Smt. Swati Verma vs Mr. Jagdish Baweja
2013 Latest Caselaw 1208 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                   Date of decision: 12th March, 2013
+                             CS(OS) 610/2005
        SMT. SWATI VERMA                                       ..... Plaintiff
                     Through:          Mr. Kishore M. Gajaria & Mr. Piyush
                                       Sachdeva, Advs.
                           versus
        MR. JAGDISH BAWEJA                                   ..... Defendants
                     Through:           None.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.

This suit was originally filed by one Sh. Sanjay Panda against the now

sole defendant Shri Jagdish Baweja and the now sole plaintiff Smt. Swati

Verma, for specific performance of an Agreement dated 9 th July, 2004 by the

said Shri Jagdish Baweja for sale of property no.E-78, DDA Flat, Ground

Floor, Malviya Nagar Extension, Saket, New Delhi to the said Shri Sanjay

Panda for a total sale consideration of Rs.32,50,000/-. The now sole plaintiff

Smt. Swati Verma was impleaded as defendant no.2 in the suit averring that

Sh. Jagdish Baweja had subsequently vide Agreement to Sell dated 20 th

April, 2005 agreed to sell the same flat to the said Smt. Swati Verma.

Accordingly, relief of declaring the Agreement to Sell dated 20 th April, 2005

in favour of Smt. Swati Verma as void, was also claimed.

2. Summons of the suit were issued to both Sh. Jagdish Baweja and Smt.

Swati Verma and vide ex parte order dated 9th May, 2005 they were also

restrained from selling, transferring, parting with possession, creating third

party rights or from effecting any change in the said flat. Vide subsequent

order dated 23rd May, 2005 on the application of Smt. Swati Verma, she was

permitted to carry out repair works of plumbing, sewage, electrification etc.

in the said flat.

3. The defendant Sh. Jagdish Baweja appeared through Advocate on 2 nd

September, 2005 and 23rd November, 2005 but neither filed any written

statement nor appeared thereafter.

4. Smt. Swati Verma filed a written statement inter alia stating that the

said Sh. Jagdish Baweja, vide registered Agreement to Sell, General Power

of Attorney, Will, Receipt, Possession Letter all dated 20th April, 2005, had

agreed to sell the flat to her for a total sale consideration of Rs.15 lacs of

which 10 lacs had been paid by her and the balance Rs.5 lacs was to be paid

at the time of Sale Deed after conversion of the leasehold in the flat into

freehold, and denying the claim of Sh. Sanjay Panda for specific

performance of the Agreement to Sell dated 9 th July, 2004 in his favour.

Collusion was also alleged between Sh. Sanjay Panda and Sh. Jagdish

Baweja.

5. IA No.2720/2006 was filed by the said Sh. Sanjay Panda and Smt.

Swati Verma under Order 23 Rule 3 of the CPC. As per the compromise

recorded in the said application, the said Smt. Swati Verma who was then

defendant no.2 agreed to pay to Sh. Sanjay Panda a sum of Rs.8 lacs in full

& final settlement of all his claims under the Agreement to Sell dated 9th

July, 2004 in his favour and Sh. Sanjay Panda agreed to assign all his rights

under the said Agreement in favour of the said Smt. Swati Verma. It was

also a term of the said settlement that the said Smt. Swati Verma will

continue this suit against Sh. Jagdish Baweja.

6. It may be mentioned that the said Smt. Swati Verma had also, after

the institution of the present suit, filed CS(OS) 638/2005 in this Court

against Sh. Sanjay Panda and Sh. Jagdish Baweja for injunction, declaration

etc. relating to the same flat. In the Compromise Application aforesaid it was

also recorded that Smt. Swati Verma shall withdraw the said CS(OS)

638/2005 and transpose herself as plaintiff in the present suit.

7. The said Compromise Application came up before this Court on 7 th

March, 2006 when none appeared for Sh. Jagdish Baweja. This Court in the

order of that date, finding the compromise to be lawful, and after recording

the statements of the parties, allowed the compromise. Accordingly Smt.

Swati Verma was transposed as the plaintiff.

8. The suit was listed before this Court on 9 th March, 2007 when finding

that the defendant Sh. Jagdish Baweja was not appearing, notice was ordered

to be issued to him as well as to the Advocate who had earlier appeared for

him. Notice could not however be issued to the Advocate who had earlier

appeared for Sh. Jagdish Baweja since no Vakalatnama in his favour was on

record. Sh. Jagdish Baweja failed to appear inspite of service of notice and

was vide order dated 27th July, 2007 proceeded against ex parte and the

plaintiff Smt. Swati Verma was directed to file affidavits by way of her ex

parte evidence.

