In
these circumstances, I hold that the plaintiffs have failed to
prove the alleged payment of Rs 15 lacs to the defendant on
25th June, 1997. The issue is decided against the plaintiffs
and in favour of the defendant.
Issue No. 5
18. The case of the defendant is that since the balance
sale consideration amounting to Rs.35 lakhs was required
to be paid by the plaintiffs within 15 days from the date of
the agreement and the plaintiffs failed to pay that amount,
the earnest money of Rs.5 lakhs paid by them stood
forfeited. The main question which, therefore, comes up for
consideration is as to whether the balance payment of Rs 35
lacs was required to be made to the defendant within 15
days from the date of the agreement even if the defendant
had not obtained Income Tax Clearance certificate. The
following clauses of the agreement between the parties are
relevant in this regard:-
"3. That the SECOND PARTY
undertakes to make payment of the
balance sale consideration on Rs
CS(OS)No. 998.1998 Page 18 of 45
35,00,000/- (Thirty Five Lacs Only)
to the First Party ON OR BEFORE 15
days (fifteen days) from the date of
this agreement which has been
settled between the parties.
4. That the first party fails to
complete the terms of this sale
transaction in time i.e. fails to
execute the sale papers in favour of
the second parties or fails to hand
over the vacant peaceful possession
of the aforesaid property in time or
fails to get the NOC or ITC from
competent office/authorities
connected with the aforesaid
property in time then the second
party shall have right to get the
earnest money of Rs 5,00,000/-
(Rs.Five Lacs) alongwith it‟s equal
penalty of Rs 5,00,000/- total
amounting to Rs 10,00,000/- (Rs.
Ten Lacs) from the FIRST PARTY,
and if the SECOND PARTY fail to
make the balance payment of this
transaction in time, then their
earnest money shall stand forfeited
with the FIRST PARTY and this sale
transaction shall be deemed as
cancelled.
5. That the vacant and peaceful
possession of the aforesaid property
shall be handed over by the FIRST
PARTY to the SECOND PARTY within
fixed time as above, after the FIRST
PARTY has received the full & final
payment of the sale consideration,
as mentioned above from the
SECOND PARTY."
Clause 3 thus envisaged payment of the balance
CS(OS)No. 998.1998 Page 19 of 45
sale consideration to the defendant within 15 days from the
date of the agreement and this clause contains no reference
to the Income-tax clearance and/or NOC. Clause 4 on the
other hand stipulated that if the defendant failed to execute
the sale deed in favour of the plaintiffs or hand over
peacefully possession of the property to them or to get the
NOC or ITC from competent authorities „in time‟, the
plaintiffs would have right to get a sum of Rs 10 lacs, being
the earnest money of Rs 5 lacs alongwith the penalty of the
same amount. This clause, however, did not stipulate any
particular time for the defendant to obtain Income-tax
Clearance and/or NOC from the competent authorities.
Similarly, clause 5, which provided for possession of the
property being handed over to the plaintiff within fixed time,
did not by itself stipulate any particular time period for this
purpose.
19. All the clauses contained in the agreement need to
be given a harmonious construction and a workable
meaning. If clause 3 of the agreement alone is given effect
without any reference to clause 4, the terms requiring the
seller to obtain the NOC/Income-Tax Clearance, execute the
sale deed and give possession of the property subject matter
CS(OS)No. 998.1998 Page 20 of 45
of the agreement would become meaningless and cannot be
given effect to. If clause 4 and 5 of the agreement are read
without aid of clause 3, there would be no time limit to
complete the transactions by obtaining NOC/Income-Tax
Clearance, executing the sale deed and for handing over the
possession of the property to the vendee, despite the clause
requiring the vendor to do the same „in time‟/„fixed time‟.
