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Himachal Pradesh High Court · body

2022 DIGILAW 880 (HP)

Highseas Holding Pvt. Ltd. v. Vijay Sharma

2022-12-27

A.A.SAYED, JYOTSNA REWAL DUA

body2022
JUDGMENT : Jyotsna Rewal Dua, J. 1. Defendant No. 1 was the builder and defendant No. 2 was the owner of the property in question. Pursuant to advertisements issued by these defendants, the plaintiffs applied for a specific flat built by defendant No. 1 in the Group Housing Scheme. Defendant No. 1 accepted plaintiffs’ application for allotment on 28.08.1995. Plaintiffs paid an amount of Rs. 1,10,000/- in all to defendant No. 1. The flat in question was, however, not sold to the plaintiffs. According to the defendants, the flat was sold to defendant No. 3 in October, 1998. On 01.03.1999, the plaintiffs instituted the civil suit for specific performance of agreement dated 28.08.1995. The suit was decreed on 03.11.2006. Against this judgment and decree, two original side appeals have been preferred i.e. OSA No. 15 of 2016 jointly preferred by defendants No. 1 and 2 and the other OSA No. 1 of 2017 has been preferred by defendant No. 3. Plaintiff No. 1 and defendant No. 2 have died during the pendency of these appeals and have been substituted by their legal representatives. Arising out of common judgment & decree dated 03.11.2006 and involving common issues of facts and law, these appeals have been taken up together for decision. Parties hereinafter are being referred to according to their status before the learned Single Judge. 2. Facts 2(i) Plaintiffs filed a civil suit seeking :- (i) specific performance of an agreement dated 28.08.1995 against the defendants, whereby defendant No. 1 had accepted plaintiffs’ application for allotment of Flat No. C-12, 1st Floor, Dilshant Estate, Bharari, Shimla ; (ii) directions to the defendants to hand over physical possession of the flat to the plaintiffs ; (iii) directions to defendants No. 1 and 2 to execute and register the sale deed in respect of the aforesaid flat in favour of the plaintiffs. Plaintiffs’ case was that :- 2(i) (a) On 25.08.1995, defendant No. 1 wrote to plaintiffs regarding opening of booking of flats in Block ‘C’ in Dilshant Estate, Bharari, Shimla. Plaintiffs applied to defendant No. 1 for allotment of Flat No. C-12 on the first floor in Block-C with super area of 990 Sq. ft. Defendant No. 1 accepted plaintiffs’ application on 28.08.1995. Plaintiffs paid a sum of Rs. 50,000/- in cash to defendant No. 1 against a duly issued receipt. Defendant No. 1 was also paid Rs. Plaintiffs applied to defendant No. 1 for allotment of Flat No. C-12 on the first floor in Block-C with super area of 990 Sq. ft. Defendant No. 1 accepted plaintiffs’ application on 28.08.1995. Plaintiffs paid a sum of Rs. 50,000/- in cash to defendant No. 1 against a duly issued receipt. Defendant No. 1 was also paid Rs. 10,000/- by the plaintiffs through a bank draft dated 30.08.1995. On 06.11.1995, defendant No. 1 demanded Rs. 50,000/- from plaintiffs to issue allotment letter to them. Plaintiffs paid this amount through bank draft dated 07.12.1995. 2(i) (b) On 12.09.1996, defendant No. 1 sought to return Rs. 60,000/- by a cheque to the plaintiffs towards purported cancellation of the booking. This cheque was sent alongwith a draft typed letter meant to be signed by the plaintiffs expressing their intention to cancel the booking. Plaintiffs did not accept this proposition of defendant No. 1. On 17.09.1996, they sent a letter through advocate requesting defendant No. 1 to honour its commitment and issue allotment letter in their favour for the flat in question. In response, plaintiffs received two letters dated 14.09.1996 and 26.09.1996 from defendant No. 1 stating that due to stay order passed by the High Court, construction of flats in Block C was not possible, hence plaintiffs should accept refund of amount towards cancellation of booking. The plaintiffs responded on 14.10.1996 and informed defendant No. 1 that they were not interested in cancellation of booking and also that they had not received Rs. 50,000/- alleged by defendant No. 1 to have been refunded to them in cash. The plaintiffs also conveyed having no intention to encash the cheque of Rs.60,000/-. 2(i) (c) On 02.12.1996, defendant No. 1 wrote a letter to the plaintiffs seeking return of Rs. 60,000/- in case they wanted to retain the booking. Plaintiffs were also directed to acknowledge refund of Rs. 50,000/- allegedly returned to them in cash by defendant No. 1. Plaintiffs responded on 06.12.1996 denying receiving Rs. 50,000/- in cash. The cheque dated 11.09.1996 for amount of Rs. 60,000/- was not returned to defendant No. 1 but plaintiffs reiterated that they had no intention to encash the cheque. Plaintiffs were also directed to acknowledge refund of Rs. 50,000/- allegedly returned to them in cash by defendant No. 1. Plaintiffs responded on 06.12.1996 denying receiving Rs. 50,000/- in cash. The cheque dated 11.09.1996 for amount of Rs. 60,000/- was not returned to defendant No. 1 but plaintiffs reiterated that they had no intention to encash the cheque. 2(i) (d) There being no response of defendant No. 1 to the plaintiffs’ communication dated 06.12.1996, the plaintiffs sent a letter to defendant No. 1 on 07.07.1998 calling upon it to issue allotment letter in their favour for the flat in question and to inform about further payments to be made by them towards purchase of the flat. This was followed by another letter of the plaintiffs dated 01.12.1998 reiterating their request. Defendant No.1 responded on 07.12.1998 enclosing with this letter a bank draft of Rs. 76,125/- towards refund of Rs. 60,000/- with interest @ 9% per annum. Defendant No. 1 also mentioned that Rs. 50,000/- had already been returned to plaintiffs in cash. Defendant No. 1 denied that there was any concluded contract between the parties with respect to the flat in question. 2(i) (e) Pleading that plaintiffs had always been ready and willing to perform their part of the contract as per the agreement dated 28.08.1995 in order to purchase and possess the flat and that cause of action accrued to them on 07.12.1998 when defendant No. 1 denied these rights to the plaintiffs, suit for specific performance was instituted by the plaintiffs on 01.03.1999. 2(ii) Written statement of defendant No.1. Initially M/s Highseas Holding Pvt. Ltd.(defendant No. 1) was the only defendant impleaded in the suit. Defendant No. 1 in its written statement, inter-alia raised objections that suit was barred by limitation and also bad for non-joinder of necessary party-Air Marshal G.B. Singh PVSM (Retd.) (owner of the property). It was pleaded that :- 2(ii) (a) Owner of the property i.e. Air Marshal G.B. Singh had not been impleaded as a party to the suit. Suit for specific performance was not maintainable in his absence. Condition No. 8 of the form accompanying application for allotment had clearly referred to the ownership of Air Marshal G.B. Singh over the property. The decree prayed for by plaintiffs was incapable of being executed as defendant No. 1 was not the owner of the property and could not execute sale deed. Condition No. 8 of the form accompanying application for allotment had clearly referred to the ownership of Air Marshal G.B. Singh over the property. The decree prayed for by plaintiffs was incapable of being executed as defendant No. 1 was not the owner of the property and could not execute sale deed. It was also disclosed that the suit property stood sold to one Sh. Raman Wasan. 2(ii) (b) No agreement to sell was ever executed in favour of plaintiffs. They had only applied to defendant No. 1 for allotment of a flat. Even the allotment letter had not been issued to the plaintiffs. Even if it is assumed that plaintiffs are seeking specific performance of agreement dated 28.08.1995, then also the suit filed on 01.03.1999 was barred by limitation. 2(ii) (c) On merits, it was admitted that the plaintiffs had applied to defendant No. 1 for allotment of the flat in question. Neither the acceptance of plaintiffs’ application on 28.08.1995 for allotment of flat nor defendant No.1’s letter dated 06.11.1995 written to the plaintiffs could be termed as an agreement to sell. The amount paid by the plaintiffs to defendant No. 1 towards the flat was refunded to them by defendant No. 1 on 12.09.1996. The plaintiffs though dishonestly retained the amount refunded to them but did not sign letter for cancellation of the booking. The construction of Block ‘C’ had been stayed due to Court order. This construction of Block-C was eventually completed and possession of the flat in question was handed over to one Sh. Raman Wasan in October, 1998. 2(ii) (d) Plaintiffs had only made an application for allotment of a flat. Plaintiffs were only ‘intending allottees’ and nothing more. No cause of action accrued in their favour for filing the suit for specific performance. 2(iii) Addition of parties to the suit and amendment of plaint 2(iii) (a) In view of averments and preliminary objections raised in defendant No.1’s written statement about non-impleadment of necessary parties, the plaintiffs moved an application for impleading Air Marshal G.B. Singh PVSM (Retd.) (owner of the property) and Sh. Raman Wasan (alleged purchaser of the property) as parties to the suit. Application was also made for making certain amendments in the body of plaint. These applications were allowed. The above named persons were impleaded as defendants No. 2 and 3. Raman Wasan (alleged purchaser of the property) as parties to the suit. Application was also made for making certain amendments in the body of plaint. These applications were allowed. The above named persons were impleaded as defendants No. 2 and 3. 