RFANo.833/2005 Page 1 of 4 6 * IN THE HIGH COURT OF DELHI AT NEW DELHI + RFA No.833/2005 Date of decision: 24th November, 2008 % SHAHJAD DAGAR ..... Appellant Through: Mr. Kamlesh Kumar, Advocate. versus NARESH GUJRAL ..... Respondent Through : None. CORAM :- THE HON'BLE MR.JUSTICE PRADEEP NANDRAJOG THE HON'BLE MR. JUSTICE J.R. MIDHA 1. Whether Reporters of Local papers may be allowed to see the Judgment? 2. To be referred to the Reporter or not? 3. Whether the judgment should be reported in the Digest? Pradeep Nandrajog, J. (Oral) 1. The appellant who was the plaintiff could not succeed even at an ex-parte trial in obtaining a decree for specific performance of the agreement to sell, Ex.P-1. Unfortunately even the earnest money paid in sum of Rs.50,000/- has not been refunded to the appellant. 2. The respondent i.e. the defendant has chosen to abstain even in the instant appeal in spite of being served by publication. Thus, we proceed ex-parte against the respondent. RFANo.833/2005 Page 2 of 4 3. Learned Counsel for the appellant urges that the learned trial judge has returned findings based on illogical presumption requiring corrective action to be taken in appeal. But, counsel concedes that in view of the fact that the agreement to sell, Ex.P-1, is dated 20.12.1990 and that his client sought decree for specific performance on 16.12.1993, after serving a notice of demand on 26.11.1993, Ex.P-2, specific performance of the agreement to sell may not be granted to his client. Counsel prays that at least the earnest money paid be ordered to be returned with reasonable interest. 4. The agreement to sell, Ex.P-1, is in the nature of a receipt, having all features of an agreement to sell. The same reads as under:- “Received a sum of Rs.50,000/- (Rupees fifty thousand only) in cash from Shri Shahzad Dagar s/o Shri Jage Ram r/o Village and Post Office, Madiangardi, New Delhi, towards the sale of undivided share of advance is on account of 1/4th share of my property bearing No.D-8, Defence Colony, New Delhi the balance sale consideration of Rs.6 lakhs shall be paid by the purchaser after obtaining the necessary sale and income tax permission from the concerned authorities. Hence this receipt is made at New Delhi on this 20/12/90” 5. Declining a decree for specific performance, the learned trial judge had held that Ex.P-1 does not specify as to whether RFANo.833/2005 Page 3 of 4 the buyer or whether the seller has to obtain the requisite permissions and thus the plaintiff has failed to prove that he was ready and willing to perform his part of the contract. The second reason given by the Judge is that till the plaintiff served the legal notice dated 26.11.1993, Ex.P-2, there is no evidence of the plaintiff ever approaching the defendant to receive the balance sale consideration and thereafter execute the sale deed, meaning thereby, the conduct of the appellant shows his not being ready and willing to perform his obligations under the contract. 6. Unfortunately, the learned trial court has failed to appreciate that the seller has to complete all acts which are necessary for him to convey title in the property forming subject matter of the agreement to sell unless the terms of the agreement to sell record otherwise. Indeed, the learned trial judge has proceeded on a wrong assumption that since Ex.P-1 does not record as to who would obtain the requisite permission and since the appellant did not speak about him being willing to obtain the requisite permissions on behalf of the seller, it had to be held that the appellant was not ready and willing to perform his obligations under the contract. 7. Limitation for seeking specific performance of an agreement to sell is 3 years from the date when cause of action accrued. Of course, equities may lean against a plaintiff for having approached the court belatedly because RFANo.833/2005 Page 4 of 4 property prices are showing a continued rise, at least in Delhi. But, this would be a factor to deny the relief of specific performance which is a discretionary relief. The plaintiff may be compensated by way of money. 8. The respondent remained ex-parte at the trial and thus did not even challenge the testimony of the appellant of being ready and willing to perform his obligations under the contract. 9. We hold that the appellant is entitled to a refund of the earnest money paid with interest @ 9% per annum from the date the respondent received the same i.e. 20.12.1990, till realization. 10. The appeal is allowed. Impugned judgment and decree dated 10.08.2005 is set aside. Suit filed by the appellant is decreed in sum of Rs.50,000/-(Rupees Fifty Thousand Only) with interest @ 9 % per annum from 20.12.1990 till the said sum is realized. The appellant is also entitled to propionate cost all throughout. PRADEEP NANDRAJOG, J J.R. MIDHA, J NOVEMBER 24, 2008 mk