R. K. B. HERBALS (P) LTD. v. SHANTA LAL CHOPRA — 1992 DIGILAW 27 (HP)

JUDGMENT D. P. Sood, J.-—The plaintiff has filed the present suit for specific performance of a contract dated 30th October, 1985, regarding the sale of a residential flat as per plan attached with its agreement forming part of the building standing on Khasra Nos. 597/493/119/N and other land appurtenant thereto near Timber House, Cart Road, Shimla, in Station Ward/Bazar Ward, Bara Shimla by the defendant in favour of the plaintiff and for delivery of possession thereof. 2. Initially the name of the Company of the plaintiff was M/s. R.K. Bhandari Homoeopaths Pvt. Ltd. It was later on changed to M/s. R. K. B. Herbals (P) Ltd , in the year 1985 vide certificate issued by the Registrar of Companies (Copy Ex. P-l). The aforesaid Company hereinafter would be referred to as the plaintiff. 3. The case of the plaintiff is that on 30th October, 1985 the defendant agreed to sell the aforesaid flat to the plaintiff for a total consideration of Rs. 2,75,000. A receipt of Rs. 25,000 by means of a cheque by the defendant was acknowledged in the agreement executed in writing referred to above. The said agreement was executed by Shri R. K. Bhandari, the Executive Director of the plaintiff Company. 4. The possession of the complete flat was agreed to be handed over on or before 30th April, 1986 against the receipt of the entire balance amount of Rs. 2,50,000. It is averred that the defendant could not complete the construction of the flat in question in time due to having some problems with the Municipal Corporation as well as some other difficulties and accordingly as and when the plaintiff through his Executive Director contacted him, the defendant assured to handover the possession by completing the flat in question and executing the sale deed. Since defendant was in need of money for continuing his construction activities, he approached the plaintiff for payment of further amount out of the balance payable to him. The plaintiff alleges to have paid another sum of Rs. 25,000 through draft dated 4-3-1986 with the assurance of handing over the possession of the flat in question as and when completed. Since defendant was in need of money for continuing his construction activities, he approached the plaintiff for payment of further amount out of the balance payable to him. The plaintiff alleges to have paid another sum of Rs. 25,000 through draft dated 4-3-1986 with the assurance of handing over the possession of the flat in question as and when completed. Further assertions are that the plaintiff continued approaching the defendant to perform his part of the agreement and receive the balance amount but the latter having some ulterior design, starting coercing the plaintiff Company to pay higher amount than the agreed one, as per the terms of the contract dated 30th October, 1985, as stated above, pursuant to his letter dated March 30, 1987 (Ex. P-5) and the cost of the flat in question was shown as Rs. 4,47,750. The aforesaid letter is alleged to have been replied duly on 15th April, 1987, (Ex. P-6) subsequently, another letter dated 24th April, 1987, (Ex. P-7) was received by the plaintiff from the defendant demanding the entire enhanced payment by April 30, 1987 and it was stated therein that if it was not so done, the earnest money of Rs. 50,000 would stand forfeited. This letter was also replied to on April 29, 1987 (Ex. P-8) in which the plaintiff lodged his protest by stating that the claim made by him was absolutely incorrect. The plaintiff further showed his readiness and willingness to perform their part of the contract by paying the remaining due of Rs. 2,25,000 and getting the sale deed registered. It is the case of the plaintiff that the contents of his letter demanding enhanced payment showed that the defendant was resiling from the agreement. According to the plaintiff the stand taken by the defendant in his letter was totally false and illegal and the defendant could not resile from the said agreement dated 30th October, 1985 and his obligation to perform his part of the contract. In various paras of the plaint, the plaintiff has averred its readiness and willingness to perform its part of the contract and that the plaintiff has always been ready to pay the amount in terms of the agreement. On the basis of these assertions the plaintiff has come to this Court seeking specific performance of the contract dated 30th October, 1985. 5. On the basis of these assertions the plaintiff has come to this Court seeking specific performance of the contract dated 30th October, 1985. 