AMIT KUMAR Vs. DHARA SINGH

JUDGEMENT

(1.) THIS is a suit for specific performance and permanent injunction. The case of the plaintiff is that vide agreement to sell dated 24th June 2006 the defendant agreed to sell land/plot measuring 9 bighas 12 biswas out of khewat 177/177, khasra No. 71/2 (4-0), 71/3 (0-5), 71/8 (1-0), 73/22 (4-7) situated in village Ladpur, Delhi to him for a total consideration of Rs.35Lacs and a sum of Rs.3,50,000/- was received by him from the plaintiff as advance money. As per the terms of the agreement, the balance amount of Rs.31,50,000/- was to be paid to the defendant at the time of execution of the sale deed before the Sub Registrar. It is alleged in the plaint that in terms of the agreement, the defendant was required to obtain No Objection Certificate and Income Tax Clearance, which he has failed to obtain till date. The plaintiff also sent a notice dated 24th March 2008 to the defendant requesting him to convey the status of the formalities for the registration of the sale deed, but, the defendant failed to comply with the same. He, therefore, has sought specific performance of the agreement through Court. Vide IA No. 3900/2009, the plaintiff has sought temporary injunction restraining the defendant from selling or assigning the suit property or create any third party interest therein during pendency of the suit.

(2.) THE suit has been contested by the defendant. It has been alleged in the written statement that the last date stipulated in the agreement for payment of the balance amount was 23rd August 2006 and since the plaintiff failed to make the payment by that date. A notice dated 11th September 2006 was sent by the defendant to the plaintiff through a property broker Mr. Ram Kumar Malik. This was followed by another notice dated 5th October 2006 about the forfeiture of earnest money paid by the plaintiff. It is also the case of the defendant that the No Objection Certificate from Revenue Authorities was to be obtained by the plaintiff and not by the defendant. It is claimed in the written statement that even prior to signing of the agreement to sell dated 24th June 2006 Mr. Ram Kumar Malik had paid a token amount of Rs.20,000/- to the defendant and a deal was stuck with him. This was followed by payment of another sum of Rs.20,000/- by him sometime in early June 2006. According to defendant, it was Mr. Ram Kumar Malik who brought the plaintiff with him and at that time the defendant paid the balance earnest money of Rs.2,50,000/-, thus making a total of Rs.3,50,000/-.

(3.) THE bone of contention between the parties is as to who was required to obtain the No Objection Certificate from Revenue Authorities. As per the agreement to sell, the requisite permission was to be obtained by the defendant. On the other hand, it is clearly stated in the notice dated 2nd November 2006 sent by Mr. Ajay Gupta, Advocate, to the defendant, on behalf of the plaintiff Amit Kumar that it was stipulated in the agreement that his client would obtain No Objection Certificate and Income Tax clearance and upon receipt of the same, the sale deed would be executed. It was further stated that his client had already applied for the No Objection Certificate and Income Tax Clearance immediately after the agreement to sell dated 24th June 2006, but the same had not been granted by the concerned department till date despite efforts by his clients. Thus, whereas the agreement to sell stipulated that it will be for the seller to obtain the No Objection Certificate, the notice sent by the plaintiff to the defendant through his counsel Mr. Ajay Gupta states otherwise. At this stage, it is difficult to ascertain, as to which party is actually in default. Primarily, it would be the person who was required to obtain the requisite permission from the Revenue Authorities. This matter, therefore, requires adjudication through trial. Considering the stipulation contained in the agreement and receipt of the earnest money by the defendant, it is difficult to dispute that the plaintiff has a prima facie case in his favour.