Valmiki J. Mehta, J, (Oral)

1. Three suits namely CS(OS) No. 2421/1989 titled as M/s. A.D. Overseas v. Bali Ram Sharma, CS(OS) No. 2415/1989 titled as M/s. A.D.Overseas v. Anil Sharma and CS(OS) No. 2414/1989 titled as M/s. A.D.Overseas v. Smt. Snehlata Sharma are being decided by the present judgment. By the order dated 26.7.1991, these three suits were consolidated, and it was ordered that evidence will be led in CS(OS) No. 2421/1989. The facts of all the three cases are almost identical except the value of the sale consideration which varies because of the areas of the lands. For the sake of convenience, I am basically making reference to the facts of the CS(OS) No. 2421/1989, the lead case.

2. The plaintiff has filed the subject suit seeking specific performance of the agreements to sell dated 18.8.1988, Ex.P1. The land which was agreed to be sold under this agreement was of 27 bighas comprised in khasra Nos. 767(2-16), 768(4-16), 769(0-10), 770/1-2(4-10), 771(4-16), 779(4-16), 780(0-6), 781(4-10). The total sale consideration fixed was Rs. 53,43,300/-. In CS(OS) No. 2414/1989 the area of land is 4 bighas and 16 biswas comprised in khasra no.777, village Chattarpur, Tehsil- Mehrauli, New Delhi. The sale consideration was Rs. 9,50,000/-. In CS(OS) No. 2415/1989, the area of the land is 23 bighas and 10 biswas situated in khasra nos. 795(0-17), 793(4-16), 792/2-1(2-1), 792/3(0-5), 792/4(2-3), 794/1(3-10), 794/2(0-19), 798(4-9), 797(4-10), 803 min/(0-14), 803 min (2-5). The total sale consideration was Rs. 52,34,455/-. The proposed buyer in all the three agreements was the same i.e. plaintiff no.2-Sh.Bhushan Kumar. The proposed seller in the suit being CS(OS) No. 2421/1989 is Sh. Bali Ram Sharma, in CS(OS) No. 2414/1989 Smt. Snehlata Sharma and in CS(OS) No. 2415/1989 it is Sh.Anil Kumar Sharma. The defendant in CS(OS) No. 2421/1989 Sh. Bali Ram Sharma is the husband of the defendant-Smt. Snehlata Sharma in CS(OS) No. 2414/1989 and the father of defendant-Sh.Anil Kumar Sharma in CS(OS) No. 2415/1989. All the three agreements to sell entered into are dated 18.8.1988, and they are identical in terms of the facts except of course the total sale consideration which varies in view of the area of lands.

3. The case of the plaintiff as set out in the plaint is that the defendant was guilty of breach of the contact inasmuch as it was the defendant who had to obtain the sale permission from the Income Tax Authority, but the defendant failed to obtain the sale permission. It is further averred that the original proposed buyer under the three agreements to sell namely Sh. Bhushan Kumar nominated the present plaintiff namely M/s. A.D.Overseas as buyer under a nomination agreement dated 28.9.1988. Readiness and willingness is averred with respect to the nominee M/s. A.D.Overseas, plaintiff no.1. As per the relief clauses in the plaint, the plaintiff seeks specific performance of the agreements to sell dated 18.8.1988 and in the alternative damages which are confined to the price of the property agreed to be purchased.

4. The defendants have filed the written statements. It is pleaded that it is the plaintiff who is guilty of breach of contract. It is further pleaded that in fact the nomination dated 28.9.1988 in favour of the plaintiff no.1 is a forged and fabricated document, and which has been created simply to bring in the financial capacity to specifically perform the agreement to sell, inasmuch as the plaintiff no.2 never had enough money to perform his part of the contract of making the payment of the balance sale consideration. It is also pleaded that the plaintiff is not entitled to the discretionary remedy of specific performance or the relief of damages as claimed.

5. The following issues were framed on 23.4.1992 in CS(OS) 2421/1989:-

"1. Whether plaintiff No. 1 was registered with the Registrar of Firms and Inder Mohan Bhatia's name was shown as partner of the firm at the time of institution of the suit?

2. Whether nomination letter d