5. The defendant filed his written statement in which the execution of the agreement dated 30th October, 1985, is not disputed. The receipt of Rs. 50,000 on two occasions, referred to above, pursuant to the terms of the contract, is also admitted. However, the defendant has raised the following defence in support of his prayer that the plaintiff is not entitled to any relief and the suit be dismissed ; (i) that the alteration, i.e., additional fixtures, fittings and/or any additions to the property in dispute were carried out by the defendant at the behest of the plaintiff and as such he was entitled to enhanced amount of Rs. 4,47,750 ; (ii) that time was the essence of the contract and the plaintiff has failed to perform his obligations under the contract within the specified time and therefore, the plaintiff is not entitled to relief of specific performance ; (iii) that the plaintiff has failed to satisfy the statutory requirement as per section 16-C of the Specific Relief Act and as such he was entitled to forfeit the earnest money amounting to Rs. 50,000 ; and (iv) that in case the defendant is found to be at fault, the plaintiff is entitled to compensation to the tune of Rs. one lakh, i.e., double the amount of earnest money. 6. Preliminary objections regarding cause of action, estoppel maintainability and jurisdiction of this Court were also raised but given up lateron as indicated below. 7. The plaintiff filed a replication to the written statement of the defendant, reiterating its stand and also re-asserting its readiness and willingness to perform its part of the contract. 8. On the pleadings of the parties, the following issues were framed on 10th November, 1988 : 1. Whether the plaintiff is and has always been ready and willing to perform his part of the contract reflected vide document dated October 30, 1985 ? OPP. 2. In case issue No 1 is held for the plaintiff, whether there was any novation of this contract whereby it was stipulated between the parties that certain deviations, additions and alterations as mentioned in para 3 of the written statement were to be carried out in the flat in question and, if so, to what effect ? OPD. 3. 2. In case issue No 1 is held for the plaintiff, whether there was any novation of this contract whereby it was stipulated between the parties that certain deviations, additions and alterations as mentioned in para 3 of the written statement were to be carried out in the flat in question and, if so, to what effect ? OPD. 3. In case issue No. 2 is held in the negative, to what relief, if any, the plaintiff is entitled ? OPP. 4. Relief. 9. I have heard the learned Counsel for the parties in support of their respective cases. The Counsel for the patties have also taken me through the relevant portions of the pleadings, the evidence and the documents on record. 10. Suffice it to state that the learned Counsel for the defends gave up the preliminary objections and as such no issue was framed in respect thereof as is evident from the aforesaid order. Existence of a contract is sine-qua-non for the grant of relief of specific performance. The entire provisions or Specific Relief Act contained m Chapter-II refer to contracts which can be specifically enforced of otherwise. As per the provision of section 2 (h) of the Contract Act, "an agreement enforceable by law is a contract". Even an oral agreement can be valid and enforceable contract. Therefore, in the strict sense, it is not essential that a contract must be in writing. Where the parties contemplate a writing to complete the contract, or where the contract is required by law or otherwise to be in writing, it will be necessary that the contract is reduced to writing. For execution of such a document, there must be two parties and they must consent to the terms of the agreement arrived at in between them inter se qua the transaction transacted in between them. At the very out-set, I note that in the pleadings the defendant had challenged the identity of the plaintiff and the relations of PW-l Deepak Bhandari, or his authority to file the suit for and on behalf of the plaintiff. But during the arguments, this point has been given up — in view of the production of a copy of certificate from the Registrar of Companies (Ex. P-1) and the copy of the resolution of the Board of Directors of the plaintiff Company Ex. But during the arguments, this point has been given up — in view of the production of a copy of certificate from the Registrar of Companies (Ex. P-1) and the copy of the resolution of the Board of Directors of the plaintiff Company Ex. P-2 duly proved by PW-l. Thus in view of that the illegality of the agreement dated 30th October, 1985, has not been assailed. In other words, the contract entered into between the parties is a valid and enforceable contract which is capable of being specifically enforced. 11. Having held that agreement Ex. P-3 is an enforceable contract, I proceed to examine whether in the facts and circumstances of the case and on the evidence on record and submissions of the Counsels for the parties, it is liable to be specifically performed. 