Jai Gopal Goyal And Anr. vs Shri Bishen Dayal Goyal
2004 Latest Caselaw 757 Del

JUDGMENT

Mukul Mudgal, J.

1. The brief facts as stated by the plaintiff in the plaint are as follows:-

(a) Though the suit property at C-254, defense Colony, New Delhi was acquired by the defendant in 1968, the plaintiff No. 1 came into possession thereof and started living in the premises as he was jointly with the defendant running the business in the name and style of M/s Steel Trading Company as the defendant was permanently settled in Calcutta.

(b) The plaintiff No. 2 shifted in Delhi in the suit premises in the year 1979 due to losses suffered by him in his business in Rajasthan. In the year 1981-82 M/s Steel Trading Company was dissolved and the defendant became the sole proprietor thereof. The plaintiff No. 2 apart from looking after the business of the above firm, was also running his independent business of M/s Kalptaru Enterprises from the ground floor of the property in question.

(c) The plaintiff No. 1 was occupying the entire first floor with servant quarter and the plaintiff No. 2 was occupying the entire ground floor as well as the second floor and terrace with the roof above along with the servant quarter and the garage.

(d) In respect of loan taken from M/s Diomond Investment and Properties Co. Pvt. Ltd., Calcutta, the defendant faced recovery proceedings filed by the said company and the suit filed against the defendant was decreed and transferred to Delhi for execution. The plaintiffs agreed to repay the loan amount of Rs. 42 lakhs to the said company for and on behalf of the defendant. During the execution proceedings, the property was put up for auction and the plaintiffs gave their bid and deposited a sum of Rs. 10,00,500/- towards the bid amount. Under the court proceedings, consequently a sum of Rs. 42 lakhs was paid by the plaintiff to the Decree Holder.

(e) The plaintiffs have received the original title deeds of the property from M/s Diamond Investment & Properties Co. Pvt. Ltd. in the year 1991 when the loan amount was repaid to the said company and also are in peaceful possession of the suit premises. A loan agreement was executed on 5th July, 1991 between the plaintiffs and the defendant which is exhibited as PW-1/2, which required the return of Rs. 42 lakhs by the defendant along with a sum of Rs. 23 lakhs towards compensation totalling Rs. 65 lakhs to the plaintiffs within a period of three years and six months from the date of execution of the said agreement, failing which the plaintiffs were to become owners of the first and second floors of the property in question. In 1993, the defendant approached the plaintiff and had expressed his inability to pay the said amount leading to the negotiations between the parties and eventually an agreement dated 18th February, 1994 was reached by which the defendant was to sell the entire house to the plaintiffs for a total consideration of Rs. 1,05,00,000/-. The said agreement dated 18th February, 1994 is proved and is exhibited as PW-1/3. Consequently, the amount of Rs. 65 lakhs payable by the defendant to the plaintiffs was treated as advance and a sum of Rs. 40,00,000/- was to be paid by the plaintiffs to the defendant at the time of execution and registration of the sale deed. The defendant was also to obtain other necessary permissions and no objections. The plaintiffs were always ready and willing to perform their part of contract.

(f) The defendant visited Delhi on 11th December, 1994 and stayed with the plaintiffs and then developed malafide intention and got a notice issued from his counsel to the plaintiffs on 22nd December, 1994 seeking to return the money and vacation of the property. The said notice is exhibited as Exhibit PW-1/4. This notice was replied to on behalf of the plaintiffs. The reply is exhibited as Exhibit PW-1/5. The defendant had also retained the possession of one room on the first floor which was subsequently vacated in the year 1997 and subsequent to the filing of the suit retained possession of a big room on the ground floor which is still in his possession whereas possession of another room on the ground floor is with the plaintiffs. A suit No. 49/1995 was filed against the plaintiffs by the defendant seeking decree of possession in respect of portion of the suit property in occupation and possession of the plaintiffs. The said suit was, however, dismissed in default and has not been restored.

2. The plaintiffs have led evidence of Shri Jai Gopal Goyal, plaintiff No. 1 herein, by way of affidavit. The defendant was proceeded ex-parte by the order of this Court dated 8th May, 2001. The evidence of plaintiff No. 1 in support of the averments in the plaint remained unrebutted. Consequently, the plaintiffs are entitled to succeed and are entitled to a decree for specific performance claimed in the suit. The plaintiffs have averred that they always were and still are willing to perform their obligations under the agreement dated 18th February, 1994. I accordingly pass a decree of specific performance in favor of plaintiff and against the defendant. The plaintiff shall deposit a sum of Rs. 40 lakhs payable to the defendant as per the requirement of Order XX Rule 12A within eight weeks from today. The defendant is therefore directed to complete and specifically perform the agreement dated 18th February, 1994 and execute the requisite documents of title in favor of the plaintiffs in respect of the property at C-254, defense Colony, New Delhi. In case the defendant fails to execute the documents within 12 weeks from today, the Deputy Registrar (Original Side) of this Court, Shri D.S. Thakur is directed to execute such documents under this decree, and shall be paid a sum of Rs. 20,000/- for this purpose. On execution of such documents of title the amount of Rs. 40 lakhs shall be payable to the defendant.

3. A sum of Rs. 40 lakhs payable to the defendant under the agreement between the plaintiffs and the defendant dated 18th February, 1994, shall be deposited by the plaintiffs for payment to the defendant in this Court within eight weeks from today.

4. In view of the above, the suit stands decreed. Let a decree be drawn accordingly.