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2014 DIGILAW 1301 (DEL)

Shikha Misra v. S. Krishnamurthy

2014-04-23

RAJIV SAHAI ENDLAW

body2014
Judgment Rajiv Sahai Endlaw, J. 1. The following issues No.(ii) and (iii), of the issues framed on 27th March, 2014 in this suit for specific performance of an Agreement of Sale of immovable property and for permanent injunction restraining the defendant from selling, assigning or mortgaging or creating any third party rights in the property agreed to be sold, and ordered to be treated as preliminary issues are for adjudication:- “(ii) Even if the above issue were to be decided in favour of the plaintiffs, whether the document dated 19th April, 1992 constitutes a binding and enforceable Agreement to Sell of which specific performance can be claimed? OPP (iii) Even if the above issues are decided in favour of the plaintiffs whether the suit filed in the year 2011 for specific performance of the alleged Agreement to Sell dated 19th April, 1992 is within time? OPP” 2. The counsels for the parties have been heard. 3. The two plaintiffs i.e. the plaintiff no.1 and her husband Mr. Santosh Misra have instituted this suit, pleading:- (i) that the plaintiff no.1 was a tenant of Ms. Manjula Krishnamurthy wife of the defendant, in flat No.128, Pocket-B, SFS DDA, East of Kailash, New Delhi, w.e.f. January, 1987 at a monthly rent of Rs.2,000/- and on the terms and conditions contained in the Agreement Dated 25th February, 1987; (ii) that on Independence Day of 1989, the said Ms. Manjula Krishnamurthy told the plaintiffs that she would like to sell the said flat to the plaintiffs; the plaintiffs agreed to the said offer; (iii) Ms. Manjula Krishnamurthy told the plaintiffs that she would like to sell the said flat to the plaintiffs; the plaintiffs agreed to the said offer; (iii) Ms. Manjula Krishnamurthy died in the year 1990 and after her demise, the defendant became the sole owner of the said flat; (iv) the defendant told the plaintiffs that he would do the paper work for transfer of the said flat from the name of his wife to his name and as soon as the paper work was completed, the flat will be sold to the plaintiffs and that the plaintiffs should keep paying a monthly/annual amount, lump sum per annum which would be adjusted towards the final sale price; (v) that the defendant thus on 19th April, 1992 entered into an Agreement to Sell the said flat with the plaintiffs at the market rate which would govern the sale consideration prevalent on the day the DDA/competent authority changes the flat from the name of his wife to the name of the defendant; a copy of the said Agreement to Sell is annexed to the plaint; (vi) that the defendant in the years 1998, 2000, 2003, 2004, 2005, 2006 and lastly in monsoon of 2007/late 2009 assured the plaintiffs that the paper work for change of ownership of the flat was not complete and the defendant would abide by his commitment and promise to sell the flat to the plaintiffs; (vii) that the plaintiffs, on 20th December, 2010, for the first time came to know that the mutation had taken place in favour of the defendant on 29th October, 2009 and Conveyance Deed (of freehold rights in the flat) was executed in favour of the defendant on 26th November, 2009; this was conveyed to the plaintiffs by the defendant himself who also gave necessary documents to the plaintiffs on 20th December, 2010 and in furtherance to the Agreement to Sell undertook to sell the flat to the plaintiffs and told the plaintiffs that the plaintiffs will “now” have to purchase the flat; the letter dated 20th December, 2010 written by the defendant is also annexed to the plaint; (viii) though the plaintiffs were ready and willing but the defendant did a volte face in the second week of February, 2011 and on 24th February, 2011; (ix) the parties had agreed that whatever advances were being paid by the plaintiffs would be adjusted towards the sale consideration; the defendant asked the plaintiffs to pay amounts higher than the rental value promising that the same would form part and parcel of the sale consideration; believing the said assurance the plaintiffs towards the end were paying approximately Rs.6,500/- per month and in all Rs.1.5 lacs to Rs.2 lacs per annum; the plaintiffs have so paid Rs.18,81,000/- to the defendant till the date of institution of the suit; (x) that as per the Agreement to Sell, the market price on 29th October, 2009 is the basis of the sale consideration to be paid by the plaintiffs to the defendant; (xi) that the circle rate fixed by the Government of NCT of Delhi for East of Kailash for residential purpose was Rs.13,000/- per sq. mt. in the year 2009 making the total sale consideration as Rs.16,16,030/-; (xii) that as per the circle rates of Rs.26,000/- per sq. mt. of February, 2011, the value of the flat is Rs.32,32,060/-; (xiii) however the plaintiffs learnt that the defendant was showing the flat to others for the purposes of sale; (xiv) that the defendant avoided to give confirmed date for completion of sale; and, (xv) that the plaintiffs were basing the suit at the current circle rate of Rs.26,000/- per sq. mt. according to which the price of the flat is Rs.32,32,060/- and out of which the plaintiffs have already paid more than Rs.18 lacs; hence this suit for specific performance and permanent injunction; 4. Summons of the suit and notice of the application for interim relief were issued to the defendant though no ex parte relief was granted. 