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2012 DIGILAW 887 (DEL)

Shanta Aneja v. Satbir Singh

2012-03-01

MANMOHAN SINGH

body2012
Judgment MANMOHAN SINGH, J. 1. The plaintiff has filed the instant suit for specific performance and permanent injunction. 2. It is averred in the plaint that the plaintiff is the owner of the entire second floor bearing private Nos.6 & 7 that form a part of the property bearing No.80, situated at Furniture Block, Kirti Nagar, New Delhi (hereinafter referred to as the ‘suit property’). Vide an Agreement to Sell dated 18.07.2009, the defendant agreed to sell the suit property to the plaintiff for a sum of Rs.30,33,333/-and even received a sum of Rs.9,00,000/-as earnest money/advance-cum-part payment from the plaintiff at the time of execution of the said Agreement to Sell and issued two receipts dated 18.07.2009 ofRs.5,00,000/-and Rs.4,00,000/-respectively. The plaintiff was required to pay the balance amount of Rs.21,00,000/-to the defendant within a period of 14 months and the last date of execution of documents in favour of the plaintiff was on or before 17.09.2010. 3. On 06.04.2010, the defendant handed over the possession of the suit property to the plaintiff and the plaintiff is in occupation of the suit property and running her furniture business from there. 4. During the month of July/August, 2010 on various dates the plaintiff made payment of Rs.1,00,000/-to the defendant in cash and on 13.09.2010 she got a demand draft of Rs.19,00,000/-prepared in favour of the defendant towards the balance outstanding amount in terms of the Agreement to Sell dated 18.07.2009. The plaintiff also purchased the stamp paper of Rs.1,11,500/-on 13.09.2010 for execution and registration of the Sale Deed in respect of the suit property. However, the stamp duty was found to be insufficient therefore, the plaintiff got another demand draft dated 13.09.2010 prepared for Rs.22,400/-for issuance of additional stamp paper. 5. It is further stated that on 16.09.2010 the plaintiff and defendant entered into a further Agreement in continuation of the earlier Agreement to Sell, thereby, extending the time under the previous Agreement to 01.10.2010. On 20.09.2010, the plaintiff paid a further sum of Rs.1,00,000/-to the defendant. Thereafter, the plaintiff tried to contact the defendant on various occasions to collect the balance payment of Rs.19,00,000/-and execute and register the Sale Deed in favour of the plaintiff, however, the defendant started avoiding the plaintiff and stopped taking her calls. On 01.10.2010 the husband of the plaintiff sent an SMS to the defendant but, the defendant did not respond. 6. On 01.10.2010 the husband of the plaintiff sent an SMS to the defendant but, the defendant did not respond. 6. As per the plaintiff, she even sent a legal notice dated 07.10.2010 to the defendant through her counsel, calling upon the defendant to come forward and accept the balance payment and execute the Sale Deed in favour of the plaintiff but, the defendant did not comply with same. Now it appears that the defendant is not interested in executing the Sale Deed in favour of the plaintiff. 7. Hence the plaintiff filed the instant suit seeking a decree for specific performance of the Agreement to Sell dated 18.07.2009 and Subsequent Agreement dated 16.09.2010. 8. It is stated by the plaintiff that she has already paid a sum of Rs.11,00,000/-to the defendant under the Agreement to Sell dated 18.07.2009 and she is further entitled to a sum of Rs.11,00,000/-on account of rise in prices of land in that area. 9. Therefore, the plaintiff is seeking a decree for specific performance of the Agreement to Sell dated 18.07.2009 and Subsequent Agreement dated 18.07.2009 or in alternative a decree of Rs.22,0,000/-as damages in terms of Clause 8 of the Agreement to sell dated 18.07.2009 along with interest @ 18% p.a. from the date of filing of this suit till realization and for a decree of permanent injunction restraining the defendant from creating any third party rights in respect of the suit property. 10. The suit along with the interim application being I.A. No.17152/2010 was listed before the court for the first time on 20.12.2010, when the summons in the suit and notice in the application was issued and an ex parte order was granted in favour of the plaintiff and against the defendant restraining the defendant from creating any third party rights in respect of the suit property. However, despite service no one appeared on behalf of the defendant. Thus, vide order dated 17.10.2010 the defendant was proceeded ex parte. 