Sanjay Kumar And Anr vs Inderjeet N Suri
2011 Latest Caselaw 5013 Del

         THE HIGH COURT OF DELHI AT NEW DELHI

%                    Judgment Pronounced on: 12.10.2011

+           CS(OS) 719/2011

SANJAY KUMAR AND ANR                          ..... Plaintiffs
             Through:                 Mr. B.L. Chawla, Adv.

                             versus
INDERJEET N SURI                            ..... Defendant
             Through:                 Mr. H.S. Gautam, Adv.

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. 4755/2011 (Order 39 Rule 1 and 2) and IA No. 9677/2011 (Order 39 Rule 4 CPC)

1. This is a suit for specific performance of the

agreement dated 27th December, 2010 alleged to have been

executed by the defendant in favour of the plaintiffs for sale

of house bearing no. EXB-28A, Gali no. 1, Hari Nagar, New

Delhi for a total sale consideration of Rs. 65 lakhs. A sum

of Rs. 5 lakh was paid as earnest money to the defendant on

27th December, 2010 and the sale deed was to be executed

on or before 15th May, 2011.

2. The case of the defendant as disclosed in the

written statement is that he is a Canadian citizen and he

came to India along with his wife on 3rd December, 2010.

The plaintiffs approached him on 27th December, 2010 to

purchase the suit property for a consideration of Rs.

1,10,00,000/- with the condition that they would re-

construct a four storeyed building on the land underneath

the property and provide the first floor to him for a

consideration of Rs. 45 lakhs. It has been admitted that the

plaintiffs paid a sum of Rs. 5 lakhs to the defendant on 27 th

December, 2010 and obtained a receipt from him. It is

alleged that believing the plaintiffs, the defendant signed the

receipt without going through its contents. It is further

alleged that the plaintiffs got prepared an agreement and

sent it to the defendant for signature. On going through the

contents of the agreement, the defendant discovered that

the terms and conditions incorporated therein were not as

per their agreement. The defendant thereupon reported the

matter to the police and also sent a notice to the plaintiffs.

3. The document termed as advance receipt is a

printed proforma wherein blanks have been filled by hand in

English. The document has been signed by the defendant in

English. This is not the case of the defendant that he is

illiterate and is not conversant with English language. The

learned counsel for the plaintiff, on instructions from the

plaintiffs, who are present in the Court, states that the

blanks in the document were filled by Mr. Chopra of M/s

Chopra Estate Agency through whom the deal was started.

Since the defendant has admitted not only his signature on

the document but also on the receipt of Rs. 5 lakh, the

plaintiffs have been able to make out a prima facie case in

their favour. As per clause 3 of the agreement dated 27 th

December, 2010, the sale deed was to be got registered and

possession was to be delivered to the plaintiffs on or before

15th May, 2011. The document contains all the necessary

ingredients of an agreement to sell. The identity of the seller

as well as the purchaser is borne out from the document.

The identity of the property subject matter of the agreement

is also not in dispute. The sale consideration as well as the

earnest money has also been indicated therein. The period

within which the transaction was to be completed is also

contained in the document. Hence, no material ingredient

of an agreement to sell an immovable property is missing in

this document.

4. Since the defendant does not claim to be an

illiterate person, prima facie, I find it difficult to accept that

he signed the document dated 27th December, 2010 without

going through its contents particularly when he does not

claim that the plaintiffs were previously known to him.

5. It is defendant's own case that a formal agreement

was got prepared by the plaintiffs and was given to him for

signature. The document got prepared by the plaintiffs is

also a formal agreement to sell the suit property to the

plaintiffs for a total sale consideration of Rs. 65 lakhs, and

not an agreement for a sale consideration of Rs 1.10 crores,

with a stipulation for sale of the first floor to the defendant

for a consideration of Rs 45 lakhs. This is yet another

indicator of what the transaction between the parties was.

6. The above-referred formal agreement which the

learned counsel for the defendant has brought in the Court

has been filed by him and placed on the Court file. The

plaintiffs who are present in the Court admit that this is the

same document which they had got prepared and which

they had given to the defendant for his signature on it. The

conduct of the plaintiffs in getting prepared an agreement

for sale of the suit property to them for a consideration of

Rs. 65 lakhs, in my view, corroborates the case set up by

them. In these circumstances, I am of the view that prima

facie the plaintiffs have been able to show that the

defendant had agreed to sell the suit property to them for a

total sale consideration of Rs. 65 lakhs and had received the

earnest money of Rs. 5 lakh from them. The balance

amount of Rs. 60 lakhs has already been deposited by the

plaintiffs in Court.

7. In case interim protection is not granted to the

plaintiff, the defendant may dispose of the suit property or

may create third party interest therein, thereby defeating

the very object behind filing of the suit. On the other hand,

the defendant is not likely to suffer any irreparable loss in

case he is restrained from selling, assigning or transferring

the suit property and from creating any third party interest

therein during pendency of the suit. He will continue to

enjoy the suit property as he is doing at present. The

balance of convenience thus lies in favour of maintaining

status quo during pendency of the suit.

In N. Srinivasa v. Kuttukaran Machine Tools

Ltd., (2009) 5 SCC 182, Supreme Court noticing that the

only ground taken by the respondent was that since time

was the essence of the contract and the appellant had failed

to perform his part of the contract within the time specified

in the agreement and, therefore, the question of grant of

injunction against transfer or alienation of the suit property

did not arise at all, the Supreme Court observed that it

must be kept in mind that it would be open to the

respondent to transfer, alienate or create any third party

interest in respect of property in dispute before passing the

award in which one of the main issues would be whether

time was essence of the contract or not. The Court was of

the view that if at the stage when application of the

appellant under Section 9 of the Arbitration and

Conciliation Act was pending, if the respondent is permitted

to transfer, alienate or create any third party interest in

respect of the property in dispute then the award, if any,

which may be passed in his favour would get nugatory and

it would be difficult for him to ask the respondent to execute

a sale deed when a third party interest has already been

created by sale of property in dispute and delivering the

possession to the third party.

The parties are, therefore, directed to maintain status

quo with respect to title and possession of the suit property

during the pendency of the suit.

Both the applications stand disposed of in terms of

this order.

IA No. 11111/2011 (Order 1 Rule 10)

Dismissed as not pressed.

CS(OS) 719/2011

            The      parties   are   directed   to    complete

admission/denial of documents before the Joint Registrar

on 30th November, 2011 for admission/denial of documents.

The matter shall be listed before the Court on 16th

April, 2012 for framing of issues.

(V.K. JAIN) JUDGE OCTOBER 12, 2011 SD/BG