PRAVEEN JAIN Vs. LAKSHMI NARAIN GUPTA

JUDGEMENT

(1.) Shri Praveen Jain and his mother Smt. Madhuri Jain are Plaintiffs in S. No. 1485/1997. Shri Ashok Jain brother of Shri Praveen Jain and son of Smt. Madhuri Jain is the Plaintiff in S. No. 1486/1997. The former suit relates to the first floor and the letter to the second floor of B-7, Extension/116-A, Safdarjung Enclave, New Delhi. The averments in both the Plaints, as well as the defence thereto, are identical in substance and material particular. For these reasons the interlocutory applications filed in both the suits can conveniently and appropriately be disposed of by this common order. An original of this Order shall, therefore, be placed in S. N6.1486/1996.

(2.) The Plaintiffs have filed the present suit for stated to have been paid to the Defendant under the Agreement to sell dated 25-9-1996 and only Rs.20,00,000.00 had been,paid by Mr. Ashok .lain to the Defendant on the execution of the Agreement dated 5-8-1996. The Defendant has thereafter denied that the balance sale consideration of the First Floor is Rs.21,00,000.00 and has reiterated that the total consideration for the sale of the First and Second Floor was Rs.1,11,00,000.00 (Rs. One Crore eleven lakhs only) in terms of the Agreement to Sell dated 5-8-1996. It is asserted that the First Floor is almost one and half times of the built up areas of the Second Floor and that their price cannot, therefore, he equal. The value of the suit has been challenged. Rs.55,00,000.00 (Rs. Fifty Five lakhs only) as statedin para 5 of the Plaint in Suit No. 1485/1997. The property is stated to be freehold. It is averred by the Plaintiff that "the Defendant insisted from the above amount a sum of Rs.30,00,000.00 (Rs. Thirty lakhs only) be paid in cash and the rest Rs.25,00,000.00 (Rs. Twenty five lakhs only) was to be paid by cheque or draft." It is further averred that the Second Floor was purchased by Mr. Ashok Jain, brother of the first Plaintiff for a sum of Rs.55,00,000.00 (Rs. Fifty Five lakhs only), (it will be recalled that Mr. Ashok Jain has filed a similar suit for Specific Performance, bearing S. No. 1486/1997). It is then averred that in the month of August, 1996 an advance of Rs.4,00,000.00 (Rs. Four lakhs only) be cheque, and Rs.9,000,000.00 (Rs. Nine lakhs only) in cash was paid. Shri Ashok Jain has averred that in the second week of September, 19%, he paid a sum of Rs.30,00,000.00(Rs. Thirty lakhs only) in cash as demanded by the Defendant for the Second Floor. It is then alleged that the Plaintiff paid a sum of Rs.21,00,000.00 (Rs. Twenty one lakhs only) in cash and wanted the Sale Deed to be registered as the earliest. The Agreement to Sell-dated 25- 9-1996 is stated to have been entered into, for a total consideration of Rs.25,00,000.00 (Rs. Twenty five lakhs only) and part consideration of Rs.4,00,000.00 (Rs. Four lakhs only) was received by the Defendant from the Plaintiffs. The Agreement to Sell mentions that the actual physical possession of the suit property w handed over to the Plaintiffs, and within seven days of obtaining necessary Clearance certificate/Commission the Plaintiffs were to pay the rest of the money, and on the failure to do so they would be liable to pay interest at the rate of 24% per annum. It is further alleged that the Defendant told the Plaintiffs that he would take away all the things he had on the First Floor within a few days after which the Plaintiffs could shift their articles but since the Second Floor was empty he would hand over the keys immediately. Accordingly, the Defendant handed over the possession with regard to the Second Floor to the brother Mr. Ashok .lain, (the Plaintiff in S. No. 1486/1997). The Defendant intimated the Plaintiffs that within a couple of weeks the First Floor could also be taken possession of. It is thereafter stated that in October 1996 the plaintiffs contacted the Defendant in Bombay and on their request the Defendant asked them to take the keys of the First Floor from Shri Ashok Jain. The Plaintiffs, accordingly, look actual possession of the suit property to get their work done and have remained in uninterrupted possession of the same. After one previous reminder, in June 1997 the Plaintiffs again met the Defendant and were surprised to learn that no steps have been taken for getting the requisite Income Tax Clearance Certificate. Thereafter, in last week of June, 1997 the Defendant threatened Plaint ill No. 2 with dispossession, because of which a temporary injunction was obtained by them on 4-7-1997. By Registered notice dated 3- 7-1997 the Plaintiffs called upon the Defendant to accept the rest, of the sale consideration and register the Sale Deed and when this was not done the present suit was filed. The balance sale. consideration of Rs.21,00,000.00 (Rs. Twenty one lakhs only) was ready to be paid. The suit has been valued at Rs.25,00,000.00.

(3.) Before proceeding to consider the averments in the Written Statement, I am constrained to mention that the drafting of the plaints, at least in the narration of events alleged to have taken place, is not in sequence. It is either not drafted with due care, or with a view to cause confusion. To illustrate, the Plaintiffs have mentioned different sale considerations, and have first stated the execution of Agreements to Sell in-September 1996, and thereafter have abruptly mentioned a previous agreement and payments made against it.