Rattan Lal v. S.N.Bhalla & Anr

PRADEEP NANDRAJOG, J.

J.R.MIDHA, J. DECEMBER 18, 2008 mm

i.8 *IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision:18th December, 2008 + RFA 272/2004 RATTAN LAL (since deceased) THR. HIS LEGAL REPRESENTATIVES ..... Appellant Through: Mr. Vinay Bhasin, Sr. Advocate with Mr. Kapil Kher, Advocate versus S.N.BHALLA & ANR. ..... Respondents Through: Mr. A.S.Chandhiok, Sr. Advocate with Mr. Raman Kapoor, Mr. J.N.Patel, Ms. Geetika Panwar and Ms. Benu Sodhi, Advocates CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE J.R.MIDHA 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether judgment should be reported in Digest? : PRADEEP NANDRAJOG, J. (Oral) 1. Heard learned counsel for the parties. 2. The appellant, as plaintiff, has unsuccessfully fought a litigation, seeking specific performance of an agreement to sell dated 8.9.1978, Ex.P-5. 3. The suit was filed on 8.3.1982, admittedly the last date on which the suit could have been filed, for the reason, the agreement in question stipulated that if within six months of its execution the transaction could not be completed, the agreement could be terminated. 4. The case of the appellant was that the subject property was held by the sellers under a lease hold tenure conveyed by DDA on account of the respondents being a member of the Government Servants Cooperative Housing Society and that the lease hold tenure could not be assigned without the prior permission of DDA and that under the agreement to sell, vide clause 2 thereof, the sellers i.e. the respondents had to apply to DDA and other authorities to obtain the requisite sale permission. It was pleaded that the agreed sale consideration was Rs.5,90,000/- (Rupees Five Lac Ninety Thousand Only) out of which Rs.50,000/- (Rupees Fifty Thousand Only) was paid as earnest money cum part sale consideration as recorded in the agreement to sell when the same was executed. Alleging that the respondents did not furnish documents as required by DDA, resulting in sale permission being not granted and stating that the respondents could not rely upon the clause in the agreement, being clause 9, which stipulated that if within six months, the requisite sale permission was not obtained the agreement would be determined and the respondents would refund to the appellant the earnest money cum part sale consideration received; stating that the appellant was always ready and willing to pay the balance sale consideration, specific performance of the agreement to sell was prayed for. 5. The defence projected was that the appellant had under taken the requisite job to obtain the necessary sale permission from DDA. It was pleaded that in any case, the exit clause, being clause No.9 of the agreement was not hedged with any condition and that as long as, for any reasons whatsoever, sale permission was not granted by DDA within six months, the agreement stood determined under the clause. It was also pleaded that time was of the essence of the contract evidenced by the fact that an exit clause was incorporated in the agreement, being clause No.9. It was further asserted that on expiry of the period of six months, no sale permission being obtained, after determining the agreement, under cover of a letter dated 12.3.1979, Ex.P-2, sum of Rs.50,000/- (Rupees Fifty Thousand Only) received as earnest money was returned to the appellant who encashed the same unconditionally and without demur, meaning thereby, he accepted the determination of the contract. It was further pleaded that the suit being filed on the last date of limitation, notwithstanding suit being within limitation, discretionary remedy of specific performance be not exercised in favour of the appellant, if the appellant were to succeed otherwise. 6. On the pleadings of the parties, five issues were settled vide order dated 1.11.1983. An additional issue was settled vide order dated 19.2.1991. Issues settled vide order dated 1.11.1983 read as under:- "1) Whether the plaintiff