Shri Hemant Kumar vs Shri Ramesh Kumar Sharma & Anr.
2012 Latest Caselaw 756 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI


+                      CS(OS) 2268/2008

                       Judgment delivered on: 3rd February, 2012



Shri Hemant Kumar                                           ..... Plaintiff
                                   Through   Mr. Rajesh Banati with
                                             Mr. Sunil Verma, Advs.

                       versus



Shri Ramesh Kumar Sharma & Anr.                          ..... Defendants
                         Through Nemo.

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR:


KAILASH GAMBHIR, J.

1. The present suit has been filed by the plaintiff to seek a

decree of specific performance of the contract against defendant

No. 1 for the sale of property bearing No. N-22, South Extension

Part-1, New Delhi - 110049 consisting of basement, ground, first

and second floor.

2. It is the case of the plaintiff that defendant No. 1 was the

owner of the said suit property bearing No. N-22, South

Extension Part-1, New Delhi - 110049 and he had agreed to sell

the said property in favour of the plaintiff for a total sale

consideration of Rs. 80 lakhs. It is also the case of the plaintiff

that he had paid an amount of Rs. 45 lakhs as an advance

(bayana) to defendant No. 1 vide three cheques bearing No.

102002 dated 20.9.2007 for Rs. 15,00,000/-, 504187 dated

20.09.2007 for Rs. 5,00,000/- and 504190 dated 3.10.2007 for

Rs. 25,00,000/- all drawn on Central Bank of India, Khan Market,

New Delhi and bayana receipt dated 16.9.2007 was duly

executed by defendant No. 1 at the time of receipt of the said

three cheques. It is also the case of the plaintiff that possession

of the basement and first floor of the said property was handed

over by defendant No. 1 to the plaintiff at the time of the receipt

of the said advance amount of Rs. 45 lakhs and it was also

agreed by defendant No. 1 that possession of the ground floor

and second floor would be delivered to the plaintiff as soon as

the tenant who are occupying the same would vacate it. It is

also the case of the plaintiff that possession of the ground floor

of the said property was handed over to the plaintiff by the

tenant pursuant to the order dated 2.9.2008 passed by this

Court in CS(OS) No. 1910/2006. So far as possession of the

second floor of the suit property was concerned, as per the

plaintiff the same was still in the possession of the tenant. It is

also the case of the plaintiff that defendant No. 1 had further

sold the said property in favour of defendant No. 2 for a total

sale consideration of Rs. 1 crore and on receipt of the said

amount, the defendant No. 1 also executed a sale deed in favour

of defendant No. 2. After having come to know about the said

illegal sale by defendant No. 1 in favour of defendant No. 2, the

plaintiff made a complaint to the Commissioner of Police and

concerned SHO on 22nd August, 2008. Based on these averments

the plaintiff has claimed grant of decree for the specific

performance of the contract against defendant No. 1 for the

transfer of the said property bearing No.N-22, South Extension

Part-1, New Delhi - 110049 in favour of the plaintiff. The

plaintiff has also claimed a decree of declaration to declare the

sale deed executed by defendant No. 1 in favour of defendant

No. 2 as null and void.

3. Defendant No. 1 had earlier been appearing in the

matter and in fact has also filed his written statement but later

on stopped appearing and vide orders dated 21.12.2011, the

defendant No. 1 was proceeded ex parte. So far as defendant

No. 2 is concerned, the plaintiff had arrived at a settlement with

him and pursuant to the settlement the plaintiff had delivered

the peaceful and vacant possession of the said property under

his occupation in favour of defendant No. 2. Based on the said

settlement, the plaintiff sought deletion of name of defendant

No. 2 from the array of parties in the present case and vide

orders dated 21.12.2011, the same was allowed by this Court.

The relief now sought by the plaintiff is for the recovery of the

said amount of Rs. 45 lakhs, which was advanced by the plaintiff

to the defendant No. 1 at the time of execution of bayana

receipt dated 16.9.2007. As due to the sale of the said property

by defendant No. 1 in favour of defendant No. 2 and subsequent

handing over of the possession of the property under the

occupation of the plaintiff to defendant No. 2, no decree for

specific performance of the contract in favour of the plaintiff can

be granted anymore.

