Sunil Kumar Verma vs Raj Kumar Bhagat
2014 Latest Caselaw 7110 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      CS(OS) 1822/2006
%                                     Date of decision: 23rd December, 2014
       SUNIL KUMAR VERMA                       .... Plaintiff
           Through: Ms.Anu Mehta and Mr.Vikram Pratap, Advocate

                          versus

       RAJ KUMAR BHAGAT                                    ..... Defendant
            Through: None

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

G.S.SISTANI, J. (Oral)

1. Present suit has been filed by the plaintiff for the specific performance of agreement to sell dated 19.04.2006.

2. Summons in the suit and notice in the application under order XXXIX Rules 1 & 2 were issued on 22.09.2006 and 16.01.2007. Counsel for the defendant entered appearance on 02.05.2007 and sought time to file written statement. During the pendency of the suit, defendant had died, therefore, on an application filed, the Legal Representatives of the defendant were brought on record. The written statement filed on behalf of the deceased defendant was adopted by the LRs of the deceased defendant.

3. Admission/denial of documents was not conducted as despite opportunity being granted, original documents were not filed by the parties. Further, on the pleadings of the parties six issues were framed on 01.02.2010.

4. PW1 i.e. the plaintiff was examined and discharged on 22.02.2012 and the evidence of plaintiff was closed vide order dated 05.07.2012. Despite various opportunities defendant failed to lead evidence, consequently,

right of the defendant to lead evidence was closed vide order dated 08.11.2013.

5. Plaintiff has filed his affidavit by way of evidence and same has exhibited as Ex.PW1/A. PW1 has deposed in his evidence that he is a small shopkeeper and carrying on his business from a rented shop in Madhu Vihar, Delhi which is his only source of Income. He intended to purchase a small shop in Delhi to cut down the monthly rental payable by him and for that purpose he sold his plot in Greater Noida on 30.06.2009.

6. PW1 has also deposed that in Times of India dated 09.04.2006, he read an advertisement given by the defendant towards sale of his shop no.12, CSC, Pocket D, Vasant Kunj, New Delhi measuring 9.35 sq. mtrs. (hereinafter referred to as the suit property). He contacted the defendant on his mobile phone as given by him in the advertisement. Defendant informed the plaintiff that he had applied for conversion of the suit property to free hold and same was under process.

7. PW1 has further deposed that on 19.04.2006, plaintiff and defendant fixed a meeting to finalize the deal and the terms thereunder. Defendant showed the suit property to the plaintiff and quoted the price as Rs.22 Lacs. After negotiation the price was finalized at Rs.21.50 Lacs on the ground that the defendant was giving a freehold shop to the plaintiff, and the said shop was having much higher value. Upon payment of Rs.2.0 lacs by plaintiff to defendant as token money (Bayana), defendant agreed to sell the suit property to plaintiff orally on 19.4.2006, the terms of which were reproduced into writing vide a receipt cum agreement to sell on 27.4.2006, the same has been exhibited as Ex.PW-1/2. As per the said receipt cum agreement to sell, the remaining amount of Rs.19.50 Lacs was payable on 17.06.2006 and 19.07.2006 in two equal monthly installments. It has also been deposed that out of the advance receipt of

first installment, the defendant was to arrange all the necessary documents/papers with permissions as required for the smooth transfer of the suit property.

8. Further, on enquiry by the plaintiff about the conversion of the suit property to freehold, the defendant demanded some more money from the plaintiff for conversion fee to be submitted in DDA. Plaintiff, under protest, made a payment of Rs.25,000/- to the defendant in cash on 06.05.2006 and thereafter defendant assured the plaintiff that he would get the draft of the said amount prepared and deposit it in DDA office. Defendant further asked the plaintiff to call him after two days time. Accordingly after two days when the plaintiff called the defendant, he asked the plaintiff to go to DDA office himself as the defendant was busy. On reaching DDA office, plaintiff came to know about a deficient fee for conversion charges of Rs.3187/-. Plaintiff deposited the said amount and informed the defendant.