Therefore, in my view the only harmonious and meaningful
construction which can be given to clauses 3, 4 and 5 of the
agreement is that the vendor was required to obtain the
NOC/Income-tax Clearance and execute the sale deed in
favour of the vendee within 15 days from the date of the
agreement, the vendee had to make balance payment of
Rs.35 lacs to the vendor at the time of execution of the sale
deed, after she had obtained the Income Tax Clearance and
informed them of the same and the possession of the
property subject matter of the agreement was to be
simultaneously given by the vendor to the vendees,
immediately on receiving the balance consideration. The
obligation of the plaintiffs to pay the balance amount of
Rs.35 lacs to the defendant, therefore, did not arise till the
time income tax clearance was obtained by the defendant
CS(OS)No. 998.1998 Page 21 of 45
and they were informed of the same. There is no
documentary proof of the defendant having applied for grant
of income tax clearance within 15 days of the agreement or
even thereafter. In her cross-examination, the defendant
stated that she had already applied for permission required
under Section 230A of the Income Tax Act in Form 34A.
However, neither she has filed the copy of Form 34A in the
Court nor has she produced any official from the Income
Tax Department to prove that she had applied for the
requisite clearance. In her cross-examination, the
defendant stated that the plaintiffs had refused to sign the
proposed sale deed and, therefore, she did not pursue the
permission already applied to the Income Tax Department.
However, admittedly, the defendant did not write to the
plaintiffs, at any point of time, asking them to sign the
proposed sale deed. In fact, there is no documentary proof
of the defendant having even got any draft sale deed
prepared and provided the same to the plaintiffs. When the
defendant was asked as to whether she could produce any
document to show that she had applied for permission
under Section 230 A of the Income Tax Act, she gave an
evasive reply and stated that she would have to check and
CS(OS)No. 998.1998 Page 22 of 45
was not very sure. She, thereafter, stated that whatever
permissions required to be sought, were to be obtained by
her lawyer and she was not aware whether her lawyer had
obtained permission under Chapter XXII of the Income Tax
Act. It is, thus, quite obvious that the defendant did not
apply for requisite income tax clearance under Section 230A
of the Income Tax Act at any point of time. Consequently,
the plaintiffs were not obliged to pay the balance sale
consideration to the defendant. Since the defendant herself
committed breach of the agreement by not applying for
income tax clearance, she could not have forfeited the
earnest money paid to her by the plaintiffs. The issue is
decided against the defendant and in favour of the plaintiffs.
Issue No. 2
20. Section 16(C) of Specific Relief Act provides that
specific performance of a contract cannot be enforced in
favour of a person who fails to aver and prove that he has
performed or has always been ready and willing to perform
the essential terms of the contract which are to be
performed by him, other than terms, the performance of
which has been prevented or waived by the defendant.
Explanation (i) provides that where the contract involves
CS(OS)No. 998.1998 Page 23 of 45
payment of money it is not essential for the plaintiff to
actually tender the money to the defendant or to deposit it
in the Court unless so directed by the Court.
The philosophy behind the aforesaid statutory
provision is that a person who comes to the Court seeking
specific performance of a contract to which he is a party
must show and satisfy the Court that his conduct having
been blemishless he is entitled to grant of specific
performance of the contract. There is a distinction between
readiness to perform the contract and willingness to perform
the same. By readiness is meant the capacity of the plaintiff
to perform the contract which includes his financial position
to pay the purchase price.
In Ardeshir H Mama Flora Sassoon (supra), Privy
Council held that in a suit for specific performance of a
contract, the plaintiff has to allege and if the fact is
traversed also to prove a continuous readiness and
willingness from the date of the contract to the time of
hearing, to perform the contract on his part and failure to
make good that averment brings with it and leads to
inevitable dismissal of the suit. The view taken by the Privy
Council was approved by Supreme Court in Premraj vs.
CS(OS)No. 998.1998 Page 24 of 45
DLF Housing and Constriction Pvt. Ltd. AIR 1968 SC
1355.
21. In his affidavit by way of evidence, plaintiff No.1
Shri B.B. Sabharwal has stated that at the relevant time he
held 240 equity shares of Larsen and Turbro Ltd., 300
equity shares of BSES Ltd. and 169 shares of TISCO Ltd.,
all of which were quoted at various stock exchanges and
were sealable at short notice. The shares are stated to have
been sold in July, 1999 vide sale voucher, which is Ex.7.
