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Himachal Pradesh High Court · body

2013 DIGILAW 992 (HP)

RAJEEV KUMAR v. Raj Kumari Birdi

2013-12-02

V.K.SHARMA

body2013
JUDGEMENT V.K.SHARMA, J.- 1. THE plaintiff has filed the present suit for grant of a decree for specific performance, perpetual prohibitory injunction and in the alternative recovery of Rs. 18,00,000/- ('Eighteen Lacs) as compensation/damages alongwith costs and interest @ 18% per annum against the defendant on the basis of agreement of sale dated 8.4.2011, in respect of the land in suit, measuring 10 bighas fully detailed and described in the heading, para 1 and prayer clause (ii) to the plaint. 2. THE case of the plaintiff is that he belongs to village Khera Chakk in District Solan and is an agriculturist, thus entitled to purchase land in the State of Himachal Pradesh. Accordingly, he entered into an agreement of sale dated 8.4.2011, with the defendant through her General Power of Attorney, Shri Deepak Mehta @ Deepak Sharma, whereby, he agreed to sell the Rs. 6.5 lacs per bigha, ' suit land to him @ totaling 65,00,000/- (Rupees Sixty Five Lacs). A sum of Rs. 2,00,000/- (Rupees Two Lacs) was paid as advance. As agreed, the sale deed was to be executed on or before 9.7.2011. further sum of Rs. 10,00,000/- Rupees Ten Lacs) was paid by the plaintiff to the defendant through the said attorney ' vide cheque dated 24.5.2011. Another sum of 6,00,000/- (Rupees Six Lacs) was paid by him to the defendant vide cheque dated 1.7.2011. After payment of total advance sale consideration of Rs. 18,00,000/-(Rupees Eighteen Lacs), the plaintiff was put in possession of the suit land. The payments were acknowledged by way of endorsements on the agreement. The remaining sale consideration of Rs. 47,00,000/- (Rupees Forty Seven Lacs) was agreed to be paid on or before 9.7.2011. Further case of the plaintiff is that on 9.7.2011 and 10.7.2011 being holidays on account of 2nd Saturday and Sunday, the defendant was requested to come to the office of the Sub Registrar, Nalagarh, for execution and registration of the sale deed on 11.7.2011. However, on that day, while the plaintiff kept on waiting in the office of the Sub Registrar uptil 4.45 P.M, neither the defendant nor her attorney turned up. Consequently, in token of his presence in the office of the Sub Registrar on that day, an affidavit was sworn by him before the Executive Magistrate. However, on that day, while the plaintiff kept on waiting in the office of the Sub Registrar uptil 4.45 P.M, neither the defendant nor her attorney turned up. Consequently, in token of his presence in the office of the Sub Registrar on that day, an affidavit was sworn by him before the Executive Magistrate. Thereafter, on 15.7.2011, he served legal notice Ex.PW-2/E upon the defendant calling upon her to come to the office of the Sub Registrar on 1.8.2011, at 11.00 AM alongwith the revenue papers and certificate of average value of land to execute the sale deed and get the same registered on receipt of balance sale consideration. However, the defendant instead of honouring the agreement sent reply dated 30.7.2011, Ex.PW-1/F to the legal notice through counsel taking a hostile stand and shifted the blame for non-performance of the agreement to the plaintiff. 3. ACCORDING to the plaintiff, he was and is always ready and willing to perform his part of the agreement, but the defendant failed to discharge the reciprocal obligation despite receipt of advance sale consideration to the tune of Rs. 18,00,000/-, compelling him to file the suit. 4. ON being served, initially the defendant put in appearance through counsel on 11.10.2011, but, later on consequent upon withdrawal of the counsel, she was proceeded against ex parte vide order dated 22.3.2012, in OMP No. 39 of 2012. In his ex parte evidence the plaintiff, Shri Rajeev Kumar, has appeared as PW-2 and reiterated the averments set up in the plaint on oath. He has also examined PW-1 Mr. Thakur Lal, Naib Tehsildar, Nalagarh, to prove the entries Ex.PW-1/A and Ex.PW-1/B, regarding attestation of affidavit Ex.PW-2/D and General Power of Attorney Mark-B and signatures Ex.PW-1/C to Ex.PW-1/E of Mr. Bali Ram Suman, the then Executive Magistrate, Nalagarh and Ex.PW-1/F to Ex.PW-1/K of his predecessor, PW-3 Shri Darshan Singh and PW-4 Shri Nagender Singh, marginal witnesses to agreement Ex.PW- 2/A and endorsements Ex.PW-2/B and Ex.PW-2/C thereon, with regard to payment of advance sale consideration of Rs. 10,00,000/- and Rs. 6,00,000/-, respectively and PW-5 Shri Tirlochan Singh, who has proved statements of account Ex.PW-5/A in respect of the plaintiff and Ex.PW-5/B in respect of defendant's attorney Shri Deepak Mehta @ Deepak Sharma, regarding advance sale consideration of ' payment/receipt of 10,00,000/-. 5. 10,00,000/- and Rs. 6,00,000/-, respectively and PW-5 Shri Tirlochan Singh, who has proved statements of account Ex.PW-5/A in respect of the plaintiff and Ex.PW-5/B in respect of defendant's attorney Shri Deepak Mehta @ Deepak Sharma, regarding advance sale consideration of ' payment/receipt of 10,00,000/-. 5. EX .PW-2/G and Ex.PW-2/H are statements of account of the plaintiff and defendant's attorney Shri Deepak Mehta @ Deepak Sharma, qua payment/receipt of advance sale consideration of Rs. 6,00,000/-. 6. FROM the ex parte oral and documentary evidence led on behalf of the plaintiff, it is made out that whereas he was always and is even now ready and willing to perform his part of the agreement of sale dated 8.4.2011, Ex.PW-2/A, the defendant has utterly failed to perform her part of the said agreement even despite receipt of advance sale consideration of Rs. 18,00,000/-. In view of the above, the suit for specific performance of agreement dated 8.4.2011, is decreed in favour of the plaintiff and against the defendant ex parte with costs, with a direction to the defendant to execute sale deed in respect of the suit land in favour of the plaintiff and get the same registered from the competent authority within 60 days from today, failing which, the sale deed shall be liable to be executed and registered under orders of this court at the expenses of the defendant, for which liberty is reserved to the plaintiff. The prayer of the plaintiff for perpetual prohibitory injunction, restraining the defendant from causing interference with the suit land in any manner, whatsoever, is also granted.