VALMIKI J. MEHTA, J.

Caveat No. 5/2019 Counsel appears for the caveator. Caveat stands discharged.

RFA No. 2/2019 & CM No. 77/2019 (Stay) & CM No. 78/2019 (U/o XLI Rule 27 CPC)

1. This Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is filed by the plaintiff in the suit impugning the Judgment of the trial court dated 28.07.2018 by which the trial court has dismissed the suit filed by the appellant/plaintiff for specific performance of the Agreement to Sell dated 28.03.1993 with respect to the suit property bearing No. A-229, Shivalik, New Delhi (200 sq. yds.). I may note that by the self-same impugned judgment, the counter-claim filed by the respondent/defendant seeking to recover damages of a sum of Rs. 25,50,000/- from the appellant/plaintiff was also dismissed. The respondent/defendant/counter-claimant, in this appeal, had filed an appeal being RFA No. 888/2018, and this appeal after arguments was disposed of as not pressed in terms of the Order dated 30.10.2018. This present appeal is now the appellants/plaintiffs appeal dismissing the suit seeking the relief of specific performance.

2. The facts of the case are that the appellant/plaintiff filed the suit seeking specific performance of the Agreement to Sell dated 28.03.1993 for the suit property. It was pleaded by the appellant/plaintiff that the suit plot was allotted to the respondent/ defendant but since the respondent/defendant was not successful in taking possession of the same as well as getting the Lease Deed executed, hence she approached the appellant/plaintiff for getting the needful done. The respondent/defendant was settled in Canada, and therefore, the respondent/defendant said that it was not possible for her to pursue her case before various authorities and was in need of money, and therefore, it was pleaded that the parties, hence, entered into the subject Agreement to Sell on 'as is where is' basis for a total sale consideration of Rs. 15,00,000/- being 50% of the market price of the property as on the date of the execution of the Agreement to Sell. The appellant/plaintiff paid an amount of Rs. 1,00,000/- of the total sale consideration of Rs. 15,00,000/-. A further Document dated 23.07.1993 was also executed between the parties whereby the price was increased to be 50% of the market value on the date of execution of the Lease Deed. It was pleaded by the appellant/plaintiff that he spent time, money and energy and got issued the Letters dated 14.05.1993, 22.03.1994 and 07.02.1995 from the office of the Registrar Cooperative Societies and the Society for execution of the Lease Deed. The appellant/plaintiff pleaded that the respondent/defendant wanted to back out of the Agreement to Sell and sell the suit property to someone else, and therefore a Legal Notice dated 24.07.2001 was issued to the respondent/defendant. It was pleaded that as on the date of the filing of the suit, the market value of the suit property was approximately Rs. 48,00,000/-. It was pleaded that the appellant/plaintiff was always ready and willing to perform his part of the contract/Agreement to Sell, and therefore, the suit be decreed.

3. Respondent/Defendant had contested the suit. Though originally the case of the respondent/defendant was that the Agreement to Sell/Receipt dated 28.03.1993 were signed by them after appellant/plaintiff had exercised misrepresentation, fraud and concealment, this issue however is not so pressed on behalf of the respondent/defendant before this Court as the trial court has given a finding that the parties with an open mind had entered into the Agreement to Sell/Receipt dated 28.03.1993 along with the Addendum dated 23.07.1993. The trial court has also held the suit for specific performance to be within limitation of three years by applying Section 15 of the Limitation Act, 1963 by excluding the period till the respondent/defendant came back to India as the respondent/defendant is a resident of Canada, and on this a