He has further stated that he had applied for a loan of Rs.20
lakhs to M/s Bathla & Co. Ltd. and the letter conveying the
approval for grant of loan is Ex.13. He also stated that he
was holding 2000 units of Growing Monthly Income Unit
Scheme of the Unit Trust of India and the amount covered
by those units was Rs.20,000/-. The certificate purporting
to be issued by the UTI in this behalf is Ex. 23. He also
stated that his mother Smt. Savitri Sabharwal was also
holding 2000 units of the aforesaid scheme vide certificate
Ex. 24. He also claimed that his mother Smt. Savitri
Sabharwal owned and possessed jewellery of the value of
Rs.4.54 lakhs and the jewellery was valued by M/s Bagga
Jewellers Pvt. Ltd vide Ex. 6. Ex. 27, according to the
CS(OS)No. 998.1998 Page 25 of 45
plaintiff, are 50 Non-convertible Debentures of Atlas Cycle
Industries Ltd. which were issued to him whereas Ex. 27A is
the certificate whereby 25 bonus shares of Atlas Cycle
Industries Ltd. were allotted to him. Ex. 28 purport to be
share certificates in respect of 200 equity shares of Essar
Gujarat Ltd allotted to plaintiff No.1. He also claimed that
he along with his wife Ratna Sabharwal was holding 100
equity shares of Lan Eseda Steels Ltd vide certificate Ex. 30.
Ex. 32 is the share certificate whereby his mother Savitri
Sabharwal was holding 32 equity shares of Lakhanpal
National Ltd. Ex. 33 are the certificates whereby plaintiff
No.1 held 11 equity shares of Phillips India Ltd. Ex. 35 is
the certificate whereby he held 33 master shares of Unit
Trust of India and Ex. 36 is the certificate whereby he was
allotted 2 bonus shares by the Unit Trust of India. Ex. 38
are the share certificates whereby the plaintiff purchased
300 shares of Indian Acrylics Ltd.
22. In her affidavit by way of evidence, Smt. Ratna
Sabharwal, wife of the plaintiff stated that at the relevant
time, she owned jewellery worth Rs.4.24 lakhs which was
valued by Bagga Jewellers Pvt. Ltd. vide Ex. P-2/1. She
also claimed that she had about Rs.15,720/- in her account
CS(OS)No. 998.1998 Page 26 of 45
with Indian Overseas Bank, New Rajinder Nagar and
Ex.P2/2 is the certificate issued by the bank in this regard.
Ex. P2/3 purports to be the Fixed Deposit Receipt of
Rs.34,428/- in the name of Smt. Ratna Sabharwal in
Standard Chartered Bank, New Delhi Metro Main Branch
whereas Ex. P2/4 is the FDR of Rs.30,000/- in her name in
the Standard Chartered Bank, Sansad Marg, New Delhi.
She further stated that at the relevant time, she was holding
2000 units of Growing Monthly Income Unit Scheme of Unit
Trust of India for Rs.20,000/- vide certificate Ex. P2/5, 200
equity shares of Mangalore Refinery and Petro-Chemicals
Ltd. vide certificates Ex. P2/6 and 17 shares of Tata Iron
and Steel Company Ltd. vide certificate Ex. P2/8. She also
claimed that she was jointly holding 100 equity shares of
Lan Eseda Steels Ltd and 50 equity shares of Jai Prakash
Industries Ltd. She further stated that she was holding 50
debentures of Mangalore Refinery and Petro-Chemicals Ltd.
vide certificate Ex. P-2/9. According to her, all her movable
properties could be sold immediately in the market and
proceeds thereof could be headed over to her husband for
completing the transaction in respect of first floor and roof
rights of property D-144, New Rajinder Nagar, New Delhi.
CS(OS)No. 998.1998 Page 27 of 45
23. Ms. Heena Sabharwal, daughter of plaintiff No.1
stated that at the relevant time she was having about
Rs.1.65 lakhs in her bank account with Indian Overseas
Bank, New Rajinder Nagar and the certificate issued to her
in this regard is Ex. P4/1. She further stated that she had
fixed deposit of Rs.1,00,656/- with Bathla and Company
Ltd. vide certificate Ex. P4/2 and FDR of Rs.30,000/- with
Standard Chartered bank, Sansad Marg, New Delhi vide Ex.