12. Section 20 (1) of the Specific Relief Act provides ;-— "The jurisdiction to decree specific performance is discretionary, and the Court is not bound to grant such relief merely because it is lawful to do so ; but the discretion of the Court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a Court of appeal." Thus the relief of specific performance is a discretionary (Mayawanti v. Kaushalya Devi, (1990) 3 SCC 1). The discretion is, however, to be exercised in a judicial manner and cannot be arbitrary. Fry in his specific performance (6th Edition p. 19) said :— "There is an observation made with regard to the jurisdiction in specific performance which remains to be noticed. It is said to be in the discretion of the Court. The meaning of this proposition is not that the Court may arbitrarily or capriciously perform one contract and refuse to perform another, but that the Court has regard to the conduct of the plaintiff and to circumstances outside the contract itself, and that the mere fact of the existence of a valid contract is not conclusive in the plaintiffs favour. If the defendant, said Plumber V. C, can show any circumstances de-hors, independent of the writing, making it inequitable to interpose for the purpose of a specific performance, a Court of Equity, having satisfactory information upon that subject will not interpose." 13. If the defendant, said Plumber V. C, can show any circumstances de-hors, independent of the writing, making it inequitable to interpose for the purpose of a specific performance, a Court of Equity, having satisfactory information upon that subject will not interpose." 13. The author goes on to say that of the circumstances calling for the exercise of this discretion, "the Court judges by settled and fixed rules; hence the discretion is said to be not arbitrary or capricious but judicial ; hence, also, if the contract has been entered into by a competent party, and is unobjectionable in its nature and circumstances, specific performance is as much a matter of course, and therefore, of right, as are damages. The mere hardship of the results will not affect the discretion of the Court." 14. A contract contains certain stipulations and specific performance is the actual execution of the contract when a party to the contract does not perform its obligation thereunder It is then that the parties seeking performance of the contract approaches the Court to compel the other to perform his/her obligations. The relief of specific performance is an equitable relief and the plaintiff is supposed to come to the Court with clean hands and their conduct fair and free from mala fides or trickery. If the plaintiff induces the other party to enter into an agreement of sale by making false promises and then back out, this conduct cannot be said to be fair and above board. In view of section 16 of the Specific Relief Act, it is necessary for the plaintiff to allege and prove his continuous readiness and willingness to perform his part of the contract from the date of the contract till the date of hearing Mere pleadings is not enough, the plaintiff has to state during trial that he is still ready and willing to perform his part of the contract. In order to prove readiness the plaintiff has to prove that he had the necessary means from the date of the contract till the date of the filing of the suit to pay the balance consideration money. 15. I have to examine the case in the light of these principles to find out whether the plaintiff is entitled to this discretionary relief. 16. Before I discuss the case issuewise, it would be proper to detail certain admitted facts 17. 15. I have to examine the case in the light of these principles to find out whether the plaintiff is entitled to this discretionary relief. 16. Before I discuss the case issuewise, it would be proper to detail certain admitted facts 17. The execution of agreement to sell, dated 30th October, 1985 (Ex. P-3) accompanied by the plan of the flat agreed to be sold (Ex. P-3/A) elevation plan (Ex. PW 3/B) and details of specifications of the material to be used therein (Ex. PW 3/C) are not in controversy. As pointed above, the legality of the aforesaid documents now is not in dispute. Apart from this, the receipt of the earnest money to the tune of Rs. 50,000, firstly as per the term incorporated in the agreement and on second occasion vide draft dated 4-3-1986 (Ex P-4) is also admitted. Subsequently, the exchange of letters (Ex. P-5 to Ex. P-8) in between the parties pertaining to the period from 30th March, 1987 to 29th April, 1987 regarding transaction in question are also not in controversy. Issues No 1 and 2 18. Both the issues are intrinsically connected with each other, as such I proceed to decide them together. 