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2012 DIGILAW 3096 (DEL)

Arshad Zamal Siddiqui v. Ravinder Singh

2012-11-27

V.K.JAIN

body2012
JUDGMENT V.K. JAIN, J. 1. Vide agreement to sell dated 25.04.2011, defendants 1 to 3 agreed to sell land measuring 1000 square yards forming part of Khasra No. 372 Min, situated in the area of Village Jasola, Tehsil Mehrauli, New Delhi to the plaintiffs for a total sale consideration of Rs 4,10,00,000/-and received a sum of Rs 50 lakh from them as earnest money. As per the agreement between the parties, the balance payment was to be made and possession of the land subject matter of the agreement was to be delivered to the plaintiffs on or before 30.09.2011. 2. At the time of execution of the agreement between the plaintiff and defendants 1 to 3, two suits were pending with respect to the land subject matter of the agreement and this was recorded in para 8 of the agreement. One suit was pending in this Court and the other suit was pending in Tis Hazari Courts. In Suit No. 645/2004 pending in this Court, an order was passed by this Court on 16.09.2011 directing the parties to the suit to maintain status quo with respect to the title, possession and construction on the land measuring 5 bighas and 8 biswas out of Khasra No. 372 Min, Shaheen Bagh, Village Jasola, Tehsil Mehrauli, New Delhi. Admittedly, the land subject matter of the agreement between the plaintiffs and defendants 1 to 3 forms part of the land which was subject matter of suit No. 645/2004. Defendants 1 to 3 were not parties to the said suit, but Mzt. Razia Shaheen who had entered into an agreement to sell this land to defendants 1 to 3 was a party to that suit. The case of the plaintiffs is that on account of the order dated 16.09.2011, passed by this Court in Suit No. 645/2004, defendants 1 to 3 were not in a position to hand over possession of the land subject matter of the agreement to them. He further states that at no point of time the defendants informed them of vacation of stay order and therefore they did not write to them offering the balance sale consideration and seeking possession of the land and execution of sale deed. He further states that at no point of time the defendants informed them of vacation of stay order and therefore they did not write to them offering the balance sale consideration and seeking possession of the land and execution of sale deed. The learned counsel for the defendants 1 to 3, on the other hand, states that possession of the said land was with defendants 1 to 3 even at the time they agreed to sell the same to the plaintiffs and, therefore, they were in a position to deliver possession to the plaintiffs on or before 30.09.2011. The learned counsel for the defendants 1 to 3 further states that even on 16.09.2011, it is defendants 1 to 3 who were in possession of the said land. 3. The question as to whether the possession of land in question was with defendants 1 to 3 or with their predecessor-in-interest Mzt. Razia Shaheen, between 16.09.2011 to 30.09.2011, is a matter which requires investigation during trial and no firm view in this regard can be taken at this stage since the defendants 1 to 3 not having placed on record any document to show that Razia Shaheen had delievered vacant possession of the said land to them prior to 16.09.2011. More importantly, no notice/letter was sent by defendants 1 to 3 to the plaintiff, offering possession and asking them to pay the balance sale consideration. 4. This is also the case of the plaintiffs that they made a further payment of Rs 75 lakh to defendants 1 to 3 on 10.09.2011 and the payment was acknowledged by defendants 2 and 3 by way of a receipt which they executed while receiving the money. The said payment has been denied by defendants 1 to 3 and their case is that the receipt is filed by the plaintiffs in this regard is forged document. The case of the plaintiff is that they had withdrawn about Rs 50 lakh from their bank account and taken loan of Rs 25 lakh from one Mr Anishur Rehman for making the said payment to defendants 1 to 3. The question as to whether the receipt filed by the plaintiffs to prove the payment of Rs 75 lakh to defendants 1 to 3 is a forged document or not, is a matter which can be decided only after recording evidence. The question as to whether the receipt filed by the plaintiffs to prove the payment of Rs 75 lakh to defendants 1 to 3 is a forged document or not, is a matter which can be decided only after recording evidence. As regards the balance payment of Rs 2.85 crore, the plaintiffs have already deposited the said amount in the Court to show their bona fides and to show their readiness and willingness to complete the transaction. 