P4/3 in addition to 2000 units of Growing Monthly Income
Unit Scheme of Unit Trust of India covering a sum of
Rs.20,000/- vide certificate Ex. P-4/4.
24. Ms. Jolly Sabharwal is the other daughter of
plaintiff No.1. In her affidavit by way of evidence, she has
stated that at the relevant time, she was having Rs.1.54
lakhs in her bank account with Indian Overseas Bank, New
Rajinder Nagar as shown in the certificate Ex. P4/1. She
further stated that she was having Rs.34,208/- in her
account with Punjab National Bank, New Rajinder Nagar
Branch and a copy of the certificate issued by the bank in
this regard is Ex.P.4/2. She also claimed to have an FDR of
Rs.34,428/- with Standard Chartered Bank, New Delhi
Metro Main Branch vide certificate Ex.P4/3 and a fixed
CS(OS)No. 998.1998 Page 28 of 45
deposit of Rs.1,13,428/- with Bathla & Company Ltd. vide
certificate Ex. P4/5. She further claimed FDR of
Rs.30,000/- with Standard Chartered Bank, Sansad Marg,
New Delhi vide certificate Ex. P4/6.
25. PW2 Shri Sudhir Bhathla, director of Bathla &
Company Ltd. has stated that in June, 1997 they had
approved loan application of Mr. B.B.Sabharwal and had
agreed to finance him for Rs.20 lakhs. Ex. P5/1 is the copy
of the application approved by them in this regard. He
further stated that Heena Sabharwal, daughter of Mr. B.B.
Sabharwal had deposited a sum of Rs.1,00,656/- with them
whereas his other daughter Jolly Sabharwal had deposited
rs.1,13,428/- with them on which interest amounting to
Rs.16,035/- and Rs.18,222/- respectively was paid by them
in the year 1997-98.
26. PW-6 Ramesh Chander, clerk, Punjab National
Bank, New Rajinder Nagar, New Delhi has proved the
certificate Ex. PW-6/1 whereas PW-7 Suresh Chand, Clerk
Cashier, Indian Overseas Bank, New Rajinder Nagar, New
Delhi has proved certificates Ex. 9 and 10 pertaining to
saving bank account Nos.9298 and 12983 respectively.
27. The voluminous documentary evidence produced
CS(OS)No. 998.1998 Page 29 of 45
by the plaintiffs, coupled with the depositions of plaintiff
No.1, his wife, his daughters and the depositions Mr Sudhir
Bhathla, director of Bhathla and Company Ltd. does show
that the plaintiff possessed requisite means to pay the
balance sale consideration to the defendant at the time
balance sale consideration was agreed to be paid by them.
The plaintiffs need not necessarily have the entire balance
consideration lying with them in cash or in their banks. It is
sufficient if they had the capacity to pay the balance sale
consideration to the defendant. Bhathla and Company
Limited had approved a loan of Rs 20 lacs to the plaintiffs,
the mother of the plaintiff possessed jewellery worth Rs 4.54
lacs, whereas his wife possessed jewellery worth about Rs
4.24 lacs at the relevant time. It is true that the plaintiffs
have not produced the jeweller, who is alleged to have
issued valuation certificates to plaintiff No.1, but, that, in
my view, would not be necessary since I see no reason to
disbelieve the oral evidence produced by the plaintiffs in this
regard. One daughter of the plaintiff had a deposit of Rs 1
lac with Bhathla and Company, whereas the other daughter
at about Rs 1,13,000/- with them. One daughter of the
plaintiff Ms Heena Sabharwal had about Rs 1.65 lacs in her
CS(OS)No. 998.1998 Page 30 of 45
bank account, whereas his other daughter Ms Jolly
Sabharwal had Rs 1.54 lacs in her bank account with
Indian Overseas Bank, New Rajinder Nagar. All these
deposits could have been cancelled and the amount of the
deposits could have been made available to plaintiff No. 1 at
a short notice. Ms Heena Sabharwal had an FDR of Rs
35,000/- with Standard Chartered Bank, whereas Ms Jolly
Sabharwal had two FDRs of Rs 64428/- with that bank. His
wife had also had an FDR of Rs 34428/- with Standard
Chartered Bank, New Delhi, Main Branch and Rs 13,000/-
with its Sansad Marg Branch. This money also could have
been made available to plaintiff No.1 for payment of the
balance sale consideration to the defendant. Plaintiff No.1
was holding 240 equity shares of Larsen and Turbro Ltd.,
300 equity shares of BSES Ltd.m 169 shares of TISCO Ltd.,
and 200 shares of Essar Gujarat Ltd. at the relevant time.
