M/S Bharat Buildtech(P) Ltd` vs Harmohanjit Singh
2014 Latest Caselaw 499 Del

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

+        CS(OS) 772/2013
%                                                     Judgment dated 27.01.2014
         M/S BHARAT BUILDTECH(P) LTD            ..... Plaintiff
                      Through : Ms.Vibha Mahajan Seth, Adv.

                              versus

         HARMOHANJIT SINGH                                             ..... Defendant
                     Through


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

G.S.SISTANI, J (ORAL)

    1.

Plaintiff has filed the present suit for recovery for recovery of Rs.50.00 lakhs along with interest @18%, per annum, from the date of filing the present suit till the date of realization.

2. Summons in the suit and notice in the application for stay were issued vide order dated 29.4.2013. By an order dated 22.7.2013 defendant was proceeded ex parte. Plaintiff has filed ex parte evidence by way of affidavit of Director of the plaintiff company (PW-1), who has deposed on the lines of the plaint. PW-1 has deposed that vide Resolution of the Board dated 17.4.2013 he was authorised to file the present suit, sign and verify the pleadings. A certified copy of the Board Resolution dated 17.4.2013 has been marked as PW-1/1. PW-1 has further deposed that in the month of August-September, 2012, the defendant, being desirous of selling the suit property, had approached the plaintiff company representing that he is the absolute, sole, exclusive owner and in physical

possession of the entire built up freehold property bearing No.26/78, West Patel Nagar, New Delhi, along with the super-structure and terrace/roof rights, ad measuring 100 sq. yards. The parties entered into an Agreement to Sell with respect to the sale of the aforesaid property on 4.9.2012. The total sale consideration was fixed at Rs.3,05,00,000/-. Original agreement has been placed on record and marked as Exhibit PW-1/2. As per the Agreement to Sell, the plaintiff had paid a sum of Rs.50,00,000/- to the defendant in the following manner:

"(i) Rs.25,00,000/- in cash;

(ii) Rs.25,00,000/- vide Cheque No.287130 dated 05.09.2012, drawn on HDFC Bank, East Patel Nagar Branch, New Delhi.

3. It has further been testified by PW-1 that on receipt of Rs.50,00,000/-, as part consideration, the defendant handed over vacant, peaceful and physical possession of the first floor and the second floor of the suit property to the plaintiff. Possession letter dated 4.9.2012 has been exhibited as Exhibit PW-1/5. Reliance has been placed on the Agreement to Sell dated 4.9.2012, relevant clauses of which read as under:

"At present there are tenants on First Floor and Second Floor. First Party out of his own costs and efforts will get vacated both the floors and after showing the vacant possession of first floor and second floor and showing all previous original ownership title and chain documents in which some are missing at present, after 15 working days of such event the part payment of Rs.1,00,00,000/- (Rupees One Crore only) will be paid by the second party ......"

4. Reliance is also placed on Clause 6 of the Agreement to Sell, which reads under:

"That the first party will handover all the previous original ownership, title and chain documents in respect of the said property

under sale to the second party within stipulated period as mentioned hereinabove."

5. It has also been deposed that as per the Agreement to Sell dated 4.9.2012 the defendant had undertaken to get physical and vacant possession of the first and second floor of the suit property from the tenants as he was not in possession of the same at the time of execution of the Agreement to Sell. Relevant documents, such as mutation, original lease deed and chain of documents from previous owners were also to be produced by the defendant, and thereafter the plaintiff was to pay the balance sum of Rs.1.00 crore to the defendant.

6. It has further been deposed that as per Clause 1 of the said agreement it was duly agreed between the parties that the defendant shall hand over peaceful, physical and vacant possession of the entire suit property to the plaintiff company on or before 3.3.2013. Similarly, the defendant agreed that he shall execute proper sale deed/sale documents/transfer documents in respect to the suit property in favour of the purchaser/plaintiff company or their nominee(s) in the office of the Sub-Registrar also before the stipulated date i.e. 3.3.2013, as mentioned in the said agreement. Thus, the parties had duly agreed to complete the entire sale transaction on or before 3.3.2013, meaning thereby that time was made the essence of the said Agreement to Sell dated 4.9.2012, with the consent of both the parties.

