Smt. Kamla Devi And Ors. vs Shri V.K. Sharma And Ors.
2003 Latest Caselaw 187 Del

JUDGMENT

Vikramajit Sen, J.

IA No. 12875/99

1. On the first hearing of the suit the Defendant was restrained from selling, transferring or alienating in any manner or parting with possession of the property bearing No. 2187, Upper Bela Road, Jamuna Bazar, Delhi-110 006 (hereinafter referred to as the suit property) in terms of Orders dated December 23, 1999. On that very date, since the Plaintiff had claimed specific performance of the between the parties, he had sought permission for depositing the balance sale consideration of Rs.11,50,000/- in the Court. This permission was granted and the deposit was duly carried out. Summons/notices were issued returnable for 20.4.2000 on which date counsel for the Defendant sought and was granted time to file a Written Statement. Thereafter on 25.7.2000 the parties were directed to maintain status quo till the next date of hearing. It is in this background that the Plaintiffs' application (IA No. 12875/1999) under Order XXXIX Rule 1 & 2 of the CPC and the Defendant's application ( IA No. 4789/2000) under the similar provisions praying for restraint orders against the Plaintiffs from taking over possession of the suit premises, as also Defendant's application (IA No. 4788/2000) under Order XXXIX Rule 4 of the CPC for vacation of stay, have to be disposed of.

2. Parties admit that the Agreement to Sell dated 1.1.1999 was entered into by the Defendant on one side and the Plaintiffs on the other, in respect of the purchase of the Defendant's one-half share in the suit property. The salient terms are that the entire sale consideration was agreed upon as Rs.12,00,000/- out of which a sum of Rs.50,000/- has admittedly been received by the Defendant from the Plaintiffs. The balance was to be paid before the Sub-Registrar at the time of the execution of the Sale Deed up to 15.2.1999. The address of the Defendant in the Agreement to Sell has been recorded as H. No. 59, Sector 14, Raj Nagar, Ghaziabad, U.P., and that of the Plaintiffs at the suit property. The Agreement envisages in Clause 3 that half share (presumably of the Defendant) in the said property is occupied by different tenants. It was agreed that the symbolic and proprietory possession of this share in the entire built up property with its roof would be handed over to the Plaintiffs by the Defendant at the time of the registration of the Sale Deed. Therefore, it cannot be disputed that the Defendant was not in actual possession of any part of the said property. It is quite reasonable to conjecture that this may have been the reason for the Defendant's decision to sell his half share in the suit property.

3. The Plaintiffs assert that a letter dated 8.2.1999 was addressed to the Defendant calling upon him to sent the decree sheet of the Award filed in the Court of Shri R.P. Singh , Sub-Judge, Delhi for the preparation of the Sale Deed. This letter has been denied although a Postal Registration Receipt dated 9.2.1999 is available. Thereafter, admittedly a telegram was received by the Defendant from the Plaintiff No. 3, requesting the former to contact the latter immediately for "final salary along with documents". There is no correspondence whatsoever emanating from the Defendant in the period January 1999 to October, 1999. Ms. Luthra, learned counsel appearing for the Defendant has contended that the Plaintiffs had full knowledge of the Award, and since one of them is a practicing lawyer, the demand made on the Defendant for furnishing a copy thereof was palpably an excuse for not going through with the . The supply of these papers was not contemplated by the Agreement. Mr. Makkar, learned counsel for the Plaintiffs has contended that since the Defendant is the `Chacha' of Plaintiff Nos. 2 to 4 and the brother-in-law of Plaintiff No. 1 the time for execution of Sale Deed was not strictly adhered to and was amicably enlarged. Since no demur was made by the Plaintiffs in respect of non-receipt of the balance sale consideration of Rs.11,50,000/- and since no action either returning the sum of Rs.50,000/- contemporaneously received with the execution of the Agreement to Sell or its forfeiture, at this stage, I would accept the contention made on behalf of the Plaintiff.

4. An holograph notice dated 27.9.1999 has been sent by Plaintiff No. 3 to the Defendant in which once again the Defendant was requested to forward a copy of the court order and for executing the Sale Deed. In this letter a threat for initiation of legal proceedings has been made, admittedly for the first time. There is weight in the contention of Ms. Luthra that the Defendant was not obliged to furnish the document, and that the Plaintiffs already had a copy in view of Plaintiff No. 2 being a practicing Advocate. This may also indicate that the Plaintiffs were ploying for time, but in the absence of a precise termination of the Agreement to Sell, even such an assumption would not be fatal for the Plaintiffs.

5. In the interregnum, the Plaintiff had obtained vacant possession of a portion of the said property from the erstwhile tenant, namely, Ms. Bhagirathi on 2/5/1999 as pleaded in paragraph 10 of the Plaint itself. It has been averred that the Plaintiff got the said premises renovated and is enjoying the possession thereof with the fresh knowledge of the Defendant. The Defendant's averment, however, is that he had received possession from Ms. Bhagirathi on 26/2/1999. It is indeed difficult to fathom any reason for this assertion not having been recorded at the first available opportunity, since the Plaintiff's stand has been pleaded in the plaint itself. On the contrary, a passive request for an adjournment was made on behalf of the Defendant. To support his case, the Defendant has placed reliance on a rent receipt of that date which is in the hand writing of the Defendant. I have perused tis receipt and, prima facie, it appears that the line/sentence recording receipt of the premises has been added to the document. The Defendant is directed to file the original within one week. In October, 1999, a complaint was lodged by the Defendant with the police and in the investigation, a statement of the erstwhile tenant, Ms. Bhagirathi, has been recorded in which she has supported the version of the Plaintiff. At this stage, a prima facie case has been made out by the Plaintiff. It is not too fanciful to speculate that the Defendant had a change in heart because of the vacation of a portion of the premises by the Defendant. Mr. Makkar has vehemently argued that the letter dated 19/10/1999, addressed to the S.H.O., Kashmere Gate, Delhi, was posted on 25/10/1999. Had the Plaintiff committed trespass on a portion of the said property on 22/10/1999, this fact would definitely have been specifically mentioned in the letter? This argument is persuasive.

6. For these several reasons, I am satisfied that the Plaintiff has succeeded in making out a strong prima facie case for the issuance of the injunction prayed for in the Application. The balance of convenience is in favor of the Plaintiff, and since immovable property is at stake, irreparable injury will visit her if protective relief is not granted. The deposit of the sum of Rs.11.5 lacs, being the balance sale consideration, even despite the fact that it has been made after a period envisaged in the Agreement, cannot be overlooked.

7. During the pendency of this Suit, the Defendant is restrained from selling, transferring, entering into any Agreement to Sell or alienating, in any manner, half share in the property. The Plaintiff is further directed to maintain status quo in respect of the said property during the pendency of the Suit.

IA Nos. 4788-4789/00

8. In view of the Orders passed in I.A. 12875/99, these applications stand disposed of.

IA No. 3272/01

9. In the event that the Defendant is advised to settle the dispute by agreeing to the execution of the Sale Deed, he would be entitled to the balance sale consideration of Rs.11.5 lacs, together with the interest that may accrue thereon.

10. The Plaintiff's Application is without merit and the same is dismissed.

IAs No. 10640/00 and 1064/02

11. A determination of the veracity of the allegations made in these Applications by the parties cannot be properly made at this stage of the proceedings. The parties will, no doubt, substantiate and prove their rival pleadings once evidence is led by them. Without entering upon the merits of the Applications, they are dismissed. Liberty granted to file fresh Applications after the completion of the recording of evidence.

Suit No. 2807/99.

12. Parties to appear before the Joint Registrar on 3/3/2003, for further proceedings.