ARTI CHAUDHARY Vs. VINOD KUMAR

JUDGEMENT

(1.) THIS is an application for deleting the name of defendant No.2 from the array of defendants. It has been alleged in the application that there is no privity of contract between the plaintiff and the applicant and he has unnecessarily been dragged into this litigation.

(2.) A perusal of the plaint would show that the case of the plaintiff is that defendant No.1 represented himself to be the absolute owner and in possession of northern side portion measuring 475 sq. yards i.e. half portion of property No.62 Part of Khasra No.429 situated at Village Masjid Moth, New Delhi-110049 as per the collaboration agreement dated 3rd December, 2003 between him and defendant Nos. 3 to 6. It is further alleged in para 3 of the plaint that it was also represented by defendant No.1 that defendant Nos. 3 to 6 were the absolute owners and in possession of the said property. Defendant No.1 is alleged to have agreed to sell first floor flat having an area of 1000 sq. feet consisting of two bedrooms with attached toilets with drawing cum dinning, kitchen, front side balcony with one car parking to the plaintiff. It is further alleged that pursuant to the agreement to sell and purchase, defendant No.1 received the amounts mentioned in para 4 of the plaint from the plaintiff. A sum of Rs. 10 lakhs is stated to have been paid to defendant No.1 towards the sale consideration and a sum of Rs.1.51 lakhs towards expenditure. The only allegation against defendant No.2 is that he was pursuing the transaction along with defendant No.1 for selling the property to the plaintiff, had been actively participating in the sale and he was in collusion and connivance with defendant No.1. It is also alleged that agreement to sell was executed in the presence of defendant No.2 and one more witness.

(3.) THE contention of the learned counsel for the plaintiff is that the plaintiff has also claimed injunction against all the defendants, restraining them from assigning, alienating, transferring the property, subject matter of agreement with the plaintiff, besides recovery of Rs.1.51 lakhs and damages amounting to Rs.10 lakhs. Since defendant No.2 does not have any right, title or interest in the suit property, he is not in a position to assign, transfer, sell or alienate it or create any third party interest in it. Hence, no injunction of the nature sought by the plaintiff can be granted to the plaintiff against him. THE amount of Rs.1.51 lakhs towards expenditure is alleged to have been paid by the plaintiff to defendant No.1 and not to defendant No.2. THErefore, this amount cannot be claimed from him. THE damages also can be claimed only from defendant No.1 since the case of the plaintiff is that he has suffered mental harassment on account of his failure to perform the agreement with the plaintiff. Thus, this relief also can be claimed only against defendant No.1 and not against defendant No.2.