19. Admittedly, the contract was to be completed by 30th April, 1986, However, letter regarding the completion of the flat in question and its delivery thereof was for the first time issued by the defendant on 30th March, 1987. These facts raised two questions ; first whether the time was the essence of the contract ; and second, if so was there any default on the part of the plaintiff for performing his part of the contract ? 20. The first question is a question of fact and the decision of this depends upon the entire relevant facts on record of the case. The principles in this behalf are well known and find expression in various judgments. Suffice to refer to Palanichami v. G Pillai, AIR 1966 Mad 46, which was approved by the Honble Supreme Court in Gomathinayagam Pillai v. Palani-swami Nadar, AIR 1967 SC 868, followed by Govind Prasad v. Hari Datt, AIR 1977 SC 1005. All the authorities lay down that the real test is the intention of the parties. Generally in the context of immovable properties time is not of the essence of the contract. All the authorities lay down that the real test is the intention of the parties. Generally in the context of immovable properties time is not of the essence of the contract. But this general principle is subject to the exceptions as may arise on the facts of a given case wherein the parties may make time of the essence of the contract even in cases relating to immovable property. In the instant case both parties have exchanged letters and shown their intention to continue with the terms of the agreement therefore, it can be held that time in the instant case was not the essence of the contract. 21. The plaintiff Company regarding the second question has produced Deepak Bhandari as PW 1. He was Executive Director at the material time. He had executed agreement Ex. P-3 with its annexures Ex. P-3/A to PW 3/C with the defendant for and on behalf of the plaintiff. In his pleadings he has specifically pleaded that he was and is ready and willing to purchase the flat in question strictly in terms of the agreement. In his statement as PW 1 he stated to have parted with earnest-money to the tune of Rs. 50,000 on two occasions which fact is not denied. The flat was to be completed and its possession was agreed to be handed over to the plaintiff Company by April 30, 1986. He has stated on oath that on his visits to Shimla on various occasions, he used to request the defendant to complete the flat by the appointed day and handover its possession to him and, therefore, plaintiff remained always willing to purchase the same but the defendant could not complete the construction and handover its possession in accordance with law. He had also categorically stated that he never asked the defendant to make additions/alterations in the flat or such additions/alterations were effected in the flat without their consent. Even defendant appearing as DW 1 has not categorically stated that as to when the initial contract was novated However, he admits the issuance of the first letter dated 30th March, 1987 (Ex. P-5) wherein he has pointed out that flat in question is ready for delivering possession and consequently asked the plaintiff to take possession thereof without any further delay. P-5) wherein he has pointed out that flat in question is ready for delivering possession and consequently asked the plaintiff to take possession thereof without any further delay. In other words the flat was either not complete for delivery of possession or if complete, the defendant did not point out or ask the opposite party to take its possession for reasons best known to him. In any case, the appointed time for its delivery was extended by the parties in question which is apparent from the inaction on the part of the plaintiff 22. Obviously, the flat in question is within the jurisdiction of the Shimla Municipal Corporation It was a new construction. No construction can be raised without seeking sanction from the Commissioner, Municipal Corporation Shimla in accordance with section 258 of the Himachal Pradesh Municipal Corporation Act, 1979, which lays down that : "(1) Every person who intends to erect a building shall apply for sanction by giving notice in writing of his intention to the Commissioner in such form and containing such information as may be prescribed by bye-laws made in this behalf. (2) Every such notice shall be accompanied by such documents and plans as may be so prescribed." Similarly no additions or repairs of the building can be made in defiance of section 259 of the said Act or bye-laws framed thereunder. Once the construction of the building is sanctioned, the person raising such structure is bound to give a completion-report to the Municipal Corporation concerned and thereafter a completion-certificate is issued by the Commissioner and only then the construction is legally deemed to be complete. In the instant case, the plaintiff has in his pleadings throughout maintained that he is ready and willing to purchase the flat in question for a consideration of Rs. 2,75,000 as agreed to in between the parties vide agreement Ex. P-3. In his sworn testimony, defendant has categorically admitted in cross-examination that he had not furnished any completion report of the building including the flat in question to the Municipal Corporation at Shimla and as such he has not received any completion certificate. 