Shir Amit Kumar vs Shri Dhara Singh
2010 Latest Caselaw 5511 Del

         THE HIGH COURT OF DELHI AT NEW DELHI

%                    Judgment Pronounced on: 03.12.2010

+           CS(OS) No. 555/2009

SHIR AMIT KUMAR                                 .....Plaintiff

                           - versus -

SHRI DHARA SINGH                        .....Defendant

Advocates who appeared in this case:
For the Plaintiff: Mr. D.P. Sharma and Mr. Manoj Yadav
For the Defendant: Mr. S.K. Pruthi

CORAM:-
HON'BLE MR JUSTICE V.K. JAIN

1. Whether Reporters of local papers may
   be allowed to see the judgment?                             No

2. To be referred to the Reporter or not?                      No

3. Whether the judgment should be reported                     No
   in Digest?

V.K. JAIN, J. (ORAL)

IA No. 3900/2009

1. This is a suit for specific performance and

permanent injunction. The case of the plaintiff is that vide

agreement to sell dated 24th June 2006 the defendant

agreed to sell land/plot measuring 9 bighas 12 biswas out

of khewat 177/177, khasra No. 71/2 (4-0), 71/3 (0-5), 71/8

(1-0), 73/22 (4-7) situated in village Ladpur, Delhi to him

for a total consideration of Rs.35Lacs and a sum of

Rs.3,50,000/- was received by him from the plaintiff as

advance money. As per the terms of the agreement, the

balance amount of Rs.31,50,000/- was to be paid to the

defendant at the time of execution of the sale deed before

the Sub Registrar. It is alleged in the plaint that in terms of

the agreement, the defendant was required to obtain No

Objection Certificate and Income Tax Clearance, which he

has failed to obtain till date. The plaintiff also sent a notice

dated 24th March 2008 to the defendant requesting him to

convey the status of the formalities for the registration of

the sale deed, but, the defendant failed to comply with the

same. He, therefore, has sought specific performance of the

agreement through Court. Vide IA No. 3900/2009, the

plaintiff has sought temporary injunction restraining the

defendant from selling or assigning the suit property or

create any third party interest therein during pendency of

the suit.

2. The suit has been contested by the defendant. It

has been alleged in the written statement that the last date

stipulated in the agreement for payment of the balance

amount was 23rd August 2006 and since the plaintiff failed

to make the payment by that date. A notice dated 11th

September 2006 was sent by the defendant to the plaintiff

through a property broker Mr. Ram Kumar Malik. This was

followed by another notice dated 5th October 2006 about the

forfeiture of earnest money paid by the plaintiff. It is also

the case of the defendant that the No Objection Certificate

from Revenue Authorities was to be obtained by the plaintiff

and not by the defendant. It is claimed in the written

statement that even prior to signing of the agreement to sell

dated 24th June 2006 Mr. Ram Kumar Malik had paid a

token amount of Rs.20,000/- to the defendant and a deal

was stuck with him. This was followed by payment of

another sum of Rs.20,000/- by him sometime in early June

2006. According to defendant, it was Mr. Ram Kumar Malik

who brought the plaintiff with him and at that time the

defendant paid the balance earnest money of Rs.2,50,000/-,

thus making a total of Rs.3,50,000/-.

3. It is an admitted case that the agreement dated

24th June 2006 as well as the receipt of even date was

executed by the defendant. A perusal of the agreement

shows that the balance amount of Rs.31,50,000/- was to be

paid to the defendant at the time of registration of sale deed.

It further shows that the No Objection Certificate, Income

Tax Clearance and other permissions were required to be

obtained by the defendant and after receiving the requisite

permission, he was to inform the plaintiff by registered post

and, thereafter execute and present the sale deed before the

Sub Registrar concerned.

4. It is not in dispute that the defendant is the owner

of the agricultural land, which is the subject matter of the

agreement to sell dated 24th June 2006. It is also not in

dispute that he had agreed to sell the aforesaid land for a

total consideration of Rs.35Lacs and had received a sum of

Rs.3,50,000/- as an earnest money.

5. The bone of contention between the parties is as to

who was required to obtain the No Objection Certificate

from Revenue Authorities. As per the agreement to sell, the

requisite permission was to be obtained by the defendant.

On the other hand, it is clearly stated in the notice dated 2nd

November 2006 sent by Mr. Ajay Gupta, Advocate, to the

defendant, on behalf of the plaintiff Amit Kumar that it was

stipulated in the agreement that his client would obtain No

Objection Certificate and Income Tax clearance and upon

receipt of the same, the sale deed would be executed. It was

further stated that his client had already applied for the No

Objection Certificate and Income Tax Clearance immediately

after the agreement to sell dated 24th June 2006, but the

same had not been granted by the concerned department till

date despite efforts by his clients. Thus, whereas the

agreement to sell stipulated that it will be for the seller to

obtain the No Objection Certificate, the notice sent by the

plaintiff to the defendant through his counsel Mr. Ajay

Gupta states otherwise. At this stage, it is difficult to

ascertain, as to which party is actually in default.

Primarily, it would be the person who was required to obtain

the requisite permission from the Revenue Authorities. This

matter, therefore, requires adjudication through trial.

Considering the stipulation contained in the agreement and

receipt of the earnest money by the defendant, it is difficult

to dispute that the plaintiff has a prima facie case in his

favour.

6. Though it is recorded in the agreement to sell that

the possession of the land, subject matter of the agreement

had been given to the plaintiff, the case of the defendant is

that he continued to be in possession of the aforesaid land.

The plaintiff, who is present in the Court, also submits that

at present the physical possession of the land, subject

matter of the agreement is with the defendant. The

defendant, who is present in the Court, states after

arguments that if the plaintiff deposits the balance amount

of Rs.31,50,000/- in the Court, he will not sell, transfer or

assign the land in question during pendency of the suit.

The plaintiff, who also is present in Court states that he will

deposit the balance amount of Rs.31,50,000/- within eight

weeks by way of an FDR in the name of Registrar General of

this Court.

7. In view of above discussions, subject to the

plaintiff depositing a sum of Rs.31,50,000/- within eight

weeks by way of an FDR in the name of Registrar General of

this Court, initially for a period of one year, the defendant is

directed to maintain status quo with respect to possession

and title of land in question during pendency of this suit.

The FDR will be got renewed from time to time, for the same

period.

This application stands disposed of.

CS(OS) 555/2009

The following issues are framed on the pleadings of

the parties:-

(i) Whether the plaintiff had always been ready and willing to perform his part of the contract? OPP

(ii) Whether the No Objection Certificate and Income Tax Clearance were to be obtained by the plaintiff as alleged in the written statement? OPD

(iii) Whether the plaintiff is entitled to specific performance of the agreement to sell dated 24th June 2006? OPP

(iv) Relief.

No other issue arises or is claimed.

Affidavit by way of evidence be filed within six

weeks. The parties are directed to appear before the Joint

Registrar for cross-examination of witnesses on 15 th

February 2011.

(V.K. JAIN) JUDGE DECEMBER 03, 2010 Ag