4. The plaintiff filed his ex parte evidence by way of

affidavit and in the said evidence the plaintiff has duly proved on

record the original bayana receipt dated 16.9.2007 as Exhibit

PW 1/2. The plaintiff has further deposed that he has made the

payment of Rs. 45 lakhs through cheques bearing No. 102002

dated 20.9.2007 for Rs. 15,00,000/-, 504187 dated 20.09.2007

for Rs. 5,00,000/- and 504190 dated 3.10.2007 for Rs.

25,00,000/- all drawn on Central Bank of India, Khan Market,

New Delhi at the time of executing of bayana receipt dated

16.9.2007. The plaintiff has also deposed that possession of the

basement and first floor of the suit property was handed over by

defendant No. 1 to the plaintiff at the time of receiving advance

of Rs. 45 lakhs and the possession of the ground floor was

handed over by the tenant to the plaintiff by the order of the

Court in suit bearing No. CS(OS) No. 1910/2006. The plaintiff

has proved on record copy of the order dated 2.9.2008 as exhibit

PW 1/3 to bring the said fact of receiving possession of the

ground floor premises from the tenant. The plaintiff has also

proved complaint dated 22.8.2008 as exhibit PW 1/4 informing

the police about the said illegal sale of the property by defendant

No. 1 in favour of defendant No. 2. The plaintiff has further

proved the memorandum of understanding dated 14.5.2010 as

exhibit PW 1/6 to prove the settlement arrived at between the

plaintiff and defendant No. 2. The plaintiff has also deposed that

the defendant No. 1 has not refunded back the said amount of

Rs. 45 lakhs even despite defendant No. 1 having sold the said

property in favour of defendant No. 2. The plaintiff has also

deposed to claim interest on the said amount of Rs. 45 lakhs @

18% p.a. from 16.9.2007 till the date of actual payment. The said

testimony of the plaintiff remained unchallenged and

unrebutted. In the written statement filed by defendant No. 1,

defendant No. 1 has not denied the execution of bayana receipt

dated 16.9.2007. He has also not denied the receipt of the said

amount of Rs. 45 lakhs through the said cheques issued by the

plaintiff. Defendant No. 1 in the written statement has also not

denied the fact of the said sale of the property by him in favour

of defendant No. 2. Once defendant No. 1 had failed to honour

the said agreement/bayana receipt dated 16.9.2007 through

which he had agreed to sell the said property to the plaintiff for

a total sale consideration of Rs. 80 lakhs and had received an

amount of Rs. 45 lakhs towards advance amount by way of three

separate cheques and also considering the fact that defendant

No. 1 had delivered the possession of the basement and first

floor of the said property in favour of the plaintiff, the plaintiff is

certainly entitled to recover the said amount of Rs. 45 lakhs from

defendant No. 1. As already stated above, the plaintiff is not

claiming the grant of decree for specific performance and rightly

so when the plaintiff has already delivered the possession of the

premises under his occupation in favour of defendant No. 2 in

whose favour defendant No. 1 had sold the property by

executing a sale deed, therefore, the only relief which can be

granted in favour of the plaintiff is recovery of the said amount

of Rs. 45 lakhs. Defendant No. 1 has not come forward to contest

the said case and in the written statement filed by defendant No.

1 he has not denied the factum of execution of bayana receipt

and also the receipt of said amount of Rs. 45 lakhs and with this

unequivocal admission on the part of defendant No. 1, the

plaintiff becomes entitled for the recovery of the said amount

from defendant No. 1. The suit of the plaintiff for the recovery of

Rs. 45 lakhs based on the ex parte evidence adduced by the

plaintiff, which remained unchallenged and unrebutted is

accordingly decreed. A decree for sum of Rs. 45 lakhs in favour

of the plaintiff is passed against defendant No. 1. The plaintiff

will also be entitled to claim interest @ 12% p.a. on the said

amount of Rs 45 lacs from the date of filing of the suit till

realization.

5. The decree sheet be drawn up accordingly.

KAILASH GAMBHIR, J FEBRUARY 3, 2012 rkr