Posted On by &filed under Supreme Court of India.


Supreme Court of India
Ajaib Singh & Ors vs Smt. Tulsi Devi on 2 August, 2000
Author: S N Variava
Bench: V.N. Khare, J., S.N. Variava, J.
           PETITIONER:
AJAIB SINGH & ORS.

	Vs.

RESPONDENT:
SMT.  TULSI DEVI

DATE OF JUDGMENT:	02/08/2000

BENCH:
V.N. Khare, J. & S.N. Variava, J.




JUDGMENT:

S. N. Variava, J.

This Appeal is against the Judgment dated 27th April,
1993 passed by the Division Bench of the High Court of
Delhi. At the beginning of his submission learned counsel
for the Appellants very fairly stated that the Appellants
are not challenging grant of specific performance and
transfer of title to the Respondent in respect of block 67B.
This Appeal is therefore confined to the potion of the
impugned Judgment dealing with Block 67A. Briefly stated
the facts are as follows : One Sunder Singh was a displaced
person from Pakistan. In 1955 the Government, under the
policy of rehabilitation allotted to him block numbers 67-A
and 67-B in Malviya Nagar, New Delhi-110017. In 1957/1958
the Government offered to Sunder Singh a chance to purchase
the properties allotted to him on payment of the cost of the
properties as fixed by the Government, with arrears of rent,
if any, either in lump sum or by annual installments. In
respect of plot M-67A and M-67B, the Government fixed the
purchase price at Rs. 8080/-. In 1959 the Government gave
to Sunder Singh a final demand notice to make payment under
the Scheme. Sunder Singh did not have the money to make
payment to the Government. He, therefore, entered into an
Agreement dated 22nd June, 1959 with the Respondent
(herein). The Agreement recites the fact that Sunder Singh
had been allotted the above two blocks and that he has been
given an offer by the Government to purchase these plots and
that he is not in a position to pay its purchase price. The
Agreement recites that the Respondent was eager and willing
to cooperate with Sunder Singh and purchase half of the
property, namely, block 67B at a price of Rs. 5,000/- and
arrears of rent due to the Government. The Agreement
recites that the Respondent was to make payment to the
Government either in lump sum or by instalments or in any
form acceptable to the Government. The Agreement recites
that a sum of Rs. 3,000/- is being paid to Sunder Singh to
enable him to make payment of the first installment to the
Government and that this amount was to be treated as a loan
to Sunder Singh. The relevant clauses of the Agreement read
as follows : “1. That the entire cost of the quarter and
arrears or rent shall be deposited or caused to be deposited
with the government of India by the second party either in
lump sum or by instalments or by offering claims or by one
or more of these modes at the discretion of the second party
or Shri D.N. Kaul husband of the second party. The said
payments shall be made in the name of the first party and
all other steps shall be taken by both the parties to have
the ownership rights of the quarter in question transferred
in favour of the first party and registration effected in
his favour. The first party shall refund a sum of
Rs.3,000/- only to the second party or her husband Shri D.N.
Kaul, whosoever, shall demand the same, in five yearly
instalments of Rs.600/- each year payable on or before the
first day of January each year. The balance of the purchase
price paid as also the arrears of rent paid shall be deemed
and treated as advance payment of purchase price paid by or
on behalf of the second party to the first party for the
portion 67B agreed to be sold and transferred to her and
shall represent the full and final consideration therefor.

Xxx xxx xxx

2. That in case the second party choses to associate
some claiment in the matter of purchase of the said property
she shall be free to do so at her absolute risk and choice.
The first party shall do all that may be necessary or
demanded on him in the matter of effective association of
the said claiment with him and the ultimate transfer of 67B
in favour of the second party jointly with the said claiment
or serverally.

3. That on the transfer of ownership rights in respect
of the said quarter in favour of the first party he shall
immediately transfer or cause to be transferred in respect
of the portion 67B as detailed hereinbefore in favour of the
second party for the above referred to consideration of
Rupees five thousand and the amount of arrears of rent to be
paid to Government or total amount paid on account of cost
of 67A & B and arrears of rent in full and final settlement,
whichever be less, irrespective of the fact whether the
amount is paid in cash or in verified claims or partly in
one or partly in the other form. The said sum shall be the
full and final and adequate consideration for the said
portion of the property.

