Mr. Jayant Ghadia vs Raj Kumar And Anr.
2002 Latest Caselaw 1318 Del

JUDGMENT

S . Mukerjee , J.

1. For the decision in these IAs 11343/00 and 8693/00, certain background facts about the suit are required to be stated.

2. This suit for specific performance and permanent injunction has been filed in respect of the property No. W- 137, Greater Kailassh-II, New Delhi being residential property measuring 400 sq.yards. The case of the plaintiff is that a receipt-cum-agreement to sell dated 4.12.99 had been executed for total sale consideration of Rs.30 lakhs, out of which Rs. 1 lakhs was paid on the same day, half in cash and the other half through cheque bearing No. 161362 dated 4.12.99 drawn non State Bank of Hyderabad, Kailash Colony, New

Delhi.

3. According to the plaintiff, the main covenants agreed by and between the parties are as under :-

(a) The balance payment of Rs. 29 lakhs shall be payable at the time of execution and registration of the Sale Deed in favor of the plaintiff or his nominee in the office of Sub Registrar, Delhi;

(b) In case the purchaser wants to have the possession of the property, then he will make the payment of 50% of the total sale consideration including the above said part payment and the balance 50% will be paid at the time of execution and registration of the Sale Deed;

(c) That the seller shall obtain the Income Tax Clearance Certificate at his own costs and expenses within 3 months and only thereafter the Sale Deed shall be executed;

(d) The seller shall inform atleast 1 month in advance for the grant of sale permission in writing and within the said period the purchaser will arrange the balance payment;

(e) That in case the possession is not given to the purchaser before the execution of Sale deed, the same shall be handed over on the date of execution and registration of the Sale Deed Along with the original title documents;

(f) The seller would also get the plan sanctioned for the construction of the building and will also complete all the formalities at his costs and will also deliver the same to the purchaser at the time of execution and registration of the Sale Deed;

(g) The purchaser will bear all the expenses of the execution and registration of the Sale Deed;

(h) In case the seller does not complete the sale, the purchaser shall have the right to get the same done through the Court at the risk, costs and expenses of the seller;

(i) The seller assured the purchaser that he is the sole and absolute owner of the suit property which

is also free from all encumbrances.

4. The further case of the plaintiff is that he made another payment of Rs. 1 lakh on 7.12.99, once again half of the amount being in cash and other half by cheque No. 161365 dated 7.12.99 drawn on State Bank of Hyderabad, Kailash Colony, New Delhi.

5. The plaintiff relies upon a receipt executed by the defendant also dated 7.12.99 which has been made Annexure B to the plaint. It is claimed that thereafter only Rs. 28 lakhs remained to be paid by way of balance sale consideration.

6. It is also to be noted that while under the original agreement to sell, the possession was to be handed over on payment of 50% of the amount, however subsequently it was agreed that the possession would be handed over if the plaintiff pays just 25% of the agreed sale consideration.

7. The further case of the plaintiff is that in the end of December 1999, the defendant No. 1 sought further payment for the purpose of obtaining necessary ITCC. The plaintiff claims that he objected to the same, since according to him, the balance sale consideration was to be paid only at the time of execution and registration

of the sale deed.

8. The plaintiff also contents that defendant No. 1 insisted on further amount to be paid and threatened to cancel the sale transaction otherwise, whereupon the plaintiff felt forced to make further payment but however conveyed to the defendant No. 1 that further payment would be only if the defendant No. 1 hands over the possession of the said property to the plaintiff immediately upon the payment of 25% of the total agreed sale consideration.

9. In these circumstances, according to the plaintiff, the condition of payment of just 50% of the sale consideration for transfer of possession got converted to the condition that upon payment of just 25% of the sale consideration i.e. Rs. 7.5 lakhs, possession would be handed over to the plaintiff. The parties also agreed, it is so claimed, on the time for completion of sale transaction being reduced from 3 months (as had been agreed on 4.12.99), to a lesser period only up to 31.1.2000 (instead of 3.3.2000).

10. The plaintiff contends that on the said modified understanding between the parties, the plaintiff made payments of further amount of Rs. 5.50 lakhs on

30.12.99 which was in addition to Rs. 2 lakhs paid earlier. It is also stated that the receipt of Rs. 5.50 lakhs comprised of Rs. 3 lakhs in cash and Rs. 2.50 lakhs vide cheque No. 161370 dated 30.12.1999 drawn on State Bank of Hyderabad, Kailash Colony, New Delhi was duly acknowledged by the defendant No. 1 vide receipt dated 30.12.1999 which is Annexure 'C' to the plaint.

11. The plaintiff claims that upon the payment of Rs. 7.50 lakhs as detailed above, and as recorded in memorandum of possession dated 30.12.1999, the defendant No. 1 put the plaintiff in vacant and peaceful physical possession of the suit property.