2(iii) (b) By way of amendment, plaintiffs pleaded that defendant No. 1 had never indicated any role to be played by defendant No. 2. The latter was never in picture. Defendant No. 1 had all along presented that all steps had to be taken only by defendant No. 1. Plaintiffs were not privy to whatsoever transpired between defendants No. 1 and 2. None of the terms and conditions accompanying the application for allotment gave any insight that plaintiffs had to deal with defendant No. 2. Plaintiffs had been interacting and corresponding only with defendant No. 1. 2(iv) Written statement of defendant No. 2. Defendant No. 2 submitted that he was owner in possession of the property. Only he could have entered into any binding agreement to sell the flat and execute sale deed. No dealings whatsoever took place between plaintiffs and defendant No. 2. Plaintiffs had never negotiated with him. No money was paid to him. Condition No. 8 of the terms and conditions of allotment clearly stated that defendant No. 2 was owner of the property. There was no agreement between him and the plaintiffs. Therefore, suit for specific performance could not be maintained against him. 2(v) Written statement of defendant No. 3. Apart from reiterating the pleadings of defendants No. 1 and 2, defendant No. 3’s stand was that he was a bonafide purchaser of the flat in question. He got the possession of the flat on 08.10.1998. He invested huge amount in the flat post its purchase. He opposed grant of relief to the plaintiffs. 2(vi) Parties led evidence in support of their respective pleadings. Plaintiff No. 1 entered in the witness box as PW-1. Defendant No. 1 examined Senior Planning Draughtsman as DW-1, Clerk Municipal Corporation, Shimla as DW-2, Captain Chimni-the Director of defendant No. 1 as DW-3, Rajesh Kumar Sirohi as DW-4. Defendant No. 3 appeared as DW-5. Defendant No. 2 did not step in the witness box. Plaintiff No. 1 entered in the witness box as PW-1. Defendant No. 1 examined Senior Planning Draughtsman as DW-1, Clerk Municipal Corporation, Shimla as DW-2, Captain Chimni-the Director of defendant No. 1 as DW-3, Rajesh Kumar Sirohi as DW-4. Defendant No. 3 appeared as DW-5. Defendant No. 2 did not step in the witness box. On his behalf an application OMP No. 220 of 2001 was moved on 10.05.2001 under Order 16 Rules 2 & 3 of the Code of Civil Procedure to examine two witnesses with a view to produce and prove a General Power of Attorney executed by him in favour of Cap. N.P Ahluwalia and Cap. P.S. Chimni (directors of defendant No.1) registered in the office of Sub-Registrar New Delhi on 08.01.1992. The application was dismissed on 28.05.2001 for the reason that power of attorney allegedly executed by defendant No. 2 in favour of defendant No. 1 could easily be got produced by defendant No. 2 by serving notice on defendant No. 1. Defendant No. 2 thereafter served a notice under Order 12 Rule 8 C.P.C. upon defendant No. 1 for producing original power of attorney executed by defendant No. 2 in favour of directors of defendant No. 1. Learned counsel for defendant No. 1 undertook to produce this power of attorney as at that time defendants’ witnesses were being examined. A General Power of Attorney allegedly executed by defendant No. 2 in favour of defendant No. 1 is on record of file as defendants’ documents. (However, a perusal of statement of DW-3 recorded on 27.04.2001 shows that original power of attorney sought to be produced was not taken on record). 2(vii) After appreciating the pleadings, evidence and contentions of the parties, learned Single Judge decreed the suit on 03.11.2006. Defendant No. 1 was directed to allot the flat in question in favour of the plaintiffs. He was directed to thereafter make an offer to the plaintiffs to execute buyer’s agreement in its favour. Depending upon the plaintiffs executing buyer’s agreement in accordance with terms and conditions of allotment within a month of such offer, defendant No. 1 was further directed to get the sale deed or 99 years lease deed as the case may be, executed in plaintiffs’ favour from defendant No. 2. Defendant No. 1 was also directed to hand over possession of the flat to the plaintiffs. Defendant No. 1 was also directed to hand over possession of the flat to the plaintiffs. Aggrieved against this judgment and decree, defendants No. 1 and 2 jointly filed OSA No. 15 of 2006. Defendant No. 2 died during the pendency of the appeals, hence his legal representatives have been brought on record of the appeal as appellants No. 2(a) and 2(b). Plaintiff No. 1 also died during the pendency of the appeal. His legal heirs have also been arrayed in the appeals. Raman Wasan-defendant No. 3 has separately assailed the judgment and decree passed by the learned Single Judge by instituting OSA No. 1 of 2007. 3. Points for determination in these appeals We have heard learned counsel for the parties and with their assistance gone through the record. The submissions of learned counsel for the parties have revolved around following five points :- (i) Nature of document dated 28.08.1995 sought to be specifically enforced. Whether there was any valid & legal agreement executed between the parties specific performance of which could be enforced by the plaintiffs ? (ii) Form of impugned decree passed by the learned Single Judge. Whether the civil suit could have been decreed in the manner it has been decreed by the learned Single Judge vide impugned judgment & decree dated 03.11.2006 ? (iii) Readiness and willingness of the plaintiffs to perform their part of the contract. Whether the plaintiffs were ready & willing to perform their part of the agreement ? (iv) Limitation. Whether suit filed by the plaintiffs was within the limitation period ? (v) Relief of Specific Performance. Whether the plaintiffs are entitled to the relief of specific performance of the agreement ? To avoid repetition of discussion on facts, evidence and submissions, we have hereinafter separately considered the above points raised for determination in these appeals. 4. Point No.1 4(i) Nature of document dated 28.08.1995 sought to be specifically enforced The contention advanced by the appellants is that the document dated 28.08.1995 being sought to be specifically enforced by the plaintiffs is only a letter of intent issued by defendant No. 1 (builder) in favour of plaintiffs for booking of flat. This letter of intent issued by the builder does not confer any right on the plaintiffs to seek specific performance of same by terming it as an ‘Agreement to sell’. This letter of intent issued by the builder does not confer any right on the plaintiffs to seek specific performance of same by terming it as an ‘Agreement to sell’. Though the document dated 28.08.1995 is not the allotment letter, however, even the letter of allotment cannot be construed as a binding contract. Only a concluded contract is capable of being enforced. Court cannot make out a contract for the parties where none exists. In the facts of the case where a valid and enforceable contract has not been made out, specific performance cannot be ordered by the Court. The counter arguments on behalf of respondents-plaintiffs are that there was an agreement to sell between plaintiffs and defendant No. 1 with regard to Flat No. C-12, Dilshant Estate, Shimla. The terms and conditions of said agreement are to be seen in Exhibits PW-1/A and PW-1/D. Plaintiffs were to pay for the flat at the rates indicated in PW-1/A. Plaintiffs had paid Rs. 1,10,000/- towards the price of the flat and were ready and willing to pay the balance sale consideration. They are entitled to the relief of specific performance. We observe as under :- 4(i) (a) The evidence on record reveals that advertisements were issued for the property in question. Advertisement dated 20.05.1994 published in the Times of India (Original copy placed on record by defendants, but not exhibited though not disputed) invited applications for the flats/apartments in Dilshant Estate. The applicants have been advised therein either to contact defendant No. 2 at New Delhi on given telephone numbers or defendant No. 1 at the given addresses of Chandigarh, Amritsar, Ludhiana and Shimla. Another advertisement for the same property is Ex. DW-3/A published in the Hindustan Times on 13.05.2000. In terms of this advertisement, the interested persons have been advised to contact given telephone numbers in Delhi and Shimla. For Chandigarh, the contact number given is that of defendant No. 1. One more similar advertisement is Ex. DW-3/B published in the Hindustan Times on 07.05.1999 under the name of defendant No. 1. Yet another advertisement is Ex. DW-3/C published on 24.03.2001 in the Times of India with contact details of defendant No.1. The advertisements issued in the newspapers do give an impression that defendant No. 1 (builder) had owner’s (defendant No.2) authority to deal with the property. DW-3/B published in the Hindustan Times on 07.05.1999 under the name of defendant No. 1. Yet another advertisement is Ex. DW-3/C published on 24.03.2001 in the Times of India with contact details of defendant No.1. The advertisements issued in the newspapers do give an impression that defendant No. 1 (builder) had owner’s (defendant No.2) authority to deal with the property. These advertisements were issued by defendant No. 1 without giving any reference to the owner of the property. In terms of the advertisements, any one out of the given addresses/phone numbers could be contacted for buying flats. The addresses given were mostly of defendant No. 1. Defendant No.2 has not disputed the advertisements. The advertisements placed on record by the defendants lead to the presumption that defendant No. 1 was authorized by defendant No. 2 to allot/sell/lease out etc. the property/flat/areas in Dilshant Estate. 