( 1 ) THIS is a suit for the specific performance of the agreement to sell dated 29th September, 1979 entered into between the parties whereby the defendant Shyam Dhawan agreed to sell his House No. E69 Tagore Garden, New Delhi, to the plaintiff for a total price of Rs. 1,55,000. 00 out of which a sum of Rs. 10,000. 00 was paid by the plaintiff to the defendant as earnest money which comprised the following amounts in the following manner:

A) Cash amount of Rs. 1,000. 00 on 10th September, 1979;

B) Cheque for Rs. 4,000. 00 dated 12th September, 1979;

C) A Bank Draft for Rs. 5,000. 00.

( 2 ) UNDER the terms of this agreement to sell the defendant was to obtain the sale permission from the Delhi Development Authority (hereinafter to be referred to as the DDA ) he being the perpetual lessee of the plot underneath the house in question, as also income-tax clearance certificate, at his own cost and expense and then execute the sale deed and to have the same registered against the receipt of the balance sale price. The defendant was also bound to give vacant possession of the house in question to the plaintiff.

( 3 ) THE defendant sent an affidavit pro forma on 15th October, 1979 to the plaintiff requesting him to fill up the blanks therein and to return the same to the defendant after getting it attested from First Class Magistrate or Oath Commissioner or a Notary Public, as the defendant needed the same for obtaining sale permission from the DDA. and the plaintiff complied the next day.

( 4 ) THE plaintiff continued waiting but was not informed by the defendant regarding his having obtained the sale permission and the income-tax clearance certificate and so wrote a letter dated 2nd January, 1980 to the defendant requesting him to get both these requirements done at an early date so as to facilitate the finalisation of the sale, but no reply was received by him to this letter and ultimately a notice dated 19th February, 1980 from the defendant through counsel Shri Basant Kumar Jaggi was received by the plaintiff wherein it was asserted that the defendant had been the victim of misrepresentation by the plaintiff in getting the agreement to sell in question executed from him inasmuch as the plaintiff had no funds to purchase the property in question, but this notice maintained silence about the defendant having moved the DDA. for the sale permission or in respect of having got the income-tax clearance certificate which two conditions were prerequisites for the finalisation of the sale. To this notice reply and rejoinder were exchanged which were further followed by some correspondence between the parties and in all his letters the defendant stuck on to his position assuming that the plaintiff had no money to purchase the property in question whereas he himself had not applied for the sale permission or for the income-tax clearance certificate, while the plaintiff repeatedly stated in the aforesaid correspondence and otherwise also that he had all along been and was still ready and willing to perform his part of the contract. of which fact the defendant had the notice. It is further asserted that under the agreement the defendant was to hand over vacant physical possession of the house in question which was admittedly in possession of a tenant and had not been got vacated by the defendant, and even though the house in question has fallen vacant and can be made over to the plaintiff in that state the defendant is to get the sale permission as also income-tax clearance certificate for the registration of the sale deed and the failure on the part of the defendant in this regard implies his refusal to sell the house in question to the plaintiff.

( 5 ) THE defendant while contesting the suit has asserted that he had been ready and willing to perform his part of the contract inasmuch as he had applied to the DDA. for the sale permission and had also got the house in suit vacated from the tenant (Steel Authority of India) and the same was lying

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