Lata Ambwani vs Sangeeta Kalra
2001 Latest Caselaw 1485 Del

JUDGMENT

V.S. Aggarwal, J.

1. Smt. Lata Ambwani (herein after describe as the plaintiff) has filed the present suit for specific performance of the contract for damages and injunction.

2. The facts alleged are that plaintiff agreed to purchase the second floor of house No. L-68-B, Malviya Nagar, New Delhi comprising of two bed rooms, bath room, drawing dining, store, kitchen from the defendant for a total sale consideration of Rs. 16 lakhs. The plaintiff paid the earnest money of Rs. 3 lakhs in cash and Rs. 1 lakh by cheque dated 15th April, 1996. The defendant had acknowledged the receipt of the money of 15th April, 1996 and agreed to complete the sale and execute the sale deed within 32 days after obtaining the necessary permission from the concerned authorities. The defendant also agreed to pay all the dues of the concerned authorities and assured the plaintiff that the property is free from encumbrances and agreed that if she failed to complete the sale deed within 31 days plaintiff would be entitled to get the same done. After execution of the above document the plaintiff approached the defendant with the balance money and requested her to complete the sale and execute the sale deed. The defendant entered into another agreement to sell of 17th September, 1996 in which he admitted that due to unavoidable reasons he could not complete the sale. Now, she agreed to execute the sale deed of 1st November, 1996 and further to pay damages at Rs. 5,000/- per day for delay. The sale deed was still not executed. The plaintiff issued a legal notice calling upon her to execute the sale deed. Plaintiff asserts that she is ready and willing to execute the sale deed and was always ready and willing to perform her part of the contract. On these basic facts the present suit as such has been filed.

3. Notice of civil suit had been issued to the defendant and appearance has been put on behalf of the defendant by the learned counsel. On 17th October, 1997 it was adjourned to 19th January, 1998 and then to 16th March, 1998 but the defendant or her counsel did not appear. The position was the same again on 15th September, 1998 and 25th January, 1999.

4. Since the defendant did not appear affidavit by ex parte evidence was allowed to be filed.

5. The affidavit has been filed by the plaintiff in which she reasserts her assertions of the plaint. She proved that Rs. 3 lakhs was given vide the receipt Exhibit P-1 and Rs. 1 lakh by a cheque. The defendant had acknowledged the said payment. The defendant had assured the plaintiff that property is free from encumbrances and necessary permission from the concerned authorities shall be obtained. Within 32 days the sale was not executed and another agreement of 17th September, 1996 Exhibit P-3 was entered into. Now the defendant had agreed to complete the sale by 1st November, 1996. She did not do so. The plaintiff affidavit further reveals that she is ready and willing to perform her part of the contract.

6. Perusal of the record reveals that an agreement between the parties had been entered into dated 15th April, 1996. The sale consideration agreed was Rs. 16 lakhs and the other terms of the agreement reads as under:-

"That the First party shall apply for and get the permission for the sale/transfer of the said property and lease hold rights in the land there under from the appropriate authority in favor of the Second party or his nominee and execute proper deed (s) for conveying the same in favor of Second Party or his nominee by 10th September, 1996.

That the First Party assures the Second party that the property hereby agreed to be sold is his self acquired property and as such he is competent to sell the same and that if someone else claims any right, title and/or interest in the said property as owner or otherwise then the First Party shall be liable and responsible to make good the losses thus suffered by the Second Party."

7. Further more the receipt for making the payment has also been proved dated 15th April, 1996. It is patent from aforesaid that despite the notice copy of which is P-4 the sale has not been executed. The affidavit reveals that the plaintiff is read and willing to perform her part of the agreement. There is nothing to indicate that the plaintiff did not have the funds or there was any act or omission which may prompt the Court to conclude that she is not entitled to decree for specific performance.

8. In the affidavit filed by the plaintiff it is not proved that she is entitled to Rs. 5,000/- per day as damages because there is no affidavit in this regard. To this fact the relief is refused.

9. For these reasons the suit for specific performance of the agreement dated 15-4-96 and 17-9-96 is allowed. If any such permission for sale is required plaintiff would beat liberty to take the permission of the appropriate authority for and on behalf of the defendant. After the permission, if any, is obtained if the defendant does not execute the sale deed within the next two months on being so informed the plaintiff would be entitled to get the sale deed executed.

10. Defendant is restrained further from selling, alienating or parting with possession of the property. There shall be no order as to costs.