4(i) (b) Ex. PW-1/A is a letter dated 25.08.1995 written by Cap. P.S. Chimni (DW-3) the director of defendant No.1 intimating the plaintiffs that booking of flats will be open in a month’s time. A plan of Block ‘C’ alongwith list of available flats/areas was part of the letter. The plan is proved on record as Ex. PA. This document shows that Flat No. C-12 with area measuring 990 Sq. ft. was available for booking/sale with tentative price of Rs. 1250/- per Sq. ft. It appears that plaintiffs expressed interest to defendant No.1 for purchasing the flat in question. A printed format was handed over to plaintiffs by defendant No. 1. It contained an application for allotment of flat alongwith elaborate terms and conditions. The document though printed had some blank spaces which were filled in handwriting. The original of this document was produced by the defendants and exhibited as ‘PB’. It is addressed to defendant No. 1. DW-3 has admitted these facts. Top portion of this document (Ex. PW/1-A) starts with printed request on behalf of the applicant for allotment of a residential flat/commercial shop. The para also includes applicant’s undertaking to abide by the terms and conditions of ‘sale’ mentioned in the document. Ex.PW/1-A shows that the undated application for allotment moved by the plaintiffs was in respect of Flat No. C-12 on 1st Floor in Block-C with super area 990 Sq. feet (approximately) under payment mode ‘B’. This application was accepted by defendant No. 1 on 28.08.1995. Ex.PW/1-A shows that the undated application for allotment moved by the plaintiffs was in respect of Flat No. C-12 on 1st Floor in Block-C with super area 990 Sq. feet (approximately) under payment mode ‘B’. This application was accepted by defendant No. 1 on 28.08.1995. The document gives a definite impression that defendant No. 1 was authorized to settle the sale price, issue allotment letters and to bind the owner of the property (defendant No.2) with such allotment, sale price and the settled terms and conditions. 4(i) (c) Salient terms and conditions for allotment of residential flat/commercial shop in the Group Housing Scheme at Dilshant Estate, Bharari, Shimla are part of the printed application. The person applying for allotment of flat/shop, has been mentioned in these terms and conditions as ‘intending allottee’. The person issuing the application form and specifying the terms and conditions was defendant No. 1. Some of the terms and conditions around which submissions were made on both sides are as under :- “2. The intending allottee agrees that he/she will pay the price of the flat/shop and other charges on the basis of the super area. The super area shall include the area of his/her flat/shop and also the area under partition walls and half the area under common walls as between two flats. It shall also include 50% of the Balcony, if any, and 50% of the staircases area. The latter will be apportioned on a prorate basis to each flat. Reserved parking spaces and membership of the club shall be charged for additionally on terms to be determined by the Builder. 5. The intending allottee(s) agrees to pay the increased cost, if any, during the progress of work, in the cost of development and construction of Flat/shop due to the increase in the cost of cement, steel or any other material and/or labour charges etc. The sale price shall be increased on prorate basis as assessed by the Builder and as certified by designated Architect. The same shall be payable on demand. However, escalation will be limited to a maximum of 5% of the total cost of flat/shop. 6. The time of payment of installments is the essence of this agreement. It shall be incumbent on the intending Allottee(s) to comply with the terms of payment and the other terms and conditions of allotment. The same shall be payable on demand. However, escalation will be limited to a maximum of 5% of the total cost of flat/shop. 6. The time of payment of installments is the essence of this agreement. It shall be incumbent on the intending Allottee(s) to comply with the terms of payment and the other terms and conditions of allotment. In case the installments are delayed, the intending Allottee(s) shall have to pay the interest on the amount due as follows:- (i) Upto 30 days delay from the due date of outstanding amount @ 18% p.a. (ii) Upto 90 days delay from the due date of outstanding amount @ 24% p.a. Even then if the intending Allottee(s) fails to pay the installment with interest within 90 days of the due date, the Builder shall forfeit the entire amount of earnest money deposited by him/her and the allotment shall stand cancelled and he/she will be left with no lien on the Flat. The amount if any, paid over and above the earnest money shall be refunded to the intending Allottee(s) without any interest and only after completion of the project. 7. All charges for the registration of the 99 years lease or sale deed and other legal and incidental expenses of the Flat/Shop shall be borne by the allottee(s). 8. The land on which the Flat/Shops are built, will remain the property of the owner, Air Marshal G.B. Singh, PVSM (Retd.) (hereinafter referred to as the “Owner”). The green areas i.e. all areas within Dilshant Estate on which flats/shops and other structures have not been built shall remain the property of the owner and the allottee shall only have a right/licence to use the green areas and shall have no right whatsoever to ownership of the said green areas and shall not have any right to occupy or make any construction whatsoever on the said green areas. The allottee(s) will be entitled to have the residential Flat/commercial shop transferred in his/her own name through a regular sale deed if the Allottee(s) is entitled to purchase the same under section 118 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 or after obtaining necessary permission in other cases. The allottee(s) will be entitled to have the residential Flat/commercial shop transferred in his/her own name through a regular sale deed if the Allottee(s) is entitled to purchase the same under section 118 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 or after obtaining necessary permission in other cases. Where no permission is obtained or the allottee is not entitled to have the sale deed executed in his/her favour the “Owner” shall execute a 99 years lease and with a right to sub-lease etc. and all other incidental rights enjoyed by a flat/shop owner in favour of the allottee(s). All expenses or cost in this behalf shall be borne by the allottee(s). 10. The intending allottees has seen and approved the plans, designs, specifications which are tentative and agrees that the Builder may make such variations, additions, alterations, and modifications therein as it may, in its sole discretion, deem fit and proper or as may be done by any competent authority and the intending allottees hereby gives his/her consent to such variations, additions, alterations and modifications. The intending allottees has also seen the specifications and information as to the material to be used in the construction of the apartment as set out in the brochure which are also tentative and the Builder may make such variations and modifications therein as it may, in its sole discretion, deem fit and proper or as may be done by any competent authority and the intending allottee(s) hereby gives his consent to such variations and modifications. 14. The allotment of the flat/shop is entirely at the discretion of the Builder and the Builder has a right to reject any offer without assigning any reason thereof. 