Harjinder Pal Singh vs Vijay Sharma
2013 Latest Caselaw 3778 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI


+    CS(OS) 171/2010

%                                           Decided on: 27th August, 2013

      HARJINDER PAL SINGH
                                                                  ..... Plaintiff
                           Through      Mr. Rajat Aneja, Mr. Ishaan Chhaya,
                                        Advs.
                           versus

      VIJAY SHARMA
                                                                  ..... Defendant
                           Through      None.
Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA

MUKTA GUPTA, J. (ORAL)

1. By the present suit the plaintiff, inter alia, prays for a decree for

specific performance of the contract dated 29th May, 2009 in favour of the

plaintiff and against the defendant thereby directing the defendant to hand-

over the vacant and peaceful possession of property No. S-381, Lower

Ground Floor, Greater Kailash Part-I, New Delhi measuring about 200 sq.

yards and to execute the sale deed and other documents in favour of the

plaintiff along with the cost of the suit or in the alternative to pay double the

amount of earnest money paid to the defendant along with up to date interest

calculated at the rate of 18% per annum till the date of realisation.

2. The suit came up for hearing on 2nd February, 2010 when in view of

the prima facie case being made out by the plaintiff as he had paid Rs. 34

lakhs out of a total sale consideration of Rs. 36 lakhs, this Court directed

status quo qua the suit property to be maintained. On 20th April, 2010

learned counsel for the defendant entered appearance and was granted four

weeks time to file the written statement and reply to the interim applications.

On 5th August, 2010 learned counsel for the plaintiff took an objection that

the written statement has been filed beyond the statutory period of time.

When the matter came up on 27th September, 2010 learned counsel for the

defendant sought time to file an application under Order VIII Rule 1.

However, since learned counsel for the defendant did not appear to address

arguments on this application i.e. IA No. 16884/2010 thus the same was

dismissed by the learned Joint Registrar vide order dated 14 th September,

2011. No appeal against the said order was filed, hence the same has

become final. In the meantime, the plaintiff filed an application under Order

VIII Rule 10 CPC. However keeping in view the reliefs prayed in the suit

this Court did not pass a decree under Order VIII Rule 10 CPC. The

defendant was proceeded ex-parte on 8th May, 2012 where after the plaintiff

led ex-parte evidence. Plaintiff examined five witnesses.

3. The case of the plaintiff is that the defendant agreed to sell property

No. S-381, Lower Ground Floor, Greater Kailash Part -I measuring about

200 sq. yards for a total consideration of 36 lakhs. Out of the said sale

consideration, the plaintiff paid to the defendant a sum of Rs. 34 lakhs on

various dates, receipts whereof were issued by the defendant. The time for

completion of the agreement was fixed on or before 28th November, 2009.

The balance amount of Rs. 2 lakhs was to be paid by the plaintiff to the

defendant at the time of handing over the vacant and peaceful possession of

the suit property along with executing the original documents in favour of

the plaintiff before the Sub-Registrar Office. However, the defendant failed

to perform the agreement dated 29th May, 2009 and execute the documents

regarding the same even after receiving Rs. 34 lakhs. The plaintiff showed

his readiness and willingness to pay the balance amount of Rs. 2 lakhs. As

the defendant did not come forward to fulfil his promise, a legal notice dated

4th December, 2009 through counsel was sent to the defendant. Subsequent

to the issuance of notice a settlement was arrived at between the plaintiff and

defendant on 22nd December, 2009 wherein the defendant paid two cheques

of Rs. 34 lakhs each i.e. double the amount paid by the plaintiff as the

earnest money and assured that the cheques would be encashed on

presentation. However, when the cheques were presented, they were not

honoured and thus the plaintiff took legal action against the defendant even

on that ground by filing a criminal complaint under Section 138 Negotiable

Instruments Act.

4. In support of his evidence, the plaintiff examined himself as PW1 and

by way of affidavit deposed the facts as stated above. He exhibited the

original agreement to sell and purchase dated 29 th May, 2009 as Ex.PW1/1.

The payments were made by the plaintiff as under:

a) A sum of Rs. 10 lakhs was paid on 29th May, 2009 out of which Rs. 5 lakhs was paid in cash and a sum of Rs. 5 lakhs was paid vide cheque bearing No. 18748 dated 29th May, 2009 drawn on State Bank of Patiala, Shiv Nagar, WZ-III, New Delhi. The original receipt for the sum of Rs. 10 lakhs dated 29th May, 2009 has been exhibited as Ex.PW1/2.

b) A sum of Rs. 5 lakhs was paid on 12th June, 2009 out of which a sum of Rs. 1 lakh was paid in cash and a sum of Rs. 4 lakhs was paid vide a cheque bearing No. 187156 dated 12 th June, 2009 drawn on State Bank of Patiala, Shiv Nagar, WZ-III, New Delhi. The original receipt for a sum of Rs. 5 lakhs dated 12th June, 2009 has been exhibited as Ex.PW1/3.

c) A sum of Rs. 5 lakhs was paid vide receipt dated 19 th August, 2009 out of which a sum of Rs. 2 lakhs was paid vide cheque bearing No. 193826 dated 19th August, 2009 drawn on State Bank of Patialia,

Shiv Nagar, WZ-III, New Delhi and a sum of Rs. 3 lakhs was paid in cash. The original receipt for a sum of Rs. 5 lakhs dated 19 th August, 2009 has been exhibited as Ex.PW1/4.

d) A sum of Rs. 14 lakhs was paid in cash on 25 th November, 2009 and the original receipt in this regard has been exhibited as Ex.PW1/5.