Though value of these shares had not been proved by the
plaintiffs, these being the shares of reputed companies
which are listed on Stock Exchange. It was possible for
plaintiff No. 1 to sell them at a short notice and utilize the
sale proceeds for the payment of the balance sale
consideration to the defendant. Plaintiff No. 1 as well as his
CS(OS)No. 998.1998 Page 31 of 45
wife and his daughter Ms Heena Sabharwal had 2000
unites each of Growing Monthly Income Unit Scheme of UTI,
covering a sum of Rs 20,000/- each. The wife of plaintiff
No.1 also had some shares at the relevant time. It is,
therefore, difficult to dispute that the plaintiffs possessed
sufficient means and, therefore, were in a position to pay
the balance sale consideration to the defendant at the time
they had agreed to pay the same to her.
28. For determining the willingness of the plaintiff to
perform his part of the contract, his conduct needs to be
scrutinized by the Court. Grant of specific performance of
an agreement is an equitable relief and the Court may in its
discretion, in appropriate cases, refuse to grant this relief, if
it comes to the conclusion that by his conduct, the plaintiff
has disentitled himself from grant of such relief. Equity
demands that a person approaching the Court must come
with true facts and should not have conducted himself in a
manner which would indicate that he at any point of time
was unwilling to perform his contractual obligation, as
agreed with the defendant. This principle finds statutory
recognition in Section 16(C) of Specific Relief Act and,
therefore, is back by force of law. If a person, sets up a plea
CS(OS)No. 998.1998 Page 32 of 45
which is false to his knowledge, the Court will not be
justified in coming to his rescue, even if he later on is
agreeable to make amends this regard.
29. In Sobharam vs. Totaram AIR 1952 Nagpur, 244,
the allegation of the purchaser was that he had paid Rs 15
to the vendor after execution of the agreement. This
averment was found to be false. Relying on the decision in
Rustomali vs. Ahoider Rahaman 45 CWN 837, it was held
that making a false plea that a certain obligation under the
contract had been discharged shows an unwillingness on
the part of the transferee to abide strictly by the contract
entered into between him and the transferer. It was held
that the vendee was not willing to perform his part of the
contract and, therefore, could not be allowed the benefit of
Section 53A of Transfer of Property Act. In Bishwanath
Mahto vs. Srimati Janki Devi, AIR 1978 Patna, 190, the
plaintiff had alleged a part payment of Rs 200/- which was
denied by the defendant. Referring to the provisions
contained in clause (c) of Section 16 of Specific Relief Act
and relying on the decision of Privy Council in Ardeshir H.
Mama Flora Sassoon, AIR 1928 PC 208 and decision of
Supreme Court in Gomathinayagam Pillai vs.
