IMPORTANT POINT
Plaintiff should come to Court with clean hands.

N. Sathish Kumar, J.—Aggrieved over the judgment and decree passed by the learned Trial Court dismissing the suit for specific performance, the present appeal came to be filed by the defendant.

2. For the sake of convenience, the parties are referred to, as per their ranking before the trial Court.

3. The brief facts of the case of the plaintiff are as follows:

(i) The defendant was originally allotted a flat No.17, second block “C” type by the Central Government on 24.2.1995. The defendant, being the brother-in-law of the plaintiff, offered to sell the above said property to the plaintiff for a total sale consideration of Rs.5,06,000/- and also entered into an agreement on 19.1.1996 and received the entire sale consideration on the same date. One of the conditions stipulated in the agreement is that the defendant shall apply for and obtain No Objection Certificate from the concerned authorities and also Income Tax Clearance certificate. Apart from the sale agreement, the defendant has also executed Power of Attorney in favour of the plaintiff’s husband on 19.1.1996. Besides, the defendant also availed loan from HDFC and instructed the plaintiff to pay the instalments due to the HDFC bank. The plaintiff has paid the entire sale consideration and also the loan obtained by the defendant. The plaintiff has also been entered into possession and enjoyment of the suit property. The plaintiff is always ready and willing to perform her part of the contract. But the defendant, with an intention to deceit the plaintiff, did not take any steps to obtain No Objection Certificate and Income Tax Clearance Certificate under Section 230-A of the said Act. The defendant also failed to hand over the original title deeds as per clause stipulated in the agreement.

(ii) It is the contention of the plaintiff that the agreement dated 19.1.1996 is a contingent one and it will be completed after obtaining necessary No Objection Certificate from the appropriate authority, which is necessary, since the allottee is not entitled to alienate the suit property within 10 years from the date of sale i.e. 24.2.1995 to 24.2.2005. As the defendant has not obtained No Objection Certificate from the authorities concerned to alienate the suit property, the sale could not be completed on or before 24.2.2005. After the expiry of 10 years period, there is no legal impediment in alienating the suit property by the defendant. Hence, the suit agreement is not barred by limitation. However, the defendant failed to execute the sale deed even after 10 years. Therefore, the plaintiff issued a legal notice on 12.2.2007. Hence, the suit.

4. The brief averments made in the written statement filed by the defendant are as follows:

(i) Admitting the relationship, it is the contention of the defendant that he borrowed a sum of Rs.4,04,800/- from the plaintiff as a loan for making the first four instalment of payments to Central Government Employees Welfare Housing Organisation (CGEWHO) from which, he has purchased the suit property. He has also availed loan for a sum of Rs.1,67,157/- from HDFC bank to clear the loan. In the above loan, the plaintiff’s husband, by name, Gokul Shankar, stood as guarantor. The plaintiff and her husband prepared the agreement of Sale and General Power of Attorney, without making any prior consultation with the defendant and hence, the said documents are sham and nominal and they were not intended to be acted upon. Since the defendant was residing at Trivandrum, the plaintiff and her husband stated that it is necessary for them to have such documents and on good faith, the said documents were executed. However, the same is not intended to sell.

(ii) It is contended that the plaintiff made subsequent payment to the HDFC bank directly without the consent of the defendant and that the plaintiff’s husband has also obtained original title deed of the defendant’s property from CGEWHO, New Delhi, directly. The plaintiff sent a legal notice on