1. The plaintiff instituted this suit for specific performance of the agreement dated 28th January, 2010 in respect of second floor apartment along with one servant quarter, two car parking spaces in the driveway and terrace rights in property bearing No.S-513, Greater Kailash-II, New Delhi, hereinafter referred to as ‘the suit property’.

2. On 28th January, 2010, the plaintiff entered into an agreement (Ex.P-1) with the defendant to purchase the suit property for a total sale consideration of Rs.5,10,00,000/-. The plaintiff paid advance money of Rs.50,00,000/- to the defendant at the time of the agreement and the balance sale consideration was agreed to be paid on or before 15th April, 2010. Relevant portion of the agreement dated 28th January, 2010 is reproduced hereunder:

“That on or before 15-4-10, the FIRST PARTY will execute and get the Sale Deed of the said Unit registered, in favour of the SECOND PARTY or his nominee/s, on receipt of the full and final balance amount, failing which either party shall be entitled to get the Sale Deed registered through the court of law by SPECIFIC PERFORMANCE OF THE CONTRACT, at the cost and expenses of the defaulting party.”

(Emphasis supplied)

3. Vide notice dated 24th April, 2010 (Ex.PW-1/2), the defendant notified the plaintiff that he had failed to pay the balance sale consideration of Rs.4,60,00,000/- by the agreed date despite reminders made in the end of March, 2010 and first week of April, 2010 and therefore, the defendant cancelled the agreement and forfeited the advance money of Rs.50,00,000/-. The defendant also notified the plaintiff that he had suffered loss as he had made advance payment for purchase of another property. The defendant also claimed loss of Rs.2,00,000/- per month as rental for the suit property. Relevant portion of the notice dated 24th April, 2010 is reproduced hereunder:-

“5. It was also agreed that remaining amount of Rs.4,60,00,000/- (Rupees Four Crore Sixty Lacs Only) shall be paid to my client on or before 10th April, 2010 and that my client shall get the Registration of the property and in the event of non-payment of remaining amount of Rs.4,60,00,000/-, within the stipulated time of 10th April, 2010, my client shall have the right to cancel the deal and forfeit the advance.

6. My client approached you by making a phone call during the end of March 2010 and remained you about the balance payment of Rs.4,60,00,000/-.

7. My client again remained you during first week of April, 2010, and you have informed my client that the money could not be arranged.

8. By your failure of paying the balance amount within the agreed period of 10th April, 2010, my client has to bear mental as well as financial loss. He had already made advance payment for purchase of other property in anticipation of receiving the balance amount from you which shall not be refunded if the timely payment is not made. The property is vacant and my client has to bear expenses related to electricity, water maintenance of garden/house, salaries of guards and so on. My client has also to bear a loss of Rs.2,00,000/- per month as rental of the property.

No other option but to cancel the agreement and forfeit the advance money. Hence forth my client is free to sell his owned property to anybody whatsoever it may be at her own wish.”

(Emphasis supplied)

4. The plaintiff sent a reply dated 26th May, 2010 (Ex. DW-1/3) to the defendant in which the plaintiff claimed that he was suffering from slip disc since end of March, 2010 and was advised bed rest and not to move out of Shillong. The plaintiff further claimed that he was advised not to move for another 50-60 days. The plaintiff further stated that he would pay the balance sale consideration after recovery from the slip disc. The relevant portion of the reply dated 26th May, 2010 is reproduced hereunder:

“5. That the para 5 is false as the agreement to sell dated 28-01-2010 does not have any clause of cancellation. Rather para 3 of the page 5 of