RAJIV SHAKDHER, SANJAY KISHAN KAUL, JJ.

1. Mr. Vijay Gupta (respondent No.1 herein) filed a suit for specific performance, declaration, permanent & mandatory injunction as well as a decree of damages in the alternative against Shri Gursharan Singh Sandhu (for short „GSS?)/respondent No.2 in respect of flat No.113, 1st Floor, New Delhi House, Plot No.27, Barakhamba Road, New Delhi-110001 admeasuring 872 sq.ft. (hereinafter referred to as the „suit property?). Respondent No.1 alleged that GSS has represented himself as the owner of the flat and agreed to sell the same to him for a total consideration of `38,80,400.00, amount being calculated @ `4,450.00 per sq.ft. Respondent No.1 paid a sum of `1.00 lakh in cash as part payment to GSS for which a receipt was executed (Exhibit P-1), which reads as under:

“RECEIPT Received Rs.1,00,000/- (Rupees One lac only) by cash as payment from Mr. Vijay Gupta S/o Sh. Narinder Pal Azad R/o 497, Sector 16A, Faridabad against the sale of our flat No.113, situated at 1st Floor, New Delhi House, 27, Barakhamba Road, New Delhi-110001 admeasuring 872 sq.ft. for total consideration of Rs.38,80,400/- (@Rs.4,450/- per sq.ft.). Sellers shall pay all dues upto the date of agreement along with transfer charges payable to builder. Date: 27th March, 2004 (GURSHARAN SINGH SANDHU) S/o Late Sh. Harcharan Singh Sandhu R/o 173, Sector-19A, Chandigarh. 1. Sd/- Pavan Kumar 807, Rohit House, 3, Tolstoy Marg, New Delhi-1. 2 Sd/- Mahesh Goel S/o Sh. R.N. Goel 369/16A Faridabad.”

2. As per the receipt GSS was to pay all the dues up to the date of the agreement along with transfer charges payable to the builder. The receipt is witnessed by Shri Pavan Kumar and Shri Mahesh Goel. The plaint states that the transaction was to be completed within two (2) months or soon thereafter, after obtaining necessary permissions and clearances and the balance amount was payable on receipt of possession as per the said understanding though not evidenced in the receipt. Respondent No.1 contacted GSS on 15.5.2004 before the expiry of the said period informing that he has made arrangement for the entire sale consideration but was informed that the permissions/clearances had not been obtained.

Despite number of endeavours of respondent No.1 and his readiness and willingness to perform the obligations for sale of the property, the transaction was not completed but on the other hand he came to know that GSS was attempting to sell the flat to some other person at a higher price. This resulted in filing of the suit for specific performance and in the alternative for recovery of `25.00 lakh towards compensation, including advance paid along with interest @ 24 per cent per annum. The suit was filed on 7.7.2004.

3. It may be noticed that the index of the suit referred to “Shri Gursharan Singh Sandhu & Ors.” as “defendants” but only one defendant “Gursharan Singh Sandhu” was impleaded. The plaint also in some places referred to “defendants” despite there being one defendant. The significance of this came to light when the written statement was filed by GSS. GSS pleaded that he was not the sole owner of the property and that respondent No.1 had been informed that he would have to take consent of other co-owners and the Flat-Buyers? Agreement dated 27.10.1976 was shown to respondent No.1 which recorded the names of all the co-owners, being Lt. Col. Harcharan Singh Sandhu, Harcharan Singh Sandhu (HUF), Tripat Kaur Sandhu, Master Gursharan Singh (Minor) and Kumari Roopan Sandhu (Minor). It was, thus, pleaded that there was no completed agreement to sell, GSS being owner of only part of the property. Harcharan Singh Sandhu (for short „HSS?) had passed away and his personal share devolved on two heirs, viz., his wife and GSS his son as per a Will. The HUF share of late HSS devolved on GSS and his mother. The knowledge of this fact is attributed to respondent No.1 and since all the parties were not ad idem on sale, GSS was willing to return the