Surender Arora vs M/S. Satazo Trust And Ors.
2001 Latest Caselaw 1127 Del

ORDER

J.D. Kapoor, J.

1. This is an application under Order 39 Rules 1 & 2 read with Section 151 CPC in the suit for specific performance in respect of the entire 11th floor, Narain Manzil, 23 Barakhamba Road, New Delhi.

2. There are allegations that defendants are trying to create third party interest by disposing of the property. However, in reply and affidavit, the defendants have denied the allegations. The plaintiff has filed advertisements allegedly given by the defendants in respect of the sale of the property. According to the defendants, advertisement was not given by them but it, appears to be is chief on the part of plaintiff. It is alleged that the plaintiff has played fraud which was brought to the notice of this court in reply to I.A.10770/98.

3. Plaintiff is a real estate agent. On 15.10.1992, Mrs. Sumitra Chisti, defendant no.3, as Trustee of defendant no.1 through the plaintiff applied to M/s. Inder Pratap Singh (HUF), defendant no.6, for allotment of the entire 11th floor measuring 8000 sq ft. in the proposed multi-storeyed building known as 'Narain Manzil', 23, Barakhamba Road, Delhi, Defendant no.6 accepted the application and agreed to sell the entire 11th floor for Rs.four crore and 84 lakhs. As per the agreement, an amount of Rs.1.39 crores was paid by defendant no.1 to the builder and the remaining balance was payable by the plaintiff. Till date, plaintiff has not paid any amount whereas defendant, no.1 has paid the entire amount to the builder. Thus, according to defendant no.1, plaintiff was not ready and willing to perform his part of the contract and that is why, till date, plaintiff no.1 has not been able to make any payment.

4. Another pertinent fact contended by learned counsel for defendants is that plaintiff had earlier filed a suit for declaration and injunction wherein he took the plea that "as cloud has been cast on the right of the plaintiff under the agreement to sell dated 13.3.1994 and threats of personal injury have also been held out, it is necessary for the plaintiff to get a declaration of his right under the said agreement and as the agreement has been disowned and repudiated, the plaintiff is also relieved from his obligations to tender any further amounts under the agreement till the matter is settled." Subsequently, an application was made for amending the aforesaid averment of the plaintiff. However, amendment was not allowed. The amendment application was dismissed vide order dated 29.2.1996 by the learned Single Judge and in the appeal, interim order dated 12.3.1998 was passed to the effect, that failure to pay the court fee will not result in rejection of the plaint till further orders. However the Division Bench vide order dated 19.4.2000 dismissed the appeal as withdrawn but without prejudice to the right of the appellant to continue prosecuting the suit for specific performance and without prejudice to the right of the respondent to contest the same on all available grounds.

5. As is apparent from the above, the plea taken by counsel for defendants is that in the absence of element of readiness and willingness on the part of plaintiff to perform his part of obligation, no interlocutory injunction can be passed particularly when defendant no.1 has made full and final payment of the price of the suit property in question.

6. It is further contended by the learned counsel that the moving an application for amendment of the averment referred to above, plaintiff intended to convert the suit for declaration to the suit for specific performance and to cover up the lacuna of want of pleading as to his readiness or willingness to perform his part of the obligation. It is also contended that as per agreement to sell which was prepared by the plaintiff, sum of Rs.4.84 lakhs alone was to be paid by the purchaser as an earnest money whereas value of the property was Rs.4 crores and in normal course of business 10% is considered as an earnest money and the cheques referred were also not received by the defendants and moreover plaintiff has also failed to perform part of his obligation as contained in clause 11 of the agreement of sell which is as under:-

"That on sale of the said office premises in favor of the Purchaser herein, the books of M/s.Inder Pratap Singh (HUF) of the property will show that a sum of Rs.1,38,60,000/- has been paid till today by M/s. Satazo Trust. The balance amount of Rs.1,69,40,000/- shall be paid by the Purchaser directly to M/s.Inder Pratap Singh (HUF) and the same shall be deducted from the total sale consideration price agreed hereto between the Seller and the Purchaser."

7. Admittedly, till date no such payment has been made by the plaintiff. Rather it is defendant no.1 who has made the entire payment.

8. However, in order to meet the allegations and objections of defendant no.1 it is contended by learned senior counsel for the plaintiff that at no point of time, plaintiff was not willing to perform his part of the contract. Plaintiff was prevented by defendant No.1; firstly by putting an advertisement repudiating the agreement; secondly employment of threats by defendants; thirdly by getting the plaintiff arrested. Plaintiff had already paid two cheques of Rs.4.84. lakhs, one of which was encashed and with the prices soaring up, the defendants are moving very fast to dispose of the property so as to frustrate the claim of the plaintiff.

9. As to the readiness and willingness on the part of plaintiff, it is contended that the very fact that plaintiff has paid two cheques of Rs.4.84 lakhs, one of which was encashed by the defendants and subsequent events viz. getting the plaintiff arrested and publication of advertisement for sale of the property in the newspaper and his visit to the office of the plaintiff where he offered to refund the amount which he had already paid and asked him to cancel the agreement to sell coupled with the advertisement given by the plaintiff on 19.7.1994 to the effect that the suit property had already been agreed to be transferred to him or his nominee(s) under the Agreement of sell dated 13.3.1994 for which 'No Objection Certificate' under Section 269UL(3) of the Income Tax Act, 1961 had been issued by the appropriate authority on 13/19.5.1994.

10. However, in view of the totality of the facts advertisement and counter advertisement, arrest of the plaintiff at the instance of the defendants, element of readiness and willingness on the part of the plaintiff can be gauged by directing the plaintiff to deposit Rs.3.87 crore, as the area has since been reduced, within two months withe Registrar of this court, subject to which defendants shall be restrained from transferring, alienating or creating third party interest in the suit property . However, plaintiff shall deposit 50% of the aforesaid amount within one month and another 50% within one month thereafter. On deposit of these amounts, defendants shall be restrained from transferring, alienating or creating third party interest in the suit property.

11. I.A. is disposed of.