TMI Blog2011 (2) TMI 1589X X X X Extracts X X X X X X X X Extracts X X X X ..... d below: 5. That any liability whatsoever regarding the plot including the property tax payable in respect of the aforesaid plot shall be paid and be payable by the intending vendor till the sale deed is executed and vacant possession is delivered to the intending vendee. 3 . The Respondent cancelled the said agreement by notice dated 27.2.1989. However, subsequently the parties entered into a fresh agreement dated 2.5.1989 under which the cancellation was treated as withdrawn and the Respondent undertook to execute the sale deed in terms of the agreement dated 26.10.1988 without any change in its terms. The said agreement recorded that the NOC (in Form 371) from the Income Tax authorities had been received. The agreement dated 2.5.1989 provided that on obtaining the Income Tax Clearance Certificate, the vendor should inform the purchaser within one week and within one month thereafter, the sale should be completed by execution of the sale deed and the purchaser should pay the balance amount in the presence of the Sub Registrar. On 16.5.1989, the Respondent informed the Appellant that the NOC in Form No. 37-I and Clearance Certificate in Form No. 34-A have been obtained and, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence. Issues (3) and (4), which are crucial, are extracted below: (3) Whether the Plaintiff has been still ready and willing to perform its part of the contract, as alleged? (4) Whether the Plaintiff is entitled to damages if so it to what extent? After considering the pleadings, the evidence and the arguments, a learned single Judge of the High Court, by judgment dated 8.1.2008, dismissed the suit. He held that the Plaintiff-Appellant was not ready and willing to perform the contract in terms of the agreement and had failed to tender ₹ 34,00,000/- within the stipulated date. However with reference to the alternative prayer, the court granted a decree for refund of ₹ 9,50,000/- with interest at 10% per annum from the date of payment till the date of repayment was granted. Feeling aggrieved, the Appellant filed an intracourt appeal and a Division Bench of the High Court, by the impugned judgment dated 2.7.2008 affirmed the decision of the learned Single Judge and dismissed the appeal with costs of ₹ 10,000/-. The said judgment is challenged in this appeal by special leave. 5 . The suit has been dismissed on the basis of concurrent findings of fact that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecute the sale deed by receiving the said sum, the Appellant insisted that she should either pay ₹ 5,00,000/- to it towards municipal taxes or clear all municipal taxes due before the sale, as he apprehended that his construction project was likely to be affected. As she was not agreeable to meet the said illegal demand and pay ₹ 5,00,000/-, the Appellant was not ready to proceed with the sale. As the Appellant refused to pay the entire balance consideration of ₹ 34,00,000/- in terms of the agreement and get the sale completed, she had no alternative but to terminate the contract on 22.6.1989. 6. The following averments in the Appellant s notice dated 24.6.1989 (Ex.P31) proves the version put forth by the Respondent: You further stated that you would neither make any payment of the property tax and nor you would get your dispute with the Municipal Corporation of Delhi settled regarding the assessment, and finalization of the liability towards the property tax as you were not in any hurry. The company was then constrained to say that if your dispute remained pending for ten years and you did not make the payment and get your dispute settled, the Corporation w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... she could have signed the original only if Plaintiff had accompanied her to Sub-Registrar. It is not proved from the evidence of the Plaintiff that she had refused to go to Sub-Registrar s office. Rather the evidence abundantly shows that she had gone to Sub- Registrar s office and was prepared to appear before the Sub-Registrar and it was Plaintiff who insisted upon additional security from the Defendant qua property tax. The Plaintiff could have recovered the amount which the Plaintiff was made to pay qua the property for period before execution of the sale deed. The sale agreement and proposed sale deed were sufficient security for the Plaintiff. The distrust between Plaintiff and Defendant was result of bitterness which crept in between them due to exchange of letters and notices before the execution of the sale deed. In view of above premise, I therefore, decide both these issues in favour Defendant and against the Plaintiff. The Plaintiff is not entitled to a decree of specific performance of agreement to sell. This finding of fact that the Appellant was in breach has been affirmed in appeal, by the Division Bench. As the judgments of the courts below were based upon the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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