Sundeep Khanna vs A. Das Gupta And Ors on 17 October, 2012

[Cites 6, Cited by 1]

Delhi High Court

Sundeep Khanna vs A. Das Gupta And Ors on 17 October, 2012

Bench: V.K.Jain

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment reserved on: 26.09.2012.
Judgment pronounced on: 17.10.2012

+ CS(OS) 576/2005 & CCP No.94/2008

SUNDEEP KHANNA ..... Plaintiff
Through: Mr Rakesh Tiku, Sr. Adv with
Mr Abhimanyu Mahajan, Adv.

versus

A. DAS GUPTA AND ORS ..... Defendant
Through: Mr Nalini Chidambram, Sr. Adv
with Mr R. Balasubramaniam with Mrs
Rekha Palli and Mr V. Balaji, Mr Abdur
Hameed and Mr Asai Tambi, Advs.

CORAM:
HON'BLE MR. JUSTICE V.K.JAIN

V.K. JAIN, J.

CS(OS) 576/2005 & CCP No.94/2008

1. The case of the plaintiff is that defendant No. 1 Shri A. Das Gupta, who has

since expired during pendency of the suit, had, vide agreement to sell dated

29.01.2005, agreed to sell the ground floor of the property No. 186, Golf Links,

New Delhi, along with basement rights and 40% undivided interest in the land as

also the right of first refusal in respect of first and second floor to him, for a

consideration of Rs 3.30 crores and accepted advance amounting to Rs 10 lakh

CS(OS) 576/2005 Page 1 of 38
from him. It is further alleged that pursuant to the said agreement, the plaintiff

carried out due diligence and it transpired during the course of due diligence that

the property in question was actually an HUF property. It is further alleged that

defendant No. 1, through his broker Askok Narang, sent a draft sale deed showing

himself to be the sole owner of the property and agreeing to split the sale into two

parts, one a sale deed and the other a fittings and fixtures agreement. The draft sale

deed, therefore, had to be changed and defendant No. 1 agreed that he would get

defendants 2 and 3 signed the sale deed. It is further alleged that pursuant to a

communication dated 17.02.2005 from the plaintiff, the broker of the defendants

sent two separate drafts, one of the sale agreement and another of a fittings and

fixtures agreement, but they were not as per the terms of the agreement to sell

between the parties. There was further exchange of correspondence between the

parties. It is also alleged that defendant No. 1 had met the plaintiff on 17.03.2005

and agreed to the draft sent to him by the plaintiff except to the extent that he

wanted to confirm from his lawyer with respect to making an endorsement on the

original title deed. The defendant No. 1, however, sent a draft on 21.03.2005,

which was virtually the same as the draft which was sent earlier and was rejected

by the plaintiff. The plaintiff then sent a draft sale deed to defendant No. 1, along

with a letter dated 21.03.2005. Defendant No. 1, however, returned the cheque of

Rs 10 lakh received from the plaintiff along with a letter dated 24.03.2005 stating

CS(OS) 576/2005 Page 2 of 38
therein that the transaction stood cancelled. The plaintiff is, therefore, seeking

specific performance of the agreement to sell dated 29.01.2005 or in the alternative

a decree for recovery of Rs 1 crore as damages for the losses suffered by him on

account of rise in the property prices and the cost of the time and effort spent by

him, etc.

Initially the plaintiff had claimed Rs 1 crore as damages, but, he amended

the plaint during pendency of the suit so as to raise the quantum of damages to Rs

3.3 crore, primarily on the ground that he had to keep the sale consideration ready

and, therefore, lost interest at the rate of 1% per annum and the market value of the

suit property was between Rs 12 to 15 crore, around 12.01.2008.

2. The defendants have contested the suit and have taken a preliminary

objection that since there was no complete and concluded contract, the suit is not

maintainable. They also took another preliminary objection that the suit was bad

for mis-joinder of defendants 2 and 3. On merits, it is alleged that defendant No. 1

is the sole owner of Property No. 186, Golf Links, New Delhi. It has been denied

that defendant No. 1 had agreed to sell 40% undivided share in the land and any

first pre-emptive right of purchase to the plaintiff. The defendants have admitted

receipt of cheque of Rs 10 lakh from the plaintiff, but have stated that the said

cheque was never to be encashed and was to be held merely in trust by the

defendant No. 1, till such time as the final terms were agreed upon and finalized

CS(OS) 576/2005 Page 3 of 38
between the parties. It is further alleged that the plaintiff and defendant No. 1

failed to arrive at any consensual terms and, therefore, the receipt dated 29.01.2005

executed by defendant No. 1 does not constitute a valid and legally enforceable

agreement to sell. It is also alleged that defendant No. 1 informed the plaintiff that

the property in the name of HUF was shown only for tax purposes and he was the

Karta of the HUF and competent to alienate the property. It is also claimed that it

was the plaintiff who had suggested two separate sale deeds with a view to reduce

the incidence of stamp duty. It is also alleged that the draft sale deed dated

21.03.2005 furnished by the defendant to the plaintiff was not acceptable to the

plaintiff on various issues inter alia FAR issues and requirements of written

concurrence to any proposal for re-development/re-construction.

3. The following issues were framed on the pleadings of the parties:-

"i) Whether there was concluded contract between the
parties and the receipt dated January, 29, 2005 acknowledging
the receipt of cheque for a sum of Rs 10.00 lakh is a concluded
agreement between the parties which can be enforced? OPP

ii) If issue No. 1 is decided in favour of the plaintiff then
whether the plaintiff is entitled for a specific performance of
agreement? OPP

iii) Whether the plaintiff had always been ready and willing
to perform his part of the agreement? OPP

iv) Whether the defendant No. 1 was the sole owner of the
property and could enter into the agreement to sell with the
plaintiff? OPP

CS(OS) 576/2005 Page 4 of 38
v) Whether suit is bad for mis-joinder of parties? OPD