5. Thus, the plaintiff has exhibited the original agreement to sell and the

original receipts showing payment of a total sum of Rs. 34 lakhs to the

defendant, out of the total sale consideration of Rs. 36 lakhs. The plaintiff

also exhibited the legal notice dated 4th December, 2009 vide Ex.PW1/6

granting the defendant 10 days time for the purpose of executing the

necessary documents for selling the suit property and to hand-over the

vacant physical possession of the suit property in terms of the agreement to

sell and purchase dated 29th May, 2009.

6. It is further stated that in the last week of December, 2009 the

defendant voluntarily agreed to pay double the amount paid by the plaintiff

and on the pretext of settling the matter executed a settlement agreement

Ex.PW1/15 between the parties duly witnessed by Chander Prakash and

Gurmeet Singh. The defendant handed over two cheques bearing No.

015212 and 015213 dated 25th December, 2009 and 30th December, 2009

respectively drawn on Union Bank of India, Branch Yusuf Sarai, New

Delhi-110016. On presentation the two cheques bounced whereupon the

plaintiff filed a complaint against the defendant under Section 138 of the

Negotiable Instruments Act being Complaint Case No. 2682/2010 before the

learned Metropolitan Magistrate, Delhi. The return memo has been

exhibited as Ex.PW1/13.

7. In support of his evidence the plaintiff also examined Shri Lalit K.

Bhalla PW2 a witness to the agreement to sell and purchase dated 29 th May,

2009 who stated that the agreement was executed in his presence and he

signed the same at point 'A'. Shri Lalit Bhalla also identified his signatures

on all the receipts exhibited as Ex.PW1/2 to Ex.PW1/5. PW3 Shri Gurmeet

Singh also appeared in the witness box in support of the claim of the

plaintiff and stated that the original settlement dated 22nd December, 2009

exhibited vide Ex.PW1/15 was executed in his presence by the plaintiff and

the defendant, when two cheques of Rs. 34 lakhs each were handed over to

the plaintiff. He also identified his signatures on the settlement Ex.PW1/15

at point 'A'.

8. PW4 Sardar Satyender Singh, Assistant Manager, State Bank of

Patiala, Shiv Nagar New Delhi was examined and he exhibited the cheque

return memos Ex.PW4/1a and 1b and the cheque return report Ex.PW4/2.

He also exhibited the statement of account of the plaintiff as Ex.PW4/3. The

plaintiff examined PW5 Shri M.M. Upadhaya, Mauza Clerk, West District,

Record Room (Criminal), Tis Hazari who brought the judicial file of

criminal case No. 268/2010 when the certified copies exhibited as

Ex.PW1/14 (collectively) were compared and found to be genuine certified

copies of the original record. The plaintiff also filed his evidence by way of

additional affidavit and exhibited the earlier sale deed dated 8 th May, 2008

executed in favour of the defendant in respect of the suit property which was

a registered document registered as document No. 7028 in Additional Book

No. 1, Vol. No. 8433 on pages 99-110 dated 8th May, 2008 in the office of

Sub-Registrar Sub-District-V, New Delhi as Ex.PW1/16.

9. From the evidence on record the plaintiff has proved that the

defendant is the owner of the suit property and had entered into a valid and

legal agreement to sell dated 29th May, 2009 for a total sale consideration of

Rs. 36 lakhs. The plaintiff was and is willing to perform his part of the

contract. The defendant not only failed to perform his part of the contract

after receiving the notice dated 4th December, 2009, he also entered into a

settlement deed with the plaintiff and handed over two cheques of Rs. 34

lakhs which cheques also were not honoured. Since the plaintiff seeks

specific performance of an agreement dated 29th May, 2009 entered into at

Delhi and for a property situated in Delhi, this Court has territorial

jurisdiction to entertain the same. Consequently, a decree for specific

performance of the agreement dated 29th May, 2009 is passed in favour of

the plaintiff and against the defendant thereby directing the defendant to

execute the sale deed and other documents in favour of the plaintiff and to

hand-over the vacant and peaceful possession of the property No. S-381,

Lower Ground Floor, Greater Kailash Part-I, New Delhi-110048

admeasuring about 200 sq. yards. The plaintiff is directed to deposit a sum

of Rs. 2 lakhs with the Registrar General of this Court within three weeks

which will be released to the defendant after execution of the sale deed in

favour of the plaintiff. The amount so deposited by the plaintiff shall be

kept in a fixed deposit. The defendant is also directed to pay costs of Rs.

25,000/- to the plaintiff.

10. Suit stands decreed as above.

(MUKTA GUPTA) JUDGE AUGUST 27, 2013 'ga'