16. The intending Allottee(s) agrees to sign and execute, as and when desired by the Builder, the Flat Buyers Agreement on the Builders standard format.” The contents of above terms and conditions lead to a positive inference that defendant No. 1 was authorized by defendant No.2 to allot flats/shops, settle terms and conditions of allotment, settle sale price, the mode of payment, settle the installments schedule etc. From reading of all the terms and conditions, an irresistible conclusion that can be easily drawn is that defendant No. 1 (builder) had the authority to bind down defendant No. 2 (owner) with these terms and conditions. From reading of all the terms and conditions, an irresistible conclusion that can be easily drawn is that defendant No. 1 (builder) had the authority to bind down defendant No. 2 (owner) with these terms and conditions. As per Clause 2 of the terms and conditions price of the flat and other charges were to be paid by the allottee on the basis of super area. Clauses 5 & 6 indicate that installment notice for the payment of balance installments was to be issued by the builder. The sale price was to be fixed by the builder. The price so fixed by the builder was virtually the sale price. As per clause 14 of the terms and conditions, the allotment of the flat was entirely at the discretion of the builder. Clause 5 of the terms and conditions states that increase in sale price, if any, was to be assessed by the builder and payable by the allottee on builder’s demand. Clause 7 records that charges for registration of 99 years’ lease or the sale deed as the case may be were to be borne by the allottee. Clause 8 of the terms and conditions (extracted earlier), states that the sale/lease deed, as the case may be, was to be got executed by defendant No. 1 in favour of the allottee through defendant No 2. In case the allottee was entitled to purchase the flat under Section 118 of the H.P. Tenancy and Land Reforms Act or he had requisite permission to purchase, a regular sale deed was to be executed in his favour. Where requisite permissions either under Section 118 of the H.P. Tenancy and Land Reforms Act or under other applicable laws were not obtained, then the owner (defendant No.2) was to execute 99 years’ lease deed in favour of the allottee with right to sub-lease. Clause 8 of the terms and conditions for allotment specifically binds the owner of the property with execution of sale/lease deed in favour of allottee. Once an application for allotment is accepted, then depending upon compliance of other specified terms and conditions including payment of sale consideration amount, the sale/lease deed becomes executable in favour of the allottee. This is to be got executed by defendant No. 1 through defendant No. 2. Once an application for allotment is accepted, then depending upon compliance of other specified terms and conditions including payment of sale consideration amount, the sale/lease deed becomes executable in favour of the allottee. This is to be got executed by defendant No. 1 through defendant No. 2. Name of owner of the property (defendant No.2) was though mentioned in the terms and conditions of the allotment, but his role was only to act as per the dictate of the builder (D-1). He was to execute the sale/lease deed on the asking of defendant No. 1 in terms of clause 8. The plaintiffs moved an application for allotment of Flat No. C-12 on the first floor in Block-C. Their application was accepted by defendant No. 1 on 28.08.1995. On acceptance of the application and in view of the terms and conditions of allotment which are part of the printed format of application for allotment, this document has to be construed as an agreement of sale. This document has been intended to be an agreement of sale by defendants No. 1 and 2 by necessary implication. 4(i) (d) Defendant No. 2 (the owner) in his written statement has banked upon the very terms and conditions of document (Ex. PW/1-A) to contend that plaintiffs were only ‘intending allottees’ and that neither any allotment letter nor any agreement to sell was ever executed in plaintiffs’ favour. That he did not receive any amount from the plaintiffs. No dealings took place between him and the plaintiffs, therefore, suit deserved to be dismissed. Not surprisingly, defendant No. 2 did not disown the terms and conditions of allotment set forth by defendant No.1. He rather relied on the same. It is thus obvious that the allotment of defendant No. 2’s property by defendant No. 1 had to be honoured by defendant No. 2. On allottee’s complying with the terms and conditions set forth including payments etc. the same was to be followed by execution of sale/lease deed, as the case may be. Under these terms and conditions, the sale/lease deed consideration amount was not to be paid by the allottee to the owner (defendant No. 2) but to the builder (defendant No.1). Hence, non-receipt of any amount by defendant No. 2 from the plaintiffs is irrelevant. the same was to be followed by execution of sale/lease deed, as the case may be. Under these terms and conditions, the sale/lease deed consideration amount was not to be paid by the allottee to the owner (defendant No. 2) but to the builder (defendant No.1). Hence, non-receipt of any amount by defendant No. 2 from the plaintiffs is irrelevant. Defendant No. 2’s role was to come into play only at the time of execution of sale/lease deed in favour of the allottee chosen by defendant No.1. 4(i) (e) The person applying for allotment was termed as ‘intending allottee’ in the ‘terms and conditions’ of allotment. However, once his application for allotment was accepted by the builder, obviously his status became that of an allottee. Plaintiffs’ application for allotment was accepted by defendant No. 1 on 28.08.1995. Defendant No. 1 on 06.11.1995 demanded Rs. 50,000/- from the plaintiffs for issuance of allotment letter. This amount was paid by the plaintiffs. Plaintiffs by now had virtually become ‘allottes’ on 28.08.1995. Issuance of letter of allotment was a mere formality. In case allotment letter was required to be issued to the plaintiffs, then defendant No. 1 was liable to issue it. On payment of the amount as per the settled terms and conditions, sale/lease deed was to be got executed in plaintiffs’ favour by defendant No.1 through defendant No.2. Thus subject to satisfaction of terms and conditions imposed by the builder (defendant No.1), sale deed was to be got executed in plaintiffs’ favour by defendant No. 1 through defendant No. 2. 4(i) (f) An argument forcefully raised by the appellants is that decree passed by the learned Single Judge is not in conformity with law. That after holding there being no offer of allotment, learned Single Judge in a suit for specific performance could not have ordered defendant No. 1 to first allot the flat, offer execution of buyer’s agreement and then depending upon plaintiffs’ execution of such buyer’s agreement get the sale/99 years’ lease deed executed in plaintiffs’ favour from defendant No. 2. That defendant No. 1 cannot force defendant No. 2 to execute sale/99 years’ lease deed in favour of plaintiffs. We may first observe that learned Single Judge had given conclusive finding that there was an agreement to sell between the plaintiffs and defendants. Issue No. 1 framed in the suit was :- “1. That defendant No. 1 cannot force defendant No. 2 to execute sale/99 years’ lease deed in favour of plaintiffs. We may first observe that learned Single Judge had given conclusive finding that there was an agreement to sell between the plaintiffs and defendants. Issue No. 1 framed in the suit was :- “1. Whether there has been an agreement to sell between the parties, if so, what are the terms thereof ? OPP” After considering the pleadings, evidence and the submissions made by the parties, the learned Single Judge in para 47 of the impugned judgment has held that “there has been an agreement for allotment/sale or 99 years lease of Flat No. C-12 between the plaintiffs and defendant No. 1, who apparently acted on the authority given by defendant No. 2. Issue is answered accordingly”. Therefore, the appellants’ contention that in view of operative part of the judgment, it has to be presumed that the learned Single Judge had held that there was no offer of allotment/non concluded contract between the parties, is not correct. 4(ii) Point No. 2. Form of impugned decree passed by the learned Single Judge Another contention raised for defendants No. 1 and 2 is that from the relief granted by the learned Single Judge it can be deduced that (i) there was no allotment letter in favour of plaintiffs ; (ii) that neither defendant No. 1 (builder) nor defendant No. 2 (owner) had offered to the plaintiffs to execute buyer’s agreement. It was further submitted that the directions issued in the judgment to defendant No. 1 to first allot the flat to the plaintiffs, then to make an offer to them to execute buyer’s agreement and in case plaintiffs execute such agreement then to get the sale/lease deed executed in their favour from defendant No. 2, are dehors the settled legal principles. Defendant No. 1 can neither force defendant No. 2 nor can it be compelled to get sale/lease deed executed in plaintiffs’ favour by defendant No. 2. The decree is inexecutable. We observe as under :- 4(ii) (a) It would be appropriate to extract the operative portion/relief granted in the impugned judgment :- “59. Defendant No. 1 can neither force defendant No. 2 nor can it be compelled to get sale/lease deed executed in plaintiffs’ favour by defendant No. 2. The decree is inexecutable. We observe as under :- 4(ii) (a) It would be appropriate to extract the operative portion/relief granted in the impugned judgment :- “59. In view of the above findings, suit of the plaintiffs is decreed with costs and a decree directing defendant No. 1 to allot flat No. C-12, block-C in Dilshant Estate Bharari, Shimla in favour of the plaintiffs and then to make an offer to the plaintiffs to execute buyer’s agreement in its favour and if the plaintiffs execute such an agreement in accordance with the terms and conditions of allotment within a month of such offer, to get executed sale deed or ninety-nine years lease deed, as the case may be, in their favour from defendant No. 2. Defendant No. 1 is