Delhi High Court
Shanta Aneja vs Satbir Singh on 1 March, 2012
Author: Manmohan Singh
.* HIGH COURT OF DELHI : NEW DELHI
+ CS(OS) No. 2564/2010
% Order decided on : 01.03.2012
Shanta Aneja ..... Plaintiff
Through: Mr. R.S. Chauhan, Adv. with
Mr. Ajay Talesara, Adv.
Versus
Satbir Singh ..... Defendant
Through: Defendant is ex parte.
Coram:
HON'BLE MR. JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J.(Oral)
1. The plaintiff has filed the instant suit for specific
performance and permanent injunction.
2. It is averred in the plaint that the plaintiff is the owner of the
entire second floor bearing private Nos.6 & 7 that form a part of the
property bearing No.80, situated at Furniture Block, Kirti Nagar, New
Delhi (hereinafter referred to as the 'suit property'). Vide an
Agreement to Sell dated 18.07.2009, the defendant agreed to sell the
suit property to the plaintiff for a sum of Rs.30,33,333/- and even
received a sum of Rs.9,00,000/- as earnest money/advance-cum-part
payment from the plaintiff at the time of execution of the said
Agreement to Sell and issued two receipts dated 18.07.2009 of
CS (OS) No.2564/2010 Page 1 of 6
Rs.5,00,000/- and Rs.4,00,000/- respectively. The plaintiff was
required to pay the balance amount of Rs.21,00,000/- to the defendant
within a period of 14 months and the last date of execution of
documents in favour of the plaintiff was on or before 17.09.2010.
3. On 06.04.2010, the defendant handed over the possession of
the suit property to the plaintiff and the plaintiff is in occupation of the
suit property and running her furniture business from there.
4. During the month of July/August, 2010 on various dates the
plaintiff made payment of Rs.1,00,000/- to the defendant in cash and on
13.09.2010 she got a demand draft of Rs.19,00,000/- prepared in
favour of the defendant towards the balance outstanding amount in
terms of the Agreement to Sell dated 18.07.2009. The plaintiff also
purchased the stamp paper of Rs.1,11,500/- on 13.09.2010 for
execution and registration of the Sale Deed in respect of the suit
property. However, the stamp duty was found to be insufficient
therefore, the plaintiff got another demand draft dated 13.09.2010
prepared for Rs.22,400/- for issuance of additional stamp paper.
5. It is further stated that on 16.09.2010 the plaintiff and
defendant entered into a further Agreement in continuation of the
earlier Agreement to Sell, thereby, extending the time under the
previous Agreement to 01.10.2010. On 20.09.2010, the plaintiff paid a
further sum of Rs.1,00,000/- to the defendant. Thereafter, the plaintiff
tried to contact the defendant on various occasions to collect the
balance payment of Rs.19,00,000/- and execute and register the Sale
Deed in favour of the plaintiff, however, the defendant started avoiding
the plaintiff and stopped taking her calls. On 01.10.2010 the husband
CS (OS) No.2564/2010 Page 2 of 6
of the plaintiff sent an SMS to the defendant but, the defendant did not
respond.
6. As per the plaintiff, she even sent a legal notice dated
07.10.2010 to the defendant through her counsel, calling upon the
defendant to come forward and accept the balance payment and
execute the Sale Deed in favour of the plaintiff but, the defendant did
not comply with same. Now it appears that the defendant is not
interested in executing the Sale Deed in favour of the plaintiff.
7. Hence the plaintiff filed the instant suit seeking a decree for
specific performance of the Agreement to Sell dated 18.07.2009 and
Subsequent Agreement dated 16.09.2010.
8. It is stated by the plaintiff that she has already paid a sum of
Rs.11,00,000/- to the defendant under the Agreement to Sell dated
18.07.2009 and she is further entitled to a sum of Rs.11,00,000/- on
account of rise in prices of land in that area.
9. Therefore, the plaintiff is seeking a decree for specific
performance of the Agreement to Sell dated 18.07.2009 and
Subsequent Agreement dated 18.07.2009 or in alternative a decree of
Rs.22,0,000/- as damages in terms of Clause 8 of the Agreement to sell
dated 18.07.2009 along with interest @ 18% p.a. from the date of
filing of this suit till realization and for a decree of permanent injunction
restraining the defendant from creating any third party rights in respect
of the suit property.
