L M MISRA Vs. SUSHIL KUMAR MEHTA

JUDGEMENT

(1.) THIS is a suit for recovery of Rs 1,51,61,000/- and permanent injunction. The plaintiff is a senior citizen, having retired as a Lieutenant General from Indian Army. Defendant represented to the plaintiff that he was the sole and absolute owner of Plot No. 7, Paschim Marg, DLF City, Phase-I, Gurgaon, admeasuring 400.40 sq. metres and the aforesaid plot was free from all kind of encumbrances, such as sale, gift, mortgage, litigation, etc. He agreed to sell the aforesaid plot to the plaintiff for a total consideration of Rs 51,61,000/-. In order to convince the plaintiff, the defendant provided him the original receipt, which the erstwhile owner of the property Mr Harish Bhandari, had executed in his favour. Believing the representation made by the defendant, the plaintiff paid the entire sale consideration of Rs 51,61,000/- to the defendantm from time to time. Since the defendant was unable to get the plot transferred in the name of the plaintiff, a Settlement Agreement was executed between the parties on 15th November, 2007. Under the settlement, the defendant undertook to execute the sale deed of the plot in favour of the plaintiff by 30th November, 2007. As a proof of his commitment to honour the agreement, the defendant handed over one cheque of Rs 51,61,000/- dated 15th November, 2007, drawn on Bank of Baroda, East of Kailash, New Delhi to the plaintiff. Another cheque of Rs 1 crore, drawn on the same bank, was also handed over to the plaintiff to show his bona fide and convince him that the defendant intends to fulfil the commitment being made by him. It was also agreed that if the sale deed was not executed in terms of the settlement, the defendant would pay difference between Rs 51,61,000/-, which he had received from the plaintiff and Rs 3.5 crore, which was the actual market value of the plot on the date of the agreement, to the plaintiff. Two Special Power of Attorneys, executed in favour of the defendant, one in respect of Plot No.7. Paschim Marg, DLF City, Phase-I, Gurgaon and the other in respect of Shop No. 9, DDA Market, behind IOC Building on Aurobindo Road, New Delhi, were also delivered by the defendant to the plaintiff.

(2.) IT is alleged by the plaintiff that the defendant failed to honour his commitment since neither the sale deed was executed in his favour nor was the difference between the agreed sale consideration of Rs 51,61,000/- and the market value on the date of the agreement dated 15th November, 2007 was paid to him by the defendant. Both the cheques, which the defendant had delivered to the plaintiff, were, when presented to the bank, dishonoured for want of funds. Since the defendant failed to honour the settlement, the plaintiff has now claimed a sum of Rs 1,51,61000/- from him which comprises the principal sum of Rs 51,61,000/- paid by him to the defendant and Rs 1 crore out of difference between the agreed sale consideration and market value of the plot as on 10th November, 2007.

(3.) THE plaintiff has tendered his affidavit by way of ex parte evidence and in his affidavit, he has affirmed, on oath, the averments made in the plaint. He has stated that the defendant represented to him that he was the sole owner of Plot No. 7, Paschim Marg, DLF City, Phase-I, Gurgaon, admeasuring 400.40 sq. metres and that the original seller Mr Harish Bhatia had executed a sale deed pertaining to the aforesaid plot in his favour. He has further stated that he agreed to purchase the aforesaid plot from the defendant for a consideration of Rs 51,61,000/- and paid the aforesaid amount to him partly by cheque and partly by cash. According to him, the defendant did not transfer the plot in his name nor was the sale deed executed in his favour. A Settlement Agreement was entered into between the parties on 15th November, 2007, whereby the defendant undertook to execute the sale deed of the plot in his favour by 30 th November, 2007 and also handed over two cheques, one of Rs 51,61,000/- and the other of Rs 1 crore to him. He also handed over two Special Power of Attorneys, executed in his favour, to the plaintiff. THE plaintiff has further stated that the defendant has not fulfilled his commitment in terms of the agreement dated 15th November, 2007.