Delhi High Court
Prabha Construction (P) Ltd. And Ors. vs Shan Trilochan Singh And Anr. on 28 February, 1994
Equivalent citations: 55(1994)DLT652, 1994(28)DRJ638, AIR 1995 DELHI 79, (1994) 3 BANKLJ 145, (1994) 28 DRJ 638, (1994) 55 DLT 652, (1996) 2 CURCC 391, (1995) 109 PUN LR 46, (1995) 1 CURLJ(CCR) 483
JUDGMENT Sat Pal, J.
(1) Ia 7750/93 has been filed on behalf of the plaintiff under Order 39 Rules 1 & 2 read with Section 151 Civil Procedure Code and in this application it has been prayed that the defendants be restrained from alianating, selling, transferring or parting with possession of the suit property bearing No.K-24-B.Houz Khas Enclave.NewDelhi-110016 consisting of the land and structure thereon. On 9.9.93 this application came up for hearing and notice of this application was issued to the defendants and the defendants were restrained from transferring, alienating and parting with possession of the said property. During the pendency of the case an application bearing No.1A 10179/93 was filed on behalf of the defendants under Order 39 Rule 4 read with Section 151 Civil Procedure Code for setting aside the order granting ex-parte injunction on 9.9.93. Reply to this application has been filed on behalf of the plaintiff and are joinder has also been fielded on behalf of the applicant. Since both the applications pertain to the injunction granted on 9.9.93 in respect of the suit property, both are being disposed of by this common order.
(2) Briefly stated the facts of the case are that late Shri Trilochan Singh and the defendant entered into an agreement to sell with the plaintiff companies on 26.5.89 in respect of suit property and as per agreement the total consideration was Rs.70.00 lacs and the plaintiffs paid a sum of Rs.6.99 lacs as advance towards the sale consideration and promised to pay balance amount at the time of execution of the sale deed. In terms of the Clause 5 of the agreement to sell, the vendors after obtaining the clearance from appropriate authority and income tax clearance certificate in Form 34A were required to inform the vendee by means of a regd.A.D. letter.
(3) The case of the defendants is that they had furnished the said information by Regd.A.D. letters dated 8.4.90 which were duly acknowledged by one Shri Manoj Kumar on behalf of the plaintiff companies. Besides the Regd. letters, the defendants are alleged to have sent one telegram dated 13.4.93 wherein it was stated that the vendors had obtained necessary Itc Form-34A and the plaintiffs were requested to arrange to make the balance payment of Rs.63.01 lacs within the stipulated period of 45 days. It is further alleged by the defendants that thereafter the defendants had addressed one letter dated 1st May, 1990 to Shri Uma Shankar Sitani of the plaintiff companies and in this letter the plaintiffs were asked to notify to the defendants that they were ready with the balance payment and fix a date of registration at the Sub-Registrar Office. It was further stated in this letter that in case no reply was received, the defendants would be present at the Sub- Registrar office on the 45th day which fell on 25th May, 1990 at 10.00 AM. Since the plaintiffs did not turn up on the date Fixed at the office of the Sub-Registrar, the defendants through their counsel sent a Regd. A.D. notice dated 5.6.90, which was admittedly received by the plaintiffs on 10th June, 1990. In this notice it was stated that the agreement to sell had become null and void and stood cancelled as the plaintiffs did not perform their part of the agreement.
(4) The case of the plaintiffs, however, is that neither the telegram nor the Regd. A.D. letters dated 8.4.90 or the letter dated 1.5.90 were received by the plaintiffs. The receipt of the legal notice dated 5.6.90 is, however, admitted by the plaintiffs and a reply to this letter is stated to have been sent by the plaintiffs through their counsel vide letter dated 15.6.90. In the reply dated 15.6.90 it was alleged by the plaintiffs that they were always ready and willing to make the payment of the balance amount and the defendants were called upon to send the documents mentioned in this letter so that the plaintiffs might get the draft sale deed prepared and show to the defendants. The plaintiffs have further alleged that the plaintiffs had even purchased the court fee stamps, but the defendants had refused to execute sale deed.
(5) Mr. Kaul. learned counsel appearing on behalf of the plaintiffs submitted that the copy of the letter dated 8th April, 1990 shows that even the words "REGD.A.D." were not typed on this letter. He further submitted that the alleged Regd. A.D. letters dated 8.4.90 were never received by the plaintiffs and Manoj Kumar who was alleged to have received the letters, was never in the employment of any one of the plaintiff companies. He further submitted that in the absence of evidence, genuineness of the documents could not be ascertained. He also submitted that plaintiffs had never refused to perform (heir part of the contract and they had even purchased the stamp papers on 11th July, 1990. He drew my attention to clause 5 of the agreement and submitted that in terms of this clause, the plaintiffs were to be informed by Regd. A.D. post by the defendants that they had obtained clearance from the appropriate authority and Income Tax Clearance certificate in Form 34A and since they failed to inform the plaintiffs in the said manner before sending the legal notice dated 5.6.90, the question of making the payment of the balance amount could not arise. The plaintiffs were only informed by the letter dated 5.6.90 sent by the plaintiffs through their counsel that the defendants had obtained the requisite permission and in reply to the said notice, the plaintiffs through their counsel had informed the defendants by letter dated 15.6.90 that on receipt of the documents mentioned in that letter, the plaintiffs were willing to make the payment of the balance amount. He further submitted that thereafter the defendants refused to send the requisite documents. He. therefore, contended that the plaintiffs were always willing to perform their part of the contract, but since the defendants failed to perform their part of the contract, the plaintiffs had to File the present suit. He, therefore, submitted that the interim order granted on 9.9.92 be confirmed.
