Decided on August 07,2007



SANJAY KISHAN KAUL, J. - (1.) The plaintiff has filed the present suit for specific performance and mandatory injunction in respect of agreement dated 09.07.1986 seeking execution of the sale deed and transfer documents in favour of the plaintiff in respect of the second floor of premises no.16-17, Local Shopping Centre, Madan Gir, New Delhi.
(2.) It is stated in the plaint that the defendants had built a commercial complex at the aforesaid premises and in pursuance to the discussions between the parties, the agreement to sell was arrived at for an area admeasuring 4,000 square feet for a total price of Rs 23,50,000/-. An advance of Rs 3.5 lakh was paid on 03.01.1986 and thereafter on 09.07.1986 (ExPW1/2) the agreement was executed between the parties. The possession had to be given over after completion of construction on or before 15.09.1986. The salient features of the agreement are re-produced hereinafter: "Clause 1: The seller hereby agreed to transfer by way of sale to the purchaser the said floor with all rights, title and interest of the seller in and or the said floor. Clause 2 : As and by way of consideration for the said sale, the purchaser shall pay to seller a sum of Rs 23,50,000/- (Rupees Twenty Three Lakhs Fifty Thousand Only), of which a sum of Rs 3,50,000/- (Rupees Three Lakh Fifty Thousand Only) has already been paid by the purchaser as and by way of earnest money for which receipt dated January 9, 1986 has been passed by the seller in favour of the purchaser. The purchaser has also paid to the seller the 2nd, 3rd, 4th and 5th instalments of Rs 2,35,000/- (Rupees Two lakh Thirty Five Thousand only) each as per Schedule 1 hereunder written for which separate receipts have been passed by the seller on February 2, 1986, March 3, 1986, May 26, 1986 and June 20, 1986 respectively in favour of the purchaser. The balance instalments shall be paid by the purchaser as per the Schedule 1 hereunder written. Clause 3: The seller shall obtain the necessary permission/authorization/ no objection certificate from the Delhi Development Authority and from such other authorities, bodies and individuals as will be necessary for the effective transfer of the said floor in favour of the purchaser and will apprise the purchaser of such permission etc. by leaving with the purchaser a copy thereof. The seller shall fulfil all and everyone of the conditions, if any, that may be stipulated by such authorities, bodies and individuals to be fulfilled by the seller before the transfer is completed so that the purchaser enjoys the property quietly and peacefully. The seller agrees that it will obtain such permission or fulfil all these conditions as its costs without making the purchaser to exert itself in any manner. Clause 4 : The seller shall hand over vacant, peaceful and lawful possession of the said floor to the purchaser duly completed in all respects, on or before Fifteenth of September 1986. Clause 5: The date of handing over of the said floor as per 4 above, being the essence of contract, the seller agrees to pay damages to the purchaser from the said date, calculated at the rate of 24 % per annum on the amounts paid till the said date, until the date of handing over the premises to the purchaser as in para (4) above. Clause 6 : The seller shall well equip, well furnish the said floor and shall provide amenities in relation to the said floor which will inter alia include all sanitary fittings, plumbing, water supply fittings and fixtures, lift arrangement (to be shared) necessary fixtures for coolers, air conditioner, fans and other electric fittings, power and light wiring, telephone and telex wirings. Clause 12: The seller shall arrange to complete the transfer of the said floor and get it registered with the concerned authorities." (emphasis supplied)
(3.) The plaintiff paid the entire consideration of Rs 23,50,000/- as set out in the agreement but the possession of the premises could not be handed over to the plaintiff in time. The possession was handed over only on 14.09.1987 after delay of exactly one year from the agreed date of handing over possession in terms of Clause 4 of the agreement. The electricity connections were not provided even as on that date nor was the sale deed executed in favour of the plaintiff. The plaintiff has thus been constrained to file this suit seeking specific performance of the agreement.;

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