D.R. Khanna, J.
(1) The plaintiffs as descendants of Late Shri Nagan Nath Khullar, who died on 8-7-1972, have instituted this suit for specific performance of the agreement to sell, and possession of flat No. 12 on the 3rd floor of the multi-storied building constructed by the defendant at No. 27, Barakhamba Road, New Delhi. The same is stated to measure about 510 sq. feet and was agreed to be sold by the defendant to Jagan Nath Khullar on 4-1 1-1970 when the building was in the process of being constructed. The rate agree was Rs. 160.00 per sq. Feet and the total consideration was Rs. 81,600.00 . This amount was payable in various Installments as the building reached different stages of construction. Rs 10.000.00 were paid initially and five other Installments were paid by Shri Khullar from 7-11-1970 to 22-6-1972. Even after the death of Shri Khullar two further Installment of Rs. 8,292.00 each were paid by the plaintiffs in September and November 1972 and receipts obtained. In this way of total amount of Rs. 61,768.00 was paid to the defendant towards the sale consideration of the flat.
(2) The plaintiffs it is next contended had been approaching the defendant to apprise them when the balance Installments could be paid and were willing to pay them, but the defendant did not respond nor received the amounts. Ultimately a legal notice was served by them, and on the failure of the defendant to comply, the present suit was brought.
(3) The defendant has in the written statement admitted the receipt of the said amounts and also that the said flat was allotted by it to Jagan Nath Khullar. The latter however it is avered had not accepted the allotment nor had signed the application for allotment. He it is stated never agreed to purchase the flat and in the circumstances, the mere allottment could not confer any right of purchase on him. In para 4 of the written statement on merits it has at the same time been stated that the total amount of Rs. 61.768.00 had been paid to the defendant by deceased Jagan Nath Khullar or on his. behalf for entering into the agreement for purchasing the flat. However, it has next been added in para 6 that Jagan Nath Khullar had not executed the formal agreement and this could be done when all the Installments had been paid. Details of the terms and conditions which were to form part of the formal agreement arc also given in the written statement.
(4) The following issues were framed in the suit : 1. Whether the defendants agreed to sell the flat No. 12 on third floor in building bearing No. 27, Barakhamba Road to the deceased Shri Jagan Nath Khullar and whether the terms of the agreement can be spelt out from the documents Ex. P1 to Ex P12 and the other correspondence which passed between the parties 2. If issue No. 1 is proved, then what were the terms of the agreement ment as spelt out from the documents in question 3. If Issue Nos. I and 2 proved in the affirmative whether the plaintiffs being legal heirs of Jagan Nath Khullar are not entitled to claim the benefits of the agreements and claim specific performance 4. Whether the suit is barred by Limitation 5. Relief. Issues Nos. 1 and 2: Ex. PL3 is the copy of the written dated 4-1 1-1970 which Jagan Nath Khullar addressed to the defendant. He thereby applied for allotment of office space measuring 510 sq. feet on the 3rd floor of the proposed multistoried building to be constructed at No. 27 Barakhamba Road, New Delhi. There was narration in it of the payment by him then of Rs. 10.000.00 and the balance payable in 9 equal Installments at different stages of the construction of building. At the end it was stated as under :
'Iunderstand that proper agreement will be made in due course in respect of the above space and will be executed and signed by us'.
Ex P1 is the receipt issued by the defendant of Rs. 10.000.00 and stated that it was as part advanced on application for booking of space about 510 sq. feet on 3rd floor of the building. Ex P2 to Ex Pi I arc the further receipts and letters received from defendant from November 1970 to June 1972 in which there were clear narrations of the booking of flat No. 12 at floor No. 3 in 27 Barakhamba Road, New Delhi in the name of Shri Jagan Nath Khullar. In some of them, lying of slabs of different floors was mentioned and demands for payment of further Installments made.
(5) These documents cumulatively taken into account amply bear out that the defendant had booked flat No. 12 at the 3rd floor of the said building in the name of Jagan Nath Khullar and had received substantial amounts towards sale-consideration of the flat. The area of the flat, the rate at which the price was to be paid and the location are all elaborated. The course of a conduct clearly displayed that both the sides were proceeding that the defendant had in fact agreed to transfer the flat to Jagan Nath Khullar when the construction of the building was completed.
