Suminder Singh Reen vs Satya Khurana
2012 Latest Caselaw 5777 Del

*         IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            CS(OS) 79/2012

                                              Date of Decision: 26.09.2012

IN THE MATTER OF
SUMINDER SINGH REEN                                      ..... Plaintiff
                               Through: Ms. Kamlesh Mahajan, Advocate
                               with plaintiff in person.

                    versus


SATYA KHURANA                                              ..... Defendant
                               Through: Defendant is proceeded ex-parte.


CORAM
HON'BLE MS.JUSTICE HIMA KOHLI

HIMA KOHLI, J. (Oral)

1. At the outset, learned counsel for the plaintiff states that the

relief in the present suit may be confined to prayers (a), (b) and (d) as

she does not wish to press prayer clause (c) which is for the relief of

compensation. Leave, as prayed for, is granted. The relief in the present

suit is confined to prayers (a), (b) and (d), while excluding prayer clause

(c).

2. The plaintiff has instituted the present suit against the

defendant in respect of the ground floor of premises bearing No.80/65-A,

Malviya Nagar, New Delhi (hereinafter referred to as 'the suit premises')

praying inter alia that a decree of specific performance be passed in his

favour and against the defendant, directing her to co-operate with the

plaintiff for getting the Sale Deed dated 30.11.2011 in respect of the suit

premises registered in the office of the Registrar of Assurances and hand

over vacant peaceful possession thereof to the plaintiff.

3. It is averred in the plaint that the plaintiff had wanted to

purchase a property in the locality of Malviya Nagar. The son of the

defendant, who is stated to be a property dealer, arranged for his mother

to sell the suit premises to the plaintiff. After negotiations, the defendant

had agreed to sell the ground floor of the suit premises to the plaintiff for

a total sale consideration of `28 lacs. The plaintiff paid a sum of `11 lacs

to the defendant in cash as part sale consideration, thus leaving a sum of

`17 lacs as due and payable to the defendant.

4. Though there is no averment in the plaint as to the manner in

which the remaining sum of `17 lacs was paid by the plaintiff to the

defendant, counsel for the plaintiff states that the modality of paying the

balance amount by the plaintiff has been narrated in the recital of the

Sale Deed dated 30.11.2011 of the suit premises that was executed by

the defendant in favour of the plaintiff. Para 1 of the Sale Deed, narrates

that the defendant had received a sum of `28 lacs from the plaintiff and

out of the said amount, a sum of `17,50,000/- had been received in cash

and the balance sum of `10,50,000/- was received by virtue of two

cheques dated 26.11.2011 and 28.11.2011 for `7,50,000/- and

`3,00,000/- respectively.

5. It is the case of the plaintiff that on 25.11.2011 he had

purchased stamp duty worth `1,68,000/- and the Sale Deed was executed

by the parties on 30.11.2011. The stamp duty purchased by the plaintiff

is marked as Ex.PW1/3. The said Sale Deed (Ex PW1/2) was signed by

the parties on every page and it bears the finger prints and thumb

impression of the plaintiff and the defendant on the reverse side of two

pages. Further, it is submitted that Form-A enclosed with the Sale Deed

was duly signed by the defendant after she had received the entire sale

consideration. However, after executing the Sale Deed, the defendant

failed to accede to the repeated requests of the plaintiff to get the said

document registered. Finally, when the plaintiff got suspicious about the

conduct of the defendant and the manner in which, she was dilly-dallying,

the plaintiff was constrained to issue a letter dated 15.12.2011

(Ex.PW1/4) to the defendant calling upon her to get the Sale Deed

registered. However, the aforesaid letter was returned by the postal

authorities with the remark that no such person was residing at the said

address. The aforesaid article has been exhibited as Ex.PW1/5. The site

plan of the suit premises has been filed by the plaintiff and is marked as

Ex.PW1/1. In the aforesaid circumstances, the plaintiff claims that he had

no option but to institute the present suit on 09.01.2012.