CS(OS)No. 998.1998 Page 33 of 45
Pallaniswami Nagar, AIR 1967 SC 868, it was held that
since the plaintiff had sent a notice to the defendants before
filing the suit falsely asserting payment of a sum of Rs
200/- and showing readiness to pay only a sum of Rs
7,000/- out of the agreed sale consideration of Rs 7,200/-,
the Court was of the view that the plaintiff was ready and
willing to pay only a sum of Rs 7,000/- as the consideration
for the Sale Deed when he sent a notice and when he filed
the suit. The Court was, therefore, of the view that the
plaintiff was not willing to perform the terms of the
agreement which was to be performed by him. In
Kommisetti Venkatasubbayya vs. Karamestti
Venkateswarlu AIR 1971, Andhra Pradesh, 279, the
plaintiff paid Rs 50 on the date of the execution of the
agreement and claimed payment of a further sum of Rs
1500/- thereafter. It was found that his claim of having paid
Rs 1500/- subsequent to the agreement was not true and,
therefore, he was not ready and willing to perform his part
of the contract since he was willing to pay only Rs 272.50/-
though he was required to pay Rs 1,772.50/-. The Court
was of the view that unless the readiness and willingness of
the plaintiff was to pay the entire balance of the purchase
CS(OS)No. 998.1998 Page 34 of 45
money, he was not entitled to a decree for specific
performance. It was held that irrespective of any other fact,
the averment in the plaint and in the notice with respect to
payment of Rs 1,500/- was sufficient to hold that he was
not ready and willing to perform his part of the obligation.
In taking this view, the High Court relied upon the decision
of a Division Bench of Madras High Court in Subarayudu
vs. Tatayya, 1937 Mad. WN 1158, where it was held that if
the plaintiff seeking relief of specific performance puts forth
a false plea, he would be disentitled to an equitable and
justifiable relief of specific performance. The High Court
also relied upon its earlier decision in Butchiraju vs. Sri
Ranga, AIR 1967, Andhra Pradesh 69, which case was
carried to Supreme Court, and noted that the Supreme
Court in that case, noticing that the plaintiff had set up a
false case that they had offered on June 04, 1953 to the first
defendant, the balance of the purchase price due and had
sought to support that case by leading evidence which was
false to their knowledge and that having regard to their
contract, the Trial Court and the District Court had held
that the plaintiffs were not entitled to a decree for specific
performance, held that exercise of discretion by the Trial
CS(OS)No. 998.1998 Page 35 of 45
Court and the District Court against the claim made by the
plaintiffs was not arbitrary, but was reasonable and guided
by judicial principles.
30. In M.K. Mokbool Khan vs. Smt. Shamsunnisa &
Ors. AIR 2002 NOC 87 (Karnataka), the plaintiff was to pay
the balance sale consideration in four instalments of Rs
6250 each. The plaintiff paid a sum of Rs 4,000/- towards
the last instalment and regarding the balance amount of Rs
2250, he stated that he had incurred expenditure for repair
of the house and payment of house tax which was more
than the amount of Rs 2,250/- withheld by him. It was held
that from the conduct of the plaintiff in non-payment of the
instalment amount towards the consideration as per
stipulation under the agreement, it could not be said that
he was ready and willing to perform his part of the contract
all through. The High Court was of the view that the
expenditure incurred by the plaintiff for repair of the house
in the absence of any stipulation in the agreement could not
be recovered from the landlord.
31. In the case before this Court, the plaintiffs set up a
false plea of the payment of Rs 15 lacs to the defendant on
29th June, 1997. This plea was set up in the notice sent by
CS(OS)No. 998.1998 Page 36 of 45
them to the defendants on 12 th November, 1997. Obviously,
the notice indicated willingness of the plaintiff to pay only a
sum of Rs 20 lacs to the defendant as the balance sale
consideration. The payment of Rs 15 lacs was denied by the
defendant in the reply sent by her through her counsel on
29th November, 1997. Despite that, no offer was made by
the plaintiff to pay the entire balance consideration
amounting to Rs 35 lacs to the defendant. In para 6 and 7
of the plaint, the alleged payment of Rs 15 lacs was
reiterated by the plaintiffs. They came out with a false plea
that aforesaid amount of Rs 15 lacs was utilized by the
defendant for purchasing a shop under the name and style
of "Tilak Exclusife" at Ajmal Khan Road, Karol Bagh, New
Delhi. The plaintiffs persisted with the allegation of payment
of Rs 15 lacs in the affidavit of plaintiff No. 1 Mr B.B.
Sabharwal and took a plea that the aforesaid amount was
utilized by the defendant for renovation of the shop at Ajmal
Khan Road, New Delhi. It is, thus, quite clear that the
plaintiffs were not willing to pay Rs 35 lacs to the defendant
and wanted to pay only Rs 20 lacs to her. The plaintiffs,
therefore, have failed to prove that they had all along been
willing to perform their part of the contract.