5. The defendant, on appearance in this suit, informed of having filed a suit for ejectment of the plaintiffs and which was pending consideration before the Addl. District Judge. 6. Summons of the suit and notice of the application for interim relief were issued to the defendant though no ex parte relief was granted. 5. The defendant, on appearance in this suit, informed of having filed a suit for ejectment of the plaintiffs and which was pending consideration before the Addl. District Judge. 6. The defendant has contested the suit by filing a written statement, on the ground:- (a) denying the Agreement to Sell and calling the filing of the suit to be in abuse of the process of this Court; (b) that the relief claimed in the plaint is vague and barred by time; (c) that the defendant on 1st July, 2011 had instituted the suit for ejectment of the plaintiffs and the proceedings in the present suit are liable to be stayed under Section 10 of the CPC; that the plaintiffs avoided to receive the summons of the said suit and filed the present suit; (d) that though the flat was let out for a period of two years in the year 1986 at a rent of Rs.2,000/- per month but in terms of the Rent Agreement dated 25th February, 1987 the rent was enhanced from time to time and the plaintiffs were last paying rent to the defendant at Rs.17,000/- per month; (e) that the plaintiffs for the first time in their legal notice dated 9th April, 2011 had alleged an Agreement to Sell and to which legal notice a reply dated 25th May, 2011 was got sent by the defendant; (f) denying that the wife of the defendant or the defendant had agreed to sell the flat to the plaintiffs; (g) that the documents of the flat were supplied to the plaintiffs since the plaintiffs were wanting to enquire the market price of the flat; (h) denying that the letter dated 20th December, 2010 of the defendant is in consonance with the Agreement to Sell; (i) denying that the defendant had on 19th April, 1992 agreed to sell the flat to the plaintiff; (j) denying that the defendant had at any time meted out any assurances as claimed to the plaintiffs; and, (k) denying any agreement for adjustment of the payments made by the plaintiffs to the defendant towards rent, in the sale price. 7. Needless to state, the plaintiffs have filed a replication reiterating their case in the plaint. 8. 7. Needless to state, the plaintiffs have filed a replication reiterating their case in the plaint. 8. On 27th March, 2014, on the pleadings of the parties the following issues were framed:- “(i) Whether the signatures on the document dated 19th April, 1992 titled Agreement to Sell are of the defendant? OPP (ii) Even if the above issue were to be decided in favour of the plaintiffs, whether the document dated 19th April, 1992 constitutes a binding and enforceable Agreement to Sell of which specific performance can be claimed? OPP (iii) Even if the above issues are decided in favour of the plaintiffs whether the suit filed in the year 2011 for specific performance of the alleged Agreement to Sell dated 19th April, 1992 is within time? OPP (iv) Whether there was any agreement between the parties that amounts paid by the plaintiffs toward rent of the property shall be adjusted towards the sale consideration? OPP (v) If the above issues are decided in favour of the plaintiffs, on what terms and at what price is the defendant liable to sell the flat/property to the plaintiffs? OPP (vi) Relief.” and of which issues no.(ii) & (iii), as aforesaid, were ordered to be treated as preliminary issues and it was clarified that under issue No.(ii), the counsel for the plaintiffs to also address on the aspect of the effect of the Agreement to Sell dated 19th April, 1992 being without consideration. 9. Before recording the respective contentions it is deemed appropriate to set-out herein below the documents filed by the plaintiffs in support of the existence of the Agreement to Sell. 10. The document dated 19th April, 1992 purportedly signed by the defendant, is as under:- “Agreement to Sell I S. Krishnamurthy son of Sh. Sita Raman resident of House No.A-1/273, Safdarjung Enclave New Delhi, taking into consideration the cordial relationship with Shikha and Santosh Misra, I agree to sell the D.D.A. Flat No.B-128, East of Kailash, New Delhi to Shikha and Santosh Misra at a market price on the day when D.D.A. converts or transfers the flat in my name as my wife has predeceased me, who was the owner of the flat. Date: 19.04.1992 Sd. Delhi” 11. The letter dated 20th December, 2010 of the defendant to the plaintiff is as under:- “Mr. Santosh Misra Dec 20, 2010 of B-128 East of Kailash. Date: 19.04.1992 Sd. Delhi” 11. The letter dated 20th December, 2010 of the defendant to the plaintiff is as under:- “Mr. Santosh Misra Dec 20, 2010 of B-128 East of Kailash. Following documents are attached as per your requirements. Do acknowledge receipt and act now in regard to the purchase of house. Please keep me posted with the developments as and when you know. Sooner the better. (1) Letter of allotment by DDA-July 1985 (2) Request for the last and final payment as the fifth one dated Apr. 1985. (3) A copy of the mutation document by Municipal Corporation of Delhi-March 2002 (4) A copy of Death Certificate of Mrs. Manjula Krishnamurthy- 11 Oct. 1990 (5) Possession of Flat Slip- 28 Nov. 1985 (6) Physical possession of Flat on July 27 1985 (7) A copy of ground rent of B-128 East of Kailash from 