R.U. Builders Pvt. Ltd. vs Sh. Raj Kumar Gaur
2010 Latest Caselaw 5418 Del

         THE HIGH COURT OF DELHI AT NEW DELHI
%                    Judgment Pronounced on: 29.11.2010
+            EX. P. 59/2009 & EX.P.8/2010


EX. P. 59/2009

SH. RAJ KUMAR GAUR                        ..... DECREE HOLDER

                             - versus -
R.U. BUILDERS
PVT. LTD.                          ..... JUDGMENT DEBTOR


EX. P. 8/2010

R.U. BUILDERS
PVT. LTD.                          ..... DECREE HOLDER

                             - versus -

SH. RAJ KUMAR GAUR               ..... JUDGMENT DEBTOR

DEBTORS
Advocates who appeared in this case:
For the Decree Holder   : Mr. M.S.Negi, Advocate
& Judgment Debtor        Mr. Sanjay Ghose, Advocate.
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
   in Digest?                             No

V.K. JAIN, J. (ORAL)

1. Ex. P. 59/2009 has been filed by Raj Kumar Gaur

for possession of the first floor in Anupam Plaza, Plot No.3,

Local Shopping Centre, West Trilok Puri, Mayur Vihar,

Phase-I, in terms of the order dated 27.03.2008 passed in

CS(OS) 1819/2007.

2. Ex. P.8/2010 has been filed by M/s. R.U.Builders

Pvt. Ltd., seeking recovery of `8,38967.70 from Raj Kumar

Gaur in terms of the aforesaid order passed in the same

suit.

3. CS(OS) 59/2009 was filed by Raj Kumar Gaur

against M/s. R.U.Builders Pvt. Ltd., which was disposed of

vide order dated 27.03.2008. His case is that the judgment

debtor/defendant M/s. R.U.Builders Pvt. Ltd. was required

to execute sale deed in his favour and give possession of the

property subject matter of the suit to him on payment of

`4,82718.75, which it has failed to do. According to him,

the judgment debtor has been asking for a sum of

`8,38,967.77 though only the amount of `4,82,718.75 is to

be paid to it. It is also alleged that the judgment debtor has

failed even to obtain the completion certificate and

conveyance deed from DDA in its favour.

4. The case of M/s. R.U.Builders Pvt. Ltd. is that

under the Agreement executed between the parties on

20.02.2007, the purchaser was required to pay VAT,

maintenance charges, service tax and security deposit, in

addition to the sale consideration agreed between the

parties and, therefore, he was asked by it to make payment

of a sum of `8,38,967.70, so that sale deed may be executed

in his favour and the possession may be given to him. It is

also alleged that the completion certificate has already been

obtained on 29.07.2009 and the possession has also been

offered to the decree holder on payment of `8,38,967.70.

5. A perusal of the documents shows that IA

3789/2008 was filed in CS(OS) No.1819/2007 for disposal

of the suit in terms of the settlement between the parties.

This was a joint application filed by the parties as well as

their respective counsels. Para VI of the application reads

as under:-

"That the defendant shall hand over the possession of the said property to the plaintiff on or before 30 th September, 2008 on receipt of the balance payment of Rs.482,718.75 as per the terms of Agreement, simultaneously, the sale deed thereby conveying the title of the said property shall be executed by the defendant in favour of plaintiff. The cost of stamp papers and other charges for registration shall be borne by the plaintiff."

6. Vide order dated 27.03.2008 passed on the

aforesaid application, the Court noted that the plaintiff had

handed over to the defendant post-dated cheques, details of

which were given in para 4 of the joint compromise

application. On receipt of the abovesaid cheques, the

defendant had agreed to revoke the cancellation dated

22.09.2007 to the plaintiff and to execute the sale deed in

favour of the plaintiff on or before 30.09.2008 against

balance payment of `482,718.75 to be paid by the plaintiff

to the defendant at the time of the execution of the sale

deed.

7. It is an admitted case of the parties that the post-

dated cheques which were delivered to the

defendant/judgment debtor in the Court on 27.03.2008

were dishonoured when presented to the Bank but later on

the amount of those cheques was paid to the

defendant/judgment debtor along with the interest and has

been accepted by it.

8. As noted earlier, para VI of the joint compromise

application envisaged payment of the balance amount of

`482,718.75 to the plaintiff in terms of the Agreement. The

payment was to be made simultaneously with execution of

the sale deed and possession was to be given to the plaintiff

on or before 30.09.2008 on receipt of the aforesaid balance

payment.

9. The contention of the defendant/judgment debtor

is that VAT amounting to `24768.75, service tax amounting

to `39,630/-, security deposit amounting to `14, 574/- and

maintenance charges amounting to `24151.20 are also

required to be paid by the plaintiff in addition to the sale

consideration, in terms of the Agreement dated 20.02.2007

which was entered into between the parties. This, however,

is disputed by the decree holder who states that the

compromise did not envisage any payments other than

those specified in IA No. 3789/2008.

10. In my view, the joint compromise application which

was filed in the Court and was the basis of the consent

decree passed by the Court on 27.03.2008 does not

envisage payment of anything more than `482,718.75.

Assuming that under the Agreement which the plaintiff had

entered into with the defendant at the time of agreeing to

purchase the property in question from it envisaged

payment of the VAT amounting to `24768.75, service tax

amounting to `39,630/-, security deposit amounting to

`14,574/- and maintenance charges amounting to

`24151.20, since there is no reference to any of these

payments in the compromise application or in the order

passed by the Court, the defendant/judgment debtor cannot

insist upon these payments before executing the sale deed

in favour of the plaintiff and handing over the possession of

the premises in question to him. The compromise

application is the result of give and take on both the parties.

If the defendant despite the terms contained its Agreement

with the plaintiff for payment of VAT, security deposit and

maintenance charges, agreed to execute the sale deed in his

favour and handover possession to him on accepting the

payment of `482,718.75 in addition to the cheques

mentioned in para 4 of the application, he cannot now claim

those payments on the basis of his initial Agreement with

the plaintiff. The defendant/judgment debtor in these

circumstances will be deemed to have given up/waived the

aforesaid charges. Of course, the cost of stamp papers and

other charges for registration shall be borne by the plaintiff

in terms of para 6 of the application.

11. For the reasons given in the proceeding

paragraphs, both the petitions are disposed of with the

directions that the defendant/judgment debtor will execute

the sale deed in favour of the plaintiff/decree holder and

hand over possession to him on receipt of balance payment

of `482,718.75. The decree holder is directed to deposit a

pay order of `482,718.75 in favour of the judgment debtor

in the Court within two weeks, under intimation to the

defendant/judgment debtor, which will execute the sale

deed and hand over possession to the plaintiff/decree

holder within two weeks thereafter.

List these matters on 8th March, 2011 to record

compliance.

Dasti.

(V.K. JAIN) JUDGE

NOVEMBER 29, 2010 'SN'