Shri Raj Kumar Jadhav & Anr vs Smt. Vinita Rastogi
2012 Latest Caselaw 3388 Del

*           HIGH COURT OF DELHI : NEW DELHI

+                       CS (OS) No.1962/2008

%                                     Order decided on : 21.05.2012

Shri Raj Kumar Jadhav & Anr                ..... Plaintiffs
                    Through: Mr. Navin Prakash with
                             Ms. Sucharita Ghosh Adv.

                        Versus

Smt. Vinita Rastogi                                  ..... Defendant
                        Through: Ex-parte

Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.(Oral)

1.

The plaintiffs have filed the present suit, inter alia, seeking a decree of Specific Performance of the Agreements to Sell dated 06.08.2008 and 19.08.2008.

2. The brief facts of the matter as per the case of the plaintiff are :

(a) the plaintiffs entered into an agreement dated 06.08.2008 with the defendant for the sale of the Second Floor of the suit property, admeasuring about 70 sq yards without terrace rights for a total consideration of 23 lacs;

(b) The defendant represented her as the absolute owner of the said suit property. The said property was executed in her favour vide Sale Deed executed by Dhiraj Bakshi and Anil Kumar Trehan, registered as Document No. 10633 in Addl Book No. 1, Vol.

15,990 pages 20-26 in the office of the Sub Registrar II, Janakpuri, New Delhi dated 06.05.2008.

(c) That out of the total consideration, he paid a sum of Rs. 2 lacs cash. that as per the terms of the agreement cum receipt dated 06.08.2008, it was agreed mutually that the balace sum of Rs. 21 lacs would be paid by plaintiff No. 1 on or before 05.09.2008 at the time of getting the vacant possession from the defendant. It is further submitted by the plaintiff No. 1 that he wanted to buy the said property in the name of his wife, plaintiff No. 2. The defendant further assured them that the said property was free from all encumbrances, litigations, liens, attachments etc.

(d) That the plaintiffs approached the property dealer and expressed their willingness to pay the balance and execute the sale. The property dealer informed the plaintiffs that the sale deed would be executed for Rs. 8 lacs as per the Circle Rates for valuation of Land and Properties under section 27 and 47A of the Indian Stamp Act. Accordingly the plaintiffs deposited a sun of Rs. 32,000/- towards the stamp duty and was issued a Certificate bearing No. IN-DL00247122150299G dated 14.08.2008 showing plaintiff No. 2 as purchaser and defendant as the seller.

(e) It was agreed that the sale deed would be executed on 19.08.2008. In the meantime the defendant wanted some money from the plaintiff as she had to repay the loan which she had taken from UCO Bank Janakpuri Branch and the same was to be adjusted from the remaining consideration. It was further agreed that the remaining amount would be paid to the

defendant and both the parties shall sign the agreement in the office of the property dealer and thereafter they would go the office of the sub registrar and get the document registered.

(f) The plaintiff had deposited a tune of Rs. 10, 03,700 to UCO Bank and returned to the office of the property dealer. The parties made the balance payment i.e.2,96,300/- in cash and rest 8 lacs in demand draft and the key of the premises was handed over to the plaintiffs by the defendants. Thereafter the property dealer asked the parties to the office of the Sub Registrar. The plaintiff alongwith one person named Anil Dua reached the office and waited for the defendant but the defendant did not reach and hence the sale deed could not the registered.

(g) Later in the evening, the plaintiff and the property went to the house of the defendant but defendant could not be traced. The plaintiff had already occupied the said property as keys were already handed over to them. Thereafter the defendant could not be traced inspite of several visits and attempts to find the whereabouts of the defendants. A complaint was also registered by the plaintiffs with the SHO, Ranjit Nagar dated 28.08.2008.

3. The plaintiff further stated that on 10.09.2008, a person visited the suit property and claimed that the defendant had offered to sell the said property and that person was interested to buy the same. The plaintiffs asked that person to disclose the address of the defendant but that person declined to reveal the same.

4. The plaintiff further states that they had tried all the methods of tracing the defendants but their efforts proved futile and hence they filing this present suit as the plaintiff is anticipating that

the defendant is trying to alienate the said property to some third person.

5. This matter was first time listed on 19.09.2008 wherein summons where directed to be issued upon the defendant. On the next date, return of the service was awaited. The plaintiff requested for substituted service under Order 5 Rule 20 Code of Civil Procedure 1908, as the defendant could not be served through ordinary post. The notice was published in "Dainik Jagran" (Agra Edition). Thereafter also no one entered appearance on behalf of the defendant. The defendant was proceeded ex parte vide order dated 09.04.2010.