1988-2002 (8) A copy of the mutation certificate by DDA dated 29-10-2009 (9) You are already in possession of freehold letter showing payment of stamp duty and conversion charges for free hold and also showing me as the owner of the property of B-128 East of Kailash (10) A copy of DDA Payment Schedule (11) A copy of Property tax receipt of 2010-2011 Sd. Mr. S. Krishnamurthy 20/12/2010” 12. The senior counsel for the plaintiffs has argued:- A. that the understanding arrived at with the wife of the defendant on the Independence Day of the year 1989 was oral; B. the written Agreement to Sell is of 19th April, 1992 supra, though the defendant denies his signatures thereon; C. the letter dated 20th December, 2010, which is admitted, is in furtherance of the said Agreement to Sell; D. that the Agreement to Sell dated 19th April, 1992:- (i) shows of the desire of the defendant to sell; (ii) clearly identifies the flat agreed to be sold; (iii) clearly specifies the date of sale as the date on which the DDA converts or transfers the flat from the name of the wife of the defendant to the name of the defendant; (iv) clearly describes the methodology of determination of sale price; E. that an Agreement to Sell need not to be signed by both the purchaser and the seller; F. reliance is placed, (i) on Rajkishor Mohanty Vs. Banabehari Patnaik AIR 1951 Orissa 291 (DB) – laying down in the context of a suit for specific performance that if the parties are not able to come to a settlement with regard to the price, the Court is not helpless and is bound to fix a price and the said aspect does not effect the enforceability of the contract to sell and that a contract may fix the manner in which the price is to be determined or it may be stipulate a fair price being fixed and a contract is binding though the price is not specifically ascertained in the contract itself; (ii) on UOI Vs. Modi Sugar Mills Ltd. ILR 1970 II Delhi 92 (DB) – laying down that in a contract of sale of goods, the parties may agree that the price of the goods may be fixed by a third person who would be the valuer and such a contract is valid in as much as fixation of price by the valuer makes it certain and enforceable; (iii) on illustration (e) of Section 29 of the Indian Contract Act, 1872 providing that an Agreement to Sell of rice at a price to be fixed by a third person is not uncertain or void as the price is capable of being made certain; G. that the market price of the flat, to which the parties had agreed as sale consideration, is capable of being ascertained; H. such market price is determined in the land acquisition proceedings also; I. that the time for completion of sale is also certain i.e. the date of transfer of the flat from the name of the wife of the defendant to the name of the defendant; J. that in interpretation of contracts principle of business efficacy is to be applied; K. that it is well known that market value has to be determined in a particular fashion; L. on enquiry as to what was to be the basis of ascertaining the market price, it is argued that the understanding of the parties was of the market price being as per the circle rates; M. on enquiry whether the plaintiffs were willing to pay/match the price which may be available to the defendant of the said flat if the same were to be sold free from all encumbrances, answer is given in the affirmative contending that three months time for such payment should be given to the plaintiffs; N. that there is no requirement for an Agreement to Sell to be in writing; O. reliance is placed on Aloka Bose Vs. Parmatma Devi (2009) 2 SCC 582 laying down that an Agreement to Sell signed by the vendor alone and delivered to the purchaser and accepted by the purchaser is a valid contract; P. that the payment of any consideration at the time of Agreement to Sell is not essential and promise to pay the consideration in future is enough; Q. that the plaintiffs have expressly pleaded the terms and conditions agreed upon of sale, including of adjustment of the amounts paid by the plaintiffs from time to time in the sale price; R. that the plaintiffs, by making payments from time to time have shown their readiness and willingness; S. that adequacy of consideration is not relevant, attention in this regard is invited to Explanation 2 to Section 25 of the Contract Act; T. that the suit for specific performance is within time since the date for completion of the sale was transfer of the flat from the name of the wife of the defendant to the name of the defendant and which happened only in October, 2009 and the freehold rights in the flat, only on conveyance whereof the defendant could execute the Sale Deed, were conveyed to the defendant by the DDA only on 26th November, 2009 and the suit has been filed within three years therefrom; and, U. that the defendant, vide letter dated 20th December, 2010 further confirmed the Agreement to Sell. 13. Per contra, the counsel for the defendant has argued:- I. that as per the Rent Agreement dated 25th February, 1987 filed by the plaintiffs themselves, the rent of Rs.2,000/-per month was for a period of two years only and the rent thereafter was to be increased by 20%; that the plaintiffs had been increasing the rent by 20%; II. that in admission/denial of documents the defendant has denied the bank statement filed by the plaintiff; III. that the plaintiffs have not pleaded as to how they have arrived at the amount of Rs.18,81,000/- which is pleaded to have