The main legal point established is that the time clause in an Agreement to Sell may not be considered of the essence, and the party paying part of the purchase money as advance, even if in breach, is entitled to a refund thereof.

Rajiv Sahai Endlaw, J.

1. The appeal impugns the judgment and decree dated 24th September, 2007 of the Court of the learned Additional District Judge (ADJ), Delhi in Suit No.193/2006 filed by the appellant/plaintiff for recovery of Rs.20 lakhs jointly and severally from the two respondents/defendants, to the extent the same declines recovery of Rs.10 lakhs to the appellant/plaintiff while decreeing the suit of the appellant/plaintiff for Rs.10 lakhs with interest and costs only.

2. Notice of the appeal was issued. The appeal was on 21st April, 2008 admitted for hearing. The appeal, on 1st May, 2013, on default in appearance of the appellant/plaintiff, was dismissed in default. The appellant/plaintiff applied for restoration and which was allowed on terms and the counsels were also heard on the appeal and judgment reserved.

3. The appellant/plaintiff sought recovery of Rs.20 lakhs jointly and severally from the two respondents/defendants, pleading:

(i) that the two respondents/defendants had, vide Agreement to Sell dated 2nd March, 2006, agreed to sell to the appellant/plaintiff a plot of land admeasuring 915 sq. yds. out of Khasra Nos.11/16, 12/20 and 20/1 situated in the area of Village Nangloi Jat at Kirori Road, in a colony known as Kavita Colony, Nangloi, Delhi-110 041 for a total sale consideration of Rs.89,67,000/-;

(ii) that in pursuance to the aforesaid Agreement, the appellant/plaintiff had paid a sum of Rs.10 lakhs to the respondents/defendants as advance money/part payment and had agreed to pay the balance Rs.79,67,000/- at the time of registration of the Sale Deed;

(iii) that the period for completion of the said bargain was fixed upto 25th May, 2006;

(iv) that the respondents/defendants after execution of Agreement to Sell approached the appellant/plaintiff to get the signatures of the appellant/plaintiff on three forms to be submitted to the Sub-Registrar for getting the ‘No Objection Certificate’ (NOC) from the Tehsildar Notification, as the land which was agreed to be sold and subject matter of the Agreement to Sell could not have been transferred nor any Sale Deed thereof got registered without getting NOC from the Tehsildar Notification; the appellant/plaintiff signed the three forms and returned the same to the respondents/defendants;

(v) that the appellant/plaintiff had been thereafter continuously contacting the respondents/defendants for knowing whether the NOC had been received by the respondents/defendants from the office of the Sub-Registrar Notification to execute the Sale Deed;

(vi) that the appellant/plaintiff prior to 25th May, 2006 made arrangement for payment of the balance amount of Rs.79,67,000/- which were to be paid at the time of registration of the Sale Deed; that on 25th May, 2006, the appellant/plaintiff was having sufficient funds and was ready and willing to perform his part of the contract;

(vii) that the appellant/plaintiff on 25th May, 2006 contacted the respondents/defendants who failed to give any satisfactory reply and assured the appellant/plaintiff that the needful will be done in a short period;

(viii) that the appellant/plaintiff believing the assurance of the respondents/defendants did not take any action;

(ix) that thereafter the respondents/defendants had been avoiding to give any answer to the queries of the appellant/plaintiff regarding grant of NOC from the Tehsildar Notification;

(x) that the respondents/defendants also failed to deliver copies of the title documents in their favour of the plot agreed to be sold so that necessary Sale Deed could be got drafted by the appellant/plaintiff;

(xi) that the appellant/plaintiff came to know that the rates in the area have gone high and the respondents/defendants have become dishonest;

(xii) that the appellant/plaintiff as such got served a notice dated 25th August, 2006 calling upon the respondents/defendants to immediately inform the appellant/plaintiff about the status of the NOC from the Tehsildar Notification an