- (1.) R. K. Mahajan, J. This is a first ap peal against the judgment and decree dated 2-5-1980 passed by Sri Ghan Shyam Dass, Vlth Additional District Judge, Bulandshahr by virtue of which original Suit No. 249 of 1976 between Jaipur Traders Corporation Private Limited and Lalit Kumar Jain and another was dismissed.
(2.) THE material facts would be given only to understand the controversy. It ap pears that the suit was filed by plaintiff M/s. Jaipur Traders Corporation Private Limited against the defendants at Bulandshahr for rescission of contract dated 22nd February, 1971 with respect of sale of building, plant, machinery etc. for a consideration of a sum of Rs. two lacs. THE material terms of the contract for sale, as mentioned in para 4 of the plaint, are as follows: "4. That the price of the whole property was settled at Rs. 2 lakhs. This amount was to be paid in the following manner: (i) Rs. 50,000 before the Sub-Registrar at the time of registration. (ii) Rs. 50,000 on or before 15-3-1971. (iii) Rs. 1,00,000 on or before 30-4-1971. " It is alleged that the possession of the property was given to the defendant-respondents and they physically entered into it. It was specifically mentioned that the transferees shall not in any manner be en titled to deal, sale, transfer or assign the immovable property or any part thereof hereby sold to them till such time as the entire balance sale consideration amount ing to Rs. 1,50,000 (Rupees one lac and fifty thousand) is paid to the transferor. This document was presented before the sub-Registrar on 22nd February, 1971 but unfor tunately it was impounded on 24th February, 1971 on the ground that the property had been under valued and the stamp duty paid thereon was insufficient. THEre is another development that on 26th February, 1971 as per allegations of the plaintiff, the Sub-Registrar received a letter from the Income Tax Officer that the in come tax certificate which had been issued under Section 230-A of the Income Tax Act, had been cancelled and the registration of the property be stopped till the issue of fresh certificate. So the registration of the sale deed, as contemplated by the parties, could not see light of day. Facts have been placed from each side and the sequence of events, which are inferred from the notice as well as the al legations from the plaint and judgment are these. The plaintiff served a notice dated 6th March, 1971 (Ext. 37) for the payment of balance money treating the contract on the part of both the parties as subsisting. The defendants declined to pay the amount as per reply of notice on 26- 3-1971 (Ext. 33) unless a fresh clearance certificate was ob tained. It appears that again another development took place. On 22-2-1971, second notice for payment of balance sale consideration was sent to the defendants mentioning that they had violated the terms of agreement by way of disposing the property and demolishing it without having been registered. There was insistence to the effect that unless clearance certificate from the income tax department is issued, the payment would not be made. Another factor was introduced that Shanti Lal happened to file suit No. 115 of 1971 claiming share in the property and the defendants took a stand that unless the suit was decided final ly, the balance amount would not be paid. It is alleged by the plaintiff in a notice Ext. 39/25th May, 1973 that the defendants must make the payment of balance otherwise the contract of sale stand rescinded. Final notice was given on 3rd July 1973 as alleged in the plaint that the plain tiff is willing to pay the interest and also to make payment towards the deficient stamp duty. It is further revealed from the evidence and the judgment of the court below that since Shanti Lal's suit was dismissed and a request was made to pay the balance amount within 15 days and the income tax certificate could be handed over failing which the contract would be cancelled. It appears that income tax certificate was ob tained on 30-6-1972 as there was no positive response from the defendants for payment of the money. Final notice was given to the defendants for the payment of money of getting the document registered and notice was given thereafter by the plaintiff to the Sub-Registrar Khurja that the contract of sale has been rescinded on 19-7-1973 and as such there is no need of registration of the document. The defendant- respondent replied on 19-2-1977 mentioning that the money cannot be paid unless the suit of Shanti Lal is decided. Ultimately the plain tiff filed suit against the defendants for physical possession of the property and for delivery of the document on the ground that the contract has been rescinded and it be treated as void. It appears that. . . . . . . . . . District Registrar in Registration Appeal No. 2 of 1973 directed the document dated 22-2-1972 be registered.
(3.) IT is alleged by the defendants that Shri B. D. Meattle, Director of the Com pany received Rs. 50,000 and agreed that the matter would be finally settled after the set tlement of dispute of Shanti Lal and clearance certificate from Income Tax Of ficer. So the short controversy in this ap peal is that the payment of money as stipu lated in the contract forms material terms of the contract even if the document is not registered and also the time is essence of the contract.;