J.M. Malik, J. -
(1.) THIS order shall decide two appeals which entail the same questions of fact and law. The learned trial court vide its orders dated 15th December, 2006 in Suit Nos. 62/2005 and 63/2005 has declined to grant injunction order against the respondents herein restraining them from creating third party interest or part with possession of the respective suit properties. Aggrieved by that order, the present appeals have been preferred.
(2.) THE parties in question entered into agreements to sell and purchase in FAO No. 61/2007 and FAO No. 62/2007 on 26th May, 2004, and on 29th May, 2004, respectively, in respect of two industrial plots measuring 6 bids was each, that is, about 300 square yards each in Khasra Nos. 81/154 and 81/155 respectively, situated in Village Bakauli, Delhi. The plaintiff/appellant agreed to purchase those plots for a consideration of Rs. 6,06,300/ - each. Rs. 1 lakh each was paid as earnest money for both the plots. It was also agreed that the balance amount would be paid on or before 26th July, 2004 in FAO No. 61/2007 and on or before 28th July, 2004 in FAO No. 62/2007 at the time of execution and registration of the sale deeds by the respondents in favor of the appellant. It was also agreed that the defendants/respondents would apply and get the permission for sale of the plot from the officers of the concerned authority and thereafter, the sale deeds, would be executed within one month from the date of receipt of such permission. Till 28th July, 2004, the respondents/defendants did not communicate to the appellant/plaintiff about having obtained the requisite permission from the officers of the concerned authority for the sale of the plots to the appellant. The appellant gave separate legal notices through B.K.Sood and Associates, Advocates, on 22nd July, 2004 in FAO No. 61/2007 and on 21st July, 2004 in FAO No. 62/2007, wherein the appellant specifically, clearly and unequivocally stated that he is ready and wiling to perform his part of contract. Thereafter, the appellant in both the cases gave telegram dated 24th July, 2004, a copy of which has been placed on the record. Ultimately the appellant approached the respondents, but they gave vague answers. Since the respondents failed to perform their part of contract, the appellant filed the above -said suits for specific performance and damages on 7th April, 2005. The trial court vide its impugned orders declined to grant the injunction order on the following grounds. The above -said agreements themselves stipulate in Clause 6 of the Agreement to Sell and Purchase in FAO No. 62/2007 and Clauses 6 and 7 of the Agreement to Sell and Purchase in FAO No. 61/2007, which are of similar effect. In order to understand the facts properly, it would be worthwhile to reproduce the above said stipulations. Clause 6 of the Agreement to Sell and Purchase in FAO No. 62/2007 reads:
6. That if the first party refused to sell the said property within stipulated period as mentioned above, then he/she (first party) shall be liable to pay the earnest money as double to the second party, in case if the second party denies to purchase the said property within same time, then his/her/their earnest money/bayana shall be forfeited by the first party and after it the first party shall have right to resell the said property to any person at any rate.
Paras 6 and 7 of Agreement to Sell and Purchase in FAO 61/2007 are wee bit different. These read:
6. That in case the first party fails to complete the sale bargain within the above said stipulated period then the second party will be fully entitled to get the double amount of his paid amount from the first party through court of law on the risk and cost of the first party.
7. That in case the second party fails to complete the sale bargain within the above said period then the earnest money of the second party will be forfeited by the first party.
The trial court came to the conclusion that in view of this clause, the agreement to sell, prima facie, is not specifically enforceable. Secondly, no prima facie averment had been made by the appellant that he was ever ready and willing to perform his part of the contract of the sale. It was further stated that there was no such averment except bald plea that the appellant was ready and wiling to perform his part of the the agreement by making balance payment. The trial court also held that the case law produced by the plaintiff/appellant in authorities reported in Prabhu Dayal Aggarwal v. Ram Kumar Aggarwal, AIR 1955 Cal 41, Shashi Malhotra v. : 1996(38)DRJ363 , Rakesh Kumar Sharma v. : 96(2002)DLT766 and Prem Grover v. : 126(2006)DLT575 is of no avail to the appellant in the given facts and circumstances of the case because the plaintiff/appellant is not in possession of the suit property. The trial court also referred to an authority reported in Sewa Singh and Anr. v. : AIR2004Delhi152 . The trial court also placed reliance on an authority reported in Voleti Rangaiah v. Adapa Satyanarayana and Ors. : AIR 2001 AP 251, wherein it was held "that when the date is stipulated by the parties for payment of the balance sale consideration and if payment not made on that date, the agreement shall stand cancelled". The learned trial court held that the time was the essence of the contract and Therefore, this authority is helpful to the respondents. The trial court also referred to another authority reported in Ram Awadh (dead) by LRs and Ors. v. : 1SCR566 , wherein it was held that the court may not grant to a plaintiff who has failed to aver and to prove that he has performed or has always been ready and wiling to perform his part of the agreement, the specific performance whereof he seeks.
(3.) I have heard counsel for the parties. The learned Counsel for the respondents has drawn my attention towards Section 14 Clause 1 of the Specific Relief Act, 1963, which is reproduced as under:
14. Contracts not specifically enforceable -(1) The following contracts cannot be specifically enforced, namely:
(c) a contract which is in its nature determinable;