2,75,000 as agreed to in between the parties vide agreement Ex. P-3. In his sworn testimony, defendant has categorically admitted in cross-examination that he had not furnished any completion report of the building including the flat in question to the Municipal Corporation at Shimla and as such he has not received any completion certificate. He has also admitted that the Municipal Corporation concerned had served upon him a notice in the month of December, 1986 asking him to demolish the portion which had been raised by him by way of alterations/additions and he filed an appeal against the said order which is pending disposal before the Divisional Commissioner, Shimla. He further admitted that a stay order in respect of the implementation of the notice v as granted by the Divisional Commissioner and that as soon as the appeal is finally decided, he would take appropriate steps in regard to furnishing a completion report to the Municipal Corporation At this stage enclosures by way of statement of accounts to Ex. P-5 would show that defendant had purchased extra land for outer lobby, stairs and two baths and development and he has demanded an amount of Rs. 65,000 in relation thereto and also for the structure of two baths and development of the same in other items. Even there is a difference in area of the space under-lying the flat and that of the existing one to that of 218 sq. feet for which the above said amount has been demanded. The defendant has not intimated the plaintiff at any time before issuance of this letter dated 30-3-1987 that the flat in question was ready or he was in a position to deliver its possession to the plaintiff. Even otherwise he knew that he was unable to make any additions/alteration without seeking sanction of the Commissioner in the structure shown in the original site-plan for which he never applied and raised the structure contrary to the provisions of the Municipal Corporation Act. The plaintiff has even in the Court made a statement that he is ready and willing to purchase the same for Rs 2,75,000 as agreed to but he is not prepared to purchase it on the enhanced price of Rs. 4,47,750. In order to show his bonafide, PW 1 has deposed that plaintiff Company had dealing with several nationalised Banks and working capital facilities to the extent of Rs. 4,47,750. In order to show his bonafide, PW 1 has deposed that plaintiff Company had dealing with several nationalised Banks and working capital facilities to the extent of Rs. 51,00,000 was available to it from the Indian Overseas Bank, Darya Ganj Branck, Delhi, from 1977. He has also deposed that Company also had a current account with the State Bank of India, Parwanoo Branch and on April 13, 1987 the credit balance of the Company in that account was Rs. 2,13,833.32 besides cash in hand with the Company to the tune of more than Rs. 1,00,000, As per the defendant, the plaintiff Company had no means to pay the amount but-—PW 1 has categorically denied the suggestion that the financial condition of the Company was not satisfactory or it was not in a position to purchase the flat from the defendant. Rather he stated that he was prepared to pay an amount of Rs. 2,25,000. The above said material does show that the plaintiff Company was possessed of sufficient means to meet the exigency of purchasing the flat in question and the plaintiff Company was ready and willing to purchase the flat in question according to the consideration mentioned in terms of the agreement Ex. P 3. In other words, the plaintiff Company had-—no ulterior design to go astray from the terms of the contract particularly knowing that there had been a rising trend in the prices of the immovable property in Shimla in between the period subsequent to entering into the contract with the defendant. 