Decided on April 06,1950



Kapur, J. - (1.) THIS is a plaintiff's appeal against the judgment and a decree of a learned Subordinate Judge First Class Delhi dismissing the plaintiff's suit for damages for breach of a contract of sale of immovable property. On 23rd September 1944, Jawala Parshad defendant agreed to sell to Madan Mohan a building consisting of a house with two shops bearing NOS. 10087 -10093 for a sum of Rs. 34,000. A receipt was executed which evidenced the payment of Rs. 99 by the plaintiff to the defendant as earnest money. It is recited in the receipt I have received in cash Rs. 99 -/.... in advance from the said vendee in token of confirmation of the transaction and executed this receipt for the money so that it may serve as an authority. On 17th November 1944, the plaintiff paid an -other sum of Rs. 2901 and described it as cash out of sale price fixed and on the same day a registered agreement was entered into by which the defendant agreed to give vacant possession of that property which was in his possession and to get the tenants in other portion of the property to attorn to the plaintiff, and this was to be done within three months and the sale -deed was then to be executed and in default the plaintiff was entitled to damages of Rs. 6000. By an agreement dated 11th February 1945, the time was extended by another three months so that the possession to be given in May 1945 and the other conditions remained the same. It may be mentioned here that by the previous agreement the plaintiff agreed to bear the expenses for the stamp and for execution of the deed as also for its registration.
(2.) ON or about 11th May 1945, the plaintiff paid Rs. 510 as costs of the stamp to the defendant and a stamp -paper was purchased. The sale -deed WAS written by Atal Behari, D. W. 2, in favour of Shrimati Bhagwati, wife of the plaintiff. It is in dispute whether this was done at the instance of the plaintiff or the defendant -the defendant claiming that it was at the former's instance. On about the same day stamp -papers were purchased for the purpose of having rent deeds executed by the tenants in favour of the plaintiff. The stamp papers were written upon by Atal Behari purporting to be on behalf of the tenants and one of them was even signed by one of the tenants. Another stamp -paper of the value of Rs. 1/ - was purchased for the purpose of writing an agreement between the plaintiff and defendant. The purchase of these stamp -papers or any knowledge thereof is denied by the plaintiff. On 23rd May 1945, the plaintiff gave notice to the defendant demanding damages for breach of the contract by the defendant. This notice is not on the record, but the reply of the defendant dated 26th May 1945, Ex. P -5 has been produced. In this the defendant set up the plea that the plaintiff had agreed to give another period of three months to the defendant to give vacant possession and as a consequence he, the plaintiff, was entitled to keep Rs. 2.000 out of the sale price which was to be paid to the defendant after the possession was given. He also claimed that he had purchased the stamp -paper for executing the rent deed which I have mentioned above and the agreement between the plaintiff and the defendant and he accused him, the plaintiff, of breach of the contract. He also denied the claim of the plaintiff to any damages or even to get back Rs. 3,000.
(3.) ON 8th June 1945, the plaintiff brought a suit for recovery of Rs. 6000 as damages for breach of the contract of sale alleging that an agreement to sell had been entered into for Rs. 34,000 and he had paid Rs. 99 as earnest money. He then recited the various agreements which I have mentioned above, and in para. 5 he alleged that as the defendant had not given vacant possession even within the extended period and had committed a breach of the contract of sale, the plaintiff was entitled to Rs. 6000 as damages from the defendant. He also claimed return of Rs. 510 which he (the plaintiff) had paid for the stamp -paper and he also alleged that there was a defect in defendant's title.;

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