been paid to the defendant; IV. that in admission/denial of documents the defendant has denied the bank statement filed by the plaintiff; III. that the plaintiffs have not pleaded as to how they have arrived at the amount of Rs.18,81,000/- which is pleaded to have been paid to the defendant; IV. that the plaintiffs, in the legal notice dated 9th April, 2011 got sent by them had stated that the defendant on 26th October, 2008 had pegged the market value of the flat at Rs.55 lacs and to which the plaintiffs had agreed and were in the suit mala fidely claiming the price to be Rs.32,32,060/-; V. that the plaintiffs have been giving different versions of sale consideration at different places and which showed that there was no certain agreement between the parties; and, VI. reliance is placed on Mayawanti Vs. Kaushalya Devi (1990) 3 SCC 1 – laying down that the stipulation and terms of the contract have to be certain and the parties have to have consensus ad idem for the contract to be specifically enforceable; and on, (ii) High Way Farms Vs. Chinta Ram 2000 (56) DRJ (Suppl) 201 - in the facts of that case finding that the parties had only agreed to enter into an agreement and holding that no contract had come into being between the parties. 14. The senior counsel for the plaintiffs in rejoinder again contended that the plaintiffs are willing to pay the market price. 15. There can be no doubt that an Agreement to Sell, including of an immovable property, can be oral. When such an Agreement to Sell is denied, the question whether any such oral Agreement to Sell had taken place or not can be decided only after evidence. 16. However preliminary issues aforesaid were framed in this suit finding that the plaintiffs were calling the document dated 19th April, 1992 to be an Agreement to Sell. As per the averments in the plaint, on the Independence Day of the year 1989, the wife of the defendant had merely told the plaintiffs that she would like to sell the flat to the plaintiffs and the plaintiffs had merely agreed to the said offer. The plaintiffs have not pleaded that any other terms were settled on that date. The Agreement to Sell, of which specific performance is claimed, is the Agreement of 19th April, 1992 and which is in writing. The plaintiffs have not pleaded that any other terms were settled on that date. The Agreement to Sell, of which specific performance is claimed, is the Agreement of 19th April, 1992 and which is in writing. It has thus to be decided whether the written Agreement to Sell dated 19th April, 1992 is specifically enforceable and even if that be so, whether the suit filed in the year 2011 for specific performance thereof is within time. The said Agreement to Sell, even if ultimately proved by the plaintiffs to be signed by the defendant, merely contains an Agreement by the defendant to sell to the plaintiffs the flat at a market price on the date when the DDA converts or transfers the flat from the name of the wife of the defendant to the name of the defendant. 17. Section 29 of the Indian Contract Act, 1872 provides that the agreements, the meaning of which is not certain, or capable of being made certain are void. The following are the Illustrations to the said Section:- “(a) A agrees to sell B "one hundred tons of oil". There is nothing whatever to show what kind of oil was intended. The agreement is void for uncertainty. (b) A agrees to sell B “one hundred tons of oil” of a specified description, known as an article of commerce. There is no uncertainty here not make the agreement void. (c) A who is a dealer in coconut-oil only, agrees to sell to B "one hundred tons of oil". The nature of A's trade affords an indication of the meaning of the words, and A has entered into contract for the sale of one hundred tons of coconut-oil. (d) A agrees to sell to B "all the grain in my granary at Ramnagar". There is no uncertainty here make the agreement void. (e) A agrees to sell to B "one thousand maunds of rice at a price to be fixed by C". As the price capable of being made certain, there is no uncertainty here to make the agreement void. (f) A agrees to sell to B "my white horse for rupees five hundred or rupees one thousand". There is nothing to show which of the two prices was to be given. The agreement is void.” 18. As the price capable of being made certain, there is no uncertainty here to make the agreement void. (f) A agrees to sell to B "my white horse for rupees five hundred or rupees one thousand". There is nothing to show which of the two prices was to be given. The agreement is void.” 18. Reliance by the senior counsel for the plaintiffs on Illustration (e) supra cannot be equated with the facts of the present case. As per the aforesaid Agreement to Sell also, the parties had not agreed to any third party fixing the price. Similarly Illustration (c) supra though admits that in the absence of the description of the oil agreed to be sold, the contract would have been uncertain and void, provides that it would not be so, for the reason of the of the seller being the dealer of one kind of oil only and which is deemed to afford an indication of the kind of oil agreed to be sold. 19. However, “market price”, as would be apparent from the conduct of the plaintiffs themselves, can have different connotations and in my view, does not afford any indication of what the agreement between the parties as to the price was. 20. The plaintiffs, in the legal notice dated 9th April, 2011 supra, with respect to the agreement arrived at on the Independence Day of the year 1989 stated as under:- “That, on Independence Day of the year 1989, Ms. Manjula and you had come to our clients above residence and expressed, that they would like to sell the said demised premises, to our clients and thus an oral agreement was struck. You and Ms. Manjula, your wife, had stated to our clients, that “we are looking for monthly payments to be made in such a manner so that, we can live comfortably, every month and the period of payments be stretched for a long time, as we are to retire soon. Our clients immediately agreed and complied to your wishes.” 