11. Plaintiff filed evidence by way of affidavit Ex. PW-1/A and proved the following documents: (i) Ex.P-1-Copy of the site plan showing portion of the suit property in red colour (original seen and returned). (ii) Ex.P-2-Agreement to sell dated 18.07.2009, executed between the plaintiff and the defendant. (iii) Ex.P-3-Receipt for Rs.5,00,000/-dated 18.07.2009 executed by the defendant. (iv) Ex.P-4-Receipt for Rs.4,00,000/-dated 18.07.2009 executed by the defendant. PW-1/A and proved the following documents: (i) Ex.P-1-Copy of the site plan showing portion of the suit property in red colour (original seen and returned). (ii) Ex.P-2-Agreement to sell dated 18.07.2009, executed between the plaintiff and the defendant. (iii) Ex.P-3-Receipt for Rs.5,00,000/-dated 18.07.2009 executed by the defendant. (iv) Ex.P-4-Receipt for Rs.4,00,000/-dated 18.07.2009 executed by the defendant. (v) Ex.P-5-Pass Book of saving account No.600810100018422 in the name of plaintiff. (vi) Mark A-Copy of the demand draft dated 13.09.2010 drawn on State Bank of India for Rs.19,00,000/-got prepared by the plaintiff in favour of the defendant. (vii) Mark B-Copy of stamp paper of Rs.1,11,500/-dated 13.09.2010 purchased by the plaintiff. (viii) Mark C-Copy of the demand draft dated 13.09.2010 for Rs.22,400/-for additional stamp paper. (ix) Ex.P-6-Agreement between the plaintiff and the defendant extending time under the Agreement to sell dated 18.07.2009 to 01.10.2010. (x) Mark D-Copy of the application made by the plaintiff in the office of the Sub Registrar-II for inspection of Book No.1 records in respect of the suit property. (xi) Ex.P-7-Receipt-B dated 01.10.2010 issued by the office of the Sub Registrar-II, Distt. West,Delhi in favour of the plaintiff. (xii) Ex.P-8-True computer printout of SMS given by the husband of the plaintiff to the defendant on 01.10.2010. (xiii) Ex.P-9-Office Copy of the legal notice dated 07.10.2010 issued on behalf of the plaintiff to the defendant. (xiv) Ex.P-10 & 11-Postal receipt and courier receipt towards proof of dispatch of the legal notice dated 01.10.2010. (xv) Mark E-Copy of refund voucher dated 25.08.2011 for Rs.1,15,000/-issued by the Collector of Stamps, Government of NCT of Delhi. 12. I have heard the learned counsel for the plaintiff and have also gone through the affidavit in ex parte evidence as well as the documents placed on the record. In her evidence, the plaintiff has proved the facts stated in the plaint and also exhibited the relevant documents in support of her case. As no cross-examination of the plaintiff was carried out, therefore, the evidence filed by the plaintiff has gone unrebutted. Therefore, the statements made by the plaintiffs are accepted as correct deposition. 13. Under these facts and circumstances, the plaintiffs are entitled to a decree for a permanent injunction. 14. As no cross-examination of the plaintiff was carried out, therefore, the evidence filed by the plaintiff has gone unrebutted. Therefore, the statements made by the plaintiffs are accepted as correct deposition. 13. Under these facts and circumstances, the plaintiffs are entitled to a decree for a permanent injunction. 14. Accordingly, a decree for specific performance of the Agreement to Sell dated 18.07.2009 and Subsequent Agreement dated 16.09.2010 in respect of the entire second floor bearing private Nos.6 and 7 that for a part of the property bearing No.80, situated at Furniture block, Kirti Nagar, New Delhi, be passed in favour of the plaintiff and against the defendant, with the direction that the plaintiff shall deposit the balance sale consideration in Court within four weeks and thereafter, the defendant shall take steps in accordance with the Agreement to Sell for execution and registration of the sale deed within two weeks thereafter, failing which the Registrar of this Court shall take necessary steps in accordance with the law for getting sale deed executed and registered after obtaining legal sanction. Decree be drawn accordingly by the Registry. 15. The suit as well as pending application, if any, stand disposed of.