9. It may be recorded that CS(OS) 638/2005 supra filed by Smt. Swati

Verma was withdrawn by her on 7 th March, 2008 with liberty to pursue the

present suit and which liberty was granted. Though the copy of the said

order was not on record but the counsel for the plaintiff Smt. Swati Verma

has today handed over the same in Court and which is taken on record.

10. The plaintiff Smt. Swati Verma filed her affidavit by way of evidence

and additional affidavit by way of evidence and closed her ex parte

evidence. The counsel for the plaintiff has been heard.

11. The plaintiff Smt. Swati Verma has in her ex parte evidence proved

the registered Agreement to Sell for a sale consideration of Rs.15 lacs

executed by the defendant Sh. Jagdish Baweja in her favour as Exhibit PW-

1/2, the registered General Power of Attorney with respect to the said flat

executed by the defendant Sh. Jagdish Baweja in her favour as Exhibit PW-

1/3, the registered Will with respect to the said flat executed by the

defendant Sh. Jagdish Baweja in her favour as Exhibit PW-1/4 and the

receipt executed by the defendant Sh. Jagdish Baweja of Rs.10 lacs from the

plaintiff Smt. Swati Verma as Exhibit PW-1/5 and the possession letter

confirming delivery of possession by the defendant Sh. Jagdish Baweja of

the said flat to the plaintiff Smt. Swati Verma as Exhibit PW-1/6. She has

further proved that she, since 20th April, 2005, and in pursuance to the

Registered Agreement to Sell, is in possession of the said flat; that the

defendant Sh. Jagdish Baweja is missing.

12. Though there is no document to show the title of the defendant Sh.

Jagdish Baweja to the said flat but the registered Agreement to Sell in favour

of the plaintiff Smt. Swati Verma records that the said flat was allotted to the

defendant Sh. Jagdish Baweja by the Delhi Development Authority vide

DDA file dated 25th March, 1981. Even otherwise it can safely be presumed

that the Sub Registrar of Assurances before registering the Agreement would

have satisfied itself of the title of the defendant Sh. Jagdish Baweja to the

said flat.

13. The defendant Sh. Jagdish Baweja having chosen not to contest the

suit, there is no reason to not accept the ex parte evidence of the plaintiff

Smt. Swati Verma also to the effect that she has been ready and willing to

perform her part of the Agreement and it is the defendant Sh. Jagdish

Baweja who has failed to get the flat converted into freehold.

14. I am therefore satisfied, of the Agreement by the defendant Sh.

Jagdish Baweja to sell the flat aforesaid to the plaintiff Smt. Swati Verma

and of the plaintiff Smt. Swati Verma having always been ready and willing

to perform her part of the Agreement and the discretion implicit in the grant

of the relief of specific performance being required to be exercised in favour

of the plaintiff Smt. Swati Verma.

15. The plaintiff Smt. Swati Verma is thus entitled to a decree for specific

performance of the Agreement to Sell dated 20th April, 2005.

16. As per the said Agreement, the plaintiff Smt. Swati Verma was

entitled to get the said flat transferred, mutated in her name and the unearned

increase or conversion charges were agreed to be borne by the defendant Sh.

Jagdish Verma.

17. The defendant Sh. Jagdish Verma having failed to get the same, the

plaintiff Smt. Swati Verma is entitled to pay unearned increase or

conversion charges if any payable to the DDA with respect to the said flat

and to deduct the amount thereof from the balance sale consideration of Rs.5

lacs payable to the said Sh. Jagdish Baweja and either pay balance if any

remaining to Sh. Jagdish Baweja or if he is not available, to deposit the same

in this Court.

18. A decree is accordingly passed in favour of the plaintiff Smt. Swati

Verma and against the defendant Sh. Jagdish Baweja of specific

performance of the Agreement to Sell dated 20 th April, 2005 by directing the

defendant Sh. Jagdish Baweja to have the leasehold rights in flat no. E-78,

DDA Flat, Ground Floor, Malviya Nagar Extension, Saket, New Delhi

converted into freehold and to thereafter execute the Sale Deed of the said

flat in favour of the plaintiff Smt. Swati Verma. The plaintiff Smt. Swati

Verma shall also be entitled to costs of this suit as per schedule, from the

defendant Sh. Jagdish Baweja.

Decree sheet be drawn up.

RAJIV SAHAI ENDLAW, J MARCH 12, 2013 pp