IMPORTANT POINT
Continuous readiness and willingness to perform a contract is essential for specific performance; failure to demonstrate this results in dismissal of the claim.

JUDGMENT

TARA VITASTA GANJU, J.:

Preface

1. The present Appeal has been filed impugning judgment and decree dated 17.05.2016 in CS(OS) No.439 of 2008 passed by the learned Single Judge of this Court [hereinafter referred to as “Impugned Judgment”] wherein the suit for specific performance of two Agreements to Sell dated 19.06.2006 and for declaration of Gift Deed dated 05.09.2006 as null and void filed by the Appellant/Plaintiff was dismissed.

2. The present appeal is in respect of a free hold property bearing Plot No. 16-G, Block No. D, admeasuring 247-9/10 sq. yards located in Hauz Khas Enclave, Village Kharera, Delhi [hereinafter referred to as “subject premises”] wherein Sh. Jagdish Chander Sharma, the predecessor-in-interest of Defendant/Respondent Nos. 1 to 3, was the owner of the ground floor portion of the subject premises [hereinafter referred to as “Ground Floor of the subject premises”] and Late Shri Badri Nath Sharma, survived by the Defendant/Respondent Nos. 4, 5, 8 and 9, were the co-owners of the first floor, second floor and portion above the second floor of the subject premises.

Brief Facts

3. The subject premises originally belonged to one Lt. Smt. Kasto Devi, who was the mother of Lt. Sh. Jagdish Chander Sharma [hereinafter referred to as “JCS”] and Lt. Sh. Badri Nath Sharma [hereinafter referred to as “BNS”], who had purchased this property by a sale deed dated 15.05.1956.

3.1 Lt. Smt. Kasto Devi bequeathed the subject premises in terms of Will dated 28.10.1976, wherein the entire ground floor, rear courtyard and open space on the Ground Floor was bequeathed to JCS while the bequest for the rest of the property, being the first and second floor and above, was bequeathed to her older son BNS.

3.2 A family settlement deed was executed between the two brothers, whereafter, mutation was carried out in their respective names in the records of the Municipal Corporation of Delhi on 03.06.1980. The share of JCS was bequeathed to his two sons and his wife, who are Defendant/Respondent Nos.1 to 3 herein.

3.3 Two Agreements to Sell and a Memorandum of Understanding [hereinafter referred to as “MoU”], all dated 19.06.2006 were entered into between the Appellant/Plaintiff and Defendant/Respondent Nos.1 to 3 and BNS.

4. The first Agreement to Sell [hereinafter referred to as “First Agreement”] was between the Appellant/Plaintiff and Defendant/Respondent Nos. 1 to 3 for the sale of the Ground Floor of the subject premises for a total sale consideration of Rs.1,71,00,000/- with an advance payment of Rs.25,00,000/- made by the Appellant/Plaintiff.

5. The second Agreement to Sell dated 19.06.2006 [hereinafter referred to as “Second Agreement”] was signed between the Appellant/Plaintiff and BNS for the sale of the second floor and floor above the second floor of the subject premises for a total sale consideration of Rs.33,00,000/- with a payment of Rs.5,00,000/- as an advance to BNS by the Appellant/Plaintiff.

5.1 Additionally, an MoU was also executed between the Appellant/Plaintiff and BNS on the same date as the First Agreement and the Second Agreement i.e., 19.06.2006. In terms of the MoU, the Appellant/Plaintiff undertook to reconstruct the entire property at his own cost, and of the reconstructed property, the newly constructed basement, ground floor, second floor and terrace above the second floor would remain with the Appellant/Plaintiff, while the newly constructed first floor was to remain with BNS. The MoU also contained the clause that the construction of the building was to be completed within nine months from the date of sanction of the building plan.

5.2 In addition, the following documents were executed between the parties, all dated 19.06.2006:

(i) A receipt dated 19.06.2006 was executed by Defendants No.1 to 3 upon receipt of Rs.25,00,000/- from Appellant/Plaintiff;

(ii) A receipt da