CS(OS)No. 998.1998 Page 37 of 45
32. It was contended by the learned counsel for the
plaintiffs that since the defendant herself had not applied
for Income-tax Clearance and, therefore, had not performed
her part of the contract, the plaintiffs were not obliged to
tender the balance sale consideration to her and
consequently, their offer to pay only a sum of Rs 20 lacs to
the defendant would be of no consequence and would not
disentitle them from seeking specific performance of the
agreement. In my view, the contention is devoid of merit.
The obligation of the plaintiffs to aver and prove his
readiness and willingness to perform his part of the contract
is a statutory obligation incorporated in Section 16(C) of
Specific Relief Act, based though it is on the principle of
equity and fairplay and this statutory obligation is required
to be performed by the person who is seeking specific
performance of the contract to which he is a party,
irrespective of any default on the part of the other party to
the agreement. This, in my view, is no defence for the
plaintiffs to say that since the defendant herself was in
breach of the agreement, they also were not required to
prove their willingness to perform the essential terms of the
contract which were required to be performed by them. The
CS(OS)No. 998.1998 Page 38 of 45
person who invokes jurisdiction of the Court in seeking
specific performance of a contract must plead as well as
prove that he has been ready and willing to perform those
terms of the contract which were required to be performed
by him and this readiness and willingness must be shown
to exist not only from the date of agreement till the filing of
the suit, but also thereafter. If the Court finds that the
person coming to the Court seeking specific performance of
a contract was not ready and willing to perform his part of
the contract at any point of time, it would not be justified in
directing specific performance of the contract at his behest.
This is not a case where the plaintiffs had not
offered to pay the balance sale consideration to the
defendant on the ground that she had not performed her
part of the contract by not applying for Income-tax
Clearance. Here, the plaintiffs made a false averment of
payment of Rs 15 lacs to the defendant and they persisted
with that false averment even throughout trial of this case.
33. It was contended by the learned counsel for the
plaintiffs that if a person has not been able to prove a plea
set up by him that, by itself, would not disentitle him from
grant of specific relief of the contract to which he is
CS(OS)No. 998.1998 Page 39 of 45
otherwise entitled as a contractual obligation of the
defendant. In the case before this Court, the plaintiff set up
a plea of payment of which never made to the defendant.
The plea, obviously, was false to their knowledge and,
therefore, clearly demonstrated their unwillingness to pay
the balance sale consideration of Rs 35 lacs to the
defendant. This false averment indicates that the plaintiffs
wanted to pay only Rs 25 lacs for the property which they
had contracted to purchase for Rs 40 lacs and, therefore,
leaves no reasonable doubt that they were not willing to
perform the terms which they had agreed with the
defendant.
34. The learned counsel for the plaintiff has also
referred to S.V.R. Mudaliar (Dead) by Lrs. and Ors. Vs.
Rajabu F. Buhari (Mrs) (Dead) by Lrs. and Ors. AIR 1995
SC 1607. However, I find no such proposition in this case
which would support the plaintiff in any manner. In fact, it
is the plaintiffs who have played foul with equity by setting
up a false plea of payment of Rs 15 lacs to the defendant.
35. The learned counsel for the plaintiff has
referred to the decision of Supreme Court in P. D'Souza Vs.
