Radhey Shyam And Another vs Kamaljeet Singh Bhatia
2014 Latest Caselaw 2635 Del

$~ 6
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      CS(OS) 547/2011


%                                       Judgment dated 22.05.2014
       RADHEY SHYAM AND ANOTHER                ..... Plaintiff
               Through: Mr.Sunil Lalwani, Advocate

                          versus

       KAMALJEET SINGH BHATIA                        ..... Defendant
               Through

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

G.S.SISTANI, J (ORAL)


1.

Plaintiffs have filed the present suit for specific performance and injunction against the defendant. Despite service, defendant has chosen not to appear in the matter and accordingly the defendant was proceeded ex parte vide order dated 3.4.2013. Plaintiff has filed the ex parte evidence by way of affidavit of the plaintiff no.1.

2. As per the evidence of PW-1 (plaintiff no.1), defendant is the owner of property bearing No.57, Pocket-11, Sector-24, Rohini, Delhi measuring 60 sq. metrs. The sale deed in favour of the defendant is stated to be registered at serial no.2735 in additional book no.9 volume 1333 at pages 532 to 38 dated 2.3.2001. This property was purchased by the defendant from the previous owners Sh.H.S. Batra and Smt.Gurcharan Kaur. The defendant entered into an agreement to sell with the plaintiff in relation to the aforesaid property on 9.10.2010 for a total sale consideration of

Rs.65.0 lacs out of which Rs.7.0 lacs was paid by the plaintiffs on the same date in the following manner:

             Rs.4.0 lacs         in cash

             Rs.3.0 lacs         by cheque no.416441 dt. 10.10.2010
                                 drawn on Vijaya Bank, Raja Garden, Delhi

3. The original agreement to sell dated 9.10.2010 executed between the parties has been filed and has been exhibited as Ex.PW-1/1. Photocopy of the cheque has been marked as 'A' and the receipt evidencing payment of Rs.4.0 lacs having been made in cash and Rs.3.0 lacs by cheque has been exhibited as Ex.PW-1/2.

4. It is further testified by PW-1 that the balance sale consideration was to be paid on or before 25.11.2010, when peaceful possession of the property was to be handed over to the plaintiffs and a sale deed was to be executed simultaneously. It has also been testified that the plaintiffs have all along been ready and willing to perform their part of the contract and they are ready and willing to pay the balance money. It is also testified that the plaintiffs requested the defendant on 24.11.2010 to execute the sale deed in their favour, but the defendant sought further time to seek permission from the DDA.

5. It is also the case of the plaintiff that they have been requesting the defendant repeatedly to obtain the permission (wrongly typed as possession in the affidavit) from the DDA. It has also been testified that the defendant wanted to get extension for construction from the DDA. It has also been testified that thereafter the defendant stopped taking phone calls of the plaintiffs. Evidence of Sh.Ramesh Markandey, plaintiff no.2 has also been filed, who has also testified on the lines of the plaintiff no.1.

6. Counsel for the plaintiffs submits that the plaintiffs have all along been ready and willing to perform their part of the agreement, but the defendant has not come forward to accept the balance consideration. Counsel further submits that the plaintiffs have taken prompt action and there is no delay in filing of the present suit.

7. Having regard to the evidence placed on record and the submissions made, the plaintiffs have been able to prove the agreement to sell dated 9.10.2010 original of which has been placed on record and marked as Ex.PW-1/1, by which the defendant had agreed to sell the plot to the plaintiffs for the total sum of Rs.65.0 lacs. Ex.PW-1/2 is the original receipt by which the defendant has acknowledged receipt of Rs.7.0 lacs as earnest money from the plaintiffs. Despite service, defendant has chosen not to appear in the matter. Accordingly the present suit is decreed in favour of the plaintiffs and against the defendant.

8. Plaintiffs will make payment to the defendant within two weeks and in case the payment is not accepted by the defendant and the defendant fails to execute the sale deed, it will be open for the plaintiffs to get the decree executed, after depositing the sale consideration with the Registrar General of this Court, which amount shall be kept in a fixed deposit. Decree sheet be drawn up accordingly.

I.A. 3572/2011 I.A. 10612/2012

9. Both the applications are disposed of, in view of the order passed in suit today.

G.S.SISTANI, J MAY 22, 2014 ssn