JUDGMENT

I.A.No.3118/2009

1. The plaintiff has filed this suit for specific performance of the Agreement to Sell dated 22nd October, 2005 in respect of land ad-measuring 8,000 sq.yrds. bearing khasra Nos.335 (5-10) and 336 (3-9) situated at Village Khanpur, Tehsil Mehrauli, New Delhi. Along with the suit, the plaintiff filed I.A.No.3118/2009 under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure on which both the parties have addressed their arguments at length.

2. Plaintiff’s Case

2.1 Vide Agreement to Sell dated 22nd October, 2005, the plaintiff agreed to purchase the suit property from the defendant for a total consideration of `9,60,00,000/- out of which the plaintiff paid advance of `1,00,00,000/- at the time of signing of the agreement and the remaining sale consideration of `8,60,00,000/- was to be paid on or before 31st January, 2006 at the time of registration of the necessary documents.

2.2 Vide letter dated 19th January, 2006, the plaintiff enquired about the No Objection Certificate (NOC) from the defendant.

2.3 Vide letter dated 9th February, 2006, the plaintiff called upon the defendant to arrange for No Objection Certificate (NOC) for registration of the sale deed whereupon the defendant sent a reply dated 13th February, 2006 pointing that there was no clause in the agreement for obtaining the NOC. The defendant also pointed out that the plaintiff had requested for extension of time to make the balance payment and on his request, the defendant had extended the date of payment of balance sale consideration from 31st December, 2005 to 31st January, 2006. The defendant called upon the plaintiff to make the payment of balance sale consideration by 24th February, 2006.

2.4 Vide notice dated 4th September, 2006, the plaintiff once again called upon the defendant to obtain the NOC from the concerned authority for execution of the sale deed to which the defendant sent the reply dated 5th October, 2006 once again pointing out that NOC was not a condition under the agreement and the plaintiff has committed the breach of the agreement by not making payment of the balance sale consideration of Rs.8,60,00,000/- and, therefore, the agreement to sell stood terminated on 24th February, 2006 and the advance money was forfeited.

2.5 The plaintiff instituted the present suit for specific performance on 30th January, 2009.

3. Defendant’s Case

3.1 There was no obligation on the part of the defendant to obtain the NOC under the agreement to sell dated 22nd October, 2005.

3.2 No NOC was required for execution of the transfer documents and the said fact was within the knowledge of the plaintiff at the time of agreement to sell dated 22nd October, 2005. The demand of NOC was, therefore, just an afterthought. (Para 7 of the defendant’s reply dated 5th October, 2006 to the legal notice dated 4th September, 2006).

3.3 The plaintiff was never ready or willing to complete the transaction in terms of his financial readiness which severely lacked right from the very beginning. The two cheques for Rs.25 lakhs towards advance were initially dishonored upon presentation due to insufficiency of funds and were subsequently substituted with demand drafts.

3.4 The plaintiff, a property dealer, entered into the agreement to sell for speculation but had no arrangement for the balance sale consideration of Rs.8,60,00,000/-.

3.5 The plaintiff has raised the false plea of NOC which was not a term of the agreement.

3.6 The balance sale consideration of Rs.8,60,00,000/- was payable by 31st January, 2006. However, vide letter dated 13th February, 2006, the defendant called upon the plaintiff to pay the balance sale consideration by 24th February, 2006. No payment was made by the plaintiff even up to 24th February, 2006 and, therefore, the agreement to sell stood terminated and the advance money was forfeited which was intimated to the plaintiff vide reply dated 5th October, 2006.

3.7 The plaintiff never had the financial capacity to pay