23. Now the question arises whether additions and alterations were carried out with the consent of the plaintiff? In the pleadings of the parties, there are allegations and counter-allegations to this effect Even while appearing as witnesses, both the parties had supported own versions. The plaintiff Company had specifically stated on oath through PW 1 that they had neither consented to nor at any time asked the defendant to carry out additions or alterations nor they agreed to pay for such developments. On the other hand the case of the defendant is that PW 1 in his visits to Shimla had directed him to carry out such additions/alterations. In his cross-examination, he has admitted that such additions and alterations were not suggested to him by PW 1 in any written communication. On the other hand the case of the defendant is that PW 1 in his visits to Shimla had directed him to carry out such additions/alterations. In his cross-examination, he has admitted that such additions and alterations were not suggested to him by PW 1 in any written communication. However, according to him, when he handed over the additional sum of Rs 25,000 through a Bank draft he had asked him orally to carry out those additions and alterations in the flat in question. It is not his case that the Bank draft dated 4-3-1986 (Ex. P-4) was handed over to him at Delhi, where the plaintiff reside The fact of novation as how pointed out by him in his sworn testimony, has not specifically been pleaded by him in his written statement too. Now the close scrutiny of draft Ex. P 4 shows that it was drawn on the Indian Overseas Bank, Darya Ganj, New Delhi Branch in Payees Account of the defendant payable at Shimla. In other words, either it was sent by the plaintiff Company to the defendant from Delhi or it was handed over to the defendant at the place. The defendant has no-where stated the place of its delivery to him. Obviously, it could have been delivered at Delhi nor it is the case so put up by the defendant. Apart from it as discussed above, the additions and alterations have been effected by the defendant contrary to bye-laws and provisions of the Municipal Corporation Act, for the demolition of which he had received a notice which has been appealed against and the appeal is still pending. The building as per his own showing cannot be said to be complete for want of completion certificate from the Commissioner Municipal Corporation, Shimla. Even otherwise there is no evidence on record to show that plaintiff had asked the defendant to purchase extra land and construct two bathrooms thereupon or make any other development by way of additions/alterations All these facts and circumstances emerging from the pleadings and evidence adduced by the parties lead to no other conclusion except the one that there was no novation of contract between the parties. Both the issues are decided accordingly. Both the issues are decided accordingly. Issues No 3 It would be pertinent to detail that defendant in his written statement as DW 1 has stated that he has rented out the premises to one Sardar Pratap Singh on May 7, 1987, after the institution of the suit. The fact urn of handing over the possession has though been pleaded in para-1 J of the written statement but the stand taken therein is quite inconsistent to the fact deposed before the Court. The contention raised is : "14 However, when it was proved beyond all reasonable doubts that the plaintiff was no longer interested in the said flat, the defendant handed-over the possession thereof to Sh. Partap Singh son of Sh. Sujan Singh against valuable consideration and presently the said Shri Partap Singh is in actual physical possession of the said flat." It is also urged by his counsel that specific performance to the contract cannot be performed in the circumstances at this stage as he (Partap Singh) has not been joined as a party to the suit. 24. The instant suit was filed on 27th July, 1987. Ad-interim injunction in OMP No. 272 of 1987 restraining the defendant not to alienate the flat in dispute was also issued on the same date in order to avoid other numerous complication s which could have arisen therefrom. Reply to the said OMP was filed on 26th August, 1987. Thereunder too the defendant raised the contention that flat in question had already been handed over to the said Partap Singh as stated in the written statement filed in the suit. Consequently, vide order of this Court on 21-10-1987 defendant was directed not to receive the balance sale consideration from Shri Partap Singh or to take any steps towards the execution of sale deed in his favour with respect to the flat in question pursuant to the better particulars fifed by him regarding the delivery of the actual physical possession on 23rd May, 1987, and with this modification ad-interim injunction was made absolute. 25. Now from the pleadings of the defendant in his written statement and the stand taken in OMP No. 272 of 1987 as also in his statement on oath made before the Court is of divergent nature In the written statement no date of actual delivery of possession of the flat in question was stated in para 14 thereof. 