Interpretation of contract clauses, NOC requirement, and forfeiture clause influenced the court's decision in favor of the Plaintiff.

Prathiba M. Singh, J.

1. The present judgment disposes of two suits for recovery filed by the Plaintiff.

Suit no.1-CS (OS) 402/2014

2. The Plaintiff has filed the present suit under Order XXXVII CPC seeking recovery of a sum of Rs.1,50,00,000/- along with interest @ 16.25%. The brief facts are that the Plaintiff entered into an agreement to sell dated 7th April, 2013 (“ATS-1”) with the Defendant, for the sale of 9 bighas 6 biswas out of Khasra No. 31//9/2 (2-3), 12 (3-19), & 13/1 (3-4) situated in the revenue estate of Village Jhuljhuli, Tehsil-Najafgarh, New Delhi-110043. The total sale consideration was Rs.6,20,00,000/- out of which Rs.1,50,00,000/- was paid by means of cheque no. 403785 dated 7th April, 2013, drawn on Oriental Bank of Commerce, New Mandi, Muzaffarnagar.

3. The Defendant had executed a receipt for the said amount, which was witnessed by two witnesses.

4. The Defendant claimed to be the absolute owner/Bhumidaar of the said land on the basis of an agreement to sell entered into between the Defendant and one Mr. Kapoor Singh Dagar – the Bhumidaar, dated 29th March, 2013.

5. The Plaintiff’s case is that as per clause 5 of the agreement, the Defendant was to obtain NOC from the concerned ADM for execution of the sale deed, 15 days prior to the date of final payment. The date of final payment was to be 22nd June, 2013. Since the Defendant did not obtain the NOC in time, the Plaintiff is entitled to a refund of the sum paid. The Plaintiff also got issued a legal notice dated 30th December, 2013, since the Defendant failed to obtain the NOC. The Plaintiff has placed on record the bank statement to prove that the sum of Rs.1,50,00,000/- was credited to the Defendant’s account.

6. The Defendant filed its leave to defend on the ground that the Plaintiff did not make the payment of the balance sale consideration. It was further stated by the Defendant that it had entered into an agreement to sell dated 29th March, 2013 with one Mr. Kapoor Singh Dagar. The Defendant took the plea that it had never assured the Plaintiff that the Defendant would get the sale deed executed in its favour on or before 18th June, 2013. Since the Plaintiff did not approach the Defendant with the payment of the remaining sale consideration, the Plaintiff failed to prove readiness and willingness. The Defendant relied upon clause 5 of the agreement and contended that the time period for obtaining the NOC is open ended, and thus the agreement is still alive. The Defendant has taken the plea that since the Plaintiff did not make the remaining payment, its transaction with Mr. Kapoor Singh Dagar also stood cancelled, and hence the transaction with the Plaintiff could not be fructified. In view of this, the Defendant submits that the Plaintiff itself being in breach, is not entitled to a decree.

Suit No.2 -CS (OS) 381/2014

7. The facts of this case are similar to the facts in the abovementioned case. The Plaintiff entered into an agreement to sell dated 11th April, 2013 (“ATS-2”) with the Defendant for the sale of 1/2 share In 11 bigha 15 biswa out of Khasra Nos. 74/21/2 (1-2), 85/1 (4-09), 10(3-10), 88/14(2-12), 15(0-2) and ½ share in 4 bigha out of Khasra No. 28/23/2(4-0) & 1/6 share in land measuring 4 biswas out of Khasra No.31/26 (0-4) and ½ share in land measuring 13 bigha 16 biswa out of Khasra No. 62/15 (4-16), 6(4-16), 15(4-04) situated in the revenue estate of Village Ujjwa, Tehsil Najafgarh, New Delhi. The total sale consideration was Rs.3,20,00,000/- per acre, out of which Rs.1,33,00,000/-was paid by the Plaintiff to the Defendant. The receipt dated 11th April, 2013 is also on record.

8. The counsel for the Plaintiff has submitted that the Defendant, having failed to obtain the NOC, was in breach of the agreement to sell. The Plaintiff had therefore no obligation to pay the remaining consideration amount. The advance amount is liable to be refunded as the power of forfeiture could not have been exercised by the Defendant. It is further su