Delhi High Court
Sunil Kumar vs Uma & Anr. on 24 February, 2014
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 1546/2010
% Judgment dated 24.02.2014
SUNIL KUMAR ..... Plaintiff
Through: Mr.V.P.Rana, Advocate
versus
UMA & ANR. ..... Defendants
Through:
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
G.S.SISTANI, J (ORAL)
1. The plaintiff has filed the present suit for specific performance of
agreement to sell dated 20.08.2009. After service defendants had entered
appearance. Written statement filed was returned with objections. The
objections were not removed and written statement was not brought on
record. Since 24.3.2011, the defendants were not represented and they
were proceeded ex-parte on 29.09.2011.
2. Plaintiff has led ex-parte evidence by filing affidavit by way of evidence
of the plaintiff, Sh.Sunil Kumar. The affidavit by way of evidence is
exhibited as Ex.PW-1/A. The plaintiff has deposed on the lines of the
plaint. As per the evidence of PW-1, he had entered into an agreement to
sell with the defendants on 20.08.2009 with respect to purchase of
property No.C-11, area measuring 116.1/2 sq.yd., out of rectangle No.10,
Kila No.17, situated in the area of village Asalatpur Khadar Abadi known
as Jeevan Park, Block-C, Pankha Road, New Delhi-110059 for a total sale
consideration of Rs.52 lakhs. It has been deposed by PW-1 that Rs.10
lakhs were paid in cash by him to the defendants as earnest money on the
CS(OS) 1546/2010 Page 1 of 5
date of signing of the agreement to sell i.e. on 20.08.2009 and further out
of the total agreed sum i.e. Rs.52 lakhs, Rs.31 lakhs stand paid to the
defendants. PW-1 has further deposed that since the property was
mortgaged to Central Bank of India, Sukhdev Vihar Branch even before
the present agreement was entered into, he is willing to clear the balance
loan amount with the bank as per clause 3 of the Agreement to Sell which
is roughly Rs.9 lakhs. As per the evidence of PW-1, the parties signed the
agreement to sell i.e. bayana agreement dated 20.08.2009. The original
agreement to sell has been exhibited as Ex.PW-1/1. The aforesaid
agreement to sell acknowledges Rs.10 lakhs paid in cash to the
defendants. The deponent has also testified that wherein the defendants
have acknowledged receipt of Rs.10.00 lacs in the Agreement to Sell on
20.08.2009 a separate receipt was also executed by the defendants, the
original receipt of which bearing thumb impression and signatures of the
defendants has been exhibited as Ex.PW-1/2. Further, Rs.5 lakhs were
paid to the defendants on 24.08.2009. The original receipt,
acknowledging Rs.5.0 lakhs has been exhibited as Ex.PW-1/3 which also
bears the signatures and thumb impressions of the defendants. Another
amount of Rs.5 lakhs were paid to the defendants on 26.08.2009, the
original receipt whereof has been exhibited as Ex.PW-1/4. Rs.7 lakhs
were paid on 28.08.2009, original receipt whereof has been exhibited as
Ex.PW-1/5. Rs.2 lakhs (2 cheques of Rs.1 lakh each in favour of
defendant No.2) were paid on 08.03.2010 and acknowledgment receipt
thereof has been exhibited as Ex.PW-1/6. The statement of accounts to
show that the cheques stand encashed has been filed as Ex.PW-1/7.
