Sanjeev Kansal vs Laxmi Chand Sharma
2011 Latest Caselaw 5945 Del

       *         IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Date of Decision: 06.12.2012

+      CS(OS) 177/2011

       SANJEEV KANSAL                                                   ..... Plaintiff
                   Through: Mr B.B. Gupta, Adv.

                     versus

    LAXMI CHAND SHARMA                                                ..... Defendant
                  Through: None.
CORAM:
HON'BLE MR. JUSTICE V.K.JAIN

                              JUDGMENT

V.K.JAIN, J. (ORAL)

1. This is a suit for grant of mandatory injunction or in the alternative for

specific performance of an oral agreement to sell dated 25.03.2010. The case of

the plaintiff is that defendant Shri Laxmi Chand Sharma, who died during

pendency of the suit, was the owner of Property No.41-A/1, Yusuf Sarai, New

Delhi and vide agreement dated 25.03.2010, he agreed to sell the aforesaid property

to him for a consideration of Rs 77 lakh. This is also the case of the plaintiff that

the defendant had received earnest money, amounting to Rs 1 lakh form him by

way of a cheque and the balance sale consideration of Rs 76 lakh was agreed to be

paid on or before 30.10.2010, at the time of execution and registration of the sale

deed. It is further alleged that on or about 03.10.2010, the defendant requested the

plaintiff to purchase requisite stamp papers for execution and registration of the

sale deed of the said property. Accordingly, the plaintiff purchased requisite stamp

papers on 04.10.2010 and a sale deed, incorporating the terms mutually agreed

between the parties, was got prepared on the stamp papers purchased by the

plaintiff. It is further alleged that on 25.10.2010, the plaintiff handed over a cheque

of Rs 76 lakh, drawn on ICICI Bank, Green Park, New Delhi to the defendant, who

voluntarily signed and executed the sale deed on that date. The parties to the suit

also put their respective thumb impressions on the sale deed so executed. The

plaintiff, immediately after execution of the sale deed, rushed to the office of Sub-

Registrar for registration of the sale deed and waited there for the defendant.

However, the defendant did not reach the office of the Sub-Registrar for

registration of the sale deed. It was then agreed between the parties that they will

appear before the concerned Sub-Registrar on 11.11.2010 for registration of the

sale deed, which the defendant has executed in favour of the plaintiff. The plaintiff

made necessary arrangements for registration of the sale deed on 11.11.2010 and

also got prepared a pay order of Rs 50,100/- towards payment of registration fee.

The plaintiff reached the office of Sub-Registrar on 11.11.2010, but the defendant

did not reach there. On being approached by the plaintiff, the defendant assured

him that he would appear before the Sub-Registrar on 03.12.2010 for registration

of the sale deed. Again, the plaintiff made arrangements for registration of the sale

deed and reached the office of Sub-Registrar on 03.12.2010, but the defendant did

not appear even on that date. The plaintiff wrote a letter to the Sub-Registrar on

10.12.2010, requesting him not to register any document in relation to the said

property and, thereafter, sent a legal notice dated 14.12.2010 to the defendant,

requiring him to get the sale deed registered. The notice, however, was not

complied. The plaintiff, therefore, approached this Court on 25.01.2011 seeking

the reliefs claim in the suit.

2. The defendant was served with the suit summon through his son Ramesh for

23.03.2011. Earlier, an interim order passed by this Court on 28.01.2011 which

was also served upon him through his son Ramesh on 21.02.2011. There was

appearance by a counsel on behalf of the defendant on 23.03.2011 though no

Vakalatnama in favour of any counsel is on record. On that date, the matter was

adjourned to 12.07.2011. In the meanwhile, two IAs being IA No. 6495/2011 and

6498/2011 were filed by one Yad Ram Sharma, one for impleading him as a party

to the suit and the other for appointment of a guardian for the defendant, who was

stated to be a person of unsound mind. The application under Order 1 Rule 10 CPC

was dismissed by the Joint Registrar vide detailed order dated 01.03.2012, whereas

the application for appointment of a guardian was dismissed by him vide order

dated 03.03.2012. On death of defendant, during pendency of the suit, IA No.

12527/2012 was filed by the plaintiff seeking exemption from impleading his legal

representative on the ground that no written statement had been filed by the

defendant in his life time. The application was allowed in terms of the Order 22

Rule 4 (4) of the Code of Civil Procedure. The plaintiff, however, was directed to

file affidavit by way of evidence in order to satisfy the case with respect to the

merits of his case.

3. The plaintiff has accordingly filed his own affidavit by way of evidence. In

his affidavit by way of evidence, the plaintiff has supported on oath, the case set

out in the plaint and has exhibited the documents relied upon by him. He has

specifically stated that on 20.03.2010, the defendant had approached him with an

offer to sale of Property No.41-A/1, Yusuf Sarai, New Delhi and that offer was

accepted by him on 25.03.2010. He has further stated that pursuant to the oral

agreement to sell dated 25.03.2010, he made payment of Rs 1 lakh to the defendant

vide cheque No. 189401 dated 25.03.2010, drawn on ICICI Bank, Green Park,

New Delhi. The copy of the cheque referred by the plaintiff in his deposition is

Ex.PW-1/1. Ex.PW-1/3 is the copy of pay order of Rs 76 lakh issued by ICCI

Bank, Green Park, New Delhi in favour of defendant Laxmi Chand Sharma.