4. That the amount paid or caused to be paid or
deposited on account of purchase price and arrears of rent
in respect of the above quarter 67 A&B with the Government
of India shall be treated as the first charge of the second
party and her husband the said Shri D.N. Kaul on the
property so long as 67B is not effectively transferred to
the 2nd party and Rs.3,000/- repaid to them.

5. That if the first party fails to refund the said sum
of Rupees three thousand to the second party as stipulated
and if anyone instalment due remains unpaid after 30 days
R.A.D., notice in that behalf the entire sum of Rs.3,000/-
or balance due shall become due at once and on the failure
on the part of the first party to repay the same within 15
days next, he shall transfer the other portion of the
property namely, 67A also to the second party or the said
Shri D.N. Kaul or her nominee for the said consideration of
Rs.3,000/- and give her/him or their nominee vacant and
peaceful possession thereof and have a deed of transfer
executed and registration duly effected before the proper
registering authority.

Xxx xxx xxx

8. That in case the first party shall fail to execute
his part of the agreement and fail to transfer quarter
No.67B to the second party and execute sale deed in her
favour and have it duly registered he shall be liable to pay
the second party a sum of rupees five thousand, plus the
aforesaid amount paid or caused to be paid by the second
party to the Government in respect of the said quarter on
account of purchase price and arrears of rent and the monies
spent on improvement and additions, as liquadated damages
without prejudice to the second party’s right to demand the
specific performance of this agreement and to have the
specified share i.e. Quarter No. 67B transferred to
herself compulsorily through a Court of Law. The same
provisions shall apply if and when the right to have the
quarter No.67A transferred in favour of second party or Shri
D.N. Kaul arises and the first party fails to do so
effectively.

9. That in case the allotment in favour of the first
party in respect of the said quarter is cancelled for any
reason whatsoever and the purpose of this agreement
frustrated the first party shall refund to the second party
any amount paid or caused to be paid to the Government in
respect of the said quarter and cost of improvement and
additions made by the second party within three months of
the said fact coming to the second party’s notice together
with interest @ 6% per annum.”

Thus under this Agreement the Respondent had taken the
obligation of making payment to the Government the cost of
the quarters, interest thereon and the arrears of rent.
Also the Respondent was put in possession of block 67B. It
is clear that the transfer of ownership right could only
take place when the said Sunder Singh became the owner.
Under his Agreement with the Government Sunder Singh could
only become owner if the cost of the flat and arrears of
rent were paid in full. Therefore transfer of title could
only take place if Respondent performed her obligations
under the Agreement and paid the entire cost of flat and all
arrears of rent. It is also to be seen that Sunder Singh
was only required to repay a sum of Rs. 3,000/-. This is
because the balance amount of was to be consideration for
transfer of block 67B in favour of the Respondent. On 30th
December, 1959, the Sunder Singh entered into an Agreement
with the Government. This Agreement provided that the cost
of the plot was Rs. 8080/-, out of which a sum of Rs.1616/-
had already been received on 22nd June, 1959. The Agreement
provided that the balance was to be paid in installment
along with interest. Clause (1) of the Agreement provides
that the balance of the purchase price was a sum of Rs.
8108/7 paisa and that there was to be interest on this
amount. The Agreement provides that the same was to be paid
in 7 yearly installments, the first installment being due on
22nd June, 1960. The Agreement also provided that if the
default was committed in payment of any instalment then the
Government could by notice in writing forthwith determine
the Agreement and resume possession of the premises. Thus
the Respondent was to pay a sum of Rs. 8108/7 paisa with
interest thereon in 7 yearly installments to the Government.
As the first instalment was to be paid on 22nd June, 1960
the last instalment would have to be paid on or before 22nd
June, 1966. Sunder Singh died on 20th October, 1964. He
was survived by his wife Gurnam Kaur and the present
Appellants. After the death of Sunder Singh both the Blocks
were allotted to his wife. It appears that there was some
dispute between Gurnam Kaur and the Respondent. The
Respondent filed Suit No. 328 of 1965 for a permanent
injunction against Gurnam Kaur restraining her from
disposing of the property. Thereafter on 1st June, 1968,
the Respondent filed a Suit No. 14 of 1968 for specific
performance of the Agreement dated 22nd June, 1959. This
Suit was filed under Order 33 Civil Procedure Code praying
that she be allowed to sue in forma pauparise. In the Suit,
after setting out the above mentioned history, it is averred
as follows:- “Shri Sunder Singh before his death did not pay
any instalments on account of the loan advanced to him as
mentioned herein before which under the agreement entitles
the plaintiff to claim the transfer of House No.M/67-A also
in her favour on payment of the money due to the Government
(emphasis supplied).

