Delhi High Court
P.D. Aggarwal vs Azad Singh on 30 July, 2014
Author: Manmohan Singh
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Order delivered on: July 30, 2014
+ CS(OS) No. 29/2008
P.D.AGGARWAL .....Plaintiff
Through Mr.J.P. Verma, Advocate
versus
AZAD SINGH .....Defendant
Through Defendant ex-parte
CORAM:
HON'BLE MR. JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J. (Oral)
1. The plaintiff has filed a suit for specific performance of the
agreement to sell dated 3rd September, 1997 entered between the
parties for execution of sale deed and registration.
2. Brief facts for the purpose of adjudication are that an
agreement to sell dated 3rd September, 1997 was entered between
the parties whereby the defendant contracted to sell to the plaintiff
certain agricultural land owned by him bearing Khasra Nos. 75(4-
16), 76(4-16), 77(4-16), 78(4-16), 155(4-16), 227(4-16), 228(4-16),
230(1-12), 231(1-8), 232 (4-13), 233(4-12), 336(3-9), 339(4-10),
340(2-3) situated in the area of village Mohamadpur Ramjan Pur,
Delhi (hereinafter referred to as the "suit property") for the sum of
Rs.100,00,000/-. Out of the total sale consideration of
Rs.100,00,000/-, a sum of Rs.20,00,000/- was paid to the
defendant as earnest money and the balance amount of
Rs.80,00,000 was to be paid within 45 days of the date of entering
into agreement to sell.
3. It is the case of the plaintiff that it was agreed between the
parties that on receipt of the said balance amount of Rs.80,00,000/-
the sale deed shall be executed and the suit property shall be
registered in favour of the plaintiff or his nominee. The defendant
would also hand over all the documents of the title deed of the suit
property as well as the physical possession to the plaintiff.
4. It is alleged that the plaintiff on several occasions approached
the defendant with the balance consideration being Rs.80,00,000/-
and has specifically called upon the defendant to perform the
agreement on his part, but the defendant has not done so. The
defendant also failed to show the relevant documents of the suit
property.
5. It is further alleged that the defendant on various occasions
extended the period from 18th October, 1997 to 20th May, 2005 by
making endorsements of the document of agreement to sell in the
presence of witnesses on the terms and conditions agreed
between the parties under the agreement to sell dated 3rd
September, 1997.
6. The plaintiff caused to be effected upon the defendant a
notice to perform in accordance with the terms and conditions of
the agreement to sell by way of a legal notice dated 19th March,
2007 within a period of 30 days of the receipt of the legal notice
and therein it was specifically stated that the plaintiff is ready to
perform his part of the agreement and is ready with the balance
amount of consideration i.e. Rs.80,00,000/- for the execution and
registration of sale deed in his favour. It is also averred in the
notice that the defendant has also become liable to pay double the
amount of the earnest money if the contract is not performed.
7. It is alleged that the plaintiff has made the payment of earnest
money amounting to Rs.20,00,000/- in part performance on his
behalf at the time of entering into the agreement to sell in 1997 that
is to say more than 10 years ago, and subsequent non-
performance and breach of agreement on the part of the defendant
has resulted in loss and harm to the plaintiff and thus, the plaintiff is
entitled to compensation for the breach of contract by the
defendant.
8. Applications being I.A.No. 214/2008 under XXXIX Rule 1 and
2 read with Section 151 CPC was filed by the plaintiff for interim
relief and injunction and I.A.No. 19194/2013 under Order VI Rule
17 read with Section 151 CPC was filed by the plaintiff for
amendment in the plaint seeking an alternative relief in the suit for
refund of double the amount of earnest money given to the
defendant along with interest that has accrued.
9. The suit was listed before this Court on 29th February, 2008.
Summons were issued to the defendant on various occasions but
were unserved due to want of fresh address.
10. Despite appearance of counsel on behalf of the defendant on
16th March, 2011 neither the written statement has been filed till
date nor anyone has appeared on behalf of the defendant
thereafter and consequently the defendant was proceeded ex-parte
vide order dated 15th March, 2012.
11. The plaintiff filed its affidavit of evidence as dated 21st May,
2012 and proved the facts stated in the plaint by evidence by way
of affidavit of Mr.P.D.Aggarwal, as Ex.PW1/X and also exhibited
agreement to sell dated 3rd September, 1997 as Ex. PW1/1 and
legal notice dated 19th March, 2007 as Ex. PW 1/10 in support of its
case.
12. It was stated by the plaintiff that no further evidence was
required to be led and accordingly, the ex-parte evidence was
closed vide order dated 10th December, 2012.
13. The evidence filed by the plaintiff has gone unrebutted as no
cross- examination of the plaintiff's witness was carried out,
therefore, the statements made by the plaintiff are accepted as
correct deposition. On 31st October, 2013, the plaintiff sought time
to amend the plaint by incorporating an alternative relief for refund
of money. The plaintiff's application for amendment under Order 6
Rule 17 CPC was allowed by order dated 27th November, 2013.
Under these facts and circumstances, the plaintiff is entitled for a
decree of specific performance in terms of prayer clause of the
plaint.
14. During the course of hearing of the main suit, learned counsel
appearing on behalf of plaintiff has made the statement that the
plaintiff is merely pressing limited alternative relief in the suit for a
sum of Rs.20,00,000/- i.e. refund of earnest money given to the
defendant along with reasonable interest accrued thereon.
15. In view of the statement made on behalf of plaintiff, a decree
for a sum of Rs.20,00,000/- is passed in favour of the plaintiff and
against the defendant. The plaintiff is also entitled for interest of
9% per annum from the date of filing the suit till the date of receipt
of amount. The plaintiff is also entitled for costs of the suit.
16. The decree be drawn accordingly.
17. The other reliefs are not pressed. Hence dismissed.
18. The suit is disposed of.
(MANMOHAN SINGH)
JUDGE
JULY 30, 2014