also directed to hand over possession of the aforesaid flat to the plaintiffs. Decree sheet be prepared accordingly.” It would be worthwhile to note that while discussing issue No. 1, more particularly in paras 29 to 47 of the impugned judgment, learned Single Judge has categorically held that there has been an agreement for allotment/sale or 99 years’ lease of the flat in question between the plaintiffs and defendant No.1. We are in unison with the findings recorded by learned Single Judge on this issue. Defendant No. 1 cannot be permitted to take shelter behind the lame plea that it cannot be directed to get the sale/lease deed executed in plaintiffs’ favour through defendant No. 2. Getting the sale/lease deed executed by defendant No. 1 in favour of allottee through defendant No. 2 is the only way of concluding the deal envisaged in the terms and conditions of allotment. We have already held that defendant No. 2 (owner) has not refuted the binding nature of the terms and conditions set forth by defendant No. 1 (builder). In the given facts, the document dated 28.08.1995 is nothing short of an agreement to sell. Defendant No.1’s acceptance of plaintiffs’ application for allotment of a particular flat and plaintiffs’ paying the earnest money would have resulted into issuance of a formal allotment letter. In the peculiar factual scenario of the case, issuance of allotment letter was a mere formality. In the given facts, the document dated 28.08.1995 is nothing short of an agreement to sell. Defendant No.1’s acceptance of plaintiffs’ application for allotment of a particular flat and plaintiffs’ paying the earnest money would have resulted into issuance of a formal allotment letter. In the peculiar factual scenario of the case, issuance of allotment letter was a mere formality. 4(ii) (b) We may also observe here that in the facts and circumstances of the case, it can be easily deduced that defendant No. 2 (owner) had separately entered into some agreement/arrangement etc. with defendant No. 1 (builder) regarding raising of construction by the latter over former’s property and sale of that property (flats/shops/area etc.). The document Ex. PW/1-A dated 28.08.1995 and chain of events that happened thereafter pre-suppose existence of some kind of agreement between the owner of the land (defendant No.2) and the builder (defendant No.1). No document evidencing authority of defendant No. 1 to build or allot etc. has been placed on record. Plaintiffs are not supposed to have either the access or the specific knowledge of any agreement inter-se between these two defendants. They obviously were not in a position to place on record any such agreement between defendants No. 1 and 2. We are of the view that best evidence regarding exact nature of authorization issued by defendant No.2 in favour of defendant No. 1 has been withheld by defendants No. 1 and 2 from the Court. In the given facts, it is impossible to believe that defendant No. 2 did not execute any agreement clothing defendant No. 1 with authority to deal with the land in question. The authority of defendant No. 1 to build on defendant No.2’s land, accept applications for allotment of the flats/shops thereupon, settle terms and conditions for sale of built up flats/shops etc. and to bind down defendant No. 2 to sell the land/flat/shop etc. in favour of allottee chosen by defendant No. 1, had to originate from some agreement other than the General Power of Attorney dated 08.01.1992 executed by defendant No. 2 in favour of defendant No. 1. The General Power of Attorney placed on record by defendant No. 1 alongwith documents filed by defendants and strongly relied upon by it during hearing of the case to project that it had very limited authority given to it by defendant No. 2, is irrelevant. The General Power of Attorney placed on record by defendant No. 1 alongwith documents filed by defendants and strongly relied upon by it during hearing of the case to project that it had very limited authority given to it by defendant No. 2, is irrelevant. Even a casual reading of this General Power of Attorney makes it crystal clear that this was not the document by which defendant No. 2 had authorized defendant No. 1 to build upon and sell his property. The said General Power of Attorney (even though not exhibited and accepted but is being referred to hereinafter only for testing the contention put forth by the defendants) only authorizes defendant No. 1 to do as under :- 1. To act and appear before all land authorities, Municipal and Revenue or any other Govt. authorities of the State of Himachal Pradesh and thereby to make all sorts of correspondence, obtain various approvals and permissions under regulatory provisions, to carry out any developmental and construction activities on the said land, and for making due compliances with various regulations under their own signatures. 2. To submit and pursue detailed Building Layout(s), plans, models as per Govt. norms and specification(s) before the concerned authorities for seeking necessary approval(s) for enabling construction of the Housing Project to be known as Dilshant Estate or any other structure on the said land under their own signatures. 3. To appear and present before Himachal Pradesh State Electricity Board, Posts and Telegraphs Department, Telecommunication authorities, Water and Sewerage Authorities or any other Central or State Government Authorities, Body(ies), Organization(s) concerned in Himachal Pradesh and at any connected place within India and thereby to make all correspondences, submit application(s), make earnest and security deposit(s), obtain permission(s), approval(s), connection(s) or to execute any agreement(s), deed(s), affidavit(s) and to comply with statutory and regulatory provisions from time to time, under their own signature(s), for the purposes of making construction or development of the said land.” The above extracted clauses do not give authority to defendant No. 1 (builder) to allot, fix terms & conditions for allotment and for sale of plots, fix the sale price, execute buyer’s agreement and bind the owner of the property (defendant No. 2) to execute sale/lease deed in terms thereof. But this is exactly what defendant No. 1 has done and there is nothing on record to suggest that defendant No. 2 had ever objected to, repudiated or denied the actions of defendant No. 1. In fact all this shows that defendant No. 2 has impliedly admitted authorizing defendant No. 1 to act on his behalf. The specific authorization has not been placed on record. Defendants No. 1 and 2 have been inter-changeably represented by common counsels before the learned Single Judge. Present first appeal (OSA No. 15 of 2016) has been filed jointly by defendants No. 1 and 2. Their contentions are common. We, therefore, do not find any infirmity in the relief granted by the learned Single Judge. The relief granted is in terms of mechanism envisaged in the agreement dated 28.08.1995. 4(iii) Point No. 3 Readiness and willingness of plaintiffs to perform their part of the contract The contention advanced by defendant No. 1 is that plaintiffs in all had paid an amount of Rs. 1,10,000/- to defendant No. 1. This entire amount had been refunded by defendant No. 1 to the plaintiffs. That Rs. 50,000/- were handed over in cash to plaintiff No. 1 by Rajesh Kumar (DW -4) on behalf of defendant No. 1 and an amount of Rs. 76,125/- was returned to plaintiffs by defendant No. 1 by way of demand draft. That the plaintiffs had not cross examined DW-4 regarding handing over Rs. 50,000/- in cash by him to plaintiff No. 1. Plaintiffs had also admitted receipt of demand draft of Rs. 76,125/-. The said demand draft was never returned by the plaintiffs to defendant No.1. Therefore, it stood proved on record that plaintiffs had never been ready and willing to perform their part of the contract. Hence, the suit for specific performance filed by them was liable to be dismissed. Whereas plaintiffs’ stand is that they had always been ready and willing to perform their part of the agreement by paying balance purchase price of the flat. As per terms and conditions, the amount and the installments were to be indicated by defendant No.1. Despite their repeated requests, defendant No. 1 did not ask for payment of balance purchase price. Instead, defendant No. 1 kept pressurizing the plaintiffs to repudiate the agreement. As per terms and conditions, the amount and the installments were to be indicated by defendant No.1. Despite their repeated requests, defendant No. 1 did not ask for payment of balance purchase price. Instead, defendant No. 1 kept pressurizing the plaintiffs to repudiate the agreement. Plaintiffs had always expressed their readiness and willingness to take the agreement dated 28.08.1995 to its logical conclusion by paying the purchase price of the flat in question. We observe as under :- 4(iii) (a) From perusal of the documents placed on record, it is clear that the plaintiffs had made an offer to purchase the flat in question, the tentative price of which was fixed at Rs. 1250/- per Sq. ft. The application of the plaintiffs for allotment of the flat was accepted by defendant No. 1 on 28.08.1995. The application for allotment (Ex. PW/1-A) alongwith the terms and conditions for allotment makes it clear that the plaintiffs had agreed to pay further installments of sale