- (1.) This appeal is against the judgment dated 27th April, 1993 passed by the Division Bench of the High Court of Delhi. At the beginning of his submission learned counsel for the appellants very fairly stated that the appellants are not challenging grant of specific performance and transfer of title to the respondent in respect of Block 67B. This appeal is therefore, confined to the portion of the impugned judgment dealing with Block 67A.
(2.) Briefly stated the facts are as follows : One Sunder Singh was a displaced person from Pakistan. In 1955 the Government, under the policy of rehabilitation allotted to him block numbers 67-A and 67-B in Malviya Nagar, New Delhi-110017. In 1957/1958 the Government offered to Sunder Singh a chance to purchase the properties allotted to him on payment of the cost of the properties as fixed by the Government, with arrears of rent, if any, either in lump sum or by annual instalments. In respect of plot M-67A and M-67B, the Government fixed the purchase price at Rs. 8080/-. In 1959 the Government gave to Sunder Singh a final demand notice to make payment under the Scheme. Sunder Singh did not have the money to make payment to the Government. He, therefore, entered into an agreement dated 22nd June, 1959 with the respondent (herein). The agreement recites the fact that Sunder Singh had been allotted the above two blocks and that he has been given an offer by the Government to purchase these plots and that he is not in a position to pay its purchase price. The agreement recites that the respondent was eager and willing to co-operate with Sunder Singh and purchase half of the property, namely, Block 67B at a price of Rs. 5,000/- and arrears of rent due to the Government. The agreement recites that the respondent was to make payment to the Government either in lump sum or by instalments or in any form acceptable to the Government. The agreement recites that a sum of Rs. 3,000/- is being paid to Sunder Singh to enable him to make payment of the first instalment to the Government and that this amount was to be treated as a loan to Sunder Singh. The relevant clauses of the agreement read as follows : "1. That the entire cost of the quarter and arrears or rent shall be deposited or caused to be deposited with the Government of India by the second party either in lump sum or by instalments or by offering claims or by one or more of these modes at the discretion of the second party or Shri D. N. Kaul husband of the second party. The said payments shall be made in the name of the first party and all other steps shall be taken by both the parties to have the ownership rights of the quarter in question transferred in favour of the first party and registration effected in his favour. The first party shall refund a sum of Rs. 3,000/- only to the second party or her husband Sri D. N. Kaul, whosoever, shall demand the same, in five yearly instalments of Rs. 600/- each year payable on or before the first day of January each year. The balance of the purchase price paid as also the arrears of rent paid shall be deemed and treated as advance payment of purchase price paid by or on behalf of the second party to the first party for the portion 67B agreed to be sold and transferred to her and shall represent the full and final consideration therefor. xxx xxx xxx xxx xxx xxx 2. That in case the second party chooses to associate some claimant in the matter of purchase of the said property she shall be free to do so at her absolute risk and choice. The first party shall do all that may be necessary or demanded on him in the matter of effective association of the said claimant with him and the ultimate transfer of 67B in favour of the second party jointly with the said claimant or severally. 3. That on the transfer of ownership rights in respect of the said quarter in favour of the first party he shall immediately transfer or cause to be transferred in respect of the portion 67B as detailed hereinbefore in favour of the second party for the above referred to consideration of Rupees five thousand and the amount of arrears of rent to be paid to Government or total amount paid on account of cost of 67A and B and arrears of rent in full and final settlement, whichever be less, irrespective of the fact whether the amount is paid in cash or in verified claims or partly in one or partly in the other form. The said sum shall be the full and final and adequate consideration for the said portion of the property. 4. That the amount paid or caused to be paid or deposited on account of purchase price and arrears of rent in respect of the above quarter 67A and B with the Government of India shall be treated as the first charge of the second party and her husband the said Shri D. N. Kaul on the property so long as 67B is not effectively transferred to the 2nd party and Rs. 3,000/- repaid to them. 5. That if the first party fails to refund the said sum of Rupees three thousand to the second party as stipulated and if anyone instalment due remains unpaid after 30 days R.A.D., notice in that behalf the entire sum of Rs. 3,000/- or balance due shall become due at once and on the failure on the part of the first party to repay the same within 15 days next, he shall transfer the other portion of the property namely, 67A also to the second party or the said Shri D. N. Kaul or her nominee for the said consideration of Rs. 3,000/- and give her/him or their nominee vacant and peaceful possession thereof and have a deed of transfer executed and registration duly effected before the proper registering authority. xxx xxx xxx xxx xxx 8. That in case the first party shall fail to execute his part of the agreement and fail to transfer quarter No. 67B to the second party and execute sale deed in her favour and have it duly registered he shall be liable to pay the second party a sum of rupees five thousand, plus the aforesaid amount paid or caused to be paid by the second party to the Government in respect of the said quarter on account of purchase price and arrears of rent and the monies spent on improvement and additions, as liquidated damages without prejudice to the second party's right to demand the specific performance of this agreement and to have the specified share i.e. Quarter No. 67B transferred to herself compulsorily through a Court of law. The same provisions shall apply if and when the right to have the quarter No. 67A transferred in favour of second party or Shri D. N. Kaul arises and the first party fails to do so effectively. 9. That in case the allotment in favour of the first party in respect of the said quarter is cancelled for any reason whatsoever and the purpose of this agreement frustrated the first party shall refund to the second party any amount paid or caused to be paid to the Government in respect of the said quarter and cost of improvement and additions made by the second party within three months of the said fact coming to the second party's notice together with interest @ 6% per annum." Thus under this agreement the respondent had taken the obligation of making payment to the Government the cost of the quarters, interest thereon and the arrears of rent. Also the respondent was put in possession of block 67B. It is clear that the transfer of ownership right could only take place when the said Sunder Singh became the owner. Under his agreement with the Government Sunder Singh could only become owner if the cost of the flat and arrears of rent were paid in full. Therefore transfer of title could only take place if respondent performed her obligations under the agreement and paid the entire cost of flat and all arrears of rent. It is also to be seen that Sunder Singh was only required to repay a sum of Rs. 3,000/-. This is because the balance amount of was to be consideration for transfer of block 67B in favour of the respondent.
(3.) On 30th December, 1959, the Sunder Singh entered into an agreement with the Government. This agreement provided that the cost of the plot was Rs. 8080/-, out of which a sum of Rs. 1616/- had already been received on 22nd June, 1959. The agreement provided that the balance was to be paid in instalment along with interest. Clause (1) of the agreement provides that the balance of the purchase price was a sum of Rs. 8108/7 paisa and that there was to be interest on this amount. The agreement provides that the same was to be paid in 7 yearly instalments, the first instalment being due on 22nd June, 1960. The agreement also provided that if the default was committed in payment of any instalment then the Government could by notice in writing forthwith determine the agreement and resume possession of the premises. Thus the respondent was to pay a sum of Rs. 8108/7 paisa with interest thereon in 7 yearly instalments to the Government. As the first instalment was to be paid on 22nd June, 1960 the last instalment would have to be paid on or before 22nd June, 1966.;