(6) There are next copies of letters and postal acknowledgments vide Ex P14 to Ex P19 which show that the plaintiffs had been writing to the defendant from February 1974 enquiring when the defendant would be in position to handover possession of the flat to them and also intimate the state of the account to enable them to pay the balance Installments. The defendant has not placed any evidence on record to show that they were replied. The defendant's director DW1 Shri Ram Prasad who alone appeared from its side deposed that record of the correspondence and notices served on Jagan Nath Khullar was maintained. The same has however not been produced it is not shown that the defendant required Jagan Nath Khullar or the plaintiffi to pay the balance Installments. They were not even informed of the completion of the last stages of the building when those balance Installments were to be paid. Shri Prem Khullar Plaintiff' as PW1 has stated in this regard that plaintiffs had been approaching the defendant for payment of the money, but the latter evaded.
(7) Much has been sought to be made out by the defendant from the aforesaid narration in the application for allotment Ex P13 that a proper agreement had to be made in due course. In the absence of that agreement, it is pleaded, there was only a unilateral submission on the part of Jagan Nath Khullar for seeking allotment. I am however unable to accept this contention. The entire course of dealings between the parties clearly brought out that whatever unilateral nature of this application for allotment was, the defendant accepted the same, acted upon it throughout, and apart from mentioning the allotment of the flat to Shri Khullar demanded and received different Installments. Enough mutuality and billateralism was thereby created.
(8) Even otherwise as per deposition of Dw Ram Prasad and the written statement of the defendant, the stage for the execution of formal agreement would have arisen when the defendant had received all the inital ments. It has further been conceded by him that demands for those Installments were to be made by the defendant as the construction of the building proceeded. When this was the position, and it has not been shown that the remaining two Installments were demanded by the defendant, the question of penalising the plaintiffs for their non-payment does not arise. The last of the Installment was payable at the time of occupation. It thus means that the formal agreement was executable after this payment and the delivery of possession. Admittedly the defendant did not give that possession, Jagan Nath Khullar or plaintiffs.
(9) It need hardly be impressed that even in cases where it is stipulated that a formal agreement would be drawn, it does not follow that what has been previously agreed upon by the parties is not binding. See in this respect the decision of the Judicial Committee in the case Of Harichand Manchram v. Govid Luxman Gakhale Air 1923 P.G. 47. -
(10) It is thereforee held that there was an agreement to sell the flat No. 12 of 3rd floor in Multi-Storied building situated at No. 27 Barakhamba Road, New Delhi by defendant in favor of Late Jagan Nath Khullar. The area was about 510sq. feet and the rate Rs. 160.00 per sq. foot. Issues No. 1 and 2 are decided accordingly. Issue No. 3: Plaintiffs arc the widow, sons and daughters of late Shri Jagan Nath Khullar. PW1 Prem Khullar has deposed that they are the only heirs left behind by Jagan Nath Khullar. They are thereforee entitled to seek specific performance of agreement of sale. He has further deposed that the plaintiffs had ample resource to pay the balance amount of Rs. 20,000.00 . They are owners of immovable properties in Golf Link and Greater Kailash New Delhi, and had besides had accounts in which enough amounts stood credited.
(11) The issue is decided in the affirmative. Issue No. 4: The suit was brought on 18th May, 1976 and has to be treated as brought within time as the defendant did not appraise the plaintiffs when they were to pay the balance Installments and obtain possession. The limitation could start running against the plaintiffs if the defendant had finally required them to pay the entire amount. This did not happen. It seems that the defendant too had been conscious of the right of the plaintiffs to enforce the sale of the flat to them, and this is borned out from the circumstances that although all other flats in the building have been transferred, this flat is still retained by the defendant. The defendant is besides obliged to handover vacant possession of the flat to the plaintiffs, and in case it has collusively or otherwise inducted any other person in the flat, the plaintiffs cannot be deprived of that. Rather the record of the present case shows that the defendant was required to furnish bank guarantee for continuing to retain possession of the flat during the pendency of this suit as that the plaintiffs could be later compensated, but the defendant did not comply.
(12) The result thereforee is that the suit of the plaintiffs for possession by way of specific performance of flit No. 12, 3rd floor in the multi-storied building at No. 27 Barakhamba Road New Delhi is decreed with costs subject io their paying the balance amount of the sale-consideration due in terms of the document Ex P13.