Mr.Sunil Kumar has also deposed that on 16.03.2010 the plaintiff paid
Rs.2 lakhs to the defendants on their specific demand for which
defendants issued a receipt/acknowledgment dated 16.03.2010 which is
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exhibited as Ex.PW-1/8. The copy of the reminder issued to the
defendants dated 30.03.2010 for execution of the sale documents in
compliance with the agreement has been exhibited as Ex.PW-1/9. The
courier receipt showing that the reminder was issued to the defendant has
been exhibited as Ex.PW-1/10. The proof of delivery by Blue Dart has
been exhibited as Ex.PW-1/11. It has also been deposed that the deponent
has all along been ready and willing to complete his part of the transaction
and in fact the deponent reached the office of Sub-Registrar, Janakpuri at
10:00 am on the appointed date along with the balance sale consideration
of Rs.21 lakhs. He waited till 1:00 pm and executed an affidavit dated
31.03.2010 before the Notary Public and also put his appearance before
Sub-Registrar-II, District-West, Delhi vide receipt No.005911 dated
31.03.2010 but the defendants did not reach the Sub-Registrar's office on
the appointed date and time. The receipt has been exhibited as Ex.PW-
1/12 and the affidavit before the Notary Public has been exhibited as
Ex.PW-1/13. PW-1 has further testified that on his instructions a legal
notice was issued to the defendants on 04.04.2010 which was sent by
Regd.A.D.Post as also by UPC on 05.04.2010. A copy of the notice has
been exhibited as Ex.PW-1/14 and the postal receipts have been exhibited
as Ex.PW-1/15 and Ex.PW-1/16. UPC receipts have been exhibited
as Ex.PW-1/17 and Ex.PW-1/18. The acknowledgment card received
back, which otherwise was duly received by Uma Bhatla has been
exhibited as Ex.PW-1/19 and the acknowledgement card received by
Rekha Bhatla has been exhibited as Ex.PW-1/20. Reliance has also been
placed on a handwritten note of Uma Bhatla dated 02.07.2010 wherein
she has acknowledged entering into an agreement to sell with the plaintiff;
the handwritten note is exhibited as Ex.PW-1/21. Plaintiff, who is present
in Court, has made a stated that he has all along been ready and willing to
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complete his part of the transaction and even now he is willing to pay the
balance consideration to the defendants after depositing the amount due to
the bank. The statement made in Court today shall be read as part of his
evidence.
3. I have heard the counsel for the plaintiff, carefully perused the affidavit
by way of evidence, considered the statement made by the plaintiff in
Court today and the original documents which have been placed on
record. The evidence of the plaintiff is unrebutted. Despite service, the
defendants have chosen not to contest the matter. The original agreement
to sell, which has been placed on record [PW-1/1] bears the thumb
impressions as also the signatures of the defendants. The plaintiff has
been able to establish that he has made a payment of Rs.31 lakhs to the
defendants out of the agreed sale consideration of Rs.52 lakhs. The
original receipts duly signed by the defendants acknowledging the
amounts received have been exhibited as Ex.PW-1/2 to Ex.PW-1/6. The
statement of accounts evidences the fact that Rs.2 lakhs paid to the
defendants by cheques stand encashed. The plaintiff has also established
his readiness and willingness to perform his part of the agreement from
the fact that he visited the office of the Sub-Registrar on 31.03.2010 and
also the fact that he expressed his willingness by means of a legal notice
issued to the defendants which was duly received by the defendants. The
postal receipts and acknowledgment cards have also been filed and
exhibited by the plaintiff. No response to the legal notice was issued by
the defendants. Defendant Uma Bhatla in her own handwriting has
admitted that she entered into an agreement to sell with the plaintiff.
Consequently, the present suit is decreed in favour of the plaintiff and
against the defendants. The plaintiff will be entitled to approach the
Central Bank of India, Sukhdev Vihar and clear the loan amount. After
CS(OS) 1546/2010 Page 4 of 5
the loan amount is cleared the bank will release the title deeds in
favour of the plaintiff. Any balance after loan amount is cleared shall
be tendered to the defendants and in case the defendants do not accept the
same and do not sign and execute the sale deed, the plaintiff shall deposit
the balance sale consideration in this Court within 10 days of receipt of
this judgment. After serving a notice to the defendants it will be open
for the defendants to complete the sale transaction and receive the balance
sale consideration simultaneously or else the plaintiff will be entitled to
legally execute the same. The amount shall be kept by the Registrar
General of this Court in a fixed deposit which would be renewed
periodically. The principal amount and interest so accrued shall be
released in favour of the defendants, once the documents are finally
executed. Decree-sheet be drawn up accordingly.
G.S.SISTANI, J.
FEBRUARY 24, 2014
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