21. The plaintiffs, in the said notice itself, with respect to the happenings on 19th April, 1992, stated as under:- “However, Mrs. Our clients immediately agreed and complied to your wishes.” 21. The plaintiffs, in the said notice itself, with respect to the happenings on 19th April, 1992, stated as under:- “However, Mrs. Manjula had died in the year 1990, wherein, you brought to the notice of our clients that, as the demised premises was in her name (Manjula), “I have to do the paper work” and till such time it is completed, “You keep paying monthly due as advance for the sale price of the flat in question, while you continue as a tenant. That, on 19.04.92 you had entered into Agreement of Sell of the flat, and stated that market price of the demised premises will be the price on the date of transfer by DDA as you were anticipating, that the formal change of name from DDA, in your name will be done as a routine by substituting your name from your late wife’s name. 22. The plaintiffs in the said notice further stated as under:- “That, you had said on 26.10.2008, that the flat in question would be transferred in your name very shortly and that you have pegged the market value, of the demised premises at Rs.55 lakhs as a total sale consideration for the said flat which is the market price to which our clients as perfect citizens, readily agreed and have already deposited/paid sum of Rs.18.81 lacs toward the sale consideration for the said flat in question in your favour. That our clients even ignored the “tenant concession” which is the custom, in determining the market price on the day. Wherein a tenant purchases/buys the tenanted property, on a discount of 1/3rd from the price, as the same is reduced from the market rate. That, then the agreement dated 19.04.92 was also reiterated and extended. Our clients always believed to be fair and wanted to keep their word and the agreement wherein you asserted that price, for the demised premises shall be the price on the day, the conversion is complete was thus fulfilled. They kept their part of the bargain. My clients readily agreed as you were well known to our clients. Our clients always believed to be fair and wanted to keep their word and the agreement wherein you asserted that price, for the demised premises shall be the price on the day, the conversion is complete was thus fulfilled. They kept their part of the bargain. My clients readily agreed as you were well known to our clients. That, in the beginning of this year in January, 2011, our clients offered to pay the balance sale consideration and asked you, to formalize the legal sale papers by accounting the advance monies, you had received as an Advance for the Agreement to Sell, of the demises premises, and draw out a balance sheet for the sale price of Rs.55 lakhs for the purpose of the sale deed which was the price prevailing when the property in question was transferred in your name by DDA. That, this was evident by you deed/words, when you last met our clients, on 24.02.2011, at the demised premises, when you avoided to tell them a fixed date for execution of the sale deed of the demised premises for the price which was agreed as stated above and you have already realized a sum of Rs.18.81 lacs as an advance for the said sale deed.” (emphasis added) As per the aforesaid, the market price was Rs.55 lacs. 23. However the plaintiffs in the plaint, neither mentioned the said notice dated 9th April, 2011 nor filed a copy thereof along with their list of documents and on the contrary have pleaded the market price at which the defendant had agreed to sell the flat to the plaintiffs to be as per the circle rates fixed by the Government of NCT of Delhi. 24. 24. Again, though the case set-up by the plaintiffs in the plaint is, of the market price as per the agreement between the parties being the circle rate of the date on which the flat was transferred from the name of the wife of the defendant to the name of the defendant and as per circle rates according to the plaintiffs the market price was Rs.16,16,030/-, the plaintiffs, perhaps to institute the suit in this Court, the minimum pecuniary jurisdiction of which is above Rs.20 lacs and under the impression that the disposal of the suit before this Court would take longer than the disposal of the suit before the Court of the District Judge where it would have been filed as per the market price of Rs.16,16,030/-, have sought specific performance by treating the market price to be the circle rate on the date of institution of the suit and as per which the market price comes to Rs.32,32,060/-. 25. The plaintiffs during the arguments, have argued the market price to be the price which the said flat would fetch in the market. 