4. The plaintiff has produced three witnesses by way of evidence whereas the

defendants have examined one witness. In his affidavit by way of evidence, the

plaintiff has stated that the defendant no.1 had stated to him that he was the owner

of the property bearing number No. 186, Golf Links, New Delhi and holding

himself out to be its sole owner, he entered into an agreement with him to sell the

ground floor of the aforesaid property along with basement rights and 40%

undivided interest in the land and also right of his refusal in respect of the first and

second floor and the said agreement was reduced into writing on 29.01.2005. He

has further stated that at the time of finalization of the sale deed, defendant no.1

projected to be the Karta of HUF comprising of himself and defendants no.2 and 3,

though as per the records of L&DO, he was recorded as the owner. He has further

stated that defendant no.1 had told him that he had shown the property as HUF for

the purpose of filing of income tax returns and receiving tax benefits. According to

him, the draft sale deed Ex.PW1/3 was sent to him by defendant no.1 on 1.12.2005

through his broker Mr. Ashok Narang. He has further stated that he also got carried

out the due diligence/title search and it transpired that the property was actually

owned by HUF and not by the defendant no.1 alone. Defendant no.1 then agreed

that the property was actually owned by the HUF and promised to get defendants

no.2 and 3 sign the sale deed. He has claimed that subsequent to his reminder dated

CS(OS) 576/2005 Page 5 of 38
28.2.2005 (Ex.PW1/6). Mr. Ashok Narang, broker of defendant no.1, had sent two

drafts of the sale agreement and fittings and fixtures agreement to him. Those

drafts were not as per the terms of the original agreements entered into between

him and defendant no.1 and, therefore, he requested Mr. Ashok Narang, to get the

sale deed revised. According to him, in order to complete the transaction, he started

working on defendant‟s latest draft of sale deed and take out illogical and one-sided

clauses which were contrary to the terms agreed between the parties. According to

him, the clauses in the draft sale deed, contrary to the terms agreed between the

parties were:

(i) The defendant had sought to make the right of first refusal in respect

of first and second floor transferred „personal‟ to him;

(ii) He had refused to make endorsement with respect to his ownership of

the ground floor on the original title deed; and

(iii) the draft provided for transfer of undivided ownership rights as per

FAR/FSI, dependent upon any other structure that could be added on

the flat, as against the agreement to transfer 40% of the land

underneath the plot to him.

5. The plaintiff has maintained in his affidavit that these terms and a number of

other changes were unacceptable to him and he had sent the proposed draft to the

defendants after making necessary corrections. Subsequently, the defendant no.1

CS(OS) 576/2005 Page 6 of 38
met him on 17.3.2005 and agreed to all the changes made by him. However,

despite that he sent a draft sale deed on 21.3.2005, which was virtually the same as

the draft sent earlier and had been rejected by him. He then sent a letter to the

defendant no.1 on 21.3.2005, annexing the sale deed which incorporated the terms

of the agreement to sell. However, he received a letter dated 24.3.2005 from

defendant no.,1 returning the cheque given to him. The plaintiff has maintained that

he was ready, keen and willing to complete the transaction and had kept sufficient

funds ready to pay the balance consideration to defendant no.1. He has claimed that

he had to keep the sale consideration ready in idle funds and had not only lost

interest but also the prospective profits which he could have earned, had he been

able to utilize those funds for his business.

6. In his affidavit by way of evidence, Mr. Ashok Narang has stated that he

knew defendant no.1 Shri A. Das Gupta and on being informed about the suit

property he had contacted him. He came to know that the plaintiff was willing to

buy a property in Golf Links and, therefore, approached him in December, 2004. A

meeting was arranged by him between the plaintiff and Shri A. Das Gupta in

December, 2004. Ultimately, the deal was concluded on 29.1.2005 and the

consideration for sale of the ground floor along with basement rights and 40%

undivided share of the land was agreed at Rs.3.3 crore.

CS(OS) 576/2005 Page 7 of 38
Mr. Ashok Narang has further stated that the proposed draft sale deed

Ex.PW1/3 was prepared by him on the instructions of Shri A. Das Gupta and was

handed over to the plaintiff. Both the parties made their changes on the draft sale

deed. According to witness, Ex.PW1/10 was another draft sale deed. He has stated

that Shri A. Das Gupta had clarified that he was the sole owner of the property and

in any case he was also the Karta of HUF, if any. In the opinion of this witness, the

parties only needed to sign the regular sale deed with the usual terms and register

the same and nothing material had remained unresolved between them. He has

opined that the present value of the suit property was Rs.10 to Rs.12 crore.

7. Mrs. Shurobhi Das Gupta, wife of late Shri A. Das Gupta has in her affidavit

by way of evidence stated that Shri A. Das Gupta was the absolute owner of the

property bearing number 186, Golf Links, New Delhi. According to her, the

plaintiff had come to them sometime in November, 2004 along with his family

members and had expressed interest in purchasing the first and second floors of the

property. Thereafter, one day, Mr. Narang, claiming to be the agent of the plaintiff,

came to them and informed that it was difficult for the father of the plaintiff to

climb up the stairs and the prices being demanded by them for the first and second

floor was on much higher side. Since they needed a trouble-free and genuine

person, they thought of selling the ground floor instead of first and second floor

and informed the plaintiff that they might agree to sell the ground floor to him. The

CS(OS) 576/2005 Page 8 of 38
consideration was stated by them initially at Rs.3.5 crore, but was later on reduced

to Rs.3.3 crore for the ground floor. She has claimed that it was clearly understood

and discussed that the extent of the ground floor to be sold by them, the period of

payment and terms and conditions for the same would need to be negotiated and

finalized before any formal agreement. One day, Mr. Narang, accompanied by the

plaintiff, came to their house with a pre-typed sheet of paper. She and her husband

read the said receipt and told the plaintiff that it did not correctly record the extent

of the portion of the ground floor to be sold to him. The plaintiff was told that the

receipt was only tentative and not final and the final terms would be accorded later.

Her husband deleted the word "40%" from the receipt and also filled up the

amount of Rs.3.30 crore in the receipt. Thereafter, the plaintiff wrote certain words

such as lawn, basement, fittings and fixtures, cheque number etc in the receipt. She

has claimed that it was made clear to the plaintiff that the basement would be made

by him only and only if the upper floors were purchased by him or the entire

property was demolished and re-built and if permitted by law. According to her,

the basement in any case was to be constructed with the consent of the owners of

the upper floors and not otherwise. She has further claimed that it was clearly

stated to the plaintiff that grant of right of first refusal would be for his personal

benefit only and would not be given or exercised if the upper floors were sought to

be sold to third parties. However, all these instances of portion of the proposed sale

CS(OS) 576/2005 Page 9 of 38
and/or terms and conditions were partly not acceptable to the plaintiff. There were

offers and counter offers but no final acceptance of either side and, therefore, the

settled terms between the parties were not finalized. According to her, plaintiff

wanted two agreements to be executed - one for sale of the ground floor and the

other for fittings and fixtures, so that he could save stamp duty. This, however, was

not acceptable to them on 12.01.2005, the plaintiff came on them and handed

over a draft of sale for Rs.2.65 crore, which was not acceptable to them and

accordingly certain additions, deletions and modifications were carried out in the

said draft, which was thereafter returned to the plaintiff. The plaintiff returned that

draft after about three weeks on February, 2005. However, he was informed about

the other changes/ modifications and alterations that needed to be made even in

that draft. She has further stated that since nothing was heard from the plaintiff,

they presumed that the terms, as suggested by them, were not acceptable to the

plaintiff and the counter offers made by him were not acceptable to them.

