Delhi High Court
Vikas Singh Malik vs Smt. Geeta Devi on 25 January, 2012
Author: Manmohan Singh
* HIGH COURT OF DELHI : NEW DELHI
+ CS (OS) No. 2329/2007
% Judgment decided on : 25.01.2012
Vikas Singh Malik ..... Plaintiff
Through Ms. Priya Pur, Advocate
Versus
Smt. Geeta Devi ..... Defendant
Through Defendant is ex-parte.
Coram:
HON'BLE MR. JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J. (Oral)
1. By this order I shall dispose of the present suit filed by the
plaintiff for specific performance and permanent injunction. An
application for ex-parte ad interim stay was also filed by the petitioner.
The defendant is the owner of the property bearing No. 46, Block H,
Pocket 1, Sector-11 Rohini, Delhi- 1100085 (hereinafter referred to as
the "said property"), admeasuring about 25.90 sq yards. The plaintiff
herein is seeking a decree for Specific Performance with respect to the
First Floor of the said property and also a decree for permanent
injunction restraining the defendant or her legal heirs or representatives
from creating any third party rights over the said property.
2. Vide order dated 29.08.2008 the defendant was proceeded
ex-parte.
3. It is averred in the plaint that by virtue of an agreement for
sale dated 21.02. 2007 executed by and between the parties, it was
agreed that the defendant would sell the said property for a
consideration of Rs. 22,50,000/- (rupees twenty two lac and fifty
thousand). A sum of Rs. 2,00,000/- had already been paid by the
plaintiff and the receipt was duly acknowledged by the defendant and
notarized and subsequently, the Sale Deed was to be executed in favour
of the plaintiff.
4. As per clause 1 of the Agreement, the whole transaction
was to be completed by 10.06.2007. However, on the request of the
defendant, the said Deed was executed and registered on 11.06.2007
before the Sub Registrar, Sub District North West, Pitampura, Delhi.
5. According to the plaintiff, on the said date i.e. 11.06.2007,
the defendant failed to come to the office of the Sub-Registrar. On
13.06.2007, plaintiff sent a legal notice but it was not accepted by the
defendant.
6. Thereafter, somewhere in the 3rd week of August, the
plaintiff learned that the defendant was trying to negotiate with some
third party.
7. Hence, the plaintiff filed the present suit for specific
performance and permanent injunction. The suit along with interim
application was listed before Court on 28.11.2007. The summons were
issued to the defendant and the interim order was also passed not to
sell, transfer, mortgage or part with possession of the suit property
consisting of the first floor of the property bearing No.46 and 47, Block
H, Pocket 1, Sector II, Rohini, Delhi-110 085. Since the defendant
refused to accept the summons by ordinary process as well as the
registered AD cover, therefore, vide order dated 29.08.2008 the
defendant was proceeded ex-parte. The plaintiff filed five affidavits, in
ex-parte evidence, of PW-1 Vikas Singh Malik, PW-2 Rajesh, PW-3
Mange Ram, PW-4 Rajesh Kumar and PW-5 Joginder Kumar, who
have tendered their affidavits in evidence as Ex.PW1/A, Ex.PW2/A,
Ex.PW3/A, Ex.PW4/A and Ex.PW5/A respectively.
8. The plaintiff in his evidence has almost reiterated the
statement made in the plaint and proved the agreement dated
21.02.2007 as Ex.PW-1/1. The receipt of the earnest money of Rs.2
lac dated 21.02.2007 is proved as Ex.PW-1/2. It is stated in the
affidavit that the plaintiff arranged the balance consideration from his
own account and took the loan from his father-in-law Sh. Mange Ram.
The defendant agreed to execute and get the sale deed registered on
11.06.2007 before the Sub Registrar but when the plaintiff and Sh.
Mange Ram went there along with the balance payment, she failed to
come. She was even called by the plaintiff. But despite giving him an
assurance that she would be coming, she did not come.
9. PW-2 Rajesh has deposed that he was present when the
plaintiff handed over an amount of Rs.2 lac to the defendant and she
signed the receipt in his presence. PW-3 Mange Ram has deposed that
he was having sufficient fund in his account as well as cash in hand.
He proved the bank statement as Ex.PW3/1.
10. PW-4 Rajesh Kumar deposed that he accompanied the
plaintiff to appear as witness before the Sub-Registrar and waited for
the defendant. PW-5 Joginder Kumar deposed the similar statement
that he went to the Office of the Sub-Registrar Pitampura, Delhi, at the
request of the plaintiff. However, the defendant did not appear.
11. Before filing of the suit, the plaintiff also issued a legal
notice dated 13.06.2007 to the defendant through UPC as well as speed
post AD but the defendant refused to accept the same. The plaintiff
proved the said notice dated 13.06.2007 as Ex.PW-14, speed post
receipt as Ex.PW-1/5, UPC receipt as Ex.PW-1/6 and two envelopes
with noting "refused" as Ex.PW-1/7 and Ex.PW-1/8. It is specifically
stated in the plaint that the plaintiff is always willing and ready to
perform his part of the obligations as contemplated under the agreement
dated 21.02.2007 and is ready to pay the balance amount of
Rs.20,50,000/- as per the agreement.
12. The learned counsel for the plaintiff has referred the case of
Raj Kumar Sharma Vs. Pushpa Jaggi & Ors.; 128 (2006) Delhi Law
Times 96.
13. In view of the facts and circumstances of the present case, it
is clear that the plaintiff has been able to prove his case beyond any
doubt by producing the evidence. Therefore, the plaintiff is entitled for
a decree. I pass a decree for specific performance of the agreement to
sell dated 21.02.2007 and direct that the plaintiff shall deposit the
balance consideration in Court within four weeks from today.
Thereafter, the defendant shall take steps in accordance with the
agreement to sell for execution and registration of the sale deed within
four weeks thereafter, failing which, the Registrar shall take the
necessary steps in accordance with the law for getting the sale deed
executed and registered after obtaining the legal sanction. No costs.
MANMOHAN SINGH, J.
JANUARY 25, 2012
