Decided on December 20,2007

HARBANS KAUR Respondents


A.K.SIKRI,J. - (1.) THE respondent herein, in a suit for specific performance and possession, filed on the original side of this Court, has obtained the decree of specific performance and on payment of the balance of purchase price, i.e. Rs. 59,400/-, for execution and registration of the sale deed, the appellants, who were the defendants in the suit, are also directed to hand over the vacant possession of the ground floor of House No. 24/72, West Patel Nagar, New Delhi (hereinafter referred to as 'the suit property'). In this appeal preferred by the appellants (hereinafter referred to as the 'defendants'), the said decree for specific performance and possession dated 27.3.1980 is challenged. The undisputed facts are that Shri Gulzar Singh, predecessor-in-interest of the defendants, and the respondent (for short, 'the plaintiff') entered into an agreement to sell dated 13.10.1972 for the sale of the suit property for a total consideration of Rs. 80,000/-. A sum of Rs. 5,000/- was paid as earnest money. The property at that time of this agreement was mortgaged with Delhi Administration and according to the defendants, as on 13.10.1972, a sum of Rs. 23,000/- approximately was payable on account of the said mortgage. The plaintiff paid further amount of Rs. 15,000/-on various dates. On 4.12.1972, a further sum of Rs. 10,000/- was paid. It may be mentioned at this stage that during the pendency of the suit, Shri Gulzar Singh died and the defendants were brought on record. The circumstances in which this amount was demanded by the defendants and paid by the plaintiff are in dispute, which we shall refer to at the later stage.
(2.) IN fact, there was no dispute between the parties about the execution of the agreement and the sale consideration, etc. The parties are, however, at variance as to whose obligation was to get the mortgage redeemed from the Delhi Administration. Whereas the case of the plaintiff was that a sum of Rs. 10,000/-was demanded by the defendants for redeeming the mortgage and against that payment the plaintiff had demanded possession of the first floor. However, the defendants offered possession of one room on the ground floor to the plaintiff stating that the first floor was in possession of a tenant. Therefore, it was the obligation of the defendants, even otherwise under the agreement, to redeem the mortgage. The defendants, on the other hand, took the stand that mortgage was to be redeemed by the plaintiff by paying the money to the Delhi Administration (the mortgagee), out of the total consideration agreed upon by the parties; since the mortgage was not redeemed, vide notice dated 8.2.1973 issued by the predecessor-in-interest of the defendants, it was clearly stated that the agreement stood cancelled because of failure on the part of the plaintiff in not paying a sum of Rs. 23,433.57/-, which was required for redemption, and the earnest money stood forfeited. The plaintiff had filed the suit after refuting those averments. Therefore, the real dispute between the parties is as to whose obligation was to redeem the mortgage. If it was to be done by the plaintiff then, according to the defendants, unless the mortgage was redeemed, there was no obligation on their part to fulfil the terms of the agreement to sell.
(3.) ON the basis of pleadings, the learned single Judge framed the following issues :- "1. What were the terms of the agreement to sell dated 13th October, 1972? 2. Did the plaintiff fail to perform his part of the agreement and hence the agreement has come to an end? 3. Have the defendants committed breach of the agreement to sell? 4. Is there now no enforceable agreement subsisting between the parties? 5. Is the plaintiff entitled to specific performance of the agreement dated 13th October, 1972 or to other reliefs as claimed? 6. If the plaintiff is entitled to the relief of damages to what amount is he entitled? 7. Relief, including the question whether the earnest money is refundable or adjustable." ;

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