The plaintiff's lack of willingness to perform essential terms of the contract disentitled him from specific performance, and both parties' breach of the contract led to the denial of damages.

MR. JUSTICE S. RAVINDRA BHAT

1. In this appeal, the unsuccessful plaintiff impugns the judgment and decree dated 17.10.2012 of a learned Single Judge dismissing his suit [CS(OS) 576/2005] which claimed a decree of specific performance.

2. The plaintiff’s case was that the first defendant, representing himself as the sole owner of the property bearing no 186, Golf Links, New Delhi (suit property), entered into an Agreement to Sell dated 29.01.2005 to sell ground floor of that property, along with basement rights and 40% undivided interest in the land. It was stated that the right of first refusal in case of sale of first and second floors was also agreed upon. The consideration agreed was Rs. 3.30 crores; a cheque for Rs 10 lakh was paid as advance by the plaintiff. The plaintiff further alleged while reviewing a draft Sale Deed dated 12.02.2005, it came to his knowledge that the first defendant was not the sole owner of the property, which was a HUF (Hindu undivided family) property. Upon negotiation, the defendant agreed that he would get the second and third defendants (other members of the HUF) to sign the Sale Deed. The plaintiff further corresponded through letter dated 17.02.2005 asking the first defendant to expedite matters. The broker, Shri Ashok Narang, sent, on behalf of the defendant, two drafts, one of a Sale Agreement and the other – a Fittings and Fixtures Agreement, which were not in accordance with the terms of the Agreement dated 29.01.2005. There was further exchange of correspondence between the parties. It was also alleged that the first defendant had met the plaintiff on 17.03.2005 and agreed to the draft proposed by the latter subject to his lawyer confirming the making of endorsement on the original title deed. The first defendant, however, sent a draft on 21.03.2005 which was virtually same as one that had already been rejected by the plaintiff. The plaintiff then sent a draft sale deed, along with a letter dated 21.03.2005. However, the first defendant returned the cheque, with a letter, stating that the transaction stood cancelled. The plaintiff, therefore, sought specific performance of the Agreement to Sell dated 29.01.2005, and in the alternative claimed damages amounting to Rs. 3.3 crores (originally, prior to amendment of the plaint, the damages sought were Rs. 1 crore).

3. The defendants contested the suit jointly, alleging, as a preliminary objection that there existed no concluded contract between the parties. It was stated that the suit was bad for misjoinder. It was asserted that the first defendant was the sole owner of the property. The defendants did not deny receipt of the cheque amounting to Rs. 10 lakhs, but stated that the same was never to be, and never was, encashed as it was given in trust by the plaintiff, till such time as the final terms of the sale were decided. It was further asserted that the terms and conditions for the sale deed, after being altered suitably by both parties, were not mutually agreeable, and thus, there was no enforceable agreement. The defendants denied agreement to various terms, which the plaintiff contended had been mutually agreed to.

4. Based on the pleadings and other materials, the following issues were framed for trial:

“i) Whether there was concluded contract between the parties and the receipt dated January, 29, 2005 acknowledging the receipt of cheque for a sum of Rs 10.00 lakh is a concluded agreement between the parties which can be enforced? OPP

ii) If issue No. 1 is decided in favour of the plaintiff then whether the plaintiff is entitled for a specific performance of agreement? OPP

iii) Whether the plaintiff had always been ready and willing to perform his part of the agreement? OPP

iv) Whether the defendant No. 1 was the sole owner of the property and could enter into the agreement to sell with the plaintiff? OPP

v) Whether suit is bad for mis-joinder of parties? OPD

5. The learned Single Judge, after considering the materials on