Thus it is to be seen that even according to the
Respondent/Plaintiff she is entitled to transfer of the
block No. 67-A, only on payment of all money dues to the
Government. Thereafter in para 10 of the plaint, it is
stated that under the aforesaid Agreement, the Plaintiff has
paid all sums due to the Government. It is obvious that
such an averment is made because the Respondent knows that
unless and until all sums are paid by her to the Government
there could not be specific performance of the Agreement
dated 22nd June, 1959 by transferring block 67A in favor of
the Respondent. A reading of further averments in the
Plaint make it clear that the Respondent/Plaintiff knows
that she has not made payment of all amounts due to the
Government. This is clear from the fact that the Respondent
then goes on to aver that the heirs of Sunder Singh are not
delivering the challans in respect of the payment due after
the last payment made by her and that she is ready and
willing to fulfil the terms of contract in respect of any
residuary obligations. In para 13(a) it is averred that
since the entire sale price of 67-A and 67-B had been paid,
the Defendants were bound to convey the property to the
Plaintiff. In para 14, it is then averred as follows :
“14. The cause of action accrued on 2.12.65 when the last
payment was made and the plaintiff expressed her willingness
to pay any other sum due to the Government on behalf of Shri
Sunder Singh or the defendant no.1.”

The Plaint was amended on 28th of October, 1971. The
averment that the last payment was made on 2.12.1965 has not
been changed. Therefore the Respondent/Plaintiff came to
Court and maintained that she had not made any payment after
2nd of December, 1965. It must be mentioned that in the
Plaint no details or particulars are given as to when and on
what dates and in what amounts payments were made by the
Respondent/Plaintiff. To be remembered that specific
performance could only be granted provided that the party
asking for specific performance has always been ready and
willing and has performed their part of the obligation. As
seen above under the Agreement the Respondent was to make
payment of the costs of the block and arrears of rent to the
Government. This included not just the sum of Rs.8108/- due
towards the costs of the blocks and interest thereon but
also the arrears of rent. If the Respondent has committed
breaches and did not pay the amounts to the Government then
the Government may or may not have revoked the Agreement
dated 30th December, 1959 and/or forfeited all amounts and
recovered possession. If there is non payment then it could
not be said that the Respondent had been always ready and
willing and had always performed her part of the Agreement.
The fact that the Government did not forfeit would not have
any bearing on the factum of Respondent not having performed
her obligations under the Agreement. The wife of Sunder
Singh and other heirs filed a written statement raising
various contentions with which, we are really not concerned.
However in para 6 of the written statement they made a
categoric statement that after the death of Sunder Singh the
Respondent had not paid any amounts to the Government but
that the wife, Gurnam Kaur, had deposited all the amounts
with the Government. Respondent/Plaintiff did not get any
Issue raised on this claim of the Appellants. To be
remembered that the Respondent/Plaintiff was herself
claiming that the last payment had been made by her on
2.12.1965. The trial court, therefore, did not raise any
Issue on the question as to whether or not the
Respondent/Plaintiff had paid all amounts to the Government.
However, an Issue was raised as to whether or not the
Agreement could be specifically performed. In answering
this Issue it would have been necessary for the Court to see
not just readiness and willingness, at all stages, but also
whether in fact the Respondent/Plaintiff had performed her
part of the to Agreement. In this context the question of
payments m ade the Government under the Agreement was a
vital aspect. Even though no specific Issue was raised
evidence has been led on this aspect. The husband of the
Respondent was examined as PW5. In his evidence he,
inter-alia, states as follows: The balance amount in
respect of property No. 67A and 67B was to be deposited on
behalf of Sunder Singh with the Deptt. Of Rehabilitation,
Jam Nagar, New Delhi. .The entire amount in respect
of 67A has been deposited and there remains any balance we
were ready to pay the same and still ready to pay.
.We have receipts of the amounts deposited by us.
Thus even in evidence the only statement is that the entire
amount in respect of 67A had been deposited. Payment had to
be made for both 67A as well as 67B. There is no statement
that full payment is made. The fact that the husband of
Respondent deposes that they are ready and willing to pay
the balance also shows that to their knowledge all amounts
due have not been paid by them. Thus even in evidence there