26. Thus, according to the plaintiffs themselves, there are several versions of market price. The agreement dated 19th April, 1992 does not provide the mode of determination of market price. Though the plaintiffs in the legal notice dated 9th April, 2011 stated that the market price was to be the price which the flat would fetch in the market and that such market price in October, 2008 was Rs.55 lakhs, the plaintiffs in the plaint stated that the market price was to be the price as per the circle rates announced by the Government of NCT of Delhi. Again, though according to the plaintiffs the date of determination of market price was to be the date of transfer of the flat from the name of the wife of the defendant to the name of the defendant and as per circle rates of the said date the market price was Rs.16,16,030/- but the plaintiffs valued the suit as per the circle rates of the date of institution of the suit and as per which the market price was Rs.32,32,060/-. The plaintiffs however again, at the time of arguments on 31st March, 2014, said the market price was to be, not the market price of Rs.55 lakhs as in October, 2008 nor of Rs.16,16,030/-or Rs.32,32,060/- but of what the defendant was in a position to fetch in the market as of today. 27. Thus, according to the plaintiffs themselves, there are several versions of the market price to which the parties had agreed. 28. In the face of the case of the plaintiffs themselves, the argument of the senior counsel for the plaintiffs, of the agreement to sell of which specific performance is sought being not void for uncertainty and/or capable of being made certain, cannot be accepted. 29. The practice, of transactions in sale/purchase of immovable property being highly undervalued has been taken judicial notice of in Suraj Lamp And Industries Pvt. Ltd. Vs. State of Haryana (2012) 1 SCC 656 also. It thus cannot be said that any indice of market price can be had also from deeds of sale/purchase of similar properties of contemporaneous time. 30. The offer by the senior counsel for the plaintiffs during the hearing, to pay the market price as of today is in the circumstances of no avail and rather shows the attempt of the plaintiffs who are in possession of the flat, having been inducted therein as a tenant, to be adopting all means fair or unfair available to them to retain such possession. It shows that the plaintiffs themselves do not fall back on the agreement pleaded of the market price being as per the circle rates. 31. In fact I had during the hearing enquired from the senior counsel for the plaintiffs whether there were any circle rates in Delhi in the year 1992 when the defendant is claimed to have made a contract with the plaintiffs for sale to the plaintiffs of the flat at the said circle rates. In fact the plaintiffs have shied away from expressly pleading as to what was to be the modus of arriving at the market price. It is only when the enquiry was made from the senior counsel for the plaintiffs that the answer came that the said market price was to be as per the circle rates. In fact the plaintiffs have shied away from expressly pleading as to what was to be the modus of arriving at the market price. It is only when the enquiry was made from the senior counsel for the plaintiffs that the answer came that the said market price was to be as per the circle rates. As far as I recollect, circle rates for the purposes of determination of stamp duty payable on transactions of immovable property were introduced in Delhi for the first time only in the year 2007-08. 32. Faced therewith the senior counsel for the plaintiffs contended that prior thereto there were circle rates issued by the DDA and the L&DO for the purposes of charging unearned increase and circle rates issued by the MCD for the purposes of determination of Property Tax. 33. He however could not state as to what was to be the price as per either of the said rates. 34. The same again shows the vagueness and uncertainty of the agreement pleaded by the plaintiffs. I would be loath to, in a suit for specific performance, conduct an enquiry to determine the market price. The same would amount to the Court making a contract for the parties instead of specifically enforcing the contract. I may mention that though the Supreme Court in Satya Jain Vs. Anis Ahmed Rushdie (2013) 8 SCC 131 directed specific performance at prevailing market price and remitted the matter to this Court for determination of the said market price but subsequently on review, vide judgment reported in (2013) 8 SCC 147 clarified that the same was not to be treated as a precedent. The said clarification by the Supreme Court itself is indicative of, the jurisdiction while entertaining a claim for specific performance, not extending to determination of market price. 35. The reliance placed by the senior counsel for the plaintiffs on the determination of market price in the land acquisition proceedings is also misconceived. The said determination is under a statute and which also lays down the guidelines and/or guidelines of determination of which market price have been evolved by the Courts over a period of time. Similarly, for determination for fair rent are well enshrined in the Rent Acts of different States. However the said principle cannot be applied to enforcement of contracts. 36. Similarly, for determination for fair rent are well enshrined in the Rent Acts of different States. However the said principle cannot be applied to enforcement of contracts. 