KAILASH CHAND BANSAL v. TEK CHAND — 1995 DIGILAW 498 (DEL)

Devinder Gupta ( 1 ) THIS is a suit for grant of a decree for specific performance of an agreement of sale or in the alternative for a decree of Rs. 5,50,000. 00. The plaintiff s case is that the defendant who is the owner of land measuring 4 bighas 16 biswas comprised in Khasra No; 10/4 situated in village Singola, Delhi entered into an agreement of sale with the plaintiff. The defendant agreed to sell and the plaintiff agreed to purchase the said property for a total consideration of Rs. 5,00. 000. 00 on 1 st July, 1988 and at the time of entering into the agreement, a sum of Rs. 1,00,000. 00 was paid by the plaintiff to the defendant. Balance consideration was to be paid on the execution and registration of the sale deed by the defendant in favour of the plaintiff and/or his nominee (s ). Vacant possession was also agreed to be handed over at the time of execution of sale deed. The defendant had agreed to get the requisite no Objection Certificate from the concerned authority, including clearance certificate etc. As per the terms of the agreement the defendant was to execute the sale deed against payment of the balance sale consideration within a period of six months from the date of entering into the agreement and in case the land was subject matter of consolidation proceedings, within a period of four months from the date of completion of consolidation proceedings. It is the plaintiff s case that though the balance sale consideration, which would be four lakhs of rupees, was to be paid by him to the Kailash Chand Bansal Vs. Tek Chand 483 defendant at the time of. execution and registration of sale deed, another sum of Rs. 75,000. 00 was paid by the plaintiff to the defendant after execution of the agreement. Thus, a sum of Rs. 1,75,000. 00 was paid by the plaintiff to the defendant. The revenue estate within which the property which was agreed to be sold was subject matter of consolidation proceedings, therefore, the plaintiff had to wait till We -completion of the proceedings to enable the defendant to execute sale deed in his favour. Thus, a sum of Rs. 1,75,000. 00 was paid by the plaintiff to the defendant. The revenue estate within which the property which was agreed to be sold was subject matter of consolidation proceedings, therefore, the plaintiff had to wait till We -completion of the proceedings to enable the defendant to execute sale deed in his favour. The plaintiff had been reminding from time to time the defendant to honour his commitment by executing the sale deed but the plaintiff was given to understand that the consolidation proceedings were still in-progress. By January 1994 the plaintiff came to know that the consolidation proceedings in respect of the village Singola had come to an end, therefore, the plaintiff got serve notice dated 9. 2 1994 on the defendant calling upon him to obtain necessary permission and to execute the sale deed and get the same registered on receiving the balance sale consideration. Defendants were asked that necessary sale deed be executed within a period of fifteen days from the receipt of notice. Despite service of notice, the defendant had failed to contact the plaintiff and also failed to honour his commitment by executing the requisite sale deed. The plaintiff had at all material times been ready and willing to perform his part of contract. All requisite steps were required to be taken by the defendant, namely, obtaining of No Objection Certificate and/or clearance from the office of A. D. M. (Land Acquisition), income tax clearance certificate and the other clearances from the other concerned authorities. The plaintiff, thus. alleged that the defendant failed to perform his part of contract, therefore, the plaintiff is entitled to a decree of specific performance of agreement of sale. The plaintiff has also claimed a decree for damages for a sum of Rs. 5,50,000. 00out of which a sum of Rs. 1,75,000/ - was paid by the plaintiff to the defendant in cash and the balance of Rs. 3,75,ooo/ - as damages, claimed to have been sustained by the plaintiff due to failure on the part of the defendant to perform his part of contract. ( 2 ) SUIT was instituted on 8th September, 1994. Along with the suit an application for temporary injunction was also filed on 9th September, 1994. 