Alok Gupta vs Rakesh Arora & Anr.
2012 Latest Caselaw 5717 Del

       *          IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                         Judgment delivered on : 24.09.2012

+      IA No. 6240/2010 (O. 39 R. 1&2 CPC) and 2890/2011 (O. 39 R. 4 CPC)
       in CS(OS) No. 906/2010

       ALOK GUPTA                                             ..... Plaintiff
                               Through:   Mr. Nikhil Malhotra, Advocate

                      versus

    RAKESH ARORA & ANR.                        ..... Defendant
                  Through: Mr. P.K. Rawal, Advocate
CORAM:
HON'BLE MR. JUSTICE V.K.JAIN

                               JUDGMENT

V.K.JAIN, J. (ORAL)

This is a suit for specific performance of the agreement to sell alleged to have been executed by the defendant in favour of the plaintiff 19.06.2008, whereby they agreed to sell DDA plot No. 306, pocket-6, Block A, Sector-28, Rohini to the plaintiff for a consideration of Rs 44 lakh. The case of the plaintiff is that he paid Rs 5 lakh to the defendant on that date and a separate receipt in this regard was executed by them. The balance amount was agreed to be paid within three months or on execution of lease dead in favour of the defendants. This is also the case of the plaintiff that the original allotment/demand letter dated 27.01.2004 was also handed over to him by the defendants at the time of execution of the agreement. It is further alleged that the plaintiff has been asking the defendants to inform him about the status of execution of the lease deed in their favour and the defendants had supplied original acknowledgment dated 02.07.2008, letter dated 10.09.2008 issued by DDA to them as well as original possession slip dated 23.09.2008,

sometime in October, 2008. According to the plaintiff, he has been approaching the defendants and requesting them to complete the formalities and receive the balance sale consideration of Rs 39 lakh from him, but the defendants had been postponing the matter on one pretext or the other.

2. Vide letter dated 05.05.2009, sent to the defendants, the plaintiff referring to his agreement with them, requested them to take necessary steps in the matter within three days from the date of receipt of the letter. The letter dated 05.05.2009 was replied by the defendants through counsel. The plea taken in the reply was that in fact there was no agreement between the parties for sale of plot in question and that the plaintiff had obtained signatures of defendants on some blank papers on the pretext of providing services of perpetual lease deed from DDA in their favour. The defendants denied having received Rs 5 lakh from the plaintiff. It was further alleged that the plaintiff had mischievously taken one of the files lying on the table pertaining to original papers, i.e., original allotment letter, possession slip, possession letter etc.

3. During the course of admission/denial of documents, defendants 1 and 2 have admitted through their counsel signatures on all the three pages of the agreement to sell relied upon by the plaintiff. This document also purports to bear thumb impression of the defendants. This is not the case of the defendants that this document does not bear their thumb impression. The defendants have also admitted their signatures on receipt of Rs 5 lakh though they have denied contents of the document. Again, this is not the case of the defendants that this document does not bear their thumb impression. The plea taken by the defendants is that their signatures were obtained on the pretext of providing services for execution of the lease deed in their favour is a matter which requires investigation during trial. It would be sufficient at this stage to say that normally, no one is required to give

signatures and thumb impressions on blank stamp papers and blank plain papers for availing services such as execution of the lease deed to be executed by DDA in favour of an allottee. Moreover, in their reply, the defendants do not say how the plaintiff knew them, how he came to offer his services to them and on which date they signed blank papers. No notice was sent by them to the plaintiff, stating therein that they had signed blank papers and asking him to return those papers. It was only in reply to a notice from the plaintiff that such a plea was taken by them.

4. The original allotment letters dated 19.01.2004 to 27.01.2004 with respect to plot No. 306, pocket-6, Block A, Sector-28, Rohini residential scheme has been filed by the plaintiff. The letter dated 10.09.2008 issued by DDA to the defendants asking them to take possession of plot in question as well as the original possession slip dated 10.09.2008 signed by the defendants have also been filed by the plaintiff. The original acknowledgment dated 02.07.2008 issued by DDA, acknowledging receipt of indemnity Bond, copy of passport copy, copy of PAN card, etc. from defendant No. 1 Rakesh Arora have also been filed by the plaintiff. The plea taken by the defendants, that the file containing these documents was surreptitiously removed by the plaintiff from the table, does not inspire confidence. Had that been the case, the first thing to defendant would have done was to lodge a report with the police reporting the alleged theft of their previous documents. Admittedly, no such step has been taken by the defendants till date, despite receipt of notice dated 05.05.2009 from the plaintiff, wherein he specifically set up the agreement to sell alleged to have been executed by the defendants in his favour.