36. Specific performance of a contract, in addition to the general provisions of contracts governed by the Contract Act, is also regulated by the Specific Relief Act, 1963. A perusal of Section 14(1)(b) thereof shows that contracts, specific performance of material terms of which the Court cannot enforce, are not specifically enforceable. Similarly Section 14(3)(c)(i) thereof, in relation to contracts for construction of any building or execution of any work, inter alia provides that for such contracts to be specifically enforceable, the building or the work should be described in terms sufficiently precise to enable the court to determine the exact nature of the building or work. Similarly Section 18(a) thereof provides that where the contract in writing does not contain all the terms pleaded to have been agreed upon, the contract cannot be specifically enforced except with variation set-up by the defendant. The said provisions, though not applicable to the facts of the case, are indicative of, only such contracts being specifically enforceable which clearly spell out the terms and conditions agreed between the parties, even though may not strictly be void for the reason of uncertainly within the meaning of Section 29 of the Contract Act. The jurisdiction exercised by the Court in a suit for specific performance is to ensure performance of each and every thing to which the parties had agreed and does not extend to making a contract between the parties. 37. The Supreme Court, in Ganesh Shet Vs. Dr. C.S.G.K. Setty (1998) 5 SCC 381 , cited with approval Pomeroy on specific performance of contracts, opining that greater amount or degree of certainty is required in the terms of an agreement, which is to be specifically executed in equity, than is necessary in a contract which is to be the basis of an action at law for damages and that while an action at law is founded upon mere non-performance by the defendant and this negative conclusion can be established without determining all the terms of the agreement with exactness, the suit in equity is wholly an affirmative proceeding; procuring a performance by the defendant demands a clear, definite and precise understanding of all the terms. 38. 38. Fry, in his treatise on specific performance of contracts, 6th Edition, in paragraphs 353, 355, 356 and 357 sums up that, (i) in all sales, price is an essential ingredient and where price is neither ascertained nor rendered ascertainable, the contract is void for incompleteness, and incapable of enforcement: (ii) an agreement to sell for 1500 pounds less than any other purchaser would pay, is void, as the sale was not to be to any other purchaser; (iii) where a contract specifies a way of ascertaining the price, the contract is conditional till the ascertainment and is absolute only when price has been determined in the manner agreed upon and if the price is not so determined, the contract remains imperfect and incapable of being enforced. 39. The Supreme Court, in Mayawanti supra held that in case of specific performance, it is settled law that jurisdiction to order specific performance is based on existence of a valid and enforceable contract; where a valid and enforceable contract has not been made, the Court will not make a contract for them; specific performance will not be ordered if the contract itself suffers from some defects which makes the contract invalid or unenforceable; the contract being the foundation of the obligation, the order of specific performance is to enforce that obligation. It was further held that specific performance of a contract is the actual execution of the contract according to its stipulation and terms and the Courts direct the party in default to do what he had contracted to do; the stipulations and the terms thus of the contract have therefore to be certain and the parties must have been consensus ad-idem; if the stipulation and terms are uncertain and the parties are not ad-idem, there can be no specific performance, for there is no contract at all. 40. Seen in the aforesaid light, the agreement to sell at market price on a particular date without specifying or agreeing how the said market price was to be determined, cannot be said to be a contract, the terms and conditions of which are certain or which is enforceable. The conduct of the plaintiffs themselves, as aforesaid, has demonstrated the several modes of determination of market price and the different prices on which the plaintiffs claim to be entitled to purchase. The conduct of the plaintiffs themselves, as aforesaid, has demonstrated the several modes of determination of market price and the different prices on which the plaintiffs claim to be entitled to purchase. Consent of the defendant to neither of them, except to the price of Rs.55 lakhs, is shown; however the plaintiffs themselves have not sued for the specific performance of the contract for consideration of Rs.55 lakhs. 41. If according to the plaintiffs, the agreement was for the market price as per the circle rates of the date of the transfer of flat in the name of the defendant, the plaintiffs by seeking specific performance on a price of a later date, cannot be said to be claiming specific performance of the contract arrived at with the defendant. The same is indicative of the plaintiffs themselves having abandoned, given up and/or given a go-by to the contract which was arrived at according to the plaintiffs themselves. 