Nutan vs Mukesh Rani & Anr.
2014 Latest Caselaw 1693 Del

$~ 4
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+       CS(OS) 2169/2010 & I.A. 14301/2010

%                                        Date of Decision : March 28, 2014


        NUTAN                                     ..... Plaintiff
                       Through:      Mr.Alok Singh, Advocate along
                                     with the plaintiff in person.

                            versus

        MUKESH RANI & ANR                             ..... Defendant
                Through: None.

        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 of sell dated 13.5.2009 and for possession, mandatory and permanent injunction. Defendant no.2 entered appearance and filed his written statement and thereafter he stopped appearing. Defendant no.2 was proceeded ex parte on 19.11.2013. Defendant no.1 was served by way of publication. Defendant no.1 was proceeded ex parte on 2.5.2013.

2. The plaintiff is present in court. Counsel for the plaintiff prays that her additional statement be recorded, as inadvertently the documents [receipt dated 13.5.2009, legal notice dated 13.8.2009 and reply dated 20.8.2009 to the legal notice] could not be exhibited during the course of her evidence. Statement of the plaintiff has been recorded in court today. Plaintiff has proved the original receipt dated 13.5.2009, as Ex.PW-1/2, copy of the legal notice dated 13.8.2009 as Ex.PW-1/3 and reply dated 20.8.2009 as

Ex.PW-1/4.

3. Plaintiff has filed ex parte evidence. As per the affidavit of plaintiff, Nutan Ex.PW-1/A, she entered into an agreement to sell with defendant no.1 on 15.12.2008, a copy of which has been placed on record (marked 'Á'). It has been deposed that the original agreement was retained by defendant no.1. As per the agreement dated 15.12.2008, the total sale consideration was fixed at Rs.27.0 lacs with respect to the sale of suit property bearing flat No.C-506, 1st floor, Yojana Vihar, New Delhi. The plaintiff paid Rs.1.0 lac as earnest money on 15.12.2008 and thereafter another agreement to sell was entered into between the parties on 13.5.2009, which is exhibited as Ex.PW-1/1. In the agreement to sell dated 13.5.2009 it was agreed that the defendant no.1 would get the property converted into free- hold and another sum of Rs.50,000/- was paid in cash to the defendant no.1 on 13.5.2009.

4. Plaintiff, has further deposed that defendant no.1 also signed a receipt dated 13.5.2009, acknowledging receipt of Rs.1.50 lacs, ex PW-1/2.

5. It has further been deposed that the plaintiff approached the defendant no.1 on several occasions and requested her to get the property converted into free-hold but the defendant no.1 failed to do so. It has also been deposed that the plaintiff has sufficient funds and she has always been ready and willing to purchase the suit property and perform her part of the agreement, however, defendant no.1 has neglected to perform her part of the agreement.

6. It has also been deposed that on 12.8.2009 the plaintiff requested the defendant no.1 to accept the balance sale consideration, however, defendant no.1 declined to accept the same on the pretext that she was awaiting certain documents regarding conversion of the suit property to free-hold. A legal notice was issued to the defendant no.1 on 13.8.2009,

copy whereof has been filed and exhibited as Ex.PW-1/3. Reply to the same has also been filed and exhibited as Ex.PW-1/4.

7. Counsel for the plaintiff relies on the reply dated 20.8.2009 to the legal notice, wherein further time was sought to get the property converted from lease-hold to free-hold.

8. I have heard counsel for the plaintiff. There is no rebuttal to the evidence of the plaintiff. The original agreement to sell, Ex.PW-1/1 has been placed on record, which shows that a sum of Rs.1.50 lacs was received by the defendant no.1 towards part payment of the sale consideration; the receipt dated 13.5.2009, Ex.PW-1/2 shows acknowledgement of Rs.1.50 lacs, legal notice issued by the plaintiff, Ex.PW-1/3 and the reply thereto, Ex.PW-1/4 show that the defendant no.1 has not disputed the agreement to sell and her obligation to sell the suit property to the plaintiff at the price fixed, however, only sought further time to get the property converted into free- hold.

9. The defendant no.2 has been impleaded as a party, as he claims to be in possession of the suit property. As per the written statement of defendant no.2, he has no title over the property and he was occupying the suit property only for some time. The defendant no.2, however, has vacated the suit property.

10. Accordingly, the present suit is decreed in favour of the plaintiff and against the defendant no.1. Plaintiff will tender the balance sale consideration to the defendant no.1 within one week from the date of receipt of the judgment. Thereafter the defendant no.1 will execute the sale deed in favour of the plaintiff. In case the sale deed is not executed by the defendant no.1 in favour of the plaintiff, it will be open for the plaintiff to seek execution of the decree passed. Decree-sheet be drawn up accordingly.

11. In view of the fact that the suit has been decreed, the interim order dated 26.10.2010 is confirmed. The application [I.A. 14301/2010] also stands disposed of.

G.S.SISTANI, J MARCH 28, 2014 ssn /pdf