MR. JUSTICE S.RAVINDRA BHAT

1. The present appeal questions the decision of the learned Single Judge dated 05.10.2006 whereby the unsuccessful plaintiffs’ suit claiming specific performance of a contract for sale of immovable property was dismissed. Briefly the facts are that in the suit, the plaintiff relied upon an agreement said to have been entered on 06.05.1995, whereby the defendants (respondents in this case), and hereafter called “sellers” agreed to convey a 190 sq. yard residential plot, being A-66, Saraswati Vihar, Delhi (hereafter called “the suit property”), for total consideration of Rs. 25 lakhs. The plaintiff had relied upon a receipt-cum-agreement which contained the terms of the contract. It was also alleged that the contract was to be completed within 100 days; the initial advance of Rs. 25 lakhs was paid. The plaintiff alleged that after entering into the contract, the seller, i.e. Nanak Chand, died, sometime in the second week of August 1995. It was submitted that the plaintiff approached the heirs of the seller, i.e. his children and widow. In the suit, it was alleged further that at that time, the legal heirs of the seller agreed to abide by the contract for sale but subsequently did not do so. As a result, the plaintiff issued a legal notice on 13.06.1996 and subsequently filed a suit. In the written statement, the defendants, i.e. heirs of Nanak Chand denied the plaintiff’s entitlement to specific performance, contending that the seller was not the absolute owner of the property. The defendants also contested the binding nature of the agreement, stating that Nanak Chand did not have the authority to enter into a binding legal arrangement. It was further stated that the lapse of 100-day period within which the plaintiff allegedly did not approach the legal heirs, disentitled him to specific relief.

2. On the basis of the pleadings of the parties and the documents brought on the record, the Court framed the following issues, on 19.11.1998:

1. Whether late Shri Nanak Chand, father of Defendant No.5 enter into an agreement to sell dated 6th May 1995 in respect of property No.66, Block-A, Saraswati Vihar, Pitampura, Delhi, as alleged para 1 of the plaint? OPP;

2. Whether Defendant No.5 is owner of half undivided share in the suit property, namely, property No. 66, Block-A, Saraswati Vihar, Pitampura, Delhi, if so, to what effect? OPD;

3. Whether the plaintiff fulfilled and complied with the terms and conditions of alleged agreement dated 6th May 1995 as alleged in the plaint? OPP;

4. Whether the plaintiff was and is ready and willing to perform his part of alleged contract dated 6th May 1995? OPP;

5. Whether the plaintiff is entitled to the relief of specific performance? OPP;

6. Relief.

3. Later on 26.11.2002, additional issues were framed. They are as follows:

1. Whether receipt-cum-agreement dated 6th May 1995 is inadmissible registered in accordance with law;

2. Whether receipt-cum-agreement dated 6th May 1995 is forged and fabricated as alleged.

4. The parties had not completed the evidence in the matter when the learned Single Judge was seized of the suit, on 19.07.2006. It was directed that the question of maintainability of the suit seeking specific performance would be first heard. Accordingly, the parties were heard on 05.10.2006. On that day, by the impugned judgment, the suit was dismissed. Learned Single Judge relied upon a decision of the Supreme Court reported as P. D’Souza v. Shondrilo Naidu 2004 (6) SCC 649 as well as an earlier decision reported as M.L. Devender Singh and Others v. Syed Khaja AIR 1973 SC 2457. On an appreciation of the law declared by the Supreme Court in those decisions, the learned Judge interpreted Clause (e) of the receipt-cum-agreement, and held as follows:

“9. Where parties provide for a consequence in the agreement, the consequences have to be followed and adhered to.

10. By recording, that in case the prospective purchaser fails to fulfill his reciprocal ob