Accordingly, they sent a letter dated 9.3.2005 to him. Thereafter, the plaintiff

visited them and suggested some changes which were not acceptable to them. He

also sent some pages of the draft of sale deed vide letter dated 21.3.2005.

Thereupon, they wrote letter dated 24.3.2005 informing the plaintiff that the

negotiations had come to an end and returned the cheque received from him. She

has maintained that Mr. Narang was not their representative and was acting on

CS(OS) 576/2005 Page 10 of 38
behalf of the plaintiff. She has claimed that the cheque of Rs.10 lac was to be kept

in trust, pending finalization of the terms and conditions of the proposed deal and it

was never agreed or the intention of the parties that the said cheque would be

encashed.

8. Issue No.1: The question as to what are the essential terms of an agreement

to sell immovable property came up for consideration before me in Braham Singh

v Sumitra and Others [CS(OS) No.1208/2011), while deciding the IA 8087/2011

(under Order 39 Rule 1 and 2 CPC) filed in the above referred suit on 01.08.2011,

I, inter alia, observed and held as under:

"4. Some of the essential ingredients of an Agreement to Sell an
immovable property are (i) identity of vendor and purchaser (ii)
complete description of the property subject matter of the
agreement (iii) amount of consideration to be paid by the
purchaser to the seller (iv) time within which the agreement is
to be performed and (v) earnest money if any paid to the
vendor, if one of these essential ingredients are missing, the
agreement between the parties would not amount to concluded
contract. A Division Bench of this Court in Mirahul
Enterprises & Ors. Vs. Mrs. Vijaya Srivastava AIR 2003 Delhi
15 referring to the provisions contained in Section 10 of
Specific Relief Act, observed that a true contract requires the
agreement of the parties, freely made with full knowledge and
without any feeling of restraint and the parties must be ad-idem
on the essential terms of the contract and in case it is an
Agreement to Sell of immovable property, the law requires that
it must certainly identify the property agreed to be sold and the
price fixed as consideration paid or agreed to paid.
5. In Aggarwal Hotels (P) Ltd. vs. Focus Properties (P) Ltd.,
63(1996) Delhi Law Times 52, this Court, inter alia, observed
as under:
"The four ingredients necessary to make an agreement to sell

CS(OS) 576/2005 Page 11 of 38
are: (i) particulars of consideration; (ii) certainty as to party
i.e. the vendor and the vendee; (iii) certainty as to the property
to be sold; and (iv) certainty as to other terms relating to
probable cost of conveyance to be borne by the parties, time,
etc. If these ingredients are lacking in the agreement, the
obligations contemplated under Section 16 for specific
performance for Immovable property would not arise. It is in
this background that the receipt dated June 17, 1995 has to be
examined."

9. The agreement dated 29.01.2005 reads as under:

" Receipt

I, Mr. A. Das Gupta currently r/o 186, Gold Links, New Delhi
11003 hereby confirm receipt of Rs. 10,00,000/- (Rs. Ten
Lakhs) vide Cheque No.649609 dated 27th January, 2005 as
advance payment from Mr. S. Khanna for the sale to him of the
Ground floor along with lawn, basement rights and fixtures and
fittings of the undivided share of the land ownership in my
freehold property no.186, Golf Links, New Delhi - 110 003 of
which I am the sole owner.
The total agreed payment is Rs.3.30 crore and the balance
amount will be paid within 21 days of the due diligence and
ownership verification and at the time of execution of a Sale
Deed which will be registered with the Sub-Registrar of
Properties.
I shall have no objection to any renovation, repairs,
reconstruction that may be done as per law.
I shall give right of first refusal as and when I wish to sell/
transfer the rights of the First and Second Floor.
29.01.2005"

CS(OS) 576/2005 Page 12 of 38
10. A careful analysis of the above-referred document incorporates the

following agreed terms between the plaintiff and defendant no.1:

(a) Late Shri A. Das Gupta was to sell the property, subject matter of the

agreement and it was to be purchased by the plaintiff Mr. Sundeep

Khanna.

(b) The sale consideration was agreed at Rs.3.30 crore.

(d) The balance sale consideration would be paid within 21 days from

29.01.2005.

(e) The agreement pertained to the whole of the ground floor including lawn,

fittings and fixtures of ground floor, undivided share in the land

underneath the property, basement rights and right of first refusal in case

Shri A. Das Gupta wanted to sell the first and second floor.

Therefore, the agreement contains all the essential ingredients necessary to

make an agreement to sell an immovable property, as laid down by this Court in

Aggarwal Hotels (P) Ltd.(supra) and Braham Singh (supra). I, therefore, hold that

there was a concluded contract between the parties for sale of the property subject-

matter of the agreement.

CS(OS) 576/2005 Page 13 of 38
11. On this issue, the learned counsel for the plaintiff has relied upon Sobhag

Narain Mathur v Pragya Agarwal & Ors. [141(2007) DLT 356], Durga Nath

Sharma & Anr. v Shyam Shankar Goela [95(2002) DLT 545(DB)]; Mohan Lal

Ahuja & Ors. v Tarun Chandra [157(2009) DLT 216]; Deepak Ansal v Ansal

Properties & Industries Ltd. & Anr. [138 (2007) DLT 560]; Learned counsels for

the defendant, on the other hand, have relied upon Nahar Singh v Harnak Singh

and others [(1996) 6 SCC 699]; Brij Mohan and others v Sugra Begum and

others [(1990) 4 SCC 147]; Ganesh Shet v Dr.C.S.G Shetty and others [(1998) 5

SCC 381];

12. In Sobhag Narain Mathur (supra) a Bayana receipt was executed by the

Vendor in favour of the Vendee and no formal agreement to sell was executed.