10. The suit along with the interim application being I.A.
No.17152/2010 was listed before the court for the first time on
CS (OS) No.2564/2010 Page 3 of 6
20.12.2010, when the summons in the suit and notice in the application
was issued and an ex parte order was granted in favour of the plaintiff
and against the defendant restraining the defendant from creating any
third party rights in respect of the suit property. However, despite
service no one appeared on behalf of the defendant. Thus, vide order
dated 17.10.2010 the defendant was proceeded ex parte.
11. Plaintiff filed evidence by way of affidavit Ex. PW-1/A and
proved the following documents:
(i) Ex.P-1- Copy of the site plan showing portion of the suit
property in red colour (original seen and returned).
(ii) Ex.P-2- Agreement to sell dated 18.07.2009, executed between
the plaintiff and the defendant.
(iii) Ex.P-3- Receipt for Rs.5,00,000/- dated 18.07.2009 executed
by the defendant.
(iv) Ex.P-4- Receipt for Rs.4,00,000/- dated 18.07.2009 executed
by the defendant.
(v) Ex.P-5- Pass Book of saving account No.600810100018422 in
the name of plaintiff.
(vi) Mark A- Copy of the demand draft dated 13.09.2010 drawn
on State Bank of India for Rs.19,00,000/- got prepared by the
plaintiff in favour of the defendant.
(vii) Mark B- Copy of stamp paper of Rs.1,11,500/- dated
13.09.2010 purchased by the plaintiff.
CS (OS) No.2564/2010 Page 4 of 6
(viii) Mark C- Copy of the demand draft dated 13.09.2010 for
Rs.22,400/- for additional stamp paper.
(ix) Ex.P-6- Agreement between the plaintiff and the defendant
extending time under the Agreement to sell dated 18.07.2009 to
01.10.2010.
(x) Mark D- Copy of the application made by the plaintiff in the
office of the Sub Registrar-II for inspection of Book No.1
records in respect of the suit property.
(xi) Ex.P-7- Receipt- B dated 01.10.2010 issued by the office of the
Sub Registrar-II, Distt. West,Delhi in favour of the plaintiff.
(xii) Ex.P-8- True computer printout of SMS given by the husband
of the plaintiff to the defendant on 01.10.2010.
(xiii) Ex.P-9- Office Copy of the legal notice dated 07.10.2010
issued on behalf of the plaintiff to the defendant.
(xiv) Ex.P-10 & 11- Postal receipt and courier receipt towards proof
of dispatch of the legal notice dated 01.10.2010.
(xv) Mark E- Copy of refund voucher dated 25.08.2011 for
Rs.1,15,000/- issued by the Collector of Stamps, Government of
NCT of Delhi.
12. I have heard the learned counsel for the plaintiff and have
also gone through the affidavit in ex parte evidence as well as the
documents placed on the record. In her evidence, the plaintiff has
proved the facts stated in the plaint and also exhibited the relevant
documents in support of her case. As no cross-examination of the
CS (OS) No.2564/2010 Page 5 of 6
plaintiff was carried out, therefore, the evidence filed by the plaintiff
has gone unrebutted. Therefore, the statements made by the plaintiffs
are accepted as correct deposition.
13. Under these facts and circumstances, the plaintiffs are
entitled to a decree for a permanent injunction.
14. Accordingly, a decree for specific performance of the
Agreement to Sell dated 18.07.2009 and Subsequent Agreement dated
16.09.2010 in respect of the entire second floor bearing private Nos.6
and 7 that for a part of the property bearing No.80, situated at Furniture
block, Kirti Nagar, New Delhi, be passed in favour of the plaintiff and
against the defendant, with the direction that the plaintiff shall deposit
the balance sale consideration in Court within four weeks and
thereafter, the defendant shall take steps in accordance with the
Agreement to Sell for execution and registration of the sale deed within
two weeks thereafter, failing which the Registrar of this Court shall
take necessary steps in accordance with the law for getting sale deed
executed and registered after obtaining legal sanction. Decree be drawn
accordingly by the Registry.
15. The suit as well as pending application, if any, stand
disposed of.
MANMOHAN SINGH, J.
MARCH 01, 2012