(6) Dr. Singhvi, learned senior counsel appearing on behalf of the defendants drew my attention to paras 7 and 8 of the agreement to sell dated 26th December, 1989 and submitted that in terms of the said clauses, within 45 days from the receipt of intimation from the vendors having obtained the necessary permission/clearance as mentioned in paras 4 & 5 of the said agreement, the vendees (defendants) were required to pay the balance .sale consideration amounting to Rs.63.01 lacs. He further submitted that the intimation regard- ing fact of having obtained permission/clearance mentioned in paras 4 and 5 of the agreement was duly communicated to the plaintiff companies by the defendants vide Regd.A.D. letters dated 8.4.90 which were duly received by the plaintiffs on 10th April, 1990. In support of this submission he referred to the postal receipts and A.D. cards, copies of which have been annexed Along with the Ia 10179/93. Learned counsel further submitted that vide letter dated 1.5.90, the defendants had informed Shri Uma Shankar Sitani of the plaintiff companies that the defendants had obtained necessary permission/ clearance and this fact had already been communicated to the plaintiffs vide Regd.A.D.Ietter dated 8.4.90 and as such the plaintiffs should make arrangement to make balance payment within the stipulated period of 45 days. He also drew my attention to a telegram dated 13.4.93 copy of which has also been annexed Along with Ia 10179/93 and submitted that in this telegram also the plaintiffs were informed that the defendants had obtained necessary Itc Form 34A and they were requested to make arrangements for the balance amount within the stipulated period of 45 days. He submitted that inspite of the receipt of all these communications, the plaintiffs failed to make the payment of the balance amount nor they appeared before the Office of the Sub-Registrar on the 45th day from the receipt of the letter dated 8.4.90. He, therefore, contended that the defendants were justified to cancel the agreement and forfeit the amount of Rs-6.99 lakhs paid at the time of signing of the agreement to sell.
(7) As regards the contention of learned counsel for the plaintiffs that the plaintiffs had not received any communication from the defendants prior to the receipt of their notice dated 5.6.90, learned counsel submitted that the Regd. letters dated 8.4.90 were sent on the address of the Regd. offices of the plaintiffs companies and in terms of Section 27 of the General Clauses Act, Section 16 read with Section 114(f) of the Evidence Act and Section 3 of the Indian Post Office Act read with Rules 62 and 65 framed there under. the said letter was deemed to have been delivered at the address of the plaintiffs companies. In support of his contention, learned counsel placed reliance on a judgment of the Supreme Court reported in the case of M/s. Madan and Co. VS. Wazir Jaivir Chand, and a judgment of Full Bench of Allahabad High Court reported in the case of Ganga Ram VS.Smt.Phulwati, .
(8) Learned counsel for the defendants also raised a preliminary objection that the suit filed on behalf of the plaintiffs itself is barred by limitation. In this connection.he drew my attention to the notice dated 5the June, 1990 sent by the defendants through their counsel and submitted that in para 7 of this notice it had clearly been stated that since the plaintiffs did not perform their part of the agreement, the said agreement became null and void and stood cancelled and the amount paid by the plaintiffs by way of earnest money stood forfeited on 25.5.90. He submitted that admittedly this notice was received by the plaintiffs on 10.6.90 and a reply to this notice was also sent by the plaintiffs through their counsel on 15.6.90. Learned counsel further submitted that in terms of Article 54 of the Limitation Act, 1963 a suit for specific performance of contract had to be Filed within three years of the date fixed for performance and if no such date was fixed where plaintiffs had notice that performance was refused. Accordingly the suit by the plaintiffs could have been filed within three years from 10th June. 1990, but the present suit was filed on 24th July, 1993 at the first instance and finally it was refiled on 7th August, 1993. He. therefore, contended that the suit was clearly barred by limitation in support of his contention, learned counsel placed reliance on a judgment of the Supreme Court in the case of M/s. Sml. Thakamma Mathew VS. M. Azamathulla Khan. .
(9) I have given my thoughtful consideration to the submissions made by learned counsel for the parties and have perused the records. The receipt of the notice dated 5.6.90 sent by the defendants through their counsel has been admitted by the plaintiffs in their reply dated 15th June, 1990 sent by them through their advocate Shri R.M.Bhagai. In para 18of the plaint also it has been stated that the said notice dated5.6.90 was received by the plaintiffs on and around 10.6.90. In para 7 of the notice dated 5.6.90, it has clearly been stated that since the plaintiffs did not perform their part of the agreement to sell, the said agreement became null and void and stood cancelled and the amount paid by way of earnest money stood forfeited. From this it is clear that the plaintiffs had the notice on 10.6.90 that performance was refused by the defendants. The suit of the plaintiffs for specific performance of the contract had to be Filed within three years of the date when they had notice that performance was refused, as no date was fixed for the performance in the agreement to sell. But since the plaintiffs have not filed the present suit within three years from 10th June, 1990.the suit of the plaintiffs appears to be barred by limitation. This fact itself is sufficient for vacating the ex-parte injunction granted in favor of the plaintiffs on9.9.93. Accordingly Ia 10179/93 is allowed and IA7750/93 is dismissed and the interim injunction granted on 9.9.93 with regard to the suit property stands vacated. The parties, are however, left to bear their own costs.
(10) As stated hereinabove, I am of the view that suit itself appears to be barred by limitation. I, therefore, do not deem it necessary to deal with the other contentions urged on behalf of learned counsel for the parties. It is, however, made clear that the observations given hereinabove are only for the purpose of deciding these two applications.