Brijesh Kumar vs Bimla Devi
2014 Latest Caselaw 3810 Del

$~23
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Date of decision : 20th August, 2014

+                         CS(OS) 2206/2013

       BRIJESH KUMAR                            ..... Plaintiff
                    Through: Mr. Ravinder Narwal, Adv.


                          versus

       BIMLA DEVI                                     ..... Defendant
                          Through : Mr.Rajesh Kumar, Adv.

CORAM:
              HON'BLE MR. JUSTICE G.S.SISTANI

G.S.SISTANI, J. (Oral)

1. Present suit has been filed by the plaintiff for specific performance

of an Agreement to Sell dated 17.5.2013 and for permanent

injunction.

2. Summons in the suit and notice in the application were issued on

13.11.2013. Counsel for the defendant entered appearance on

13.3.2014 and sought four weeks' time to file the written

statement. Despite the matter being listed before the Joint

Registrar on 4.7.2014 and 11.8.2014, written statement was not

filed and consequently the right to file written statement was

closed on 11.8.2014 by the Joint Registrar. Counsel for the

plaintiff prays that a decree be passed against defendant under

Order VIII Rule 10 CPC as despite time being granted to counsel

for the said defendant to file the written statement, no written

statement has been filed. No written statement has been filed

neither any application for extension of time has been filed.

3. As per the plaint, the defendant claims herself to be the absolute

owner of the property bearing No.134 and 135 on the second floor

without roof rights, area measuring 26+26 = 52 sq.m., Pocket 16,

Block-E, Sector-8, Rohini, Delhi-85, situated in the Rohini

Residential Scheme having purchased the same from the DDA.

4. Further, as per the plaint, parties signed an Agreement to Sell on

17.5.2013 with respect to the suit property. The total sale

consideration was fixed at Rs.44,00,000/- out of which the

plaintiff has paid Rs.36,00,000/- to the defendants as earnest/

money advanced and a receipt acknowledging the receipt of the

said amount was executed on the same day i.e.17.5.2013. The

Agreement to Sell duly signed by the parties has been filed

alongwith the plaint. The Agreement to Sell acknowledges receipt

of Rs.36,00,000/- by the defendant alongwith a receipt, original of

which has also been placed on record.

5. It has been averred in the plaint that the sale was to be finalised

within a period of one month from the bank clearing/releasing the

documents of the property and thereafter the balance sale

consideration was to be paid.

6. Counsel for the plaintiff submits that several requests were made

to the defendant to clear the bank loan and complete the

transaction but no satisfactory response was received and

resultantly, a legal notice was issued to the defendant dated

24.9.2013. Copy of the legal notice and postal receipts have been

placed on record.

7. Counsel for the plaintiff further submitted that plaintiff has all

along been ready and willing to perform his part of the agreement

but it was the defendant who refused to honour the terms of

Agreement to Sell.

8. I have heard the counsel for the plaintiff and carefully perused the

plaint duly supported by the affidavit of the plaintiff and the

documents filed along with the plaint. The plaintiff has placed on

record the original Agreement to Sell and original receipt

evidencing receipt of payment of Rs.36,00,000/- by the defendant

both dated 17.5.2013 out of the agreed sale consideration of

Rs.44,00,000/-. Postal receipts have also been placed on record to

show that the legal notice was issued and served on the defendant.

The A.D. Card which bears the signatures of the defendant has

also been placed on record. Despite repeated requests and the

legal notice being served, the defendant has failed to complete the

transaction.

9. On the basis of documents placed on record, the plaintiff has been

able to establish that parties entered into an Agreement to Sell on

17.5.2013. Plaintiff paid Rs.36,00,000/- as is evident upon

reading the Agreement to Sell. Separate receipt has also been

placed on record. Plaintiff has also established that plaintiff has

all along been ready to comply with the terms and conditions of

the Agreement to Sell and willing to pay the remaining

consideration amount but it was defendant who despite repeated

requests and despite legal notice being served upon him failed to

complete the transaction.

10. For the reasons stated above and the fact that defendants have

failed to file their written statement within the time allowed, this is

a fit case to pass a decree under Order VIII Rule 10 CPC.

Accordingly, the present suit is decreed in favour of the plaintiff

and against the defendant. The defendant shall accept the balance

sale consideration within four weeks from today after clearing the

dues of the bank failing which it will be open to the plaintiff to

deposit the amount with the bank and upon clearance of loan

original title deeds would be handed over to the plaintiff by the

bank. In case there is any balance amount beyond Rs.8,00,000/-,

it will be handed over to the defendant who will execute the sale

deed in favour of the plaintiff.

11. Decree sheet be drawn up accordingly.

(G.S.SISTANI) JUDGE August 20, 2014 ns/pdf