Vipan Kumar Tyagi vs Sukhdev Singh

Rajesh Bindal, J.—Having failed in both the Courts below, the plaintiff is before this Court whereby his suit for specific performance of agreement to sell, was dismissed. Briefly, the facts as have been noticed by the Courts below are that respondent No. 1/defendant entered into an agreement with the appellant to sell plot bearing No. 62, Sector-10, Urban Estate, Gurgaon, on 7.5.2004, for a total sale consideration of Rs. 10,90,000/-. Earnest money of Rs. 60,000/- was paid. The last date for execution of sale-deed was fixed on or before 30.7.2004. The vendor was to complete the formalities for transfer of the plot in favour of the appellant/vendee. It has further been pointed out by the appellant that the communication was sent to respondent No. 1/vendor that he is ready with the balance sale consideration and get the sale-deed executed between 21.7.2004 to 23.7.2004 on which the vendee informed the appellant that he will get the necessary formalities completed by 21.7.2004. The appellant-plaintiff got two demand drafts of Rs. 50,000/- and Rs. 2,95,000/- prepared in favour of HUDA and for Rs. 2,00,000/- in favour of the vendor. As the vendor failed to get the sale deed executed, legal notice was sent on 5.8.2004. The appellant initially filed a suit for permanent injunction on 17.9.2004. The present suit for specific performance was filed on 3.10.2005. The suit for specific performance having been dismissed by both the Courts below, the appellant-plaintiff is before this Court.

Learned counsel for the appellant submitted that in terms of the agreement to sell, the respondent-defendant was to get all necessary formalities completed for transfer of plot from HUDA. The sale deed was to be executed within 23 days thereof or on or before 30.7.2004, whichever was later. Defendant No. 1 did not complete the requisite formalities. The appellant when came to know that vendor was trying to dispose of the plot to some other person, initially a suit for permanent injunction was filed. However, later on as the appellant was already ready and willing to get the sale-deed registered, the suit for specific performance was filed which has wrongly been dismissed. Order II Rule 2 CPC was not applicable in the present case as cause of action to file the suit for specific performance had not arisen on the date when the suit for permanent injunction was filed.

On the other hand, learned counsel for the respondent-vendor submitted that a perusal of the plaint in the suit filed for permanent injunction and the suit for specific performance shows that final date on which the cause of action arose has been mentioned as 7.9.2004. Once it is own pleaded case of the appellant that the cause of action arose on 7.9.2004 and the suit for permanent injunction having been filed thereafter on 17.9.2004, the relief for specific performance being available on that day should have been claimed therein and any suit filed subsequently claiming that relief was clearly barred in law. It was further submitted that as per the agreement to sell, out of the total sale consideration of Rs. 10,90,000/-, only Rs. 60,000/- were paid as earnest money. The balance was Rs. 10,30,000/-. Even as per the case of the appellant, he had demand draft worth Rs. 3,45,000/- in favour of the HUDA and Rs. 2,00,000/- in favour of the vendor (total Rs. 5,45,000/-). There is nothing on record to show the availability of the balance sale consideration. Taking into consideration the totality of the circumstances, no illegality has been committed by the learned courts below in dismissing the suit filed by the appellant.

Heard learned counsel for the parties and perused the paper book. The undisputed facts on record are that respondent No. 1 - Vendor entered into an agreement to sell plot bearing No. 62, Sector-10, Urban Estate, Gurgaon, on 7.5.2004, for a total sale consideration of Rs. 10,90,000/-. Rs. 60,000/- were paid as earnest money. The sale-deed was to be executed on or before 30.7.2004. The relevant clause regarding the last date for registration of sale-deed, as contained in the agreement to sell, is extracted below:-

"1. The First Party has received Rs. 60,000/- (Rupees Sixty thousand rupees only) as an Advance/Earnest Money from the Second Party in Cash and the balance price of said plot shall be paid by the Second Party to the First Party within (23 days) 30 May 2004 days of sanction of the transfer permission from H.U.D.A. Gurgaon or on or before 30th July". (sic)

A perusal of the aforesaid clause in the agreement to sell shows that there were two dates mentioned therein. First was 30.5.2004 i.e. 23 days after the date of execution of agreement to sell by which the balance payment was to be made and the Second was on or before 30.7.2004. The appellant initially filed a suit for permanent injunction on 17.9.2004, with specific pleading that the last date for execution of sale-deed was fixed as 30.7.2004. The fact that the appellant got the demand drafts of Rs. 50,000/- and Rs. 2,95,000/- prepared in favour of HUDA and for Rs. 2,00,000/- in favour of the vendor has also been stated in the plaint. In the suit for permanent injunction, it was claimed that rest of the amount was to be paid in cash. It is specifically pleaded in the plaint that cause of action arose to the appellant for filing the suit for permanent injunction on or before 7.9.2004. It has been noticed by the learned Lower Appellate Court in para. 19 of its judgment that the claim for injunction was rejected by the Court on 22.9.2005. It was thereafter that on 3.10.2005, the present suit for specific performance was filed. In para. 11 of the plaint in the present case, which is extracted below, it has been specifically pleaded that cause of action arose to the appellant on or before 7.9.2004 for filing the suit for permanent injunction and same cause of action still exists:-

"11. That the plaintiff has been repeatedly requesting defendant No. 1 to come forward for seeking permission to get transferred name in favour of plaintiff and execution of conveyance deed of above mentioned plot in terms of agreement dated 07.05.2004. However, the above said defendant No. 1 had been putting off the matter on one pretext or the other and finally refused to accede to the demand of the plaintiff on or about 07.09.2004 which is the last date of cause of action accruing to the plaintiff for filing the suit for permanent Injunction on this same land. The defendant has been intransigent in his attitude. And has not yielded to the genuine demand of transferring the above mention plot in the name of plaintiff even till today, so the cause of action to file the present suit is still subsisting. Hence the present suit."

Meaning thereby on the date when the suit for injunction was filed by the appellant on 17.9.2004, the cause of action for claiming the relief of specific performance was available to him but still he failed to claim the said relief in that suit and filed a separate suit for the purpose, which was clearly barred in terms of Order II Rule 2 CPC. Not only this, the appellant had even failed to prove his readiness and willingness though it was claimed that he had sent a letter on 28.6.2004 to the Vendor through courier for getting the sale-deed registered between 21.7.2004 to 23.7.2004. However, the same has not been proved on record as the same are marked documents only. Availability of balance sale consideration has also not been proved.

For the reasons mentioned above, I do not find that any illegality has been committed by the learned Courts below in dismissing the suit filed by the appellant. No substantial question of law arises.

The appeal is accordingly dismissed.