CS(OS).No.2166/2007 Page 1 of 5 * IN THE HIGH COURT OF DELHI AT NEW DELHI + CS(OS) No.2166/2007 % Date of Decision: 11.05.2009 Dhiraj Tokas and Another …. Plaintiffs Through Mr.Dhruv, Advocate Versus Chhaluram …. Defendant Through Mr.B.S. Yadav, Advocate for the defendant. CORAM: HON’BLE MR. JUSTICE ANIL KUMAR 1. Whether reporters of Local papers may be allowed to see the judgment? YES 2. To be referred to the reporter or not? NO 3. Whether the judgment should be reported in the Digest? NO ANIL KUMAR, J. * 1. A pass over was prayed on behalf of counsel for the plaintiff Mr.Pankaj Vivek. The counsel who sought Passover was unable to disclose whether the plaintiffs had paid the sale consideration to the defendant for the purchase of the property in terms of previous order After pass over, no one is present on behalf of the plaintiff. Learned counsel for the defendant has contended that Mr.Pankaj Vivek, Advocate on behalf of the plaintiff told him outside the Court after the matter was passed over that the plaintiffs are not ready to pay the balance sale consideration and, therefore, he will not appear on behalf CS(OS).No.2166/2007 Page 2 of 5 of the plaintiffs. 2. This is a suit for specific performance of agreement to sell dated 22nd April, 2005. The plaintiffs contended that they had always been ready and willing to perform their part of the agreement and have the financial means. The plaintiffs also filed a bank balance certificate with the plaint to contend that they are still ready and willing to obtain execution of sale deed. It was asserted by the plaintiffs that the defendant is not executing the sale deed dishonestly and delivering the possession of the suit property. 3. The written statement was filed by the defendant challenging the allegations raised by the plaintiffs. After the written statement was filed, at the instance of the parties, the matter was referred to the Mediation Centre by order dated 20th November, 2008. On 6th January, 2009, it was intimated that the parties have reached a settlement and an application regarding the settlement of disputes shall be filed. However, the application incorporating the settlement between the parties was not filed. On 17th March, 2009, the plaintiff No.1 stated that the plaintiffs are ready to purchase the property. The learned counsel for the defendant reiterated that the defendant is agreeable to sell the property at the price which had been agreed between the parties. Therefore, on 17th March, 2009 time was sought for filing the application incorporating the settlement arrived at between the parties. CS(OS).No.2166/2007 Page 3 of 5 4. Despite the statements given by learned counsel for the parties on 17th March, 2009 that an application shall be filed incorporating the settlement arrived at between the parties, the application was again not filed. On 31st March, 2009, last opportunity was given to the plaintiffs to get the sale deed executed in their favor as the defendant and his counsel had contended that they are ready to execute the sale deed in favor of the plaintiffs provided plaintiffs pay the consideration agreed between the parties. Therefore the plaintiffs had been directed to pay the balance sale consideration to the defendant. 5. On 17th April, 2009 it was contended by the plaintiffs that though they are ready and willing to purchase the property at the consideration agreed between the parties, however, on account of interim order dated 6th November, 2007 they have not been able to obtain `No Objection Certificate', (NOC), and in the circumstances the order dated 6th November, 2007 be modified so that the plaintiffs may obtain the NOC and get the sale deed executed in their favor. 6. Consequently the order dated 6th November, 2007 was modified allowing the parties to obtain the `No Objection' certificate. On behalf of the plaintiffs it was stated that the entire sale consideration shall be brought by the plaintiffs by a pay order in favor of the defendant on the next date of hearing and the matter was adjourned to 4th May, 2009. CS(OS).No.2166/2007 Page 4 of 5 7. On 4th May, 2009 again the balance sale consideration was not brought by the plaintiffs so as to get the sale deed executed in their favor. Therefore, on that day at the request of the plaintiffs, last opportunity was granted to them to pay the balance sale consideration within one week failing which it was to be assumed that the plaintiffs do not have consideration to pay to the defendant and in that case it would be inferred that the plaintiffs are not ready and willing to perform their part of the agreement. 8. Today, learned counsel for the plaintiffs has not appeared nor the proxy counsel who had appeared on behalf of the counsel for the plaintiffs was able to disclose whether the sale consideration has been paid to the defendant or not. The counsel for the defendant contended that the balance sale consideration has not been paid. Even today, the sale consideration has not been brought to the Court for payment to the defendant so that the defendant may execute the sale deed in favor of the plaintiffs. 9. In the circumstances, the inevitable inference is that the plaintiffs are not ready and willing to perform their part of the agreement and, therefore, are not entitled for specific performance of agreement to sell dated 22nd April, 2007. CS(OS).No.2166/2007 Page 5 of 5 10. The plaintiffs have not sought any other relief except the specific performance of the agreement to sell dated 22nd April, 2007. Since the plaintiffs are not entitled for specific performance of the agreement to sell, for the reasons as detailed hereinabove, the suit of the plaintiffs is dismissed. Parties are, however, left to bear their own costs. May 11, 2009 ANIL KUMAR, J. “Ravindra”