5. The learned counsel for the defendants submits that the plaintiff as per their own case did not tender the balance sale consideration of Rs 39 lakh to the defendants within three months from the date of the alleged agreement dated 19.07.2008 which clearly show that he was not ready and willing to perform his

part of the contract. To my mind what is important in this regard is that the defendants have altogether denied having entered into an agreement to sell the suit property to the plaintiff. They have also denied having received Rs 5 lakh as part payment from him. This is not the case of the defendants that since the plaintiff failed to perform his part of the contract, they forfeited the part payment received by him and /or terminated the agreement executed with him. Their case is of altogether denial of the transaction set up by the plaintiff. Prima facie, the defence taken by the defendants seems to be untenable. Therefore, at this stage, I need not go into the question as to whether the plaintiff had the means to pay the balance amount, throughout right from the date of execution of the agreement to sell in his favour or not.

6. The learned counsel for the plaintiff, on instructions, states that the plaintiff is willing to deposit the balance sale consideration of Rs 39 lakh by way of an FDR in the name of Registrar General of this Court within 15 days. Since prima facie the plaintiff has been successful in showing an agreement by the defendants to sell plot in question in his favour and the plea taken by the defendants is that they had not entered into any such transaction with the plaintiff, I am of the view that the suit property needs to be preserved during pendency of the suit so that the defendants do not give a fait accompli to plaintiff by disposing of the suit property by creating third party interest therein , during pendency of the suit.

7. The question of balance of convenience in such matters was considered by me in my order dated 24.8.2012 in Sarathi Estates Pvt. Ltd. v. S.L. Dosaj & Ors. [CS(OS) No.2040/2006 decided on 24.8.2012] and the following view was taken in that case:

"If an interim protection is not granted to the plaintiff, the defendants may dispose of the suit property or may create third

party interest therein, thereby defeating the very object behind filing of the suit. On the other hand, the defendants are not likely to suffer any irreparable loss in case they are restrained from selling, assigning or transferring the suit property and from creating any third

party interest therein during pendency of the suit. They will continue to enjoy the suit property as they are doing at present. The balance of convenience thus lies in favour of maintaining status quo during pendency of the suit.

In view of the decision of Division Bench of this Court in Mohan Overseas P. Ltd vs. Goyal Tin & General Industries 169 (2010) DLT 487 (DB), it would be appropriate if the plaintiff is directed to deposit the balance sale consideration in this Court by way of an FDR in the name of Registrar General of this Courtinitially for a period of one year. Such a condition will also ensure that having obtained an interim order, the plaintiff does not protract the trial of the case and the

final decision can be rendered at an early date.

8. For the reasons stated hereinabove, both the applications stand disposed of by directing that in case the plaintiff deposits the balance sale consideration amounting to Rs 39 lakh by way of an FDR in the name of Registrar General of this Court within 15 days from today, the parties shall maintain status quo with respect to title, possession of the suit property, during pendency of the suit. The observations made in this order being prima facie and tentative having been made only with a view to decide the application will not affect the decision of this case on merits.

The applications stand disposed of.

CS(OS) 906/2010 The following issues are framed on the pleadings of the parties:-

1. Whether documents evidencing agreement to sell and receipt dated 19.06.2008 were signed by the defendants when they were blank papers, as alleged in the written statement? OPD

2. Whether the defendants agreed to sell the suit property to the plaintiff for a consideration of Rs 44 lakh and received part consideration, amounting to Rs 5 lakh from him, as alleged in the plaint?

3. Whether the plaintiff has always been ready and willing to perform his part of the agreement dated 19.06.2008? OPP

4. Whether the original documents of the suit property filed by the plaintiff were stolen by him in the manner, alleged in the written statement? OPD

5. Whether the plaintiff is entitled to specific performance of the agreement to sell dated 19.06.2008? OPP

6. Relief.

No other issue arises or is claimed.

The affidavit by way of evidence be filed within four weeks. On the request of the learned counsel of the plaintiff, Mr R.C. Yaduvanshi, retired Additional District & Sessions Judge is appointed as the Local Commissioner to record the evidence of the parties. His fee is fixed at Rs.50,000/- which shall initially be paid by the plaintiff. The final order, as to who has to bear the cost of the Local Commissioner, would be passed at the time of final disposal of the suit.

The Local Commissioner shall as far as possible conclude the recording of evidence within three months of the parties appearing before him after admission/denial of the documents is over. The parties are directed to appear before the Local Commissioner on 02.11.2012 at 04.00 pm for fixing dates for

recording evidence.

List the matter before Court for directions on 05.03.2013.

V.K. JAIN, J SEPTEMBER 24, 2012/bg/rd