Mahesh Chand Aggarwal vs Mukesh Kalia & Ors.
2014 Latest Caselaw 1594 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+        CS(OS) 464/2008
%                                       Judgment dated 25.03.2014
         MAHESH CHAND AGGARWAL                                     ..... Plaintiff
                     Through : Mr.V.P. Rana, Adv.

                           versus

         MUKESH KALIA & ORS                                        ..... Defendants
                      Through

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

G.S.SISTANI, J (ORAL)

    1.

Plaintiff has filed the present suit for specific performance of an Agreement dated 28.6.2005 and for permanent injunction.

2. Summons in the suit were issued on 14.3.2008. Defendants entered appearance on 14.5.2008. Written statement has been filed by defendants on 30.5.2008. Following issues were framed by the Court on 22.1.2009:

"(1). Whether the suit is bad for non-joinder of necessary parties ? OPD

(2). Whether the plaintiff was ready and willing to perform his part of Contract dated June 28, 2005 ? OPP

(3). Whether the suit of the plaintiff is without cause of action? OPD

(4). Whether the defendants were owners and competent to execute sale deed in respect of suit property on the date of execution of agreement to sell dated June 28, 2005 or thereafter ? OPD

(5). Whether the defendants can be directed to execute the sale deed

or GPA etc. and to put the plaintiff into possession of the suit property after payment of balance consideration amount as agreed in the agreement to sell ? OPP

(6). Whether the plaintiff is entitled for a decree of permanent injunction against the defendants as prayed for ? OPP

(7). Whether the plaintiff is entitled as an alternative relief for a sum of Rs. 9,60,000/- along with interest @ 18% p.a. and damages of Rs.5,00,000/- with interest @ 18% per annum from the defendants from the date of execution of the agreement till its realization ? OPP

(8). Relief."

3. The plaintiff has filed his evidence by way of affidavit, which has been exhibited as Ex.PW-1/A. On 21.7.2011, PW-1, who was to be cross- examined by counsel for the defendants, was discharged on account of the absence of the defendants. On 16.5.2012 evidence of the plaintiff was closed. Despite opportunities having been granted, defendants have failed to file affidavit by way of evidence, resultantly their right to lead evidence was closed on 6.12.2012. Defendants thereafter filed an application, being I.A. No.6597/2013 under Order XVIII R 17 CPC, however, the said application was dismissed as withdrawn on 29.8.2013.

4. In the affidavit filed by the only witness i.e. PW-1, Sh.Mahesh Chand Aggarwal, plaintiff herein, has deposed that the defendants claimed themselves to be a lawful co-owners of a built up property, measuring 600 sq. yards, situated at Gali No.22, Libaspur, Delhi, comprising in Khasra No.26/24 and 17, Village Libaspur, Delhi (hereinafter referred to as the suit property). He has further deposed that since the defendants wanted to sell the abovesaid suit property, the parties entered into an Agreement to sell on 28.6.2005. The Agreement to Sell dated 28.6.2005 has been

exhibited as Exhibit PW-1/1. The sale consideration was fixed at Rs.24,21,000/-. As per the terms of the agreement, Rs.2.50 lakhs were paid by plaintiff to the defendants on 29.6.2005 and the balance sale consideration, in the sum of Rs.21,71,000/-, was agreed to be paid to the defendants on or before 25.9.2005. Another sum of Rs.2.50 lakhs was paid by the plaintiff to the defendants on 6.8.2005, out of which Rs.1.50 lakhs were paid in cash and Rs.1.00 lakh was paid vide two cheques bearing no.018499 and 018500 both dated 6.8.2005, drawn on Canara Bank, Model Town, Delhi, for Rs.50,000/-, each. Receipt thereof was duly executed by the defendants, which has been exhibited as Exhibit PW-1/2. This witness has further deposed that a sum of Rs.2.20 lakhs was paid in in cash again to the defendants on 7.11.2005. This amount was duly acknowledged by the defendants on the top of page no.2 of the Agreement to Sell dated 28.6.2005 at point A. Another sum of Rs.2.40 lakhs (Rs.1.20 lakhs, each) was paid by the plaintiff to the defendants by two separate pay orders bearing nos.103837 and 103838, both drawn on South Indian Bank Limited, Sector 8, Rohini, Delhi, favouring defendants no.1 and 2, respectively. As per PW-1, a total sum of Rs.9.60 lakhs was paid to the defendants upto 7.11.2005.

5. It is also deposed that another sum of Rs.40,000/- was again paid to defendants vide two different pay orders bearing no.248405, favouring Mr.Mukesh Kalia, and no.248406, favouring Mr.Sunil Kalia, however, the said pay orders were not encashed by the defendants.

6. As per PW-1, relying on the terms and conditions of the Agreement dated 28.6.2005, the terms were to be fulfilled by 25.9.2005, however, the said date was extended with the consent of both the parties upto 15.10.2005 and thereafter upto 7.11.2005. PW-1 has further deposed that he has always been ready and willing to pay the balance consideration of

Rs.14.61 lakhs to the defendant. He had been repeatedly reminding the defendants to execute the sale deed and transfer the title of the suit property in his favour but the defendants kept delaying the matter and seeking further time. It has also been deposed that the sale deed could not have been executed without seeking prior No Objection Certificate from the Notification Branch of the Revenue Department and the No Objection Certificate can only be granted to the recorded owner and not to the purchaser. Thus, PW-1 was not in a position to obtain the necessary NOC without the cooperation of the defendants, however, no steps were taken by the defendants towards obtaining the said No Objection Certificate in order to transfer the title.

