2016 (6) ADR 84 ::(2016) 4 CivilCourtC 657 ::(2017) 2 CurCC 225 ::(2016) 168 AllIndCas 20 (DEL)

Delhi High Court

Hon'ble Judge(s): Valmiki, J. Mehta , J

(A) Specific Relief Act (47 of 1963) S. 20 — Specific performance of agreement to sell — Time as essence of contract — Plaintiff purchaser seeking specific performance of agreement to sell property by defendant — Plea by defendant that time being essence of contract transaction had to be completed by March 1979 — However record showing that he himself applied for the permission to the competent authority under the Urban Land (Ceiling and Regulation) Act, in July, 1980 — Plea by defendant liable to be rejected Contract Act (9 of 1872), S 55

(B) Specific Relief Act (47 of 1963) S. 20 — Specific performance of agreement to sell — Readiness and willingness to purchase — Plea by plaintiff purchaser that defendant had refused to receive balance consideration — Plaintiff had brought the original pass book to the court and had made a statement on the basis of that pass book — Though plaintiff had given the number of his account, name of the bank, the date of deposit, of balance consideration as also the amount, defendant did not rebut testimony of plaintiff by summoning relevant record from bank — Cross-examination of the plaintiff was only on the aspect that plaintiff did not have the financial capacity and there was no cross-examination that the plaintiff did not have the deposit receipt and the pass book showing actual deposit of the amount of Rs 18,500/- — It cannot be said that plaintiff was not ready and willing to perform his part of contract Contract Act (9 of 1872), S 51

(C) Specific Relief Act (47 of 1963) S. 21 — Specific performance of agreement to sell — Damages — Merely because the agreement provides for grant of damages would not mean that courts simply on that basis can deny specific performance — Clause in agreement that right to claim damages by the plaintiff/proposed purchaser is without prejudice to the rights of the plaintiff/proposed purchaser to claim specific performance — Grant of decree for damages only not proper — Moreso, when plaintiff continued in possession under the doctrine of part performance — 21% interest granted to plaintiff along with repayment of balance consideration so that he is adequately compensated Transfer of Property Act (4 of 1882), S 53A (Paras 11, 12, 15, 17)

(D) Specific Relief Act (47 of 1963) S. 20 — Part performance — As per agreement to sell the plaintiff who was a tenant in the premises no longer was liable to pay any future rent to the respondent/defendant/erstwhile landlord — Agreement to sell in the present case in the nature of part performance is prior to the amendment of Section 53A of the Transfer of Property Act whereafter an agreement to sell can be relied upon under Section 53A only if the agreement to sell is stamped and registered — Possession of the plaintiff therefore of the suit premises was effectively as a right of part performance under Section 53A though agreement to sell was not registered