Relying upon the decision in Kollipara Sriramulu v T. Aswathanarayana &

others [(1968) 3 SCR 388], it was held by this Court that mere reference to future

formal contract will not in law prevent binding bargain between the parties and the

fact that parties refer to preparation of formal agreement by which terms agreed

upon were to be put in formal shape, does not prevent existence of a binding

contract. It was further held that the issue to be determined is whether it could be

said that the parties did not intend to be bound by the first agreement until a formal

contract was signed. It was noted that the Bayana receipt executed in that case

identified the property agreed to be sold, the Vendor, the Vendee, stated the total

CS(OS) 576/2005 Page 14 of 38
sale consideration, quantified the earnest money and also stipulated the final date

for making payment which were sufficient to conclude the transaction though it did

not specify the schedule for payment of the balance sale consideration and also did

not indicate as to whose obligation it was to obtain permission from the Lessor to

transfer the leasehold rights in the properties or to get the same converted from

leasehold to freehold.

In Durga Nath Sharma (supra), it was held that the mere fact that the suit

was filed after one year from the date when defendant no.1 returned the cheque to

the plaintiff was not a ground to deny the relief to which the plaintiff was otherwise

entitled. In that case the defendant no.1 had cancelled the agreement and returned

the amount by way of cheque which included the bank collection charges. It was

held that he could not have unilaterally cancelled the contract when the plaintiff

had always been ready and willing to perform his part of the contract. This

judgment has no applicability to the question as to whether the plaintiff was ready

and willing to perform the agreement as per the terms agreed between the parties

on 29.01.2005. However, I am in agreement with the contention of the learned

counsel for the plaintiff that mere non-encashment of the cheque of Rs.10 lac by

the defendant no.1 does not by itself indicate that there was no concluded contract

between the parties.

CS(OS) 576/2005 Page 15 of 38
In Mohan Lal Ahjua (supra), a receipt was executed by the Vendor which

disclosed the sale consideration, the amount of earnest money, the property, subject

matter of the agreement and the name of the parties to the agreement. The Court

rejected the contention that mere execution of this receipt in the absence of any

agreement rendered the agreement incapable of being performed on account of

uncertainty.

In Deepak Ansal (supra), it was held that it is a question of consideration as

to whether execution of the further contract is a condition or term of the bargain or

whether it is a mere expression of the desire of the parties as to the manner in

which the transaction already agreed will go through. It was further held that where

a concluded agreement to sell is being set up, there must be no possibility of doubt

of any essential commitments of the contract. During the course of the judgment,

this Court referred to the decision of the Supreme Court in Mayawati v Kaushalya

Devi [(1990) 3 SCC 1], wherein the Apex Court held that if the stipulations and

terms of a contract are uncertain, and the parties are not ad idem, there can be no

specific performance since there is no contract in such a case. It was further held

that the burden of showing the stipulations and terms of the contract and that the

minds were ad idem is on the plaintiff.

CS(OS) 576/2005 Page 16 of 38
In Nahar Singh (supra), the Apex Court held that unless the property for

which relief has been sought for is identifiable, no decree can be granted in respect

of the same.

In Brij Mohan (supra), neither the earnest money was settled nor had the

parties agreed with respect to the time for payment of the balance sale

consideration and execution and registration of the sale deed no talk with regard to

any term of oral agreement had taken place in presence of the Vendor. It was also

not decided where actual possession or symbolical possession of the premises in

question would be given by the Vendor. No consideration had actually passed. No

receipt or agreement was executed. It was, therefore, held that there was no

concluded contract between the parties. During the course of the judgment, it was

held that it was for the plaintiff to establish that vital and fundamental terms in the

sale of immovable property were concluded between the parties orally and a

written agreement to be executed subsequently would only be a formal agreement

incorporating such orally agreed terms between them.

In Ganesh Shet (supra), the Court on facts found that there was no

concluded contract between the parties for sale of the property. In Mayawanti

(supra), the Court held that specific performance will not be ordered if the contract

itself suffers from some defects which make it invalid or unenforceable. It was

further held that even if the contract is valid and enforceable, it is in the discretion

CS(OS) 576/2005 Page 17 of 38
of the Court whether to pass a decree or not. It was also held that the stipulations in

terms of the contract have to be certain and the parties must have been consensus

ad idem.

I have taken into consideration the proposition of law laid down in these

cases and in my view, the agreement dated 29.1.2005 was a concluded contract for

sale of the property subject-matter of the agreement to the plaintiff for

consideration of Rs 3.30 crores. The issue is decided accordingly.

13. Issues No.2 to 4: Admittedly, the document Ex.PW1/1 had already been

typed when it was brought to Shri A. Das Gupta. The word „40%‟ was expressly

deleted by Shri A. Das Gupta while signing the receipt. This act on the part of Shri

A. Das Gupta leaves no doubt that he had not agreed to transfer 40% of the

undivided share n the land underneath the building to the plaintiff. Conversely, the

plaintiff was entitled only to an unspecified, undivided share in the land underneath

this property. It would be pertinent to note here that there is no documentary

evidence of Shri A. Das Gupta having ever agreed to sell 40% undivided share in

the land to the plaintiff and in the draft Ex.PW1/3, Shri A. Das Gupta had

specifically scored off the word „40%‟ and replaced it by the word „proportionate‟,

while referring to the rights in the land. It has come in the deposition of the

plaintiff and his witness Mr. Ashok Narang that late Shri A. Das Gupta had agreed

to sell 40% undivided share in the land to the plaintiff. This part of their oral

CS(OS) 576/2005 Page 18 of 38
deposition, however, runs counter to the terms contained in the receipt/ agreement

to sell dated 21.09.2005. Section 92 of Evidence Act, to the extent it is relevant,

excludes oral evidence, which is contrary to the written term contained in the

document, which has been proved before the Court. Therefore, oral evidence to the

effect that defendant No.1had agreed to sell 40% undivided share in land to the

plaintiff, is not admissible and has to be excluded from consideration. That apart,

even on merit, the plaintiff has not been able to prove that defendant No.1 had

agreed to sell 40% undivided share in the land to him.

It has come in the evidence of the plaintiff that the word „40%‟ in Ex.PW1/1

was scored off accidentally. This, however, cannot be accepted since at no point of

time, the plaintiff wrote to defendant no.1 alleging that the word „40%‟ on

Ex.PW1/1 got scored off accidentally. Also, this plea runs counter to the draft sale

deed Ex.PW1/3 where Shri A. Das Gupta specifically scored off the word „40%‟.

