R.S. Arya vs T.R. Dewan
1997 Latest Caselaw 466 Del

JUDGMENT

K.S. Gupta, J.

(1) This appeal by R.S, Arya, plaintiff-appellant, is directed against the order dated March 4, 1996, of a learned Single Judge disposing of two applications - one Ia No. 11848/93 (ought to have been 11020/95) tiled under Order Xxxix, Rules 1,2 and Section 151, Civil Procedure Code and the other Ia No. 11851/95 filed tinder Order Xxxix, Rule 4 read with Section 151, CPC.

(2) Appellant filed suit for specific performance and permanent injunction alleging that the defendant-respondent is the owner of plot bearing No. 63. Dilshad Extension I, Delhi and he agreed to sell it to him for a sum of Rs. 7,95,000.00 . On August 26,1995 appellant paid Rs. 20,000.00 in cash besides handing over a cheque for Rs. 75,000.00 to the respondent. Last date for execution and registration of the sale deed was settled as October 15, 1995. It is further alleged that on October 12, 1995 appellant gave two more cheques for Rs. 3,22,500.00 and Rs. 3,77,5001- towards balance sale consideration to the respondent and on that date itself possession of aforesaid plot No. 63-D was handed over by the respondent to the appellant. However one of the cheques for Rs. 3,77,500.00 was returned by the bank with the remark signatures differ". It is stated that the appellant visited respondents house on October 15, 1995 and offered him the amount of the said cheque in cash but the respondent asked him to pay the amount through a bank draft and to extend the time for execution and registration of the sale deed upto October 18, 1995 to enable him to obtain the income tax clearance certificate. Appellant got the bank draft prepared in the name of the respondent on October 17,1995. Respondent, however, did not come to the office of the Sub-Registrar, Delhi, on October 18,1995 to execute the sale deed as promised. It was prayed that a decree for specific performance may be passed against the respondent directing him to execute the sale deed and got the same registered in regard to aforesaid plot No. 63-D. By means of decree for perpetual injunction respondent was further sought to be restrained from transferring the above plot in favour of a third person.

(3) In the suit Ia No. 11020/95 was filed by the appellant and by the order dated October 27,1995, respondent was restrained from transferring, alienating, creating any third party interest or dispossessing the appellant from said plot No. 63-D till March 26,1996.

(4) Respondent contested the suit by filing a written statement. He further filed Ia No. 11851/95 for vacating the ex-parte ad interim injunction order, dated October 27, 1995. It is not denied that the respondent agreed to sell plot No. 63-D, Dilshad Extension-1, Delhi, for a sum of Rs.7,95,000.00 and received Rs. 20,000.00 in cash and a cheque for Rs. 75,000.00 on October 26, 1995 from the appellant as alleged. However, it is alleged that on October 12, 1995, appellant sent two cheques for Rs. 3,22,500.00 and Rs. 3,77,500.00 towards balance sale consideration through one Shri Gupta and cheque for Rs. 3,77,500.00 on presentation was dishonoured by the Bank. It is emphatically denied either that the possession of aforesaid plot was delivered on October 12, 1995 or Rs. 3,77,500.00 were offered in case on October 15, 1995, as alleged. It is asserted that the time was the essence of the contract and the sale deed was to be executed and registered not after October 15, 1995.

(5) By the impugned order dated March 4,1996, pending suit respondent was restrained from transferring or alienating aforesaid plot No. 63-D to any other person by the learned Single Judge. It was, however, made clear that the order will not come in the way of the respondent in raising construction on the plot in accordance with the Municipal bye-laws. It is this latter part of the order which is under challenge by the appellants in this appeal.

(6) We heard the learned Counsels for both the parties at length.

