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2007 DIGILAW 1465 (DEL)

TEJ PROPERTIES PVT. LTD v. SUSHIL K. CHAKRAVARTY

2007-07-25

SANJAY KISHAN KAUL

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SANJAY KISHAN KAUL, J. ( 1 ) MR. A. D. Mahendroo, Advocate for Punjab National Bank has made a statement that the plaintiff has cleared the dues of the bank insofar as the mortgage of the property is concerned and thus the bank would release the documents in pursuance to the directions of this Court. Learned counsel also states that the plaintiff has undertaken to give up all other claims against the bank which is accepted by learned counsel for the plaintiff. ( 2 ) IN view of the aforesaid no further directions are called for on this application and the same stands disposed of. ( 3 ) THE necessary undertaking be filed by the plaintiff within a week. CS (OS) No. 2501/1997 ( 4 ) THE plaintiff has filed a suit for specific performance in respect of property being a farm house located in 1378 (4-9) and 1378 (3-16) measuring 8 bighas and 5 biswas being agricultural land situated in Village Chhatarpur, Tehsil mehrauli, New Delh. It is stated in the plaint that the plaintiff company is incorporated and registered under the Companies Act, 1956. The suit has been instituted by Shri Prabhjit Singh, the Director of the plaintiff company who has been authorised by the Board resolution to do so. The plaint states that the defendant represented that he was the exclusive and absolute owner of the said agricultural land along with the fittings and fixtures. In pursuance thereto an agreement to sell was executed between the parties on 17. 3. 1992 for a total consideration of Rs. 60. 00 lakh. A sum of Rs. 22. 00 lakh was paid as part payment. Out of the said amount Rs. 20. 00 lakh was paid by cheques while Rs. 2. 00 lakh was paid in cash. ( 5 ) IT is the case of the plaintiff that the understanding was that the cheques could be presented on certain formalities being completed by the defendant but the defendant in defiance of the assurance sent the cheques of Rs. 7. 00 lakh immediately but did not send the cheque for Rs. 6. 00 lakh, which is stated to have been lost by the defendant. The plaintiff, however, made arrangements for encashment of both the cheques. In order to cover the amount of Rs. 6. 00 lakh, the cheque which was stated to be lost, three cheques of Rs. 2. 7. 00 lakh immediately but did not send the cheque for Rs. 6. 00 lakh, which is stated to have been lost by the defendant. The plaintiff, however, made arrangements for encashment of both the cheques. In order to cover the amount of Rs. 6. 00 lakh, the cheque which was stated to be lost, three cheques of Rs. 2. 00 lakh each were issued by the plaintiff out of which two cheques were encashed. Thus the total amount paid to the defendant is Rs. 20. 00 lakh. ( 6 ) THE defendant was required to obtain a no objection certificate from the competent authority under the Delhi Land Reforms Act which was a pre-requisite for execution of the sale deed in favour of the plaintiff but the defendant failed to do the needful. The plaintiff claims to have been ready and willing to perform its part of the contract. Not only that the plaintiff claims to have released a further sum of Rs. 50,000. 00 by way of bank draft for the personal requirement of the defendant. Form 37-I and 34-A were also not obtained. ( 7 ) THE plaintiff claims to have received a letter dated 24. 5. 1996 from the counsel for the defendant informing that an order of injunction has been passed against the plaintiff by the Delhi High Court in CS (OS) No. 1348/1996. The defendant had filed a suit for declaration of the present agreement to sell dated 17. 3. 1992 as null and void having been terminated and the other relief was claimed against the brother of the plaintiff who had no connection with the suit property. It is, thus stated that till the suit was filed there was never any objection raised by the defendant to the execution of the sale deed. ( 8 ) THE defendant entered appearance and filed the written statement to contest the matter. However, the defendant stopped appearing and was proceeded ex parte vide order dated 1. 8. 2000. The plaintiff was directed to file the affidavit of evidence. The affidavit was filed, though belatedly, by the plaintiff. In the mean time the defendant also passed away. ( 9 ) A further development which took place was that it was found that the property in question stood mortgaged to the New Bank of India now merged with Punjab national Bank. The affidavit was filed, though belatedly, by the plaintiff. In the mean time the defendant also passed away. ( 9 ) A further development which took place was that it was found that the property in question stood mortgaged to the New Bank of India now merged with Punjab national Bank. Notice was thus issued to Punjab National Bank which entered appearance. It was stated by the counsel for Punjab National Bank on 4. 5. 2006 that the property still remained mortgaged and there was an overdue amount of rs. 10. 47 crore. The bank was directed to file complete set of documents with an affidavit, which was duly filed. Learned counsel for the said bank, as stated above has made a statement to the effect that the plaintiff has cleared the dues of the bank. ( 10 ) THE amount paid by the plaintiff to the bank for settlement of the dues is stated to be much more than the balance consideration in order to enable the mortgage to be cleared. ( 11 ) IT is already noticed above that the defendant failed to defend the suit after having filed the written statement and has subsequently passed away. The provisions of Order 22 Rule 4 (4) of the Code of Civil Procedure, 1908 clarify that the Court may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who having filed it has failed to appear and contest the suit and the judgement in such a case may be pronounced notwithstanding the death of such defendant which shall have the same force as it has been pronounced before the death took place. It is this provision which would come into play in the facts of the present case and thus despite the death of the defendant a judgement is liable to be pronounced in the present case. ( 12 ) THE plaintiff has filed the affidavit of Shri Prabhjit Singh, PW-1, who has proved the certificate of registration as exhibit P-1 and the copy of the Board resolution of the meeting held on 6. 1. 1997 as exhibit P-2 by which he was authorised to institute the suit. The agreement to sell dated 17. 3. 1992 has been proved as exhibit P-3. The affidavit affirms to the averments made in the plaint. 1. 1997 as exhibit P-2 by which he was authorised to institute the suit. The agreement to sell dated 17. 3. 1992 has been proved as exhibit P-3. The affidavit affirms to the averments made in the plaint. ( 13 ) IN view of the aforesaid a decree for specific performance is passed in favour of the plaintiff and against the defendant in respect of property situated in 1378 (4-9) and 1378 (3-16) measuring 8 bighas and 5 biswas being agricultural land situated in Village Chhatarpur, Tehsil Mehrauli, New Delh. No balance amount is payable to the defendant in view of the plaintiff having paid the amount to the bank on behalf of the defendant which was much more than the balance consideration. The plaintiff is also entitled to costs. ( 14 ) DECREE sheet be drawn up accordingly. ( 15 ) THE original documents be released by the bank to the plaintiff. ( 16 ) SINCE the defendant is no more alive, for registration of the sale deed an officer of this Court has to be appointed for the said purpose and the expenses for the said purpose would be borne by the plaintiff. In view of the aforesaid, i appoint Mr. D. K. Prasad, Registrar-cum-Secretary to Hon'ble the Chief Justice, delhi High Court, Sher Shah Road, New Delhi (Mobile No. 9910-633905) for execution and registration of the sale deed in favour of the plaintiff. The fee payable would be Rs. 20,000. 00 apart from out of pocket expenses.