9. PW1 has also deposed that in the first week on May, 2006, defendant started demanding payment of the first installment at the earliest on the plea that the defendant required money for investment purpose and the defendant threatened that if the payment is delayed he would impose heavy penalty and will also forfeit the advance money of Rs.2 lacs. He has also deposed that under the pressure of such threats, he made another payment of Rs.2 lacs on 21.05.2006 to the defendant for which the defendant issued a receipt and the same has been exhibited as Ex.PW-1/4.

10. PW1 has further deposed that on 15.6.2006, the defendant told him that though the first installment was due on 17.6.2006 but the plaintiff should arrange the amount on 16.6.2006 since the defendant required the money on 16.6.2006. He has also deposed that the plaintiff went along with his acquaintance to defendant's house and gave him Rs.9 lacs (Rupees Nine

lakhs only) and also gave him a proposed sale deed for his perusal and approval before the next date scheduled for the payment of the 2 nd installment. The defendant assured the plaintiff that he would finalize the said sale deed and would obtain all the necessary permissions/ clearances if any from the authorities and procure all the requisite legal papers/ documents including the finalized sale deed which both the parties would sign at the time of final payment and before the office of the Sub Registrar, Mehrauli.

11. PW1 has next deposed that on 10.07.2006, the plaintiff reminded the defendant to keep all the requisite legal documents ready including the conversion certificate and sale deed before the scheduled date of final payment which was 19.07.2006. The defendant assured the plaintiff that all the necessary papers were ready and would be brought by him on the scheduled date before the sub registrar's office at 10:30 AM. Defendant also offered the assistance of his Chartered Accountant for calculating/ computing and purchasing the requisite stamp papers for which the defendant asked the plaintiff to come to his residence itself by 9 AM on 19.07.2006 with the second installment.

12. Accordingly, on 19.07.2006 plaintiff carried the balance consideration money with him to the defendant's residence before 9 AM. The defendant telephoned his Chartered Accountant in front of the plaintiff and also asked for an amount of Rs.4 lacs to do the needful. Defendant further informed the plaintiff to bring passport size photographs and also two witnesses at the office of the Sub Registrar, Mehrauli by 11-11.30 AM and the defendant alongwith his Chartered Accountant would reach there as soon as possible. Accordingly, the plaintiff alongwith the witnesses went to the Sub Registrar's office at 11.30 AM and waited till 2.00 p.m but the defendant failed to come there. Plaintiff kept on calling on the

mobile and landline number of the defendant but the defendant did not pick up the all. He has also deposed that even on the next day defendant did not pick up his phone and when the plaintiff went to the house of the defendant, he found that defendant was not there and wife of defendant started misbehaving with the plaintiff.

13. PW1 has also deposed that finally on 01.08.2006 defendant picked up plaintiff's call and agreed to meet him the next day. Defendant confessed that he was unable to arrange all the documents and stamp papers because of which he did not want to face the plaintiff. However, the defendant assured the plaintiff that he would cooperate this time and asked for more time to procure requisite legal papers and also conversion certificate. Defendant promised to complete the sale transaction by 17.08.2006. Accordingly, as per the instructions of the defendant, plaintiff alongwith his wife went to the house of the defendant and found that the house was locked. Plaintiff came to know from the neighbours that the defendant has left for USA on 15.08.2006 to his son.

14. PW1 has next deposed that the plaintiff somehow got the telephone number of the son of the defendant and contacted him. Defendant's son assured the plaintiff that he will talk to his father, however later he also stopped responding to plaintiff's calls. He has also deposed that finally on 11.09.2006, plaintiff received a call from the defendant whereby the defendant told the plaintiff to forget about the suit property as the defendant wanted to retain it for his own use. When the plaintiff protested against the same, defendant started threatening him by saying that it is his shop and he can do whatever he wants to do.