price as stipulated by the builder (defendant No.1) at his call. 4(iii) (b) The plaintiffs had paid an amount of Rs. 50,000/- in cash vide receipt Ex. PW-1/B to defendant No. 1 on 28.08.1995. Ex. PW-1/C is the receipt dated 30.08.1995 issued to the plaintiffs by defendant No. 1 in lieu of Rs. 10,000/- paid by them. Defendant No. 1 vide letter dated 06.11.1995 (Ex. PW-1/D) demanded Rs. 50,000/- from plaintiff No. 1 to complete the earnest money against the booking and allotment of the flat. This amount was paid by the plaintiffs to defendant No. 1. The receipt of Rs. 50,000/- was acknowledged by defendant No. 1 on 11.12.1995 (Ex. PW-1/E). Plaintiffs thus in all paid an amount of Rs. 1,10,000/- (Rs. 50,000 + Rs. 10,000 + Rs. 50,000) to defendant No. 1 in lieu of the flat. 4(iii) (c) Instead of issuing allotment letter as assured in Ex. PW-1/D, defendant No. 1 on 12.09.1996, vide Ex. PW-1/F sought to return Rs. 60,000/- to the plaintiffs through a cheque towards purported refund of the booking amount. The plaintiffs were requested to sign a draft typed letter dated 02.09.1996 (purported request for cancellation on behalf of the plaintiffs). The plaintiffs did not sign the draft letter but responded by their letter (Ex. PW -1/H) dated 17.09.1996 expressing their intention that they wanted to retain booking of the flat and were not interested in cancellation of the booking. The plaintiffs were requested to sign a draft typed letter dated 02.09.1996 (purported request for cancellation on behalf of the plaintiffs). The plaintiffs did not sign the draft letter but responded by their letter (Ex. PW -1/H) dated 17.09.1996 expressing their intention that they wanted to retain booking of the flat and were not interested in cancellation of the booking. That they were ready and willing to pay the balance purchase price. The letter also contains the recital that the amount being sought to be refunded to them was otherwise short by Rs. 50,000/-. That one Rajesh (DW-4), who had brought the cheque of Rs. 60,000/- was requested by the plaintiffs to take back the cheque, however, he had left the cheque with the plaintiffs. The plaintiffs stated in the letter that the cheque sent by defendant No. 1 dated 11.09.1996 was not acceptable to them and they were not going to encash it since they were interested to complete the process for having the possession of the flat in question. The plaintiffs also stated that defendant No. 1 had also not assigned any reason for asking the plaintiffs to cancel the booking and to accept refund of the amount. Plaintiffs requested for issuance of the allotment letter for the flat in question. DW-3 Cap. P.S. Chimni admitted that draft letter alongwith letter dated 12.09.1996 was sent by him. 4(iii)(d) Defendant No. 1 on 14.09.1996 addressed a letter (Ex. PW-1/K) to plaintiff No. 1 that due to stay order passed by the Court, construction of blocks ‘C’ and ‘D’ had been stayed. That the Environment Commission appointed by the High Court to look into the matter had also recommended that no further construction of these two blocks should be permitted. Defendant No. 1 stated that due to above litigation, the construction was likely to be delayed indefinitely and might even be abandoned. Therefore, it was interested in cancellation of booking and accordingly had requested the plaintiffs to do so. DW-3 has admitted writing this letter to the plaintiffs. 4(iii) (e) On 26.09.1996, plaintiffs received another letter (Ex. PW-1/L) from defendant No. 1 that due to stay imposed by the High Court, the construction of Block-C might be cancelled. Therefore, it was interested in cancellation of booking and accordingly had requested the plaintiffs to do so. DW-3 has admitted writing this letter to the plaintiffs. 4(iii) (e) On 26.09.1996, plaintiffs received another letter (Ex. PW-1/L) from defendant No. 1 that due to stay imposed by the High Court, the construction of Block-C might be cancelled. Defendant No. 1 further stated that presently it was not in a position to allot the flat, however, in case the plaintiffs wanted to wait indefinitely for allotment, then cheque dated 11.09.1996 for Rs. 60,000/- earlier sent to plaintiffs by defendant No.1 be returned. Plaintiffs were further requested by defendant No. 1 to acknowledge receipt of Rs. 50,000/ - paid to them in cash on 12.09.1996 on behalf of defendant No.1. 4(iii) (f) On 14.10.1996, plaintiffs replied (Ex. PW-1/M) to defendant No. 1 that they had not received Rs. 50,000/- allegedly given to them in cash on behalf of defendant No. 1. They also reiterated therein that they wanted to retain the booking. 4(iii) (g) Vide letter dated 02.12.1996 (Ex. PW-1/P) defendant No. 1 asked the plaintiffs to return the cheque of Rs. 60,000/- and also to acknowledge receipt of Rs. 50,000/- alleged to have been paid to them in cash on 23.09.1996. Vide Ex. PW-1/Q, dated 06.12.1996, plaintiffs responded back by saying that amount of Rs. 50,000/- was not received by them, therefore, there was no question of it being returned or its receipt being acknowledged. Insofar as returning of cheque of Rs. 60,000/- was concerned, plaintiffs stated that this cheque had not been encashed and that they will not encash it. Plaintiffs reiterated that they were not interested in cancellation of the booking. They further stated that defendant No.1’s assumption that non-returning of cheque of Rs. 60,000/- and not acknowledging receipt of Rs. 50,000/- would amount to plaintiffs not interested in retaining the booking, was incorrect. Defendant No. 1 maintained silence for about next two years. On 07.07.1998 (Ex. PW-1/T), plaintiffs, through a legal notice, called upon defendant No. 1 to give them details of further payments required to be made by them on account of price of the flat in question. They stated that necessary and lawful dues towards consideration of the flat will be remitted by them upon hearing from defendant No. 1. On 07.07.1998 (Ex. PW-1/T), plaintiffs, through a legal notice, called upon defendant No. 1 to give them details of further payments required to be made by them on account of price of the flat in question. They stated that necessary and lawful dues towards consideration of the flat will be remitted by them upon hearing from defendant No. 1. This was followed by another notice of plaintiffs dated 01.12.1998 stating that plaintiffs will seek legal remedy in case defendant No. 1 did not take any positive action on their demand of issuance of allotment letter. On 22.12.1998, defendant No. 1 wrote a letter (Ex.PW-1/Z) to the plaintiffs stating that proposed construction of Blocks ‘C’ and ‘D’ was initially delayed and ultimately cancelled. That in such circumstances, an amount of Rs. 50,000/- in cash plus a sum of Rs. 60,000/- had been refunded to the plaintiffs, but the plaintiffs dishonestly did not acknowledge the receipt of Rs. 50,000/- received by them in cash. Defendant No. 1 stated that it was once again willing to refund to the plaintiffs a sum of Rs. 60,000/-alongwith interest @ 9% per annum (as per Clause 11 of the terms and conditions) which comes to Rs. 76,125/-. The amount was sought to be remitted to the plaintiffs by a demand draft dated 08.12.1998. Alongwith the letter dated 22.12.1998, demand draft dated 08.12.1998 in the sum of Rs. 76,125/ - was also enclosed. Defendant No. 1 denied existence of any valid contract between it and the plaintiffs. On receipt of this reply, dated 07.12.1998, the plaintiffs filed the instant civil suit. The demand draft was made part of the plaint. 4(iii) (h) From the above series of facts and the supportive documents, it can safely be inferred that plaintiffs had been ready and willing to perform their part of the agreement. They had paid Rs. 10,000/ - towards earnest money for booking the flat. On acceptance of their application for booking of Flat No. C-12, 1st Floor, Block-C, Dilshant Estate, Bharari, Shimla, they paid further amount of Rs. 50,000/-, as directed by defendant No.1. Additional amount of Rs. 50,000/- was demanded by defendant No. 1 and accordingly paid to it by plaintiffs. In all, Rs. 1,10,000/- was paid by the plaintiffs to defendant No. 1. Remaining amount of consideration settled at Rs. 1020/- per Sq. ft. 50,000/-, as directed by defendant No.1. Additional amount of Rs. 50,000/- was demanded by defendant No. 1 and accordingly paid to it by plaintiffs. In all, Rs. 1,10,000/- was paid by the plaintiffs to defendant No. 1. Remaining amount of consideration settled at Rs. 1020/- per Sq. ft. (with right to seek escalation by defendant No.1 as per terms and conditions) was to be paid as and when demanded by defendant No.1. It is a fact that no further demand was raised by defendant No.1. Non raising of the demand by defendant No.1 would not lead to assumption that plaintiffs were not ready and willing to pay the balance consideration amount. The documents on record manifestly give an impression that defendant No. 1 wanted the plaintiffs to cancel the booking and for that reason had sought to return an amount of Rs. 60,000/- to the plaintiffs through cheque. Admittedly, cheque had not been encashed by the plaintiffs. Defendant No.1’s stand is that it had also paid Rs. 50,000/- in cash to the plaintiffs through DW-4 Rajesh. That Ex. PW-1/F dated 12.09.1996 and the cheque for Rs. 60,000/- alongwith cash amount of Rs. 50,000/- were sent to plaintiffs through DW-4. However, DW -4 has only stated about handing over Rs. 50,000/-in cash to the plaintiffs. In Ex. PW-1/P, defendant No. 1 states that Rs. 50,000/- was returned to plaintiffs in cash on 23.09.1996. In pleadings, this date is 12.09.1996. While appearing as DW-3, Cap. P.S. Chimni stated that cash payment of Rs. 50,000/- was made to plaintiff No.1 a few days prior to sending the cheque of Rs. 60,000/-. Thus the payment of Rs. 50,000/- was not proved on record. The amount of Rs. 76,125/- sent by defendant No. 1 to the plaintiffs by way of demand draft was not on the asking of the plaintiffs. It was sent by defendant No. 1 on its own. The said demand draft has been placed on record by the plaintiffs as Ex. PW/1-A. Plaintiffs had all along been very categoric in their stand to retain the booking and to proceed further in the matter of payment of balance amount. 