is an admission that the entire amount had not been
deposited by the Respondent with the Government. On behalf
of the Respondent/Plaintiff one S.B. Lal, Upper Division
Clerk of the Government was examined as PW-4. He had been
examined to show that full payments had been made in respect
of blocks 67-A and B. This witness, amongst other things
points out that towards the cost of the flat a sum of
Rs.2221.10 was deposited on 25th March, 1968. In cross
examination he is asked whether he can tell the name of the
persons who had deposited the amounts. He states that the
amount was deposited in the name of the same person in whose
favour the sale was to take place. This evidence coupled
with the admitted position that the last payment was made by
the Respondent/Plaintiff on 2nd December 1965 and the
evidence of Respondents husband (set out above) clearly
established that the Respondent/Plaintiff had not performed
their obligation and had not made all payments as was
required to be done under the Agreement. Under the
circumstances it could never have been said that they were
always ready and willing to perform their part of the
Agreement. This aspect unfortunately was lost sight off by
the trial court. In spite of the clear evidence on record
to show that the Respondent/Plaintiff had not performed
their part of the Agreement, the trial court decreed the
suit on 30th of September, 1978. The trial Court granted
specific performance not only in respect of Block 67B but
also for 67A. The heirs of Sunder Singh then filed Regular
First Appeal No.123 of 1981 in the Delhi High Court. This
was dismissed by the impugned Judgment on 27th of April,
1993. The portion of the impugned Judgment dealing with
this aspect reads as follows:- “The main ground urged by the
learned counsel for the appellant Shri R.L. Tandon before
us was that on a proper consideration of the agreement
respondent- plaintiff failed to perform her part of the
agreement and was not entitled to invoke the provisions of
Specific Relief Act in her favour.”

In rejecting this argument the High Court has held as
follows : “It is the admitted case that the
respondent-plaintiff made payments on various dates and
according to Shri Tandon the respondent made payment of Rs.
8240.04 and Rs. 255.59 till 2nd December, 1965. Though
according to the respondent she made payments, yet in the
suit the total cost of the property was not mentioned but
during the hearing of the appeal counsel for the respondent
filed C.M.P. No. 346 of 1993. Notice of the same was
issued to the counsel for the appellant who filed reply to
the said application. This application was filed by the
respondent to clarify the controversy raised in relation to
the amount of Rs. 2221.10 paid on 25th March, 1968.
According to the counsel for the appellant the said amount
was paid by the appellant and according to the respondent
the amount was not paid in 1968 but in 1965 that too by the
respondent. According to the respondent there is some over
writing which shows that the number ‘5’ was written and
thereafter ‘8’ was over written on the same which makes 1965
to 1968. We think that at this stage it is not material to
go into the controversy as in the written statement filed by
the appellants no where stated that they had made the
payment of the said amount. Moreover, if we carefully
examine the agreement to sell which is Ext.P1/1 which was
drafted by Shri S. Watel, Advocate who was also examined as
P.W.1. Shri Watel in his testimony has stated that the said
agreement was drafted at the instance of Sunder Singh and
plaintiff. The said agreement specifically states that the
said Sunder Singh was not in a position to pay the purchase
price of the said quarter or the first instalment thereof
and after Sunder Singh received the final demand notice for
payment of the first instalment to the Government with the
warning that in case of non- payment the quarter would not
be transferred to him with the consequence that it will be
auctioned and sold to a third party. Further on the
agreement says that for the aforesaid reasons Sunder Singh
wanted to associate someone with him for the purchase of the
said quarter in order to be able to continue to occupy the
same and own at least a part of the said property. It was
further stipulated in the agreement that respondent was
eager and willing to cooperate with Sunder Singh and
purchase half of the premises, namely, M/67-B with its
kitchen, bath, lavatory and a common wall between m/67-A and
M/67-B at a price of Rs.5000/- and arrears of rent due in
respect of the property to be paid to the Government in the
account of Sunder Singh in cash. Sunder Singh further
assured that he was entering into the said agreement for the
betterment of his family and out of necessity. In view of
the unequivocal terms of the agreement and in the absence of
any specific plea raised in the written statement by the
appellant that they had paid the aforesaid amount of Rs.
2221.10 it is too late in the day for them to take up such a
plea.”

