MUNISH OHRI Vs. VIMLA MANCHANDA

JUDGEMENT

(1.) THIS is a suit for specific performance of agreement dated 03.10.2004 and for permanent injunction.

(2.) BRIEFLY stated the facts of the case as set out in the plaint which was filed on 17.02.2010 are that the plaintiff Munish Ohri had entered into an agreement for sale/purchase of property at the ground floor bearing flat No. J -27, Ali Ganj, B.K. Dutt Colony, New Delhi -110003 (hereinafter referred as the 'suit property ') from Shri Akash Manchanda for a total sale consideration of Rs. 70,00,000/ -. A sum of Rs. 7,00,000/ - is purported to have been paid to Akash Manchanda and receipt dated 03.10.2004 was executed by him wherein it is stated that the balance sale consideration of Rs. 63,00,000/ - shall be paid by the plaintiff to Akash Manchanda, the defendant, on or before 03.12.2004 by which date Akash Manchanda was required to perfect the title of the plaintiff. It is alleged in the plaint that one of the condition precedent in the agreement to sell was that Akash Manchanda had assured the plaintiff that encroachment which was available on or around the suit property in the form of one Pan Beedi shop shall be got vacated, and thereafter, the possession of the suit property will be transferred to the plaintiff. Unfortunately Akash Manchanda died in the month of October, 2005 and after his death, his mother Smt. Vimla Manchanda and two sisters, namely, Bharti and Jagriti who are the defendants herein claimed the title to the property in the capacity of legal heirs. They assured the plaintiff that they would go ahead with the transactions. It is alleged that despite the plaintiff approaching the defendants they did not remove the encroachment from the suit property and perfect the title of the plaintiff. On 02.03.2005 a legal notice was issued by the plaintiff to the defendants reminding them to clear the encroachment within seven days of receipt of the notice and execute the sale deed in favour of the plaintiff or alternatively refund of double the amount paid. It is alleged that the defendants did not reply to the said notice but on the contrary on account of rise in prices of the property they with a malafide intention are threatening the plaintiff that they would transact the property in favour of the other person. It is alleged in the plaint that since the defendants did not perfect the title and complete the sale transaction in favour of the plaintiff, despite the possession of the property having been allegedly given in August, 2008 consequently he has been constrained to file the present suit for specific performance for which the cause of action has arisen when the defendant failed to remove the encroachment.

(3.) THE defendant filed her written statement and took a preliminary objection regarding the maintainability of the suit itself on two grounds. The first contention was that the suit is hopelessly barred by time.