This is yet another indicator that he had not agreed to transfer 40% undivided share

in the land to the plaintiff and wanted to transfer only proportionate undivided

share in the land to him.

14. Section 16(c) of the Specific Relief Act, to the extent it is relevant for our

purpose 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

CS(OS) 576/2005 Page 19 of 38
be performed by him, other than terms the performance of which has been

prevented or waived by the defendant. Explanation (ii) to the said clause provides

that the plaintiff must aver performance of, or readiness and willingness to

perform, the contract according to its true construction.

15. As noted earlier, late Shri A. Das Gupta had never agreed to sell 40%

undivided share in the land underneath the building to the plaintiff. Despite that,

the plaintiff insisted on transfer of 40% undivided share in the land to him, as is

evident from the draft sale deed ex.PW1/10, which he had sent to Shri A. Das

Gupta vide his letter dated 21.03.2005 (Ex.PW1/9). In fact, this has been the case

of the plaintiff during trial of this suit that the defendant had promised and agreed

to sell 40% undivided share in the land to him. He has maintained so in his

affidavit and to the same effect is the deposition of his witness PW2 Mr. Ashok

Narang. Despite the fact that in the draft sale deed Ex.PW1/3 Shri A. Das Gupta

had replaced the word „40%‟ by the word „proportionate‟, the plaintiff in the draft

sale deed Ex.Pw1/10 sent by him to defendant no.1 insisted upon 40% of undivided

share in the land being transferred to him. It is thus evident that he was not ready

and willing to abide by all this essential term of the agreement between him and

defendant no.1. It has come in the deposition of the plaintiff that even proportionate

share in the land was acceptable to him. This assertion by the plaintiff, however, is

contrary to the stand taken by him in the correspondence exchanged between the

CS(OS) 576/2005 Page 20 of 38
parties and the draft sale deed Ex.PW1/10 which he had sent to Shri A. Das Gupta.

It would be evident to note here that Ex.PW1/10 was the last draft sent by the

plaintiff to Shri A. Das Gupta. In fact, even in plaint and the affidavits filed by him,

the plaintiff has maintained that the agreement between the parties was for transfer

of 40% undivided share in the land to him. Hence, there is no escape from the

conclusion that the plaintiff was seeking to introduce a term contrary to the agreed

terms between the parties when he insisted upon 40% undivided share in the land

being transferred to him.

16. Admittedly, the lease deed of the suit property was executed by L&DO in

the sole name of Shri A. Das Gupta. Admittedly, the aforesaid property was

converted into freehold in the sole name of Shri A. Das Gupta. It has come in

evidence that for the purpose of income tax, this property was shown as the

property of HUF headed by late Shri A. Das Gupta. However, the agreement dated

29.01.2005 (Ex.PW1/1) was between Shri A. Das Gupta as an individual and the

plaintiff. This document was not executed by him as Karta of HUF. A perusal of

draft Ex.PW1/3 would show that Shri A. Das Gupta wanted to execute the sale

deed declaring himself to be the sole Vendor and the sole owner of the suit

property. A perusal of this document would show that in the draft sent to Shri A.

Das Gupta it was stated that the portion, subject matter of the sale, was not the

subject matter of any HUF. However, Shri A. Das Gupta modified the draft so as to

CS(OS) 576/2005 Page 21 of 38
state that the property was the subject matter of his HUF but he had provided to the

Vendee, no objection from any coparcener in respect of the sale of the schedule

property. A draft affidavit purporting to be executed by Shri Probal Das Gupta son

of late Shri A. Das Gupta stating therein that Shri A.Das Gupta was the title holder

of the entire suit property which had been assessed as the property of his HUF with

Income Tax Department, Shri A. Das Gupta was the Karta of that HUF and had full

right and authority to deal with the property in any manner he liked. The draft

affidavit also purported to give details of the member of HUF. A perusal of the

draft Ex.PW1/10 shows that the proposal made by Shri A. Das Gupta to execute

the sale deed alone and support it by the affidavits of other member(s) of the HUF

was not acceptable to the plaintiff and he wanted the sale deed to be executed by

the HUF through Shri A. Das Gupta, his wife Mrs. Shurobhi Das Gupta and son

Shri Probal Das Gupta.

17. As noted earlier, the agreement dated 29.01.2005 was executed by Shri

Probal Das Gupta in his individual capacity and not as a Karta of HUF. It is also

not the case of the plaintiff that the agreement dated 29.01.2005 was executed by

Shri Probal Das Gupta in his capacity as a Karta of the HUF and not in his

individual capacity. The case of the plaintiff on the other hand is that it was only

during the due diligence exercised by him that he came to know that the suit

property was assessed in the name of HUF in the record of Income Tax

CS(OS) 576/2005 Page 22 of 38
Department. It clearly implies that that plaintiff had no indication of the property

being assessed in the name of HUF, at the time the agreement to sell was executed

in his favour. Thus, we have a situation where the property in question was

acquired by Shri A. Das Gupta in his individual capacity, but was declared as the

property of the HUF for income tax and he wanted to execute the sale deed alone

though he was ready to provide affidavit from his son, giving no objection with

respect to the sale agreed with the plaintiff of the property. On the other hand, the

plaintiff wanted the sale deed to be executed by HUF, through all its members.

Since there was no agreement between the plaintiff between the plaintiff and HUF,

he could not have insisted upon execution of the sale deed through all the three

members of HUF and in case sale deed sought to be executed in the manner

indicated in the draft Ex.PW1/3, as modified by defendant no.1 Shri A. Das Gupta,

was not acceptable to him, the only option available to him was to sue him for

damages on the ground that though the property was owned by HUF, he had

represented the same to be his self-acquired property and thereby induced him into

entering into the agreement to purchase the property on such representation. In fact,

there was no way Shri A. Das Gupta could have compelled his wife and son to

execute the sale deed along with him. Since his son and wife were not the party to

the agreement to sell dated 29.01.2005 and the agreement was not executed on

behalf of HUF, the wife and son of the defendant no.1 were under no obligation to

CS(OS) 576/2005 Page 23 of 38
join him in executing the sale deed. By insisting upon execution of the sale deed by

all the members of HUF, the plaintiff was seeking to introduce a term which was

not agreed between the parties on 29.01.2005 or at any time thereafter.