4(iii) (i) Placing reliance upon 2022 SCC Online 840 (U.N. Krishnamurthy (since deceased) Thr. LRs Vs. A.M. Krishnamurthy), decided by Hon’ble Apex Court on 12.07.2022 and (2009) 17 SCC 27 (Azhar Sultana Vs. PW/1-A. Plaintiffs had all along been very categoric in their stand to retain the booking and to proceed further in the matter of payment of balance amount. 4(iii) (i) Placing reliance upon 2022 SCC Online 840 (U.N. Krishnamurthy (since deceased) Thr. LRs Vs. A.M. Krishnamurthy), decided by Hon’ble Apex Court on 12.07.2022 and (2009) 17 SCC 27 (Azhar Sultana Vs. B. Rajamani and others), it has been contended for defendant No. 1 that there is distinction between readiness and willingness to perform the contract. Both ingredients are necessary for the relief of Specific Performance. Readiness means capacity of the plaintiff to perform the contract which would include his financial position. Willingness relates to the conduct of the plaintiff. Plaintiff has to prove that all alongwith and till the final decision of the suit, he was ready and willing to perform his part of the contract. This facet has to be determined by considering all circumstances including availability of funds and mere statement or averment in plaint of readiness and willingness would not suffice. In the instant case, plaintiffs have specifically pleaded in para 10 of the plaint that ‘they had been ready and willing all along to pay the dues to defendant No.1 and had been asking it to indicate the amount so as to enable them to pay the amount and they are still willing and ready to pay the amount due as per the agreement between the parties in order to have and possess the flat in question.’ Defendant No.1 in para 10 of its written statement has not specifically questioned readiness and willingness of plaintiffs. Plaintiff No. 1 while appearing as PW-1 clearly expressed that plaintiffs had always been ready and willing to pay for the flat as per terms and conditions. The documents proved on record demonstrate that plaintiffs had very clearly and that too repeatedly rejected defendant No.1’s request to call off the deal and reiterated that they would like to proceed ahead with the agreement, hence defendant No.1 (the builder) should indicate the balance price of flat as per terms and conditions. Hence, it has to be held that plaintiffs were all along ready and willing to perform their part of the agreement. 4(iv) Point No. 4 Limitation An endeavour was made on behalf of defendants No. 1 and 2 to contend that the suit filed by the plaintiffs was barred by limitation. Hence, it has to be held that plaintiffs were all along ready and willing to perform their part of the agreement. 4(iv) Point No. 4 Limitation An endeavour was made on behalf of defendants No. 1 and 2 to contend that the suit filed by the plaintiffs was barred by limitation. We do not find any substance in this submission for the following reasons :- 4(iv) (a) Defendant No. 1 had all along been pressurizing the plaintiffs to back off from the contract and to cancel the booking. Plaintiffs had withstood this pressure and declined to withdraw from the contract. Plaintiffs had repeatedly expressed their intentions to retain the booking. They had not encashed the cheque of Rs. 60,000/- sent to them by defendant No. 1 on its own on 02.09.1996 purportedly towards refund of booking amount. It was for defendant No. 1 to demand the balance sale consideration amount from the plaintiffs. The plaintiffs on 14.10.1996, 06.12.1996 and 07.07.1998 had requested defendant No. 1 to give details of further payments that were required to be paid by them on account of price of flat in question. They stated that they had not received the cash amount of Rs. 50,000/- as alleged by defendant No. 1 and further that they had not encashed the cheque of Rs. 60,000/- sent to them by defendant No. 1. It was on 22.12.1998 that defendant No. 1 addressed a communication to the plaintiffs to the effect that even if a firm allotment followed by an agreement had come into existence in favour of the plaintiffs, the contract is incapable of being performed due to reasons beyond its control. Alongwith the letter, a demand draft of Rs. 76,125/- was enclosed towards purported refund of the consideration amount paid by plaintiffs. As observed earlier, defendant No. 1 has not established payment of Rs. 50,000/- in cash to the plaintiffs. The demand draft of Rs. 76,125/- had been made part of the plaint by the plaintiffs. The cause of action thus accrued to the plaintiffs on 22.12.1998. 76,125/- was enclosed towards purported refund of the consideration amount paid by plaintiffs. As observed earlier, defendant No. 1 has not established payment of Rs. 50,000/- in cash to the plaintiffs. The demand draft of Rs. 76,125/- had been made part of the plaint by the plaintiffs. The cause of action thus accrued to the plaintiffs on 22.12.1998. 4(iv) (b) Limitation for filing a suit for specific performance in terms of Article 54 of the Schedule to the Limitation Act is three years “from the date fixed for the performance or if no such date is fixed, when the plaintiff has notice that the performance is refused.” In the instant case, defendant No. 1 repeatedly urged the plaintiffs to cancel the agreement dated 28.08.1995 and to accept refund of the amount paid to them by defendant No.1. But plaintiffs remained firm in their stand to proceed ahead and did not accept the refund. They requested defendant No. 1 to proceed further in the matter as per terms and conditions. It was on 22.12.1998 that defendant No. 1 informed the plaintiffs that it was closing the chapter and sent Rs. 76,125/- by way of demand draft towards refund of the amount paid by plaintiffs invoking Clause 11 of the terms and conditions. Though it is another matter that entire amount paid by the plaintiffs has not been proved to have been refunded, yet the fact remains that cause of action accrued to the plaintiffs on 22.12.1998 when defendant No.1 clearly and unambiguously stated that “even if a firm allotment followed by an agreement had come into existence in favour of the plaintiffs, the contract is incapable of being performed due to reasons which are beyond the control of defendant No.1”. The suit instituted on 01.03.1999 was, therefore, well within the limitation period. 4(v) Point No. 5 Relief of Specific Performance (2016) 4 SCC 352 (Satish Kumar Vs. Karan Singh) and (1990) 3 SCC 1 (Mayawant Vs. Kaushalya Devi) have been pressed in service on behalf of defendant No. 1 to contend that jurisdiction to order specific performance of contract is based on the 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 the parties. The acceptance of terms must be absolute and two minds ad-idem. Where a valid and enforceable contract has not been made, the Court will not make a contract for the parties. The acceptance of terms must be absolute and two minds ad-idem. On the basis of Hon’ble Apex Court judgment in (2010) 9 SCC 157 (Greater Mohali Area Development Authority Vs. Manju Jain) and (2013) 12 SCC 776 (Hansa V Gandhi Versus Deep Shanker Roy), defendant No. 1 has submitted that mere draw of lots/allocation letter does not confer any right to allotment. It is only a mode to identify the allottee. It is not an allotment by itself. Mere identification for selection of the allottee does not clothe the selected person with a legal right to allotment. In the given facts proved on record and in light of ocular & documentary evidence on record, we are inclined to hold that plaintiffs are entitled to the relief of specific performance of contract 4(v) (a) It is well settled that specific relief is a discretionary remedy, dependent upon several factors :- (i) existence of a valid & concluded contract ; (ii) readiness & willingness of plaintiff to perform his part of contract ; (iii) plaintiffs performing his part of contract ; (iv) whether it is equitable to grant relief of specific performance regarding suit property or it causes any hardship to the defendant, if yes, how and in what manner such relief can be granted and (v) entitlement of plaintiff to any other alternative remedy such as refund of earnest money with interest etc. [Re (2019) 3 SCC 704 (Kamal Kumar Vs. Premlata Joshi and others)]. 