Amarjit Singh Johar & Company (Dc) vs Prakash Chand Brahmin & Another
1999 Latest Caselaw 318 Del

ORDER

Dr. M.K. Sharma, J.

1. The present suit was instituted by the plaintiff against the defendants seeking for a decree for specific performance of the agreement to sell dated 3.7.1993 directing the defendants to execute the Sale Deed in favour of the plaintiff in respect of the suit property bearing No. D-16, defense Colony, New Delhi and also to hand over vacant possession of the property to the plaintiff. The plaintiff also sought for a decree for permanent injunction restraining the defendants from selling, alienating, transferring and parting with possession of the suit property. Along with the aforesaid suit, the plaintiff also filed an application under Order 39 Rules 1 and 2 CPC praying for temporary injunction restraining the defendants from selling, alienating and or parting with possession of the suit property.

2. On 5.8.1996, an interim injunction was granted directing the defendant No.1 to maintain status quo in respect of title and possession of the suit property. The aforesaid suit is contested by defendant No.1 who has filed a written statement and also reply to the injunction application.

3. It is stated by defendant No.1 that the suit is false and ill-founded. It is also stated that the defendant No.1 who is the owner of the suit property never had any intention of selling the property and the said defendant has categorically denied execution of any agreement to sell with the plaintiff. It is further stated that the suit property is situated at a prime location and stated to be of the value of over Rs.1 crore on 3.7.1993 and, therefore, there was no intention on the part of the defendant of selling the same for an amount of Rs.50 lacs.

In view of the aforesaid rival stand taken by the parties, I have heard the learned counsel appearing for the plaintiff and defendant No.1.

4. It is, however, on record that defendant No. 2 died on 29.6.1993, that is prior to the institution of the suit. Thus, at the request of the counsel appearing for the plaintiff, the name of defendant No. 2 was struck off from the array of parties and, therefore, the present suit is now pending as against only defendant No.1.

5. It is stated in the plaint that the suit property was sold to Smt. Sarla Jain, defendant No. 2, who executed a General Power of Attorney in favour of defendant No.1 and gave him the possession of the suit property. It is stated that defendant No.1 verbally made an agreement to sell of the aforesaid suit property to the plaintiff on 3.7.1993 and the total consideration was fixed at Rs. 50 lacs out of which the plaintiff agreed to pay Rs. 5 lacs immediately and a balance sum of Rs.45 lacs at the time of registration of the Sale Deed and handing over vacant possession of the same. It is also stated that out of the aforesaid amount, the defendant No.1 received Rs.5 lacs from the plaintiff (i.e. Rs. 2 lacs in cash, Rs. 2 lacs by way of a bank draft dated 3.7.1993 and another Rs.1 lac by way of bank draft dated 3.7.1993).

6. During the course of arguments, it was submitted on behalf of the plaintiff that Rs.2 lacs was paid in cash and the balance amount of Rs.3 lacs out of the total advance money of Rs. 5 lacs alleged to have been paid by the plaintiff to the defendants was paid by two bank drafts. The receipt showing payment of Rs.2 lacs in cash is not on record.

7. On 8.12.1998, an order was passed by this Court directing the plaintiff to place on record the receipt indicating payment of Rs.2 lacs in cash and also indicating the particulars of the bank drafts and the date of encashment of the said bank drafts. When the matter was subsequently listed before the Court, counsel for the plaintiff could not produce any receipt indicating the payment of the aforesaid amount of Rs. 2 lacs in cash nor he could furnish to this court the particulars of the bank drafts and the date of encashment of the aforesaid bank drafts.

8. My attention has been drawn to the letter of the UCO Bank placed on record dated 18.7.1995.

By the aforesaid letter, the bank has informed the Investigating Officer that the Banker's Cheque No.170741 dated 3.7.1993 for Rs.2 lacs in favour of Mr. P.C. Brahmin is still outstanding in their books. Reference may also be made to the letter dated 22.8.1994 written by Sandeep Kaur to the Manager of the UCO Bank as also the letter dated 23.8.1994 written by the plaintiff for cancellation of Manager's Cheque No. 551387 for Rs. 9 lacs. It is indicated from the said letter that the aforesaid Manager's Cheque were returned unutilised and was for crediting the said amount to their respective SBI accounts. It is specifically stated therein that the Manager's Cheque has not been handed over to the Payee.

9. The aforesaid documentary evidence placed on record prima facie prove and establish that the allegation regarding payment of Rs. 5 lacs as advance money pursuant to the verbal agreement to Sale Deed dated 3.7.1993 is false and misleading. There is no documentary evidence on record to prove and establish that any amount of Rs. 2 lacs was paid by the plaintiff to defendant No.1 in cash towards a part of the advance amount nor an amount of Rs.3 lacs was paid by the plaintiff to defendant No.1 by alleged two demand drafts. The alleged agreement to sell of the suit property for an amount of Rs. 50 lacs stated to have been entered into on 3.7.1993 is stated to be a verbal agreement. It is unbelievable that when an alleged Agreement to Sell is stated to have been entered into by the parties for land situated at prime location and for a sum of Rs. 50 lacs, no document would be executed by the parties. It is also unbelievable that an advance amount of Rs. 5 lacs would have been paid by the plaintiff to defendant No. 1 without execution of any documents in support thereof, for entering into such an agreement.

10. I am not prima facie satisfied with the case set out by the plaintiff in the present suit and, thus, in my considered opinion, the plaintiff has not been able to make out a prima facie case for grant of ad interim injunction as sought for through an application seeking for temporary injunction. Application stands dismissed. The interim injunction granted on 5.8.1996 stands vacated. All opinions and views expressed herein are my tentative and prima facie views at this stage for deciding the injunction application.

SUIT NO. 1599/1996:

11. Let the suit be renotified on 17.8.1999 for further orders.