PRADEEP KUMAR BHATIA Vs. PARAMJIT KAUR PAINTAL

JUDGEMENT

(1.) The plaintiff has instituted this suit for specific performance of an Agreement of Sale of front portion ad-measuring 315 sq. yds. of property No.E-26/6, Rajouri Garden, New Delhi. The suit, post completion of trial, came up before the undersigned on 27th August, 2019 when the counsels were partly heard. The hearing was completed on 10th February, 2020, when judgment in the suit was reserved.

(2.) The suit, as originally instituted on or about 19th May, 2008, besides against the defendant herein was also against the Oriental Bank of Commercial (OBC), impleaded as defendant no.2, and with which the property subject matter of Agreement of Sale was mortgaged. The said OBC filed IA No.8828/2016 for deletion from the array of parties, stating that present sole defendant and the then defendant no.1 had redeemed the mortgage and the defendant no.2 OBC had released the property and titled documents in favour of the defendant no.1. Vide order dated 9th August, 2016, the said application was allowed and OBC was deleted from the array of parties and the plaintiff directed to file fresh memo of parties.

(3.) The case of the plaintiff in the plaint was, that (i) the defendant, desirous to sell the property, had represented to the plaintiff that the same was mortgaged to OBC and a sum of about Rs.30,00,000/- to Rs.40,00,000/- only remained repayable to OBC and which the defendant would definitely pay before the time stipulated for executing the Sale deed; (ii) an Agreement to Sell dated 24th January, 2007 was executed by the parties and per Clause 4 thereof also, the defendant could call upon the plaintiff for a further amount of Rs.40,00,000/- to Rs.50,00,000/- for clearing the dues of OBC and redeem the mortgage; (iii) under the Agreement to Sell, the plaintiff as against the total sale consideration agreed of Rs.2,70,00,000/-, paid to the defendant Rs.2,00,000/- by way of earnest money and Rs.8,00,000/- by way of advance sale consideration and the remaining sale consideration of Rs.2,60,00,000/- was to be paid within 120 days of the date of the agreement i.e. on or before 23rd May, 2007, at the time of execution of Sale Deed and delivery of title documents of the property; (iv) in the event of the defendant calling upon the plaintiff to pay Rs.40,00,000/- to Rs.50,00,000/- to redeem the mortgage, the defendant was to execute Sale Deed of one third portion of the property i.e. one floor, in the name of the plaintiff and to also handover possession of the said floor; (v) the defendant was unable to clear the dues of OBC and approached the plaintiff and requested for a further period to clear the bank dues; (vi) the plaintiff agreed to extend the time by a further period of 60 days i.e. upto 24th July, 2007 and an Agreement dated 22nd May, 2007 of Extension was executed between the parties and in which it was also agreed that upon the defendant getting clearance of the mortgage from OBC, shall give a written notice to the plaintiff, granting 15 days time to the plaintiff to pay the balance sale consideration and get the sale deed executed; (vii) the defendant failed to conclude the Sale Deed by 24th July, 2007 also and in the circumstances the plaintiff got issued a legal notice dated 25th July, 2007 calling upon the defendant to, within ten days redeem the mortgage and thereafter execute Sale Deed in favour of the plaintiff; (viii) the plaintiff also got a public notice issued in the newspapers; (ix) the defendant, on receipt of notice approached the plaintiff and requested the plaintiff for some further payment to enable her to clear the dues of OBC and the plaintiff, on 11th September, 2007 and 17th September, 2007 paid a further amount of Rs.30,00,000/- to the defendant in cash as well as by cheque, taking the total payment made by the plaintiff to the defendant to Rs.40,00,000/-; (x) on the defendant still failing to redeem the mortgage, the plaintiff sent a letter dated 25th September, 2007 calling upon the defendant to immediately execute the Sale Deed of one-third portion of the property i.e. one floor and to get the property released from OBC and thereafter execute Sale Deed of the remaining portion of the property; (xi) the defendant then turned dishonest and got sent a reply dated 8th October, 2007 claiming that she had shown a settlement arrived at with OBC to the plaintiff and it was the plaintiff who was in default, and threatening to forfeit the earnest money; (xii) the plaintiff got sent a communication dated 15th October, 2007 to the defendant, denying that the plaintiff was in default; (xiii) on receiving no further response from the defendant, the plaintiff got issued notice dated 24th March, 2008 to the defendant enquiring the status of redemption of mortgage from OBC and to which a reply dated 8th April, 2008 was got sent by the defendant, again taking a false stand of having shown some alleged settlement with OBC to the plaintiff and refusing to honour the Agreement to Sell; and, (xiv) the plaintiff, on making enquiries learnt that OBC had already initiated recovery proceeding before the Debt Recovery Tribunal (DRT).