In fact, the plaintiff also wanted Shri A. Das Gupta to obtain a GPA from his

son, as is evident from his communication Ex.PW1/5 and the legal notice

Ex.PW1/12 sent by him to Shri A. Das Gupta. Under the terms of the agreement

between the parties, Shri A. Das Gupta was under no legal obligation to provide

any GPA from his son to the plaintiff and in any case there was no way he could

have compelled his son to execute a GPA for being provided to the plaintiff.

18. It is stated in para 5 of the legal notice Ex.PW1/12 sent by the plaintiff that

defendant no.1 Shri A. Das Gupta had agreed to separate sale deed and fittings and

fixtures agreement. This averment in the notice implies that the proposal for

splitting the transaction into two documents - one a sale deed and the other fittings

and fixtures agreement had originated from the plaintiff but was initially agreed by

Shri A. Das Gupta and that is why the sale consideration in the draft Ex.PW1/3 was

shown as Rs.2.65 crore, though the total agreed consideration was Rs.3.30 crore. A

perusal of the email Ex.PW1/8 sent by the plaintiff to defendant no.1 on 11.3.2005

would show that later on Shri A. Das Gupta had a second thought on this issue and

wanted to execute only one document i.e. a sale deed and did not want to execute a

separate agreement for purchase of fittings and fixtures. This was acceptable to the

CS(OS) 576/2005 Page 24 of 38
plaintiff as is evident from a perusal of this communication. However, the plaintiff

wanted that the incremental stamp duty should be paid by defendant no.1. The

insistence of plaintiff on Shri A. Das Gupta paying the incremental stamp duty was

contrary to the terms and conditions agreed between the parties since Shri A. Das

Gupta had never agreed at any point of time to make any contribution towards

stamp duty, which was to be paid solely by the plaintiff.

19. Thus, by insisting upon (a) transfer of 40% undivided share in the land ; (b)

execution of the sale deed by all the three members of HUF and (c) payment of

incremental stamp duty by the defendant no.1, the plaintiff was seeking to back out

of the terms agreed between the parties on 29.01.2005 and was seeking to introduce

the terms which Shri A. Das Gupta had never agreed. Since the plaintiff was not

ready and willing to conclude the transaction as per the terms agreed between the

parties on 29.01.2005 and wanted to introduce terms which had not been agreed,

Clause (c) of Section 16 of the Specific Relief Act read with Explanation (ii)

thereof comes into play and the plaintiff is not entitled to specific performance of

the agreement to sell dated 29.01.2005.

20. The draft sale deed Ex.PW1/10 also carries a stipulation that the existing

structure on the ground floor was as per the FAR of 50%. No such measurement

was given in the draft sale deed Ex.PW1/3, as approved by Shri A. Das Gupta.

There was no basis for the plaintiff insisting upon such a stipulation being

CS(OS) 576/2005 Page 25 of 38
contained in the sale deed. This was yet another instance of the plaintiff seeking to

introduce an altogether new term which the parties did not agree either on

29.01.2005 or at any point of time thereafter.

A perusal of draft sale deed Ex.PW1/10 sent by the plaintiff to defendant

no.1 shows that it carried an obligation on the part of the defendant no.1 to provide

a completion certificate to the plaintiff. No such term was agreed between the

parties on 29.01.2005 or thereafter. There was no justification for the plaintiff

incorporating such a stipulation in the draft sale deed sent by him to defendant

no.1.

A perusal of Ex.PW1/10 shows that it carried an obligation on the part of

Shri A. Das Gupta to install lift only in the common landing area. No such

stipulation was contained in the draft sale deed Ex.PW1/3 as approved by Shri A.

Das Gupta. The plaintiff could not have insisted upon the lift being installed in a

particular area. It was the right of Shri A. Das Gupta to install the lift anywhere so

long as it was not the area agreed to be sold to the plaintiff. The plaintiff, therefore,

was clearly seeking to introduce a new stipulation by inserting such an obligation

in the draft sale deed.

A perusal of Ex.PW1/10, which is the last draft sale deed sent by the plaintiff

to the defendant no.1 would show that it contained a stipulation that the

construction on the upper floors could be carried out only subject to the condition

CS(OS) 576/2005 Page 26 of 38
that it did not adversely affect or causes inconvenience to the plaintiff in his

enjoyment of the property or the portion likely to be sold to him. However, no such

restriction on the right of the defendant no.1 was envisaged in the agreement dated

29.01.2005 and the plaintiff, therefore, was seeking to introduce altogether new

term which amounts to acting beyond the terms and conditions agreed between the

parties.

21. The facts and circumstances of the case clearly indicate that even defendant

no.1 Shri A. Das Gupta wanted to introduce certain terms which were not agreed

between the parties and was not ready to complete the transaction in true spirit of

the terms agreed between the parties. As per the agreement dated 29.01.2005, the

plaintiff had a right of first refusal in the event of defendant no.1 seeking to sell the

first and second floor of the property. However, as would be evident from the draft

sale deed Ex.PW1/3, Shri A. Das Gupta wanted to restrict this right personally to

the plaintiff, meaning thereby that neither his legal heirs nor the predecessor /

assignees from him would have got the right of first refusal in respect of the first

and second floors. This attempt on the part of Shri A. Das Gupta was contrary to

the terms agreed between the parties on 29.01.2005 for the simple reason that the

right given to the plaintiff would, under law available to his legal heirs as well as

his assignees from him.

CS(OS) 576/2005 Page 27 of 38
As per the agreement to sell dated 29.01.2005, the plaintiff was to get

basement rights as well. A perusal of Ex.PW1/3 would show that Shri A. Das

Gupta sought to restrict the right of the plaintiff in the basement by seeking to

stipulate that the right in the basement would be available to the plaintiff only in

the event of the property being demolished and subject to approval and

concurrence of the Vendor and further subject to the condition that it would not

adversely affect the structural safety and integrity of the building or adversely

affect or cause inconvenience to Vendor in the enjoyment of the first, second and

other floors. Since no such restriction was envisaged in the agreement dated

29.01.2005, Shri A. Das Gupta was not justified in seeking to restrict the right of

the plaintiff with respect to the basement.

22. Had only Shri A. Das Gupta been seeking to introduce the terms which were

not agreed between the parties, the plaintiff would have been entitled in law to seek

specific performance of the agreement dated 29.01.2005, but since he also sought

to introduce the terms which were contrary to the terms agreed between the parties,

he is not entitled to seek specific performance of the agreement entered into

between the parties on 29.01.2005.

