D P SINGH Vs. GAGAN DEEP SINGH

JUDGEMENT

(1.) WHAT is sought in this suit is the specific performance of Agreement to Sell of 19th August, 2004 in respect of first floor in flat No. 97 in HIG Category, in Mahabhadra Kali, CGHS Limited, Plot No.6, Sector 13, Dwarka, New Delhi (hereinafter referred to as the 'suit property'). Plaintiff claims that at the time of execution of the aforesaid Agreement, he had paid earnest money of Rupees Two Lacs and the balance sale consideration of Rs.19,15,000/ - was to be paid by the plaintiff to the defendant on or before 9th November, 2004 at the time of execution of the sale deed but before that defendant was required to obtain 'No Dues Certificate' and 'No Objection Certificate' for sale of the aforesaid flat from Mahabhadra Kali, CGHS Limited Society and the said sale transaction was required to be completed on 9th November, 2004 before Sub -Registrar's office in Janakpuri, New Delhi. Plaintiff was to arrange for non -judicial stamp paper of Rs.1,69,200/ - for execution of the Sale Deed and as per the plaintiff, a day before i.e. on 8th November, 2004, plaintiff had sent a telegram to the defendant informing that the stamp papers and the balance sale consideration are ready and the balance money would be paid to the defendant i.e. on 9th November, 2004 before the Sub -Registrar concerned at 12 noon upon defendant furnishing 'No Dues Certificate' & 'No Objection Certificate', as aforesaid and the keys of the vacant suit property be given to the plaintiff. It is specific assertion of the plaintiff that on the due date, i.e. on 9th November, 2004, he had reached the office of the Sub -Registrar concerned along with banker's Cheque of Rs.19,15,000/ - drawn in favour of the defendant from the ICICI Bank and non -judicial paper of Rs.1,69,200/ - for execution and registration of the Sale Deed in respect of the suit property. The plaintiff asserts that on the appointed day i.e. 9th November,

(2.) 2004, he had waited till 5:00 p.m. in the office of the Sub -Registrar concerned and had tried to contact the defendant on phone many times but to no avail and the defendant had not turned up for the execution of the Sale Deed and so, plaintiff was constrained to send a telegram at about 5:40 p.m. on that day informing the defendant about the breach of the aforesaid Agreement by him. Not satisfied with the Defendants' reply of 23rd November 2004, to Plaintiff's notices of 11th November and 17th November 2004, the instant suit has been instituted, which was strongly contested by the Defendant, who has not only denied the Plaintiff's case but has also asserted that on appointed day, i.e., on 9th November 2004, he had gone to the Office of the Sub -Registrar concerned and had waited for the Plaintiff there, till 5 p.m. and thereafter had sent telegram at 5.45 pm on that day to the Plaintiff and since there was a failure on the part of the Plaintiff to specifically perform the Agreement in question therefore, the earnest money was rightly forfeited and so, this suit deserves dismissal.

(3.) RELIEF ? 4. Parties went to trial. Plaintiff had deposed as PW -1 and had got the introducer - Mr. Surjeet Singh, (PW -2) examined to corroborate the Plaintiff's plea of reaching the office of the Sub -Registrar concerned on the appointed day for specific performance of the Agreement in question. The Defendant had stepped into the witness box as DW -1 and had got his brother Mr. Harjinder Singh (DW -2) examined, who corroborates the stand of the Defendant and of his accompanying the Defendant to the Office of the Sub -Registrar concerned for execution of the Sale Deed in pursuance to the Agreement in question. The remaining evidence is of the concerned official, Mr. Amarpal Singh (DW -3) from the Treasury office, who has deposed on the basis of the record that on 11th November 2004, the non - judicial stamp paper worth Rs.1,58,650/ - was given to one Raj Kumar who had applied for the same on 9th November 2004 by making a cash deposit of the said amount. At the final hearing, submissions were advanced by Plaintiff's