(7) There is a serious dispute between the parties on the question if the possession of said plot No. 63-D was or was not delivered on October 12,1995 by the respondent to the appellant. It is admitted case of the parties that two cheques for Rs. 3,22,500.00 and Rs. 3,77,500.00 towards the balance sale consideration were handed over on October 12,1995 by the appellant to the respondent. A receipt was executed by the latter acknowledging the receipt of the cheques on that date itself. In case the appellant's version that the possession of the plot in question was simultaneously handed over to him on October 12,1995 is accepted then in all probabilities that fact ought to have been incorporated in the same receipt dated October 12,1995 or ought to have been evidenced by a separate writing executed in that behalf by the respondent. Indisputably no writing except the receipt was executed on October 12, 1995 and that too is silent in regard to delivery of possession of the aforesaid plot No. 63-D by the respondent to the appellant. Further, according to the parties, apart from two cheques for Rs. 3,22,500.00 and Rs. 3,77,500 .00 which were still to be encashed, only a sum of Rs. 95,000.00 (Rs. 20,000.00 in cash and Rs. 75,000 .00 through a cheque) had been paid by the appellant to the respondent by October 12, 1995. In these circumstances it is highly improbable and prima facie does not appeal to reasons that against the receipt of the said amount which was even less than l/8th of the total sale consideration, the respondent would have parted with the possession of the plot in question to the appellant.

(8) Mr. L.B. Rai, Advocate, was appointed as Local Commissioner to visit aforementioned plot No. 63-D and to submit a report about the present state of affairs existing thereon by the order dated November 23,1995, passed by the learned Single Judge in La No. 11848/95 filed by the respondent. Mr. Rai on his visit to the plot on November 24,1995 at 5 p.m. found R.K-Srivastava present there, who told him that he was the contractor deployed for the work of digging and filling the foundation of the plot in question by Sanjay Gupta and Mukesh Gupta. He further informed that the work of digging foundation was started only that day around 9.30 a.m. One Deepak Aggarwal,, resident of the house constructed on adjacent plot towards north side, also told Mr. Rai that a small signboard bearing particulars: "owners of Plot No. D-63 Dilshad Extension, Mr.R.S. Arya, Branch Manager, Lic of India, Contact Phone: 220337" was fixed on that plot by a person claiming to have purchased this plot only about a week earlier. By the time the impugned order was passed none of the parties hed filed any objection to the Local Commissioner's report. Ex-parte ad-interim injunction in favour of the appellant was passed on October 27,1995. Obviously the above signboard might have been put and work of digging foundation might have been started only to create some evidence to prove the possession upon the aforesaid plot No. 63-D by the appellant. Report of the Local Commissioner on which heavy reliance was placed on behalf of the appellant to prove possession was, thus, of no help to him.

(9) During the course of argument certain, observations made in para 5 of the impugned order were also sought to be assailed on behalf of the appellant. Relevant portion of the said para reads thus : "At one place in the plaint it is stated that on October 15, 1996 when plaintiff allegedly visited the house of the defendant, he wanted the defendant to execute the sale deed on Monday to which the defendant replied that it would not be possible for him to execute the sale deed on Monday as by that time he would not be able to obtain income-tax certificate. First Monday after October 15, 1995 fell on October 21, 1995. If that was the stand of the defendant on October 15,1995, it is not understood as to how the defendant agreed to execute the sale deed on October 18,1995 and reach the office of the Sub-Registrar on that day. Stand of the plaintiff is self contradictory."

(10) It was pointed out that October 15 was a Sunday and thereafter Monday fell on October 16 instead of October 21 in 1995 and, therefore, stand of the appellant could not be said to be self-contradictory as observed by the learned Single Judge in the said para. Apparently there is an error in calculating as to on which date Monday fell after October 15 in 1995. Be that as it may, that error pertained to the date on which the respondent was alleged to have agreed to execute the sale deed and it has no relevance as regards delivery of possession of the plot in question by the respondent to the appellant.

(11) As rightly held by the learned Single Judge, incase the appellant ultimately would succeed in the suit he will be entitled to get possession of the plot in question after demolition of the structure which may be constructed by the respondent on the plot. Learned Single Judge has correctly on appreciation of the material on record and on application of the principles governing grant of temporary injunction concluded that the appellant is not entitled to get a restraint order against the respondent not to raise construction on the plot of land. Impugned order, thus, does not suffer from any legal infirmity which may call for interference in appeal. In the result, the appeal is dismissed without any order as to costs.