6. The present suit was registered on 10.01.2012 and summons

were issued to the defendant, returnable for 08.05.2012. On the interim

application filed by the plaintiff, it was directed that the defendant would

maintain status quo with regard to the title and possession of the suit

premises. On 08.05.2012, it was reported that the defendant had refused

to accept the summons. Accordingly, vide order dated 29.05.2012, the

defendant was proceeded against ex-parte and the plaintiff was directed

to file an affidavit by way of evidence. An affidavit by way of evidence

was filed by the plaintiff on 27.07.2012. The same is marked as

Ex.PW1/X. The plaintiff has tendered his examination-in-chief affidavit

alongwith the documents marked as Ex.PW1/1 to PW1/5. He had also

produced the original Sale Deed before the Joint Registrar that was

perused and returned. Based on the aforesaid evidence, the plaintiff

prays for a decree of specific performance against the defendant in

respect of the suit premises.

7. This Court has heard the counsel for the plaintiff and

examined the evidence placed on record in the light of the averments that

have been made in the plaint.

8. As noticed above, in the present case, the plaintiff had

purchased stamp duty worth `1,68,000/- (Ex.PW1/3) on 25.11.2011. The

documents filed by the plaintiff reveals that the Sale Deed was duly

executed on 30.11.2011. The same mentions the fact that the sale

consideration of the suit premises was `28 lacs. The details of the stamp

duty purchased, apart from the details of the suit premises, its land value

and the cost of construction find mention on the first page of the Sale

Deed. Learned counsel for the plaintiff has pointed out that the Sale Deed

(Ex. PW1/2) bears the signatures of the plaintiff and the defendant on

each page and it also bears the thumb impression and finger prints of the

plaintiff and the defendant on the reverse side of the first and second

pages. In the first para of the recitals contained in the Sale Deed, the

parties have confirmed the fact that the total sale consideration of the suit

premises is `28 lacs and that the entire amount had been received by the

defendant from the plaintiff. It is submitted by the counsel for the

plaintiff that the only formality that was left to be completed was the

registration of the aforesaid Sale Deed and possession thereof.

9. As regards possession, though in para 3 of the Sale Deed it

has been mentioned that the defendant had handed over the vacant

peaceful possession of the suit premises to the plaintiff at the time of

execution thereof, counsel for the plaintiff submits that as a matter of

fact, the actual physical possession of the suit premises had not been

handed over to the plaintiff. However, there is no averment to the

aforesaid effect in the plaint. It is further explained by the counsel for the

plaintiff that the aforesaid recital was made a part of the Sale Deed for

the reason that the plaintiff had been orally assured by the defendant that

she would hand over the possession of the suit premises to him at the

time of getting the Sale Deed registered, which event had not occurred.

She further states that upon the present suit for specific performance

being decreed for the relief of registration of the Sale Deed, the plaintiff

shall thereafter proceed to take necessary steps for execution of the

judgment and decree in accordance with law for taking possession of the

suit premises.

10. As the averments made in the suit remain un-rebutted in the

absence of any contest thereto, the same are accepted as true and

correct.

11. In view of the aforesaid facts and circumstances, a decree for

specific performance is passed in favour of the plaintiff and against the

defendant, directing the defendant to render all necessary co-operation to

the plaintiff in getting the Sale Deed of the suit premises, i.e., ground

floor of premises bearing No.80/65-A, Malviya Nagar, New Delhi as

detailed in the site plan(Ex.PW1/1) registered in favour of the plaintiff and

thereafter, hand over vacant and peaceful possession thereof to him. It is

further directed that in case the defendant fails to cooperate with the

plaintiff by accompanying him to the office of the Registrar of Assurances

for getting the Sale Deed of the suit premises registered in his favour

within a period of three months, then Mr.Rajeev Kumar Bhardwaj (Mobile

No.9899978994) an officer of this Court, shall be authorized to take

necessary steps for and on her behalf for getting the Sale Deed registered

in favour of the plaintiff, for which purpose, he shall be paid a sum of

`40,000/- by the plaintiff.

12. The suit is disposed of with costs while quantifying the

counsel's fee as `20,000/-.

(HIMA KOHLI) JUDGE SEPTEMBER 26, 2012 rkb