Shondrilo Naidu (2004) 6 SCC 649. In that case, a suit for
CS(OS)No. 998.1998 Page 40 of 45
specific performance of an agreement for sale of an
immovable property was filed by the respondent against the
predecessor in interest of the appellant and the parties were
required to perform their respective part of the contract
within a period of 18 months expiring on 05 th December,
1978. The suit property had been mortgaged by the
defendant/appellant in favour of LIC and the defendant had
not produced the original documents, title deeds and
encumbrance certificate, despite assurance given by the
plaintiff in this regard. Some part payments were made to
the vendor from time to time. The defendant demanded
some more payment and also wanted extension of time for
registration of sale deed. The plaintiff called upon the
defendant to execute the sale deed and conveyed her
readiness and willingness to perform her part of the
contract. In response to the letter of the vendor, the vendee
cancelled the agreement and sought to forfeit the amount of
Rs 35,000/- which she had paid. The High Court recorded a
finding of fact that the plaintiffs had all along been ready
and willing to perform their part of the contract. The
requisite averment in terms of Section 16 (C) of the Specific
Relief Act was also made in the plaint. It was contended by
CS(OS)No. 998.1998 Page 41 of 45
the learned counsel for the appellant before Supreme Court
that since the plaintiff did not perform her part of the
contract by 05th December, 1978 which was the date by
which the contract was to performed, she was not ready and
willing to perform her part of the contract. Noticing that the
defendant herself did not produce the original documents
nor redeemed the mortgage, Supreme Court observed that if
the mortgage was not redeemed and the original documents
were not produced, the sale deed could not have executed
and in that in view of the matter the question of plaintiff‟s
readiness and willingness to perform his part of the contract
would not arise. However, the case before this Court is not a
case merely of the plaintiffs failing to pay or tender the
balance sale consideration to the defendant. In the case
before this Court the plaintiffs have set up a false plea
alleging payment of Rs 15 lacs to the defendant and by
doing so they expressed their willingness to pay only Rs 25
lacs to the defendant as against the agreed sale
consideration of Rs 40 lacs. Moreover, in the case before
Supreme Court, the defendant had accepted a sum of Rs
20,000/- from the plaintiff in August, 1981, whereby he
himself had revived the contract at a later stage and he had
CS(OS)No. 998.1998 Page 42 of 45
also sought extension of time for registering the sale deed
till 31st December, 1981. The Supreme Court, therefore, felt
that it was too late in the day for the defendant to contend
that it was obligatory on the part of the plaintiff to show
readiness and willingness as far back as on 05 th December,
1978. This was not the position in the case before the
Supreme Court. Therefore, the reliance on this judgment is
wholly misplaced. Since the plaintiffs were not willing to
perform their obligations under the agreement, they are not
entitled to its specific performance. The issue is decided
against the plaintiffs and in favour of the defendant.
Issues No. 4 and 6
36. In view of my finding on issues No. 2 and 3, the
plaintiffs are not entitled to specific performance of the
agreement dated 20th June, 1997. As noted earlier, in the
event of her failure to complete the sale transaction in time,
the defendant was required to refund the earnest money of
Rs 5 lacs to the plaintiffs alongwith penalty, amounting to
Rs 5 lacs, thereby making a total sum of Rs 10 lacs. Since
the defendant did not even apply for grant of Income Tax
Clearance within 15 days from the date of the agreement or
even thereafter, she failed to complete the sale transaction
CS(OS)No. 998.1998 Page 43 of 45
and, therefore, is liable to pay a sum of Rs 10 lacs to the
plaintiffs. This obligation on the part of the defendant
arises, irrespective of the false plea of payment of Rs 15 lacs
set up by the plaintiffs, based since this is on the
contractual obligations between the parties. It would be
pertinent to note here that the plea of payment of Rs 15 lacs
was set up by the plaintiffs much after the time stipulated
in the agreement for completion of the transaction had
expired.
Though the plaintiffs have claimed damages to the
tune of Rs 40 lacs, no case for grant of damages to this
extent has been made out by them and in any case in view
of the provisions contained in clause 4 of the agreement to
sell dated 20th June, 1997, they are not entitled to recover
more than Rs 10 lacs from her. The issues are decided
accordingly.
ORDER
In view of my findings on the issues, a decree for recovery of Rs 10 lacs with proportionate cost and interest on that amount at the rate of 9% per annum from the date of filing of the suit till the date of decree and at the rate of 6% per annum thereafter, is hereby passed in favour of the CS(OS)No. 998.1998 Page 44 of 45 plaintiffs and against the defendants.
Decree sheet be prepared accordingly.
(V.K. JAIN) JUDGE JANUARY 14, 2011 bg CS(OS)No. 998.1998 Page 45 of 45