D. Raju, J. - (1.) Leave granted.
(2.) The appellants are the plaintiffs in Suit No. 2145 of 2000, on the original side of the High Court of Bombay and the respondents-defendants are registered firm of partnership and its partners, respectively. The plaintiffs are builders and developers and they have entered into an agreement with the defendants on 13-5-1994 to sell the landed property owned by the respondents and a sum of Rs. 38 lakhs was said to have been paid by the appellants as deposit or earnest money on the execution of the agreement, which the respondents received under the agreement. Clause 2.3 of the agreement, insofar as it is relevant for the purpose, reads as hereunder : "If for any reason the vendors fail to fulfil their obligation under Clause 2, the purchasers shall have an option either to fulfil the said obligation themselves at the cost and expenses of the vendors or to terminate the agreement, in which event the vendors shall return to the purchasers the earnest with interest at 21% per annum..." Clauses 17 and 18 also read as under : "17. If the vendors fail to make out a marketable title to this said land agreed to be sold, as herein agreed, the purchasers shall be entitled to cancel this agreement. In the event of cancellation of this agreement under this clause, the said earnest money or deposit shall be forthwith returned to the purchasers by the vendors without any interest, cost or compensation. 18. If the sale be not completed due to any wilful default on the part of the vendors, the purchasers shall be entitled (a) to require specific performance by the vendors of this agreement or (b) to payment by the vendors of the interest at the rate of 21% per annum on the said earnest money or deposit and all costs, charges and expenses incurred and all loss and damages sustained by the purchasers in addition to the return by the vendors of the said earnest money or deposit."
(3.) It is the stand of the appellants that for nearly five years the respondents did not perform their part of the contract or fulfil their obligations under Clause 2 of the agreement, in spite of repeated requests and reminders and this necessitated their issuing a Notice dated 3-3-1999 calling upon the respondents to fulfil their obligations within 15 days of receipt. On 15-3-1999, the respondents appear to have, for the first time, expressed their liability to fulfil the terms within time and informed the appellants in writing to invoke their right under Clause 2.3, in the following words : "Under these circumstances, we sincerely and earnestly request you to please exercise your other option of getting all the necessary permissions yourselves to complete the said transaction at your earliest. We hope that you will consider this proposal sympathetically and take the necessary action as stated above, looking to our present situation explained above." ;