Rajiv Vashishtha vs Brij Mohan
2012 Latest Caselaw 3614 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI


+       FAO 227/2012

%                                              Date of Decision: 30.05.2012

RAJIV VASHISHTHA                                            ..... Appellant
                            Through :   Pt. Om Dutt Sharma, Adv.

                   versus

BRIJ MOHAN                                                ..... Respondent
                            Through :   Ms. Shalini Gandharva along with
                                        Mr. Lalit Gandharva, Advs.

CORAM:
HON'BLE MS. JUSTICE VEENA BIRBAL

VEENA BIRBAL, J.(ORAL)
*

1. Present is an appeal filed by appellant/plaintiff against impugned order dated 27.04.2012 passed by learned ADJ, Delhi by which two applications of appellant/plaintiff, both under Order XXXIX Rule 1 and 2 read with Section 151 CPC have been dismissed.

2. The appellant herein i.e. plaintiff before the learned trial court has filed a suit for specific performance and permanent injunction against the respondent herein i.e. defendant before the learned trial court alleging therein that the appellant/plaintiff and respondent/defendant had entered into an agreement dated 25.08.2007 wherein respondent/defendant had agreed to sell suit property i.e. property no. 652A, First Floor, Sri Nagar, Gali no.1, Shakurbasti, Delhi-110034 to the appellant/plaintiff for consideration of Rs.9,90,000/-. It is alleged that earnest money of Rs. 1 lakh was also paid to the respondent/defendant and balance amount was to be paid by 29.10.2007

after availing the bank loan. The appellant/plaintiff has further alleged that respondent/defendant had handed over the possession of the suit property to the appellant/plaintiff and it was agreed that the balance amount was to be paid by 29.10.2007 after availing bank loan and in case the bank loan was delayed for some reasons and the time limit was to be extended. It was agreed that after 29.10.2007 till the finance by the bank, the appellant/plaintiff will pay Rs. 10,000/- per month to respondent/defendant. It is further alleged that respondent/defendant did not provide complete chain of documents to appellant/plaintiff as a result of which his loan application was rejected by the bank. The respondent/defendant had assured for providing complete chain of documents and the appellant/plaintiff had also paid Rs. 10,000/- for 5 months to him. But the complete chain of documents was not supplied and with the mutual consent, the appellant/plaintiff started paying Rs. 3,500/- as rent and kept on requesting the respondent/defendant for providing the requisite documents so that the transaction could be completed.

3. It is alleged that when the appellant/plaintiff came to know that the respondent/defendant was negotiating with others for the suit property, appellant/plaintiff served a legal notice upon him. Despite that no response was given by the respondent/defendant. Accordingly the appellant/plaintiff had filed the suit for specific performance against respondent/defendant.

4. Along with the aforesaid suit, two applications were filed by the appellant/plaintiff both under Order 39 Rule 1 and 2 read with Section 151 CPC. In the first application, prayer was made for restraining the respondent/defendant from dispossessing the plaintiff from the suit premises till the pendency of the suit and in the second application, the prayer has

been made to restrain the respondent/defendant from selling, mortgaging or creating third party interest in the suit property till the disposal of the suit.

5. Both these applications have been rejected by the learned ADJ vide impugned order dated 27.04.2012.

6. Aggrieved with the same, the present appeal has been filed.

7. Learned counsel for appellant has submitted that appellant/plaintiff has already made a statement before the execution court that the appellant/plaintiff shall vacate the suit property within one or two days as such he is not pressing the prayer restraining the appellant/plaintiff from dispossessing him from the suit premises during the pendency of the suit. It is contended that the appellant is pressing the appeal as regards finding of the learned ADJ vide impugned order dated 27.04.2012 wherein the prayer of the appellant/plaintiff to restrain the respondent/defendant from selling, mortgaging or creating third party interest has been rejected.

8. Learned counsel for appellant has contended that the suit of the appellant/plaintiff for specific performance of contract is pending disposal before the learned trial court and appellant/plaintiff has already paid the earnest money and there is a fault on the part of the appellant/plaintiff in not supplying the complete chain of documents as a result of which the appellant/plaintiff could not get the loan as such the learned ADJ ought to have granted interim stay in favour of the appellant/plaintiff.

9. On the other hand, learned counsel for respondent has contended that earlier the suit for possession and permanent injunction was filed by respondent/defendant against appellant/plaintiff before learned ADJ, Delhi in 2009 wherein the appellant/plaintiff had taken a stand that he was not interested in purchasing the property due to defective title of the respondent/defendant. It is submitted that due to admission on the part of the

respondent/defendant, the said suit was decreed and the appellant/plaintiff was directed to vacate the property. It is contended that the said order was challenged by him before this court vide RFA No. 520/2011 and appellant gave an undertaking that he would vacate the premises on or before 30.04.2012. However, liberty was given to him and it was observed that if he has any right in accordance with law, he will be entitled to file a suit for specific performance.

10. It is contended that in view of the earlier stand in the suit that the respondent/defendant has a defective title and the plaintiff was not interested in the suit property, he is not entitled for the discretionary relief. It is also contended that even the agreement to sell in question is also not registered.

11. As noted above, the appellant/plaintiff had already taken a stand in the earlier suit for possession and permanent injunction filed by respondent/defendant that due to defective title of the respondent/defendant in respect of suit property, he was not interested in purchasing the suit property. The said suit was decreed in favour of respondent/defendant on an application under Order 12 Rule 6 of CPC. The observations of the learned Civil Judge in earlier suit in this regard are as under:-

"4. Thus it is the admitted case of the defendant that due to defective title of the suit property, the defendant did not want to purchase the suit property. It is the case of the defendant that thereafter instead of claiming ownership as owner of the suit property, his status at the suit property is of a tenant on a rent at the rate of Rs. 3500/- per month. Thus, it is the case of the defendant himself that the defendant has left no other right at the suit property except as a right of tenant at the suit property. During argument, this court makes a specific query from the ld. counsel for the defendant that if there is any rent receipt of Rs.

3500/- per month or any document to substantiate the claim that the rent was @ Rs. 3500/- per month, then ld. counsel for the defendant submitted that the defendant has no such document in his favour."

12. The ld. ADJ has noted the aforesaid stand of the appellant and has held that there is no prima facie case in favour of appellant/plaintiff nor the balance of convenience lies in his favour. The ld. ADJ has also noted the undertaking of appellant/plaintiff in RFA 520/2011 wherein appellant has undertaken to vacate the premises by 30.04.2012 and has dismissed the application under Order XXXIX Rule 1 and 2 CPC.

13. In view of above discussion, no illegality is seen in the impugned order which calls for interference of this court.

The appeal is dismissed.

CM No. 9518/2012 (stay)

In view of the order on the main appeal, no further orders are required on the present application.

The same stands disposed of.

VEENA BIRBAL, J MAY 30, 2012 kks