26.The last point, and, in our view the most substantive point, is the steep hike in the value of real estate which has been taken note of by the High Court. However, in the absence of definite evidence to show that the Appellant/purchaser was not ready and willing to conclude the sale transaction, the Respondents cannot be given the benefit of the delay in concluding the same.
27.Both the Courts below have attached a good deal of importance to the fact that the Appellant filed the suit for specific performance on the last day of limitation, which, according to the learned Judges, indicated that the Appellant was not ready and willing to complete the sale transaction, as otherwise he would have filed the suit earlier. We have no hesitation in rejecting the said contention, since the Appellant filed the suit within the period of limitation and his readiness and willingness to conclude the sale transaction JUDGMENT was quite obvious from the fact that he had taken upon himself the burden of pursuing the matter with the authorities for obtaining sale permission and Income Tax Clearance Certificate. The role played by the Appellant in this regard cannot, therefore, be applied to his disadvantage. In our view, the approach of both the Courts below to the problem was coloured by the fact that the Appellant had actively involved himself in the matter of obtaining the sale permission as well as Income Tax Clearance Certificate. The fact that the Appellant had made several requests to the Respondents to file a proper affidavit, as requested by the DDA, is another indication that the Appellant was ready and willing to complete the sale transaction. Both the Courts below dealt with the suit filed by the Appellant, as though the Respondents had no obligation under the agreement for completing the sale and this appears to have influenced their JUDGMENTjudgment in dismissing the Appellant’s suit for specific performance.
28.Issue Nos.1, 3 and 4 as settled by the Trial Court on 1st November, 1983 and 19th February, 1991, are, therefore, answered in favour of the Appellant and the remaining issues are answered against the Respondents. In the light of what has been indicated hereinabove, we are of the view that the Agreement to Sell dated 8th September, 1978, has been wrongly terminated.
29.This, however, brings us face to face with a rather difficult situation having regard to the fact that the Agreement to Sell was executed 34 years ago on 8th September, 1978, in respect of the suit property. We cannot shut our eyes to the fact that during this period the price of real estate has escalated sharply. In addition to the above, the Appellant has not suffered any material loss, since only the earnest money of Rs.50,000/- had JUDGMENT been paid by him to the Respondents and the balance consideration was yet to be paid when the agreement came to be terminated. Even the said sum of Rs.50,000/- was returned to the Appellant immediately upon termination of the Agreement and the said amount was duly accepted by the Appellant, though by recording his objections subsequently. The Appellant, therefore, has not suffered any monetary loss, and, on the other hand, the value of the property must have sky-rocketed during the period between the execution of the Agreement till date. In fact, that is why there is no prayer in the alternative for return of any sums advanced, which is one of the usual prayers in suits for specific performance.
30.However, we are also of the view that the Appellant should be compensated for the time spent by him in pursuing his remedy in respect of the Agreement to Sell. Accordingly, we decree the JUDGMENT suit, but instead of decreeing the suit for specific performance of the Agreement, we direct that the Respondents shall pay the Appellant costs for the litigation right throughout, assessed at Rs.25,00,000/-, to be paid by the Respondents to the Appellant within one month from date, without the Appellant having to proceed in execution for recovery of the same. In the event, the Respondents fail to pay the said amount to the Appellant within the aforesaid period, the Appellant will be entitled to put this decree for costs into execution before the Trial Court and the said amount will carry simple interest at the rate of 18% per annum from one month after the date of the decree till its realization.
31.The Appeal is disposed of, accordingly.
(J. CHELAMESWAR) New Delhi Dated:8.8.2012.