25. Now from the pleadings of the defendant in his written statement and the stand taken in OMP No. 272 of 1987 as also in his statement on oath made before the Court is of divergent nature In the written statement no date of actual delivery of possession of the flat in question was stated in para 14 thereof. However, in better particulars submitted in reply to OMP No. 272 of 1987 he specified the date of delivery of actual physical possession as 23rd May, 1987 and in both the cases, he contended that he had entered into an agreement for sale of the said flat in question to said Partap Singh. However, in his statement he has categorically stated that it was Rented Out to said Partap Singh on 7th May, 1987. Apart from it in the written statement and OMP, the stand taken by the defendant is that he has entered into a contract of sale in respect of the flat in question whereas in his statement he has categorically stated that he has rented out the said flat to the said person on 7th May, 1987. No such stand of renting out the premises in dispute had been taken in the written statement. Apart from it, his conduct in telling lies at every step is evident from the fact that on one hand he admits the receipt of the additional amount of Rs. 25,000 on 4-3-1986 and consequent instructions from PW 1 for making additions/alterations in the flat in question but as discussed above, the said amount was paid by draft at Delhi otherwise there was no necessity of the draft having been drawn on Indian Overseas Bank Darya Ganj Branch at Delhi, payable at Shimla. The other fact that the afore said set was ready for delivery on 30-4 1937 is also belied by his conduct in-as-much as he never served a notice upon the plaintiff to make the payment of the balance amount and to take possession of the flat in question. Not only this, no completion-certificate of the flat in question has been sought for even from the Municipal Corporation, Shimla. The matter regarding additions/alterations effected in the flat in question is still under dispute. Not only this, no completion-certificate of the flat in question has been sought for even from the Municipal Corporation, Shimla. The matter regarding additions/alterations effected in the flat in question is still under dispute. In the circumstances he could not have even handed over the possession of the flat in question to plaintiff According to him, he specifically pointed out plaintiffs Companys inability to purchase the flat in question because of financial constraints two or three months prior to the issuance of 1st letter dated 30tht March, 1987 (Ex. P-5). If that was so, there was no need of having intimated the plaintiff to take over the possession of the premises in dispute, On the other hand the defendant was required to serve a notice regarding the forfeiture of the earnest-money. Even otherwise the notice of forfeiture had been served on 24th April, 1987 (Ex. P-7) and the plaintiff was asked to take over the possession subject to payment of the additional amount on or before 30th April, 1987. As discussed above, time is not the essence of contract in the instant case. Apart from this, the defendant never intimated the plaintiff regarding the deviation required to be made in any of his letters Ex. P-5 to Ex. P-8. Over and above, one more factor which goes against the defendant is that he tried to evade the receipt of the notice of OMP No. 272 of 1987 as is evident from the order dated 3-8 1987 which pertains to issuance of ad interim injunction against him. All these factors taken together show that the flat in question was vacant on the date of the institution of suit and he entered into a sham transaction for sale thereof after the institution of the suit. Thus in this circumstance, Sh. Partap Singh was not having title to the property in question and he was neither a necessary party nor a proper one and he was not required to be joined as such in the instant suit. Though no issue has been framed in this regard but parties have led evidence knowing fully well the nature of the dispute arising in between them inter se. Though no issue has been framed in this regard but parties have led evidence knowing fully well the nature of the dispute arising in between them inter se. Thus I hold that the premises in question were vacant at the time of institution of the suit and the plaintiff is entitled to the specific performance of the contract for sale in relation to the flat in question instead of directing the payment of compensation. Issue No. 3 is decided accordingly. Relief 26. In view of the discussions made above, the plaintiff is held entitled to the specific performance of the agreement for sale (Ex. P-3). Accordingly, a decree in favour of the plaintiff and against the defendant directing the defendant to specifically perform his part of the contract in terms of the agreement for sale (Ex P-3) within one month from the date of this order is passed. In otherwise case, the plaintiff shall be entitled to get the needful done through the Registrar of Sales, Shimla The plaintiff is also held entitled to costs of Rs. 1,000. Decree in favour of plaintiff.