7. PW-1 has further deposed that on the assurance given by the defendants in the month of September, 2005, that they would obtain No Objection Certificate, PW-1 purchased stamp papers of Rs.38,400/- on 21.9.2005. Thereafter PW-1 informed the defendants with regard to purchase of the stamp papers, but the defendants did not hand over the No Objection Certificate to execute the sale deed. A copy of stamp papers purchased have been marked A (Collectively).

8. It has further been deposed by PW-1 that at the time of entering into the agreement to purchase the suit property, the defendants had disclosed that they purchased the suit property from Sh.Manohar, s/o Sh.Shiv Chand and Sh.Azad Singh, s/o Sh.Dulichand vide sale deed dated 28.02.1984, registered vide document No.1707, in Addl. Book No.1, Volume No.4315 at pages 128 to 130. The defendants had also handed over a copy of Khatoni dated 11.1.1985, showing their bhoomidari rights in the record of rights. Copy of the said Khatoni has been marked as Mark-B. It has also been deposed by PW-1 that he issued a legal notice to the defendants on 4.12.2005, which was replied to by the defendants through their counsel.

Copy of the notice and reply have been exhibited as Exhibits PW-1/3 and PW-1/4 respectively. Postal receipts have been exhibited as Exhibit PW- 1/5 and the site plan of the suit property has been exhibited as Exhibit PW-1/6.

9. Mr.Aggarwal has also deposed that on account of the conduct of the defendants, he became suspicious and further inquired into the title of the defendants, when he learnt that in fact the suit property vests with Gaon Sabha of Village Libaspur. A copy of Khatoni from Halka Patwari of Village Libaspur was obtained which revealed that it was the gaon sabha, who was the khatedar/bhoomidar of the entire property comprising of Khasra No.26/17 and 24 and the same with a built up property is in the possession of the defendants on the spot. Copy of Khatoni dated 14.12.2005 has been exhibited as Exhibit PW-1/7. PW-1 further deposed that he had filed a criminal complaint against the defendants on 15.12.2005, a copy of which has been exhibited as Exhibit PW-1/8.

10. Learned counsel for the plaintiff submits that the plaintiff has learnt that the land has been divested on account of the fact that all the areas are built up.

11. I have heard learned counsel for the plaintiff and also perused the evidence by way of affidavit filed by PW-1. Onus to prove issues no.1, 3 and 4 are on the defendants. Since the defendants have failed to lead evidence issues no.1, 3 and 4 are decided against the defendants. Issues no.2, 5 and 6 can be decided together. The plaintiff has proved the agreement to sell entered into between the parties on 28.6.2005 (Ex.PW- 1/1). As per the agreement to sell the sale consideration for the built up property, measuring 600 sq. yards, situated at Gali No.22, Libaspur, Delhi, comprising in Khasra No.26/24 and 17, Village Libaspur, Delhi was fixed at Rs.24,21,000/-, out of which a sum of Rs.2,50,000/- was paid

by the plaintiff to the defendants on 29.6.2005 and the balance sale consideration in the sum of Rs.21,71,000/- was agreed to be paid by the plaintiff to the defendants on or before 25.9.2005. The plaintiff has also proved that another sum of Rs.2,50,000/- was paid by the plaintiff to the defendants on 6.8.2005 (Rs.1.50 lacs was paid in cash and Rs.1.0 lac was paid vide two cheques bearing no.018499 and 018500 both dated 6.8.2005, drawn on Canara Bank, Model Town, Delhi, for Rs.50,000/-, each). The receipt has also been exhibited as PW-1/2. Another sum of Rs.2,20,000/- was paid in cash, which was duly acknowledged by the defendant at page 2 of the agreement to sell itself. Plaintiff has also been able to prove payment of another sum of Rs.2.40 lakhs, which was paid by the plaintiff to the defendants by two separate pay orders of Rs.1.20 lakhs, each, bearing nos.103837 and 103838, both drawn on South Indian Bank Limited, Sector 8, Rohini, Delhi, favouring defendants no.1 and 2, respectively. Thus, the plaintiff has been able to establish payment of Rs.9.60 lakhs to the defendant upto 7.11.2005. PW-1 has deposed that he has always been ready and willing to pay the balance consideration of Rs.14,61,000/- to the defendants, but the defendants did not produce the no objection certificate from the revenue department. Plaintiff has also proved purchase of stamp papers, photocopies of which have been placed on record. Plaintiff has also proved his readiness and willingness by showing that a legal notice was issued to the defendants on 04.12.2005 (Ex.PW-1/3). Accordingly, I am of the view that based on the evidence of PW-1, issues No.2, 5 and 6 stand proved in favour of the plaintiff and against the defendants. As the issues No.2, 5 and 6 are decided in favour of the plaintiff, it is not necessary to decide issue no.7. Accordingly, suit is decreed in favour of the plaintiff and against the defendants. In case, the defendants do not obtain a No Objection Certificate and do not execute

the Sale Deed in favour of the plaintiff within one month, the plaintiff will be entitled to execute the decree in accordance with law.

G.S.SISTANI, J MARCH 25, 2014 msr /pdf