At this stage itself it must be noted that the High
Court has fallen in error in observing that in the written
statement there is no specific plea regarding payment made
by the heirs of Sunder Singh. As has been pointed out above
it has been specifically pleaded that after the death of
Sunder Singh (i.e. in 1964) the Appellants have been making
payment to the Government. Of course they do not state what
amount was paid or that Rs. 2221.10 was paid. But then
Respondent/Plaintiff has also nowhere set out what payments
were made by her and when. To be remembered upto this
stage, except for making vague statement that amounts had
been made paid, Respondent/Plaintiff had given no details or
particulars of payments alleged to have been made by her.
Upto this stage the Respondent/Plaintiff was maintaining
that the last payment made by her was on 2nd December, 1965.
The controversy, referred to by the High Court, arose
because in the course of their arguments and in the written
submission Appellants relied on the deposition of PW4 to
show that a sum of Rs. 2221.10 had been paid on 25th March
1968 for the cost of the flat. It was submitted that as it
was an admitted position that the last payment made by the
Respondent was on 2nd December 1965, this clearly
established that all payments had not been made by the
Respondent/Plaintiff. This had a direct bearing on the
question of performance by the Respondent/Plaintiff and the
question of readiness and willingness. If correct this
would establish that the Respondent/Plaintiff had failed to
perform her part of the Agreement and was therefore not
entitled to specific performance. The Respondent/Plaintiff
then filed CMP No. 346 of 1993. In this CMP, it was
averred as follows : “4. That it is submitted that the
applicant/respondent varily believing that there might have
been some typing error in the paper book as supplied by the
appellants, had applied for inspection of the file that was
inspected on 11.2.1993. Inspection of the file showed that
in the original statement of PW-4 recorded as on 6.9.73,
there is an evidently on over writing in ink in the floures
which has not been initialled by any authorised person and
it is evident that the figure “5” in the original copy of
the testimony of PW-4 has been changed to “8”.

5. That it is thus evident that there is some possible
tampering of the record. The respondent is not to gain by
the said change of date. The over writing shows that first
the number “5” was written and thereafter “8” over written
on the same.

6. That it is submitted that before coming to any
conclusion, either way, it would be necessary and also in
the interests of justice for this Hon’ble Courts to
adjudicate upon the said fact. It is also submitted that
probability of the date being 25.3.1965 is in consonance
with the stand of the plaintiff in pleadings, and her
testimony through PW-5 and also the deposition of the DW-2,
all of which lead in the irresistible conclusion that the
said date has to be 25.3.65 instead of 25.3.1968 (emphasis
supplied).

7. That accordingly, the present application is being
filed before your Lordships, so that this fact could be
noted by this Hon’ble Court, while considering the case and
the case be decided on the basis of the said date in the
testimony of PW-4 being read as 25.3.65 instead of 25.3.68.
For this, appropriate directions will have to be issued by
this Hon’ble Court.”