3,75,ooo/ - as damages, claimed to have been sustained by the plaintiff due to failure on the part of the defendant to perform his part of contract. ( 2 ) SUIT was instituted on 8th September, 1994. Along with the suit an application for temporary injunction was also filed on 9th September, 1994. While directing summons to be issued to the defendant ad interim order of injunction was passed restraining the defendant from transferring, alienating or parting with possession of the suit property. Summons were duly served personally on the defendant on 25. 10. 1994 along with copy of the plaint. In addition affidavit of service has also been filed by Daya Ram Sehgal, clerk of the counsel for the plaintiff. On 30th January, 1995 the date fixed in the suit, the defendant had failed to put in appearance despite valid service, therefore, the defendant was ordered to be proceeded against ex parte. The plaintiff was called upon to lead ex parte evidence. The plaintiff has led evidence by filing two affidavits - one affidavit is of Ashok Kumar son of Sita Ram and the other is that of Kailash Chand Bansal. ( 3 ) AGREEMENT to sell has been duly proved on record by both the witnesses. Mr. Ashok Kumar has deposed that he is one of the attesting witnesses to the agreement 484 1995 III AD (DELHI) which Was entered into between the plaintiff and the defendant. Contents of agreement were duly read over and explained to the defendant who put his signatures at point A on agreement Ext. P 1 /1. At the time of execution of agreement to sell the plaintiff paid a sum of Rs. 1 lakh in cash to the defendant for which receipt Ext. P 112 \nas duly executed by the defendant. Further payments were also made by the plaintiff to the defendant against receipt. Receipt Ext. P 1/3 is dated 5. 11. 1990 for a sum of Rs. 50,000. 00. Receipt Ext. P1/4 is for Rs. 20,000. 00dated 9. 9. 1991 and receipt, Ext. P 1/5, is for Rs. 5,000. 00 which is dated 3. 9. 1992. ( 4 ) THE plaintiff on affidavit has deposed that after entering into agreement further sum of Rs. 75,000. 00 was paid by him to the defendant against three receipts. 50,000. 00. Receipt Ext. P1/4 is for Rs. 20,000. 00dated 9. 9. 1991 and receipt, Ext. P 1/5, is for Rs. 5,000. 00 which is dated 3. 9. 1992. ( 4 ) THE plaintiff on affidavit has deposed that after entering into agreement further sum of Rs. 75,000. 00 was paid by him to the defendant against three receipts. He had been trying to contact the defendant from time to time to ascertain the position as regards completion of the consolidation proceedings. Till December. 1994, the defendant informed the plaintiff that consolidation proceedings were still in progress, therefore, he was unable to obtain No Objection Certificate. In January 1994, the plaintiff came to know that consolidation proceedings in respect of village Singola had come to an end, therefore, notice, copy of which is Ext. P 1/6 dated 9. 2. 1994 was got sent to the defendant through postal receipt Ext. P-1 /7 which was duly received by the defendant vide acknowledgement receipt Ext. P-1/8. The plaintiff has deposed that he had always been ready and willing to perform his part of contract and is still ready and willing to perform his part of contract. As per the terms of the agreement it was the defendant who was to take requisite steps in obtaining No Objection Certificate and other permissions from the concerned authorities. The plaintiff s statement is that under the agreement he was required only to make the balance payment at the time of execution and registration of sale deed which he is always ready and willing to pay. ( 5 ) FROM the ex parte evidence adduced by the plaintiff I am satisfied that the plaintiff has proved his case and is e/ ntitled to a decree for specific performance of the contract of sale on payment/deposit of Rs. 3,25,ooo. 00. Consequently I proceed to pass ex parte decree in favour of the plaintiff against the defendant for specific performance in respect of the agreement to sell dated 1. 7. 1988 directing the defendant to execute the requisite sale deed in favour of the plaintiff or his nominee (s) with respect of land measuring 4 bighas 16 biswas comprised in Khasra No. 10/4 situated in village Singola and to hand over and deliver its peaceful and vacant possession to the plaintiff. This is subject to the plaintiff depositing a sum of Rs. 3. 25. 000. This is subject to the plaintiff depositing a sum of Rs. 3. 25. 000. 00 in the registry of this court within a period of four weeks from today Failure to deposit the amount will result in the dismissal of the suit. The plaintiff is also held entitled to costs of the suit.