15. PW1 has also deposed that the plaintiff is ready and willing to perform his part of the contract but the defendant has failed to perform his part and prays for a decree of specific performance.

16. I have heard counsel for the plaintiff and carefully perused the documents which have been placed on record along with the affidavit by way of evidence which has been filed. Advertisement given in Times of India on 09.04.2006 by the defendant has been exhibited as Ex.PW1/1. Receipt cum agreement to sell dated 27.4.2006 has been exhibited as Ex.PW1/2. The said receipt cum agreement is reproduced below:

"I, Raj Kumar Bhagat, s/o. late Sh.Amar Nath Bhagat, R/o.H-5/15, Malviya Nagar, 1st floor New Delhi-19 received a sum of Rs.2,00,000/- (Two lacs only) from Mr.Sunil Kumar Verma s/o. Late Sh.P.D. Verma R/o.RZ-39, Jeewan Park, Uttam Nagar, New Delhi-59 on 19.4.06 in the reference of Shop NO.12-D/4, Vasant Kunj Market, New Delhi. Settlement of full amount was Rs.21,50,000/- (Twenty one lacs fifty thousand) clearly will be paid in two parts. All taxes and other expenses will be met by Mr.Sunil Verma anyway. Due payment will be paid by 19 July, 2006.

                Sd/-                                           Sd/-
              Sunil Kumar Verma                           Raj Kumar Bhagat
              Sd/-                                               Sd/-
              1.HARSHIT SHARMA                             2. Rajan Chalha
                R/o H-171, Gamma-II           s/o Late Shri Ashok Kumar Chalha
                Greater Noida                              9818244690
                9312138449

Balance amount is 19,50,000/- and first part of this amount will be paid on 17 June and the rest amount on 19th July 2006.

              Sd/-                            Sd/-
              Sunil Kumar Verma               Raj Kumar Bhagat
              27/4/06"

17. Customer's record slip issued by DDA on receipt of Rs.3,186/- from plaintiff has been exhibited as Ex.PW1/4. Receipts dated 21.05.2006 and 16.06.2006 issued by the defendant on receiving Rs.2 lacs and Rs.9 lacs respectively, from the plaintiff has been exhibited as Ex.PW1/5 and Ex.PW1/6. Mutation letter dated 20.06.2005 issued by DDA in favour of

the defendant with respect to suit property has been exhibited as Ex.PW1/7.

18. On the basis of the documents placed on record, plaintiff has established that the plaintiff and defendant entered into an oral agreement on 19.04.2006 the terms of which were reproduced into writing by receipt cum agreement to sell dated 27.4.2006, whereby the defendant agreed to sell the suit property to the plaintiff for a total sale consideration of Rs.21.50 lacs. Plaintiff has also established that as per the agreement and demands of the defendant, plaintiff made a total payment of Rs.13,28,287/- including the due of conversion charges of Rs.3187/- paid by the plaintiff to the DDA on behalf of the defendant. Original receipts from DDA have been placed on record. Plaintiff has also claimed to have paid Rs.4.00 lacs to the defendant on 19.07.2006 for stamp papers, however, there is no documents to this effect. Plaintiff has been able to show that he is ready and willing to perform his part of the agreement.

19. In view of the above, present suit is decreed in favour of the plaintiff and against the defendant. Plaintiff shall tender the balance sale consideration to the Legal representatives of the defendant within eight weeks of receipt of this order. Legal representatives of defendant are directed to execute the sale deed and get the same registered in favour of the plaintiff with respect to Shop no.12, CSC, Pocket D, Vasant Kunj, New Delhi i.e. the suit property, on payment of balance sale consideration, failing which it will be open for the plaintiff to seek execution of the decree. Decree sheet be drawn up accordingly.

(G.S.SISTANI) JUDGE DECEMBER 23, 2014 ssn/pdf