Thus it is to be noted that realising that the evidence
of PW-4 read with the case in the Plaint would establish
that the last payment had been made by Appellants and that
this would clearly show that she had not performed her part
of the Agreement and thus not entitled to specific
performance the Respondent/Plaintiff initially tries to make
out a case that there was typing error in the paper book;
that there was some over writing in the original testimony
of PW-4 and that there is some possible tampering of the
record. Most importantly it is averred that probability of
the date being 25.3.1965 is in consonance with the stand of
the Plaintiff in pleadings. Thus even at this stage it is
being maintained that no payments were made after 2nd of
December, 1965. To be noted that at this stage it is not
being claimed that any payments were made by the
Respondent/Plaintiff after 1965. The High Court has also
noted the submissions made before it. They have been set
out above but necessitate repetition: “Though according to
the respondent she made payments, yet in the suit the total
cost of the property was not mentioned but during the
hearing of the appeal counsel for the respondent filed
C.M.P. No.346 of 1993. Notice of the same was issued to
the counsel for the appellant who filed reply to the said
application. This application was filed by the respondent
to clarify the controversy raised in relation to the amount
of Rs. 2221.10 paid on 25th March, 1968. According to the
counsel for the appellant the said amount was paid by the
appellant and according to the respondent the amount was not
paid in 1968 but in 1965 that too by the respondent.
According to the respondent there is some over writing which
shows that the number “5” was written and thereafter “8” was
over written on the same which makes 1965 to 1968. We think
that at this stage it is not material to go into the
controversy as in the written statement filed by the
appellants no where stated that they had made the payment of
the said amount.”

This shows that even during arguments before the High
Court it was maintained that this payment of Rs. 2221.10
was made in 1965 by the Respondent. Even during the
arguments it had been submitted that the date 1968 was a
mistake and that originally number “5” was written and
thereafter it was over written with “8”. If Respondent had
made payment of this sum she would have a receipt for it.
The Respondent would know with certainty on what date it was
paid. Most importantly at this stage it is not claimed that
any payment was made by the Respondent after 2nd December
1965. It appears that the Appellants then produced before
the High Court receipts to show that they had made payments
towards the cost of the flat on 25th March 1968.
Unfortunately the High Court has dealt with an important
aspect most cursorarily and wrongly refused to look into it.
Before this Court Respondent has filed a counter affidavit
dated 27th July, 1995. In para 15 of this counter
affidavit, it is averred as follows : “In fact the
following payments were made by the respondent, the details
of which are given below :-

PAYMENT MADE TOWARDS HOUSE NO.M-67/A & B MALVIYA NAGAR,
NEW DELHI:

Payments from 1959 to 1965 :

1. Rs.1,616.00 On 22.6.1959 2. Rs.1,149.00 On 1960 3.
Rs.1,158.00 On 18.2.1963 4. Rs.600.00 On 14.5.1963 5.
Rs,.558.00 On 17.6.1963 6. Rs.3,158.39 On 2.12.1965
________________ Total : Rs.8,239.39 ________________ B)
PAYMENT MADE TOWARDS RENT WATER CHARGES INTEREST, GROUND
RENT ETC.

1. Rs.101.90 On 30.2.1959 2. Rs.44.00 On 30.12.1959 3.
Rs.9.00 On 30.2.1959 4. Rs.20.00 On 2.12.1965 5. Rs.2.00
On 25.3.1968 6. Rs.2,237.10 On 25.3.1968 7. Rs.55.80 On.
25.3.1968 8. Rs.20.00 On 25.3.1968 9.Rs.922.05 On
25.3.1987