42. There is another aspect. The plaintiffs though are seeking specific performance of the Agreement dated 19th April, 1992 which does not provide for adjustment of rent towards the sale price, are now also seeking the same. For this reason also, the plaintiffs are found to be not claiming specific performance of the Agreement dated 19th April, 1992. 43. It is also a settled principle of law (See Lourdu Mari David Vs. Louis Chinnaya Arogiaswamy (1996) 5 SCC 589 ) that a plaintiff who indulges in falsehood is not entitled to the relief of specific performance. The plaintiffs in their notice dated 9th April, 2011 claimed to have agreed to the market price of Rs.55 lacs. However the plaintiffs, subsequently while filing this suit, concealed and supressed the said agreement also, of the price having been agreed at Rs.55 lacs and set-up a entirely new case, of the market price being determined as per the circle rates. The agreement, for payment of price of Rs.55 lacs, cannot also be said to be in terms of the Agreement dated 19th April, 1992, which was for payment of market price on the date of transfer of the flat from the name of wife of the defendant to the name of the defendant; Rs.55 lacs was the market price of the year 2008, till when such transfer had not taken place. 44. 44. I am unable to agree with the view taken by the Division Bench of the High Court of Orissa which in any case is more than half a century old and is now antiquated. The Supreme Court, in Saradamani Kandappan Vs. S. Rajalakshmi (2011) 12 SCC 18 , in the context for suits of specific performance has held that with the changing scenario and galloping prices of immovable property, the old notions applicable to suits for specific performance do not apply. Moreover, the factor which prevailed in the said judgment for the Court to determine the market price and to which relevant factor the senior counsel for the plaintiffs did not advert to, was that the defendant in that case had already availed the benefit of part of the settlement, for specific performance of the balance terms of which the suit in that case was filed. The High Court in para 5 of the judgment held “the defendants having had the benefit of the contract in respect of plot no. 1052 cannot be allowed to escape from the subsidiary contract to sell plot no. 1051 on the ground of difficulty as to valuation”. It was in such circumstance that the Court felt the need to fix the price. There is no such compelling circumstance in the present case. 45. Rather, the whole case set-up by the plaintiffs is preposterous. Though a little beyond the scope of the preliminary issues, but I cannot refrain myself from observing that the case pleaded by the plaintiffs is contrary to the grain of human behaviour. It is inconceivable that a landlord, while agreeing to sell his flat to a tenant, would also agree that the rent paid till the date of completion of the sale be adjusted in the price. The grant of the relief of specific performance is a discretionary matter and I am of the view that when from the facts and circumstances appearing, the Court is clear that the discretion in the grant of the relief of the specific performance is not to be exercised in favour of the plaintiffs, nothing requires the Court to still proceed with the trial and say what can be said today only, after several years. Section 20(2)(a) of the Specific Relief Act provides that where the terms of the contract or the conduct of the parties at the time of entering into the contract or other circumstances under which the contract was entered into are such that the contract though not voidable gives the plaintiffs an unfair advantage over the defendant, the discretion to decree specific performance shall not be exercised. Similarly the decree for specific performance in the facts and circumstances aforesaid would also be inequitable within the meaning of Section 20(2)(c) of the Specific Relief Act. 46. On the aspect of limitation also I am unable to agree with the senior counsel for the plaintiffs. According to the plaintiffs, the completion of the sale was dependent upon the action of the defendant and no time therefor was fixed. In my view, even in such cases the plaintiff has to approach the Court for specific performance within a reasonable time and cannot wait endlessly and file the suit for specific performance whenever the plaintiff may choose to do so. The plaintiffs, from the defendant for an unusually long time not having the flat transferred to his name as the plaintiffs claim he had promised to do, ought to have had notice that the defendant was refusing to perform his part of the Agreement to Sell and ought to have filed the suit for specific performance by compelling the defendant to have the flat so transferred to his name and thereafter sell the same to the plaintiffs, within a reasonable time of Agreement to Sell dated 19th April, 1992. The suit as aforesaid has been filed after nearly 20 years therefrom. 47. I thus hold that on the averments contained in the plaint and the documents filed therewith, no case of any binding enforceable Agreement to Sell of which specific performance can be ordered, is made out and the suit is also barred by time. 48. Accordingly, both the preliminary issues are decided in favour of the defendant and against the plaintiffs. Resultantly, the suit is dismissed. The conduct of the plaintiffs also requires the plaintiffs to be burdened with costs of the suit payable to the defendant. Counsel’s fee assessed at Rs.25,000/-. Decree sheet be drawn up.