6. Evidence by way of affidavit is filed by Smt. Rukmani Raj Kumari Jadhav, (PW1) and the following documents were exhibited:

a. Ex.PW1/1 - The copy of the Sale Deed dated 06.05.2008.

b. Ex.PW1/2 - The copy of the Jamambandi for the year 1989-90.

c. Ex.PW1/3 - The copy of the site plan of the suit property.

d. Ex.PW1/4 - The copy agreement dated.

e. Ex.PW1/5 - The copy of the certificate issued by the Delhi Government under the head "e-stamp" after the payment of the stamp duty.

f. Ex.PW1/6 - the copy of the sale Deed dated 06.05.2008 alongwith the site plan.

g. Ex.PW1/7 - The copy of the Demand Draft bearing DD No. 000001 dated 19.08.2008 from Bank of India, for Rs. 8 lacs in the name of the defendant.

h. Ex.PW1/8 - The copy of the Bank Statement of the plaintiff.

i. Ex.PW1/9 - The copy of the Voter's ID card of the deponent.

7. I have heard the learned counsel for the plaintiff and have also gone through the affidavit in ex parte evidence of the Rukmani Raj Kumari Jadhav i.e Plaintiff No. 2, as well as the documents placed on the record. In evidence, the plaintiff has proved the averments made in the plaint and has also exhibited the relevant documents in support of its case. As no cross-examination of the plaintiff's witnesses was carried out, therefore, the evidence filed by the plaintiff has gone unrebutted. Therefore, the averments made by the plaintiff in the plaint are taken as correct deposition.

8. Considering these facts and circumstances of the case, I am of the view that the plaintiff is entitled to a decree for a permanent injunction.

9. Accordingly, the prayer of the plaintiff in terms of para (a) and (b) of the prayer clause is allowed. The same is reproduced below :

(a) A decree for specific performance of the contract of sale by way of the Agreement to sell dated 6.8.2008 and the subsequent sale deed executed by the defendant on 19.8.2008 in respect of the property bearing Western Side Portion of second floor (without terrace roof rights) out of the freehold property bearing Municipal No.XVII/3072/2-N alongwith the proportionate undivided rights of the land underneath measuring 56.44 sq. meters with the superstructure out of the total measuring land of 133 sq. yards out of Khasra No.47, situated in the area of Village Shadipur, in the abadi of Ranjit Nagar, Street No.10, near South Patel Nagar, New Delhi- 110008 bounded as under :

      North :            Other's property
      South :            Gali
      East :             Remaining right side portion of the above
                         mentioned property.
      West :             Other's Property

shown red in the site plan attached be passed in favour of the plaintiffs and against the defendant thereby directing the defendant her authorized agents, representative, attorneys etc. to execute the necessary papers/sale deed in accordance with the terms of the agreement to sell dated 6.8.2008 the vacant and physical possession of which has already been delivered to the plaintiffs at the site on 19.8.2008 and also to do every thing necessary to complete the sale and necessary papers so that the suit property i.e. the above said western side portion of the second floor shown red in the site plan attached is transferred in the name of the plaintiff No.1 with the authorities concerned.

Or in the alternative in case of failure on the part of the defendant to execute the sale deed, a court official be appointed to execute the sale deed/necessary transfer papers in respect of western side portion of second floor (without terrace roof rights) out of the freehold property bearing Municipal No.XVII/3072/2-N alongwith the proportionate undivided rights of the land underneath measuring 56.44 sq. meters with the superstructure out of the total measuring land of 133 sq. yards out of Khasra No.47, situated in the area of Village Shadipur, in the abadi of Ranjit Nagar, Street No.10, near South Patel Nagar, New Delhi-110008, shown red in the site plan attached in terms of the said agreement in favour of the plaintiff No.1.

(b) Pass a decree of permanent injunction in favour of the plaintiffs and against the defendant thereby restraining the defendant, her servants, associates, authorized representatives and attorneys etc. from selling, alienating, transferring and/or creating third party interest in respect of the above property i.e. western side portion of second floor (without terrace roof rights) out of the freehold property bearing Municipal No.XVII/3072/2-N alongwith the proportionate undivided rights of the land underneath measuring 56.44 sq. meters with the superstructure out of the total measuring land of 133 sq. yards out of Khasra No.47, situated in the area of Village Shadipur, in the abadi of Ranjit Nagar, Street No.10,near South Patel Nagar, New Delhi-110008 shown red in the site plan attached or any part thereof in any manner whatsoever."

10. Possession of the suit property is with the plaintiffs. Sale deed is signed by the defendant. As per plaintiffs entire consideration

has been paid to the defendant who is not traceable now. Thus, Mr. D.K. Batra, OSD of this Court (Mobile No.9910390913) is appointed as Court Official to get register the original sale deed already filed by the plaintiffs in the appropriate office after retaining the certified copy on record. After registering the document in favour of the plaintiffs, the same be handed over against the receipt. The plaintiffs shall pay sum of Rs.30,000/- to the Court Official as his fee. The report shall be filed by the Court Official within 8 weeks from today alongwith photocopy of sale deed.

11. Decree be drawn accordingly by the Registry.

12. The suit and pending application stands disposed of.

MANMOHAN SINGH, J.

MAY 21, 2012