23. A perusal of the legal notice Ex.PW1/12 sent by the plaintiff to late Shri A.

Das Gupta shows that he was also insisting upon Shri A. Das Gupta making

endorsement on the original title deed with respect to sale of the ground floor to

CS(OS) 576/2005 Page 28 of 38
him. The agreement between the parties did not envisage any such endorsement on

the original title deed. The learned counsel for the defendants contended that by

insisting upon such endorsement being made on the original title deed, the plaintiff

was seeking to introduce a new term which was never agreed upon between the

parties and this is yet another instance which would prove that he was not ready

and willing to perform the agreement as per the terms agreed between the parties.

The learned counsel for the plaintiff on the other hand submitted that it is

customary to make such an endorsement on the title deed so that Vendor does not

at a later date sale, mortgage whole of the property, to the detriment of the

purchasers of the person which has already purchased a part of that property.

However, I need not delve into this issue because since the other terms sought to be

introduced by the plaintiff are sufficient to establish that he was not ready and

willing to go ahead of the transaction as per the terms agreed between the parties

on 29.01.2005.

24. On these issues, learned counsel for the plaintiff has referred to Devender

Singh Mehta & Anr. v Rakesh Kumar Jain & Ors. [2009 IV AD (Delhi) 1];

Narinderjit Singh v North Star Estate Promoters Limited [Civil Appeal No.4307

of 2012 decided on 8.5.2012]; and Sita Ram & Ors.v Radhey Shyam [2007(1)

Scale 626] whereas learned counsels for the defendants have referred to Jugraj

Singh & Another v Labh Singh and others[(1995) 2 SCC 31]; Umabai and

CS(OS) 576/2005 Page 29 of 38
another v Nilkanth Dhondiba Chavan(dead) by LRs and Anothers [ (2005) 6

SCC 243 and Ouseph Varghese v Joseph Aley & Ors. [1969(2) SCC 539].

In Devender Singh (supra), the defendant had agreed to sell the suit

property for a total consideration of Rs.4.90 lac and received Rs.30,000/-. The

balance was to be paid within two weeks from the date of possession along with

interest. When the plaintiff approached the defendant to complete the transaction,

they wrote a letter stating therein that it was not possible to register the sale as

required permission could not be obtained. The money was refunded along with

this letter. This, however, was not acceptable to the plaintiff who sought specific

performance of the agreement. During the course of judgment, the Division Bench

of this Court relied upon the decision of the Supreme Court in N.P. Thirugnanam

(Dead) by LRs v Dr. R. Jagan ohan Rao and Ors.[(1995) 5 SCC 115], wherein

the Apex Court held that it is not necessary for the plaintiff to keep ready the

money on hand and what is relevant and material is that he should have the

necessary capacity to raise the funds and was ready and willing to perform his part

of the contract. This judgment would not apply to the present case since I am not

going into the question as to whether the plaintiff had means as on 19.2.2005 to pay

the balance sale consideration or not.

In Narinderjit Singh (supra), Supreme Court held that the question as to

whether the respondent was ready and willing to perform its part of the agreement

CS(OS) 576/2005 Page 30 of 38
is required to be decided in the light of the pleadings of the parties, evidence

produced by them and their conduct. It was noted that in case before the Supreme

Court, the respondent had categorically pleaded that he had always been ready and

willing to perform the contract and that he had paid Rs.9 lac to the father of the

appellant, who had refused to accepted the same. These averments were not

specifically denied in the written statement. The defendants while dealing with the

above referred averments, simply stated that the question of readiness and

willingness on their part did not arise and the question of receiving Rs.9 lac also

did not arise at all. In this context, the Apex Court referred to the decision of

Punjab and Haryana High Court in Santa Singh v Binder Singh & Ors [2006(4)

Civil Court Cases 608], wherein it was held that where the case of the defendant

was of denial, the statement of the plaintiff that he was ready and willing to

perform his part of the contract was sufficient to infer that plaintiffs were ready and

willing to perform their part of contract. It was noted that it was a meager amount

of Rs.2000/- alone which was required to be paid at the time of registration of the

sale deed since the substantial amount was paid at the time of execution of the

agreement. This judgment would have no applicability to the facts of the present

case, where the defendant has expressly stated in the written statement that

reference to 40% undivided right in the land had been scored off by it, even in the

document dated 29.01.2005 and it had also been specifically stated that the

CS(OS) 576/2005 Page 31 of 38
defendant no.1 had informed the plaintiff that the property in the name of HUF was

only for tax purposes and he was competent to alienate the same.

In Sita Ram & Ors (supra), the suit for specific performance, which had

been decreed by the trial court was dismissed by the First Appellate Court on the

ground that the pleadings were not in accordance with the provisions of Section

16(c) of the Specific Relief Act. It was held that an averment of readiness and

willingness in that plaint is not a mathematical formulae to be stated only in

specific words if the averments as a whole indicate readiness and willingness of

plaintiff to fulfill his part of obligation, the fact that they are to be ill-worded would

not be material.

In Jugraj Singh & Another (supra), it was held that readiness and

willingness at all stages from the date of the agreement till the date of the hearing

of the suit need to be proved. It was held that substance of the matter and

surrounding circumstances and the conduct of the plaintiff must be taken into

consideration in adjudging readiness and willing to perform the plaintiff‟s part of

the contract.

Umabai and another (supra), it was held that a bare averment in the plaint

or a statement made in examination in chief would not suffice and that the conduct

of the parties and the entire contended circumstances need to be considered to

determine whether the plaintiffs were all along ready and willing to perform their

CS(OS) 576/2005 Page 32 of 38
part of the contract or not. It was further held that the conduct of the plaintiff must

be judged having regard to the entirety of the pleadings as also evidence brought on

record.

In Ousepth Varghese (supra), a suit for specific performance was filed on

the basis of an alleged agreement between the plaintiff and the first defendant

under which the latter was alleged to reconvey the properties sold for the very

price. The defendant denied the agreement, pleaded and stated that just before his

death her husband had agreed to sell Item No.1 of the suit property to the plaintiff

but due to her illness, the sale could not be affected. The plaintiff did not amend the

plaint and did not seek any relief on the basis of the agreement pleaded by the

defendant. He also did not inform the Court that he was ready and willing to accept

the agreement pleaded by the defendants or he was willing to perform his part of

the agreement. It was held that the plaintiff had failed to prove the agreement

pleaded by him. During the course of the judgment, it was noted that the agreement

pleaded by the defendant was wholly different from the agreement pleaded by the

plaintiff. It was further held that in such a suit, the plaintiff must also prove that he

has been always ready and willing to perform his part of the agreement.