5. Prima facie, the plaintiffs have been able to satisfy me that they are entitled to specific performance of the agreement dated 25.04.2011 executed by defendants 1 to 3 in their favour. The execution of agreement and receipt of earnest money is admitted. Injunction order dated 16.09.2011, passed in CS (OS) No. 645/2004 is not in dispute. The suit have been filed in June 2012, it cannot be said that the plaintiff, by their conduct, had induced the defendant to believe that they were not interest in completing the transaction. It transpired during arguments that the sale deed of the land in question having not been executed so far in favour of the defendants 1 to 3, they are not in a position to transfer the title in respect of the said land to the plaintiffs. If that be so, the defendant can be directed, in case of the suit being decreed, before title being transferred in their favour to hand over possession of the land in question to the plaintiffs and the plaintiffs can seek execution of the sale deeds in their favour if and when, the title of this land is transferred in favour of defendants 1 to 3 by the person who presently holds the same. 6. I am of the view that the suit property needs to be preserved during pendency of the suit so that the defendants do not give a fait accompli to plaintiff by disposing of the suit property by creating third party interest therein, during pendency of the suit. The question of balance of convenience in such matters was considered by me in my order dated 24.8.2012 in Sarathi Estates Pvt. Ltd. v. S.L. Dosaj & Ors. The question of balance of convenience in such matters was considered by me in my order dated 24.8.2012 in Sarathi Estates Pvt. Ltd. v. S.L. Dosaj & Ors. [CS(OS) No.2040/2006 decided on 24.8.2012] and the following view was taken in that case: “If an interim protection is not granted to the plaintiff, the defendants may dispose of the suit property or may create third party interest therein, thereby defeating the very object behind filing of the suit. On the other hand, the defendants are not likely to suffer any irreparable loss in case they are restrained from selling, assigning or transferring the suit property and from creating any third party interest therein during pendency of the suit. They will continue to enjoy the suit property as they are doing at present. The balance of convenience thus lies in favour of maintaining status quo during pendency of the suit. In view of the decision of Division Bench of this Court in Mohan Overseas P. Ltd vs. Goyal Tin & General Industries 169 (2010) DLT 487 (DB), it would be appropriate if the plaintiff is directed to deposit the balance sale consideration in this Court by way of an FDR in the name of Registrar General of this Court initially for a period of one year. Such a condition will also ensure that having obtained an interim order, the plaintiff does not protract the trial of the case and the final decision can be rendered at an early date. 7. The learned counsel for the defendants 1 to 3 submits that defendants 1 to 3 had vide agreement to sell dated 05.06.2012, agreed to sell 600 square yards of the land to Taskeen Husain Siddiqui and had also handed over possession of that much of land to him. The learned counsel for the defendants 1 to 3 states that since they have also given possession of land measuring 250 square yards to another person, they are now left with possession of 400 square yards of land in Khasra No. 372 Min, Village Jasola, Tehsil Mehrauli, Delhi. Defendants 1 to 3 are directed to file an affidavit disclosing therein the particulars of the persons to whom land measuring 250 square yards is alleged to have been handed over by them. They will also file copies of the documents executed by them in favour of that person with the affidavit. 8. Defendants 1 to 3 are directed to file an affidavit disclosing therein the particulars of the persons to whom land measuring 250 square yards is alleged to have been handed over by them. They will also file copies of the documents executed by them in favour of that person with the affidavit. 8. In view of the facts and circumstances discussed above, the parties are directed to maintain status quo with respect to land measuring 400 square yards which defendants No. 1 to 3 admit to be in their possession and which forms part of property No. 372 Min, Village Jasola, Tehsil Mehrauli, New Delhi, during pendency of the suit. The observations made in this order being tentative and prima facie would not affect the decision of the suit on merits. The earlier order dated 16.09.2011 stands merged in this order. The applications stand disposed of in terms of this order. CS(OS) 1873/2012 The original agreement and original receipt dated 10.09.2011 are not on record. The learned counsel for the plaintiff states that the aforesaid documents have already been filed in the Registry. He shall check up with the Registry and get the documents place on record. The parties to appear before the Joint Registrar on 21.01.2013 for admission/denial of documents. The matter be listed before Court on 27.02.2013 for framing of issues.