RAKESH KUMAR SHARMA Vs. JIWAN DASS

JUDGEMENT

(1.) This suit filed by the plaintiff is for specific performance of Agreement dated 3.7.1996 as well as permanent injunction and declaration. The plaintiff has averred in the plaint that vide Agreement to Sell dated 3.7.1996 he purchased entire ground floor of property bearing Shop No.5, New Market, Malviya Nagar, measuring 84 sq.yards with rear portion measuring 12 ft 9 inch x 39 ft of the property bearing called as "suit property) with structure standing thereon as well as fittings and fixtures installed thereon along with proportionate share of leasehold rights in the land. The Agreement to Sell was entered into between the plaintiff and defendant No.8, namely, M/s.Shiv Ram Builders Pvt.Ltd. with late Shri Jiwan Dass, father of defendants 2 to 7 and husband of defendant No.1 as confirming party. The case set up is that late Shri Jiwan Dass was the owner of the property in question who entered into a Construction Agreement dated 3.4.1995 with defendant No.8 by virtue of which defendant No.8 constructed the suit property with its own fund and resources. As per this construction Agreement between late Shri Jiwan Dass and defendant No.8, late Shri Jiwan Dass was required to pay Rs.29 lakhs as full and final settlement of construction. Clause-7 of the Agreement stipulated that this payment was to be made either during the construction or within six months from the date of sanction of the plans of the construction failing which he was liable to pay interest on delayed payment at the rate of 2^ P.M. to defendant No.8. Clause-10 further stipulated that in case late Shri Jiwan Dass failed to make full and final payment and failed to return the security deposit of Rs.6 lakhs to defendant No.8 within a maximum period of 9 months from the date of sanction of the plans by MCD then in such an event defendant No.8 was to become sole, absolute and exclusive owner and was entitled to seek possession of the entire ground floor in lieu of cost of construction incurred by it and the security amount deposit along with interest on both the said amounts. Since late Shri Jiwan Dass did not make the payment, defendant No.8 became the owner and took possession of the entire ground floor of the suit property.

(2.) Late Shri Jiwan Dass also executed several documents on 27.3.1996 in favour of defendant No.8 thereby transferring his right, title and interest in the suit property. These documents included two special power of attorneys, affidavit, general power of attorney, will etc. On the strength of this general power of attorney and after becoming the owner of the suit property in the aforesaid manner, defendant no.8 entered into an Agreement to Sell dated 3.7.1996 with the plaintiff whereby the suit property was agreed to be sold to the plaintiff for a total consideration of Rs.27 lakhs. The plaintiff took possession of the suit property on spot in part performance of the Agreement to Sell dated 3.7.1996 when on that date the plaintiff made payment of Rs.26.50 lakhs vide Cheque No.511645 of even date drawn on Punjab National Bank and Rs.50,000.00 was paid by cash. Late Shri Jiwan Dass was confirming party to this Agreement who signed the Agreement to Sell dated 3.7.1996 in token on his acceptance to the said deed.

(3.) It is also averred that the plaintiff is in possession of the suit property for valid consideration and entire consideration has been paid for which defendant no.8 has also executed the receipts as well as other necessary documents. However, certain disputes arose when late Shri Jiwan Dass and defendants 1 to 7 illegally and unlawfully started obstructing the business activities of the plaintiff and causing harassment to him and even FIR was lodged by late Shri Jiwan Dass on 30-9-1998.