7. However, even though the plaintiff company made the payment of the part consideration of the sum of Rs.50.00 lakhs to the defendant, the defendant failed to get the First Floor and the Second Floor of the suit property vacated from the tenants or intimate the plaintiff company about the same. The defendant further failed to hand over all the previous original ownership, title and chain documents such as the mutation letter and original lease deed in favour of the original allottee, in respect to the

suit property under sale, which were missing at the time of the execution of the agreement to sell dated 4.9.2012, and which the defendant had duly agreed to hand over to the second party/plaintiff company as per Clause 6 of the Agreement dated 4.9.2012. Thus, in these circumstances, the plaintiff company, through its Director, PW-1 was constrained to send a letter/notice dated 1.3.2013, to the defendant whereby the plaintiff company sought the defendant to apprise it about the status of the said requirements/obligations, as undertaken by the defendant to be fulfilled under the Agreement to Sell dated 4.9.2012, that is the procurement of the vacant, physical possession of the First Floor and Second Floor of the suit property from the tenants and the chain documents in respect to the suit property under the sale by the defendant to the plaintiff company.

8. PW-1 has further deposed that despite repeated requests, the sale transaction was not completed by the defendant, which led to issuance of a legal notice dated 1.4.2013, a copy of which has been exhibited as Exhibit PW-1/7 and postal receipt has been exhibited as Exhibit PW-1/8, respectively. Legal notice was received by the defendant. By the said legal notice the Agreement was terminated and defendant was called upon to refund the entire earnest money with interest. A reply to the said legal notice was sent by the defendant to the plaintiff wherein he admitted acceptance of `50.00 lakhs. Plaintiff was also accused of non-performance of the agreement. A copy of the reply dated 9.4.2013 has been marked as Exhibit PW-1/9.

9. In the above circumstances, learned counsel for the plaintiff prays that plaintiff had a right as per Clause 7 of the Agreement to Sell either to seek specific performance or to seek double the amount in case the defendant fails to complete his part of the agreement.

10. I have heard learned counsel for the plaintiff and also perused the affidavit

filed by PW-1. Clause 7 of the agreement reads as under:

"7. If the First Party infringes any of the terms and conditions of this Agreement and backs out from this Agreement then the Second Party shall be entitled either to get sale bargain completed through court of law by a suit for specific performance of the contract at the costs and expenses of the First Party or to get refunded double the amount of earnest money and same amount of part payment (if any) from the first party, and if the Second Party does not make the balance payment within stipulated period of time, then only earnest money paid by him/her/them, to the First Party shall stand forfeited and as it is part payment (if any) shall be refunded and deal will come to an end."

11. Despite service defendant has decided not to contest the suit. The Agreement to Sell, which bears the signature of the plaintiff, has been duly proved by the plaintiff and has been exhibited as PW-1/1. The agreement itself evidences payments made to the defendant. In reply to the legal notice the defendant has admitted receipt of Rs.50.00 lakhs as well. Copy of the reply has been marked as Exhibit PW-1/9. Reading of the Agreement to Sell dated 4.9.2012, Ex.1/2, shows that defendant was to get portions of the property vacated, which the defendant has failed to do so despite repeated requests and legal notice having been issued to the defendant.

12. Having regard to the documents placed on record, which stand duly proved by the evidence of PW-1, which has gone un-rebutted and also taking into consideration the payments made by the plaintiff, which are acknowledge in the Agreement to Sell (Exhibit PW-1/2) and the legal notice having been issued to the defendant (PW1/7), the present suit is decreed in favour of the plaintiff and against the defendant. The plaintiff shall be entitled to pendente lite interest at the rate of 8%, per annum,

from the date of filing of the suit till realisation. Parties shall bear their own costs. Possession of the third floor of the suit property shall be handed over by the plaintiff to the defendant within three weeks from today. Let a decree sheet be drawn up accordingly.

G.S.SISTANI, J JANUARY 27, 2014 msr