4(v) (b) In the instant case, defendant No. 1 (builder) and defendant No. 2 (owner) had jointly and also independently issued advertisements in newspapers for sale of the suit property. The advertisements give the impression that defendant No. 1 had defendant No.2’s authority regarding the subject matter. Upon plaintiffs’ expression of interest, defendant No. 1 gave the details of flats available for booking and allotment. Plaintiffs applied for booking and allotment of the flat. Their application was accepted by defendant No. 1 and a specific flat with specified dimension at the mentioned price was allotted. The terms and conditions for allotment were part of application. These terms and conditions give clear picture that by acceptance of plaintiffs’ application, an agreement had virtually come into existence. Plaintiffs applied for booking and allotment of the flat. Their application was accepted by defendant No. 1 and a specific flat with specified dimension at the mentioned price was allotted. The terms and conditions for allotment were part of application. These terms and conditions give clear picture that by acceptance of plaintiffs’ application, an agreement had virtually come into existence. As per the terms and conditions, on plaintiffs paying the amount demanded by defendant No. 1, sale/lease deed was to be got executed in plaintiffs’ favour by defendant No. 1 (builder) through defendant No. 2 (owner). Defendant No. 2 (owner) has not repudiated these terms and conditions. He has not taken any action against defendant No. 1 for binding him down with the terms and conditions, rather he has relied upon these very terms to reiterate the stand of defendant No. 1. As observed earlier, defendants No. 1 & 2 have concealed from the Court the best evidence documenting the authority of defendant No. 1 (builder) to deal with defendant No.2’s property viz. raising construction unit/its booking/allotment/fixing terms and conditions of booking/allotment/sale etc. and binding down defendant No. 2 with such terms. Plaintiffs had paid an amount of Rs. 1,10,000/-to defendant No. 1 towards booking/allotment/part price of the flat. Remaining amount was to be paid as and when demanded by defendant No. 1. Defendant No. 2 had no role in the entire deal. His role was to come only when he was to be asked by defendant No. 1 to execute sale/lease deed in favour of the plaintiffs. Choosing the allottees was purely in the domain of defendant No. 1. No money was to be paid to defendant No. 2 by the plaintiff. A wholistic reading of the terms and conditions lead to an inescapable conclusion that the document dated 28.08.1995, of which plaintiffs are seeking enforcement, is virtually akin to an ‘agreement to sell’. Defendant No. 1’s contention that it cannot be compelled to get the sale/lease deed executed in plaintiffs’ favour from defendant No. 2, is not tenable in given facts where terms and conditions of the agreement dated 28.08.1995 provide for this very mode and mechanism of execution of the deed. Under the terms and conditions, person applying for booking of a flat is the ‘intending allottee’. After acceptance of his application, the intending allottee virtually becomes an allottee, though a formal allotment letter is to follow. Under the terms and conditions, person applying for booking of a flat is the ‘intending allottee’. After acceptance of his application, the intending allottee virtually becomes an allottee, though a formal allotment letter is to follow. Acceptance of application i.e. selection of allottee is at the sole discretion of the builder (defendant No. 1). Purchase price is to be settled by the builder. Purchase price is to be paid by the allottee only to the builder. Under the terms and conditions, the conveyance deed is to be got executed by the builder in favour of allottee through the owner. Once this mechanism of execution of sale/lease deed is envisaged in the very terms and conditions, then the decree had to be passed in that manner only. The relief granted by the learned Single Judge was in terms of the agreement dated 28.08.1995, sought to be enforced by the plaintiffs. 4(v) (c) Defendants No. 1 and 2 have taken a stand that defendant no. 3 had executed an agreement to purchase the suit property with defendant No. 2. This is also the plea taken by defendant No. 3. No such agreement has been placed on record. While appearing in the witness box, defendant No. 3 (DW-5) deposed that price of flat was paid by him to defendant No. 1 (builder) and papers were also submitted to defendant No. 1. Meaning thereby that all along, it was defendant No. 1 with whom the intending allottee had to negotiate and that it was defendant No. 1 to whom the money was to be paid and who was to execute all paper works pertaining to allotment & transfer. It may also be noticed that defendant No. 3 has also stated as DW-5 that the suit property has not been transferred in his name and is still in the name of defendant No. 2. No agreement for transfer of flat by defendants No. 1 and 2 in favour of defendant No. 3 has been placed on record, though the stance of defendants is that suit property was sold to defendant No. 3 on 08.10.1998. This also leads to an inference that defendant No.1’s projected inability to construct the flat was a lame excuse as the flat had actually been constructed but not sold to the plaintiffs. 5. This also leads to an inference that defendant No.1’s projected inability to construct the flat was a lame excuse as the flat had actually been constructed but not sold to the plaintiffs. 5. Conclusion 5(i) The evidence and pleadings are clear pointer that defendant No. 1 (builder) had been authorized by defendant No. 2 (owner) to raise construction over latter’s land, to advertise for allotment/sale, to settle terms & conditions of allotment & sale, to bind down defendant No. 2 with such allotment & terms and conditions. Under the terms & conditions, defendant No. 1 has to get the sale/99 years lease deed, as the case may be, executed in favour of the allottee from defendant No. 2. 5(ii) Plaintiffs’ application for allotment of a specific flat with specified dimensions in a specific block, i.e. the suit property was accepted by defendant No. 1. Plaintiffs paid the money demanded by defendant No. 1. The acceptance of plaintiffs’ application, in view of the terms and conditions was akin to the execution of an agreement to sell. Issuance of an allotment letter was a mere formality in the given facts. 5(iii) The money demanded by defendant No. 1 was paid by the plaintiffs. The plaintiffs had always been ready & willing to perform their part of the agreement by paying the balance consideration amount to the builder. 5(iv) The pleadings and evidence on record do not show that defendant No. 2 had ever objected to the acts of defendant No. 1 or that defendant No. 2 took any action against defendant No. 1’s dealing with former’s property involved in the suit viz. advertising, settling terms & conditions of allotment & sale, allotting the property, fixing purchase price, accepting consideration money/installments from the allottees and binding down defendant No. 2 with its actions of allotment and for execution of conveyance deeds in favour of allottees at the asking of defendant No. 1. 5(v) The civil suit filed by the plaintiffs was within the limitation period. In the facts & circumstances of the case, the suit for specific performance was liable to be decreed and the decree had to be passed in the manner contemplated by the agreement sought to be enforced. The decree passed by the learned Single Judge was in accordance with the agreement. In the facts & circumstances of the case, the suit for specific performance was liable to be decreed and the decree had to be passed in the manner contemplated by the agreement sought to be enforced. The decree passed by the learned Single Judge was in accordance with the agreement. In view of above discussion, we do not find any infirmity in the impugned judgment dated 03.11.2006 passed by learned Single Judge decreeing the suit of the plaintiffs directing defendant No. 1 to allot the flat in question in favour of the plaintiffs and then to make an offer to the plaintiffs to execute buyer’s agreement in its favour and if the plaintiffs execute such an agreement in accordance with terms and conditions of allotment within one month of such offer to get the sale/99 years lease deed, as the case may be, executed in their favour from defendant No. 2 and to hand over the possession of aforesaid flat to the plaintiffs. However, taking note of long pendency of the litigation, we slightly mould the relief/decree dated 03.11.2006 by making it time bound. Step one i.e. action on part of defendant No. 1 to allot the flat in question to the plaintiffs and to make an offer in their favour to execute buyer’s agreement be completed within one month from today. Step two i.e. execution of buyer’s agreement in accordance with terms & conditions of allotment be carried out within one month of such offer as stipulated in the impugned judgment & decree dated 03.11.2006. If the plaintiffs execute such agreement, the third step i.e. execution of the sale/99 years lease deed, as the case may be, in plaintiffs’ favour and handing over of possession of the suit property to them as mandated in the impugned judgment & decree dated 03.11.2006 be got completed within a period of one month from the date of completion of the second step. For the foregoing reasons, both the original side appeals, therefore, fail hence are dismissed. All pending applications, if any, shall also stand disposed off.