Ex.PW-1/5 is the sale deed purporting to have been executed by the defendant

Laxmi Chand Sharma in favour of the plaintiff. The sale deed not only bears the

signature of the defendant, but also bears his thumb mark and his photograph. A

perusal of the sale deed would show that the defendant had received Rs 1 lakh from

the plaintiff vide cheque No189401 dated 25.03.2010, drawn on ICICI Bank, Green

Park, New Delhi and Rs 76 lakh vide cheque No. 016266 dated 25.10.2010 issued

by the same bank. It also shows that the total consideration agreed between the

parties was Rs 77 lakh.

4. Ex.PW-1/7 is Form-A purporting to be signed by the defendant as well as the

plaintiff. This Form is required to be submitted to the concerned Sub-Registrar for

the purpose of registration of the sale deed. The plaintiff has placed on record two

affidavits purporting to be sworn by Balram Sharma and Ramesh Sharma, sons of

the defendant, stating therein that property No.41-A/1, Yusuf Sarai, New Delhi was

owned by their father Shri Laxmi Chand Sharma and they had no objection to the

sale deed of the aforesaid property to the plaintiff. Ex. PW-1/11 is the pay order

which the plaintiff had obtained in the name of Deputy Commissioner (South) for

the purpose of payment of registration fee. Ex.PW-1/2 is the letter dated

10.12.2010, written by the plaintiff to the Sub-Registrar, Mehrauli, informing him

that he had paid the entire consideration for purchase of Property No.41-A/1, Yusuf

Sarai, New Delhi to the defendant Laxmi Chand Sharma though he had not got the

sale deed registered. The Sub-Registrar was requested not to register any document

pertaining to the said property. Ex.PW-1/13 is the legal notice sent by the plaintiff

to the defendant through his counsel, stating therein that he had agreed to sell the

suit property to him for a consideration of Rs 77 lakh and had received Rs 1 lakh

by way of cheque dated 25.03.2010 and Rs 76 lakh by way of cheque dated

25.11.2010 both drawn on ICCI Bank, Green Park, New Delhi. It was further stated

in the notice that though the defendant has signed the sale deed in advance, he had

not appeared before the Sub-Registrar for getting the same registered. The

defendant was called upon to get the sale deed registered before the Sub-Registrar.

Ex.PW-1/14 (Colly.), are postal address and certificate of posting & A.D. Card,

whereby this notice is stated to have been served upon the defendant.

5. I do not see any reason to disbelieve the unrebutted deposition of the

plaintiff which stands corroborated from the documents produced by him. Payment

of Rs 1 lakh by way of a cheque dated 25.03.2010 has been acknowledged in the

sale deed which the defendant executed on 25.10.2010. The pay order of Rs 76

lakh, issued by ICICI Bank, was also received by the defendant and the receipt was

acknowledged in the sale deed. The pay order, of course, was not encashed by the

defendant and, therefore, the aforesaid amount remained with the plaintiff. The

learned counsel for the plaintiff states that the plaintiff is ready to deposit the

balance sale consideration of Rs 76 lakh in the Court within such time as the Court

may stipulate for the purpose.

6. From the evidence produced by the plaintiff, I am satisfied that the

defendant, vide oral agreement to sell dated 25.03.2010 had agreed to sell property

No.41-A/1, Yusuf Sarai, New Delhi to him for a consideration of Rs 77 lakh and

had received an earnest money of Rs 1 lakh from him. I am also satisfied from the

averments made in the sale deed executed by the defendant, coupled with the

deposition of the plaintiff, that the balance sale consideration of Rs 76 lakh was

also paid to the defendant by way of a pay order which he did not encash. There

has been no abnormal delay on the part of the plaintiff in approaching the Court

since, according to the plaintiff, the defendant promised to appear before the Sub-

Registrar firstly on 25.10.2010, then on 11.11.2010 and lastly on 03.12.2010. The

plaintiff also wrote a precautionary letter to the concerned Sub-Registrar on

10.12.2010, requesting him not to register any document in relation to the said

property. This was followed by a legal notice dated 14.12.2010. The suit was filed

soon thereafter on 25.01.2010. I, therefore, see no impediment in granting specific

performance of the oral agreement to sell dated 25.03.2010. Accordingly, a decree

for specific performance of the agreement to sell dated 25.03.2010 is hereby

passed, requiring Shri Balram Sharma and Shri Ramesh Sharma, who are stated to

be the only legal representatives of deceased defendant, to execute a fresh sale deed

of Property No.41-A/1, Yusuf Sarai, New Delhi, in favour of the plaintiff within 08

weeks from today. On their failure to do so within the time stipulated for the

purpose, the plaintiff shall be entitled to apply to the Court for appointment of a

Local Commissioner to execute the sale deed and get it registered on their behalf.

He will also be entitled to seek warrant of possession for obtaining possession of

such portion of the suit property which is in possession of the legal representatives

of the defendant, namely, Shri Balraj Sharma and Shri Ramesh Sharma. The

plaintiff is directed to deposit the balance sale consideration of Rs 76 lakh by way

of demand draft/pay order in the name of Registrar General of this Court, within

two weeks from today. The Registry would keep the aforesaid amount with an

interest bearing FDR, initially for a period of three months. This amount would be

released to the legal representatives of the defendant after they execute the sale

deed in favour of the plaintiff, get it registered and handover the vacant possession

of the property subject matter of this suit to him.

In the facts and circumstances of the case, there shall be no order as to costs.

Decree sheet be prepared accordingly.

V.K. JAIN, J DECEMBER 06, 2012 BG