M/S Bhanu Builder Pvt. Ltd. vs Murti Devi
2013 Latest Caselaw 2246 Del

F-29
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*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+      CS(OS) 948/2011 & I.A. 6306/2011

       M/S BHANU BUILDER PVT. LTD.         ..... Plaintiff
                    Through: Mr. D.K. Devesh, Advocate.

                          versus

       MURTI DEVI                                    ..... Defendant
                          Through: None.

%                                  Date of Decision: 14th May, 2013

CORAM:
HON'BLE MR. JUSTICE MANMOHAN

                              JUDGMENT

MANMOHAN, J: (Oral)

1. Present suit has been filed for specific performance, declaration and permanent injunction.

2. The facts of the present case are that the plaintiff had entered into an Agreement to Sell dated 09th June, 2010 with the defendant in respect of Plot No.104, Pocket B-10, Sector 23B, Dwarka, New Delhi admeasuring 80 sq. yds. (66 sq. meter) for a total consideration of Rs.22 lacs.

3. The plaintiff claims to have made payment of Rs.3 lacs to the defendant. Out of this amount, Rs.2 lacs was paid in cash and Rs.1 lac by cheque.

4. It is the plaintiff's case that it repeatedly approached the defendant for accepting the balance sale consideration and for executing the sale deed. According to the plaintiff, defendant on one pretext or the other kept on avoiding the execution of the sale deed and ultimately informed the plaintiff on 13th April, 2011 that she wanted Rs.50 lacs instead of Rs.22 lacs as sale consideration.

5. Thereafter, the plaintiff sent a legal notice dated 14 th April, 2011 through its counsel to the defendant. Since no reply was received by the plaintiff, it filed the present suit on 19th April, 2011.

6. As despite service, none appeared for the defendant, this Court on 05 th October, 2011, directed the defendant to maintain status quo with regard to the title, possession and construction of the suit property till further orders.

7. On 06th February, 2012, defendant was proceeded ex parte.

8. Thereafter, the plaintiff filed its evidence by way of affidavit dated 18th April, 2012. By this affidavit, plaintiff duly exhibited the Agreement to Sell dated 09th June, 2010, receipt dated 09th June, 2010 as well as the legal notice dated 14th April, 2011 sent by the plaintiff through its Advocate.

9. Having heard learned counsel for the plaintiff and having perused the ex parte evidence as well as documents placed on record, this Court is of the opinion that plaintiff has proved the facts stated in the plaint and has also exhibited the relevant documents in support of its case. Since the plaintiff's evidence has gone unrebutted, said evidence is accepted as true and correct.

10. Keeping in view the aforesaid, this Court is of the view that plaintiff has always been ready and willing to perform its part of Agreement to Sell

and that the transaction could not be completed only for the reason that defendant did not come forward to accept the balance sale consideration.

11. In view of the aforesaid facts of the present case, a decree of Specific Performance is passed in favour of the plaintiff and against the defendant directing the defendant to render all necessary cooperation to the plaintiff in getting the Sale Deed of the suit property i.e. Plot No.104, Pocket B-10, Sector 23B, Dwarka, New Delhi admeasuring 80 sq. yds. (66 sq. meter) registered in favour of the plaintiff and thereafter, hand over the vacant and physical possession thereof to it.

12. A decree of permanent injunction is also passed in favour of the plaintiff and against the defendant restraining from creating any third party interest/mortgage/sale/transfer/gift/exchange or parting with possession of the plaintiff in Plot No.104, Pocket B-10, Sector 23B, Dwarka, New Delhi admeasuring 80 sq. yds.

13. Plaintiff is directed to deposit the balance sale consideration of Rs.19 lacs with the Registry of this Court within a period of six weeks and the said amount is directed to be kept in an interest bearing Fixed Deposit Receipt initially for a period of one year. The defendant shall be entitled to withdraw the said amount along with the accrued interest, if any. Registry is directed to keep on extending the Fixed Deposit Receipt till the amount is withdrawn by the defendant.

14. It is further directed that in case the defendant fails to cooperate with the plaintiff by accompanying it to the office of Registrar for getting the suit property registered in its favour within a period of three months, then Mr. Janardan Tripathi, an officer of the Court, Cell No.9717394839 shall be

authorised to take necessary steps for and on behalf of the defendant for getting the sale deed registered in favour of the plaintiff for which purpose, he shall be paid a sum of Rs.50,000/- by the plaintiff.

15. The suit and application are disposed of with costs including counsel's fee quantified at Rs.25,000/-.

MANMOHAN, J MAY 14, 2013 js