12. The plaintiff further contends that after about 3 days, the defendant No. 1 approached the plaintiff and sought replacement of cheque for Rs. 2,50 lakhs with cash of equivalent amount. Since the plaintiff was having the cash amount readily with him, the said cheque as had been already handed over, was returned/exchanged with cash of equal amount of 4.1.2000 and the acknowledgement of receipt dated 4.1.2000 is Annexure 'E' to the plaint.

 13. The       plaintiff     thus     claims       that     he     is     in
peaceful,     vacant     and  exclusive  possession  of  the     suit

property since 30.12.1999. That thereafter, the

plaintiff claims that he kept on awaiting the response of defendant No. 1, once getting necessary ITCC and the sale permission etc. But, the same was not furnished till 21.12.2000 which is the date of filing of the present suit.

14. The plaintiff claims that he has always been and even now is ready and willing to make payment of the balance sale consideration of Rs. 22.50 lakhs to the defendant No. 1, once defendant No. 1 obtains the sale permission and the ITCC.

15. The further case of the plaintiff is that on 17.12.2000, the defendant No. 1 came to the suit property and tried to enter forcibly Along with 3-4 persons, which was resisted/frustrated by the guards of the plaintiff.

16 The plaintiff claims that on reaching the premises he was told by defendant No. 1 that there is a family dispute between the said defendant and his other family members who were objecting to the sale and in particular against the handing over of the possession to the plaintiff.

 17. In     the     above  background,   the  applications     IAs

11343/2000     and  8693/2000  have  to  be  considered.     In  the former     application,     the     sisters       of     defendant     No . 1 claiming     ownership     of  Q-29,   Model  Town,   New  Delhi,     by virtue     of     Will   dated  9.9.97  executed  by  their     father, have     sought     to     be  made  parties  to  the     present     suit. They    claim     that  public  notice  dated  3.12.97     had    been issued  informing  all  concerned  that  original  title  deeds were       taken     over     by       Sh. Anil     Kumar     Gera     illegally immediately     after     the  death  of  Sh . Harbhagwan.   A     Suit No. 463/2000     for  permanent  injunction  has  been  filed     by the     applicants     against     Sh Anil  Kumar     Gera     and     Smt. Pushpa  Kumari .  
 

18. The applicant Sh. Anil Kumar Gera in IA 8693/2000 who claims ownership of property No. W-137 Greater Kailash-II and Q-29, Model Town, New Delhi on the basis of deeds executed by Pushpa Kumari widow of late Sh. Harbhagwan.

19. It is also the admitted position that the probate case is pending in the Court of Sh. G.P. Mittal, Additional District Judge.

 20. Learned    counsel     have  referred  to  a     number     of
     authorities    including      Raj  K.     Mehra  v.     Mrs.    Anjali
Bhaduri,        ;       Vimala    Ammal    v.       C.

Suseela and Ors.   ;   K.S. Abraham
v. Mrs. Chandy Rosamma and Ors.,   ;   Iswar Bhai C. Patel alias Bachu Bhai Patel v. Harihar Behera and Anr.,   ;    Smt. Ambey Devi v. State of Bihar and Anr.,  ; Hindustan Pencils Pvt. Ltd. India Stationery Products Co and Anr.; .  
 

 21. In my view the judgments cited need not be
discussed in detail. The applications in both the

applications are most certainly proper parties if not necessary parties and therefore the applications deserve to be allowed. Once the applicants are before the Court with their respective pleadings, it will be open to the plaintiff or any of the other parties to raise all possible objections and contentions as available to them in law.

22. In my view to permit the applicants in both the applications to be arrayed as parties will assist in the proper, complete, efficacious and expeditious disposal of the real issues.

23 The suit is also at the preliminary stages and has not progressed beyond the stage of even pleadings.

24 In view of the above, it is ordered that the applicant Sh. Anil Kumar Gera in IA 8693/2000 be permitted to be imp leaded as defendant No 3. The applicants namely Mrs Kiran Girhotra, Mrs. Saroj Mangat, Mrs. Rita Manro and Miss Indra in IA No. 11343/2000 are imp leaded as defendants 4, 5, 6 and 7 respectively .

25. Amended memo of parties be filed within a period of one week.

26. The newly arrayed defendants are granted four weeks' time to file their written statement.

Replication to the same as well as replication to the written statement already on record, be filed within a period of four weeks thereafter. All parties to file their respective documents in original Along with their above said pleadings. List for admission/denial before J.R. on 7th October, 2002.

 27. List    the     suit  before  the  Court  for  framing    of
issues  on   12th  November,   2002.  
 

 28. Applications     are  allowed  and  disposed  of   in  the
above  terms  but  with  no  order  as  to  costs.