Therefore, now for the first time the Respondent is
claiming that some payments had been made by her in 1968 and
1987. She is now claiming that the sum of Rs. 2221.10 was
paid by her. To be remembered that in the Plaint there is
specific averment that the last payment made by her was on
2nd December, 1965. Even before the High Court her stand
was that the last payment was made on 2nd December, 1965 .
Before High Court an application was filed to the effect
that the evidence of PW4 had been tampered with and that
date should not be 25th March, 1968 but should be 25th
March, 1965. The counter affidavit now filed shows that on
25th March, 1965, no payment has been made by the
Respondent. This was to her knowledge. If she had not any
made payment on 25th March 1968 and if she had made payment
on 25th March 1968 why claim that there was tampering and/or
error and that the correct date should be 25th March 1965.
On solemn affirmation it is stated before the High Court
that the date of payment of Rs. 2221.10, in the deposition
of PW-4, should be 25th of March, 1965. Before the High
Court it is claimed by the Respondent/Plaintiff that
payments were made on 25th March, 1965. It is thus clear
that the Respondent/Plaintiff has not made this payment on
25th March 1968. This is also clear from the fact that
receipts for this payment are with the Appellants. It is
not the Respondents case that any receipt was handed over by
them to the Appellants. To be remembered that Sunder Singh
had died in 1964. Therefore these could not be part of the
three receipts alleged to have been handed over to him. It
is clear that the Respondent/Plaintiff is making averments
as are convenient to her without any regard for truth. This
conduct would preclude Respondent from getting any equitable
relief. However in this case even otherwise it is clear
that Respondent had not performed her part of the Agreement.
Thus there never was any readiness and willingness. She
could thus not get specific performance. There is another
reason why the discretionary relief of specific performance
should not be granted. This Suit is for enforcement of Cl.
5 of the Agreement. For sake of convenience Cl. 5 is again
set out herein. It reads as follows: 5. That if the
first party fails to refund the said sum of Rupees three
thousand to the second party as stipulated and if anyone
instalment due remains unpaid after 30 days R.A.D., notice
in that behalf the entire sum of Rs.3,000/- or balance due
shall become due at once and on the failure on the part of
the first party to repay the same within 15 days next, he
shall transfer the other portion of the property namely, 67A
also to the second party or the said Shri D.N. Kaul or her
nominee for the said consideration of Rs.3,000/- and give
her/him or their nominee vacant and peaceful possession
thereof and have a deed of transfer executed and
registration duly effected before the proper registering
authority.

Thus under this clause The Respondent could have given a
R.A.D. notice of 30 days for non payment of instalment. A
notice dt. 1st May 1962 was given. However it is fairly
admitted that the suit is not based on that notice. Had the
suit been based on that notice it would be time barred. The
averments in the suit make it clear that specific
performance of transfer of Block 67A is sought on basis of
non return of Rs. 3000. However whilst the sum of Rs.
3000 was to be returned the Respondent had to make payment
of costs of the Blocks with interest thereon and arrears of
rent. It would hardly be equitable to hold the Appellants
liable for default to repay Rs. 3000 when they have already
had to pay Rs. 2221.10 in order to prevent termination and
forfeiture. Neither the trial court nor the High Court has
given the Appellants credit/benefit of this payment even
though the admissions and the evidence showed that this
payment had been made by them. If out of the sum of Rs.
3000 a major amount of Rs. 2221.10 has been paid by the
Appellant it would be most inequitable to direct transfer of
Block 67A by granting specific performance. In our view it
is clear that Respondent/Plaintiff had not performed their
part of the Agreement. There was thus no readiness and
willingness on the part of the Respondent/Plaintiff. Both
the trial court and the High Court have clearly erred in law
and on facts by granting specific performance to the
Respondent/Plaintiff and directing transfer of Block 67A in
her favor. It is also inequitable to do so. In our view,
the judgment of the trial court and the judgment dated 27th
April, 1993 of the High Court cannot be sustained to this
extant. The portions of the Judgments granting specific
performance by transfer of Block 67A to the
Respondent/Plaintiff require to be and are hereby set aside.
However as it is fairly admitted there has been sale of
Block 67B to the Respondent/Plaintiff and to that extant she
is entitled to have Block 67B transferred to her name. The
decree of the Courts below is affirmed to this extant. As
set out above the Respondent/Plaintiff has not been honest
with the Court. Whilst no punitive action need be taken
against her, in our view this is a fit case where she must
be made to bear the cost of the other side not just before
this Court but also before the trial court and the High
Court. There will be an Order accordingly. The Appeal
stands disposed off accordingly.


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