CS(OS) 576/2005 Page 33 of 38
In J.P. Builders & Another v A. Ramadas Rao & Another {(2011) 1 SCC

429, it was held that the readiness and willingness to perform has to be taken from

the conduct of the parties.

In Jinesh Kumar Jain v Smt. Iris Paintal & Ors. [CS(OS) No.1154/1989]

decided on 10.7.2012, this Court held that the plaintiff was required to prove the

financial capacity to pay the balance sale consideration at all point of time i.e. for

the period of 45 days which had been stipulated in that case for making payment

and even thereafter when evidence was led. In that case, the plaintiff had failed to

file his bank statement to show availability of funds to pay the balance

consideration and had not even filed the details of his assets, it was held that he had

failed to prove his readiness to perform his part of the contract.

I have taken all these judgments into consideration and I am of the view that

since the plaintiff was not ready and willing to complete the transaction as per the

term agreed between the parties on 29.1.2005, he is not entitled to its specific

performance.

25. Issue no.5: Admittedly, the agreement dated 29.01.2005 was executed by

Shri A. Das Gupta in his individual capacity and not in his capacity as Karta of

HUF headed by him. Admittedly, wife and son of Shri A. Das Gupta were not

party to the agreement dated 29.01.2005. Only parties to an agreement to sell an

immovable property can be parties to the suit seeking specific performance of the

CS(OS) 576/2005 Page 34 of 38
agreement. The suit is, therefore, clearly bad for misjoinder of defendants no.2 and

3 namely Mrs. Shurobhi Das Gupta and Shri Probal Das Gupta in their individual

capacity. Of course, they remain on record in their capacity as legal representatives

of late Shri A. Das Gupta, who died during pendency of this suit.

26. The learned counsel for the defendants submitted that since the plaintiff has

not filed any documentary evidence of his having the means to pay the balance sale

consideration throughout the trial, he has failed to establish that he was ready to

perform his part of the agreement and, therefore, he is not entitled to specific

performance. She further submitted that as per the agreement dated 29.01.2005,the

balance payment was to be made within three weeks meaning thereby that by

19.2.2005, but, there is no evidence that the plaintiff having the means to pay the

balance consideration on that date. The learned counsel for the plaintiff on the

other hand submitted that the plaintiff has filed bank certificate showing that he had

requisite funds in his bank account on 28.03.2005. He has also stated in his

affidavit that he always had the funds available with him and since this was not

disputed in cross-examination of the plaintiff, this is sufficient to prove his means

to purchase the property. This was countered by the learned counsel for the

defendants by submitting that mere oral statement with respect to the financial

means is not sufficient and the plaintiff was required to lead documentary evidence

to prove that he had means to pay the balance sale consideration not only on

CS(OS) 576/2005 Page 35 of 38
28.03.2005 but also thereafter and even during pendency of the suit. However, I

need not go into this aspect of the matter since I am of the view that the plaintiff

was not ready and willing to go ahead with the transaction as per the terms agreed

between the parties on 29.01.2005.

27. In view of my above findings on the issue, the plaintiff is not entitled to

specific performance of the agreement to sell dated 29.01.2005. The next question

which comes up for consideration is as to whether in the facts and circumstances,

the plaintiff is entitled to damages and if so to what amount. As noted earlier,

neither the plaintiff nor the defendant no.1 was willing to complete the transaction

as per the terms agreed between the parties on 29.01.2005. Both the parties were

seeking to introduce terms which were never agreed. Had the plaintiff been ready

and willing to perform his part of the agreement, as per the terms and conditions

agreed between the parties, he would have been entitled either to specific

performance of the agreement or to suitable damages. But, in the case before this

Court, the question which arose is as to whether damages can be awarded to one

party when both the parties have been unwilling to perform the agreement as per

the terms agreed between the parties.

In my view, since the plaintiff was not ready and willing to complete the

transaction as per the term agreed between the parties on 29.1.2005 and was

seeking to introduce certain terms which had never been agreed between them, he

CS(OS) 576/2005 Page 36 of 38
is not entitled to any damages. Section 21(2) of Specific Relief Act provides that if

any suit for specific performance of a contract, the court decides not to grant

specific performance but finds that there is a contract between the parties which has

been broken by the defendant and the plaintiff is entitled to compensation for that

breach, it is required to award such compensation to him. This provision

contemplates a situation where there is no breach of contract on the part of the

plaintiff and it is only the defendant who breaks the contract between the parties.

This provision would not apply to a case where the plaintiff himself is in breach of

the contract.

Moreover, there is no credible evidence of the plaintiff having suffered loss

on account of the transaction in question not being completed. In his affidavit by

way of evidence, the plaintiff has claimed that he suffered loss in the form of

interest since the balance sale consideration payable by him to defendant No.1

remained blocked. However, no documentary evidence has been filed by the

plaintiff to prove that his funds to the extent of the balance amount payable to

defendant No.1 or even to a lesser extent, remained blocked on account of

pendency of this suit. No passbook or bank statement has been filed by the

plaintiff to prove the balance in his bank accounts after 28.3.2005. No bank

official has been examined by him to prove what were the funds, if any, in his bank

account during pendency of this suit. Mere oral deposition of the plaintiff in this

CS(OS) 576/2005 Page 37 of 38
regard is not sufficient to prove the loss alleged to have been sustained by him,

considering the fact that documentary evidence which was very much in his power

and possession, has not been produced by him.

On receipt of the notice dated 24.3.2005 from defendant No.1, the plaintiff

came to know that he was not willing to complete the transaction agreed between

the parties. The cheque of `10 lacs given by him to defendant No.1 was never

encashed and was returned to him along with the letter dated 24.3.2005. Nothing,

therefore, prevented the plaintiff from acquiring some other property either in Golf

Link or in some other locality which he considered suitable for him, using the

money which he would have paid to defendant No.1. Had he done so, the plaintiff

would have got the advantage of appreciation in land value, which has taken place

in last more than 7 years. I, therefore, held that the plaintiff is not entitled to any

relief.

ORDER

For the reasons stated hereinabove, the suit is, hereby, dismissed. However, in the facts and circumstances, there shall be no order as to costs. Decree sheet be drawn accordingly.

The suit and all pending IAs stand disposed of.

V.K.JAIN, J 17 OCTOBER, 2012/bg/rd/ks CS(OS) 576/2005 Page 38 of 38

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