HARSH BALA Vs. USHA SIBAL

JUDGEMENT

(1.) The challenge by means of this regular first appeal under Section 96 of the Code of Civil Procedure, 1908 is to the impugned judgment and decree dated 30.4.2001 whereby the suit for specific performance of the Appellants/Plaintiffs was dismissed for the relief of specific performance by decreeing instead the alternative relief of refund of the amount paid under the agreement to sell, along with interest at 12% per annum.

(2.) The facts of the case are that late Sh. Maharaj Kishan Sibal, the predecessor-in-interest of the Defendants/Respondents, entered into an agreement to sell dated 3.4.1993 with the Appellants/Plaintiffs with respect to the ground floor and the roof of the first floor with all terrace rights of the property bearing No. B-53, New Rajinder Nagar, New Delhi, constructed on a plot admeasuring 128 sq. yds, for a total consideration of Rs. 4.60,000/-, and of which amount, a sum of Rs. 3,60,000/- was paid on the date of the agreement to sell, exhibited as Ex.PW1/2 in the trial court. Further amounts were paid by the Appellants to Sh. Maharaj Kishan Sibal and as a result whereof, out of the total sale consideration of Rs. 4,60,000/-, a sum of Rs. 4,06,000/- was paid to Sh. Maharaj Kishan Sibal. As Maharaj Kishan Sibal was threatening to dispossess the Appellants/Plaintiffs, a civil suit for injunction was filed against Sh. Maharaj Kishan Sibal and in the said suit Sh. Maharaj Kishan Sibal made a statement admitting the agreement to sell and the receipt of the amount of Rs. 3,60,000/-. It was agreed by Sh. Maharaj Kishan Sibal that he would not dispossess the Appellants/Plaintiffs. A further amount of Rs. 25,000/- was received by Sh. Maharaj Kishan Sibal in court. Sh. Maharaj Kishan Sibal died on 12.9.1993 leaving behind the Defendants as his legal heirs. Originally, the Defendant No. 1 in the suit was his widow Smt. Usha Sibal who expired during the pendency of the suit in the trial court, and since the other two Defendants were the two daughters of late Sh. Maharaj Kishan Sibal and deceased Defendant No. 1/Smt. Usha Sibal, they were taken on record as legal heirs of Defendant No. 1. As of today, therefore the two daughters of Sh. Maharaj Kishan Sibal are the persons who are contesting the proceedings.

(3.) On account of failure of the legal heirs of Sh. Maharaj Kishan Sibal to execute the sale deed in favour of the Appellants/Plaintiffs, the subject suit came to be filed. The Defendants No. 1 and 2 being the widow and daughter of Sh. Maharaj Kishan Sibal in the suit were served for 12.4.1996, the suit having been filed on 7.3.1996. The Defendants No. 1 and 2 subsequently in the trial court had moved an application under Order 2 Rule 2 read with Order 6 Rule 5 and Section 10 Code of Code of Civil Procedure on 27.5.1996. Defendant No. 3 was not served for various dates of hearings during the years 1996 and 1997. It is surprising that initially no one chose to appear for Defendant No. 3 who was the other daughter although counsel had appeared for one daughter and the widow of late Sh. Maharaj Kishan Sibal in the trial court. Defendant No. 3 was ultimately proceeded ex parte after service on 8.2.1997. Defendant No. 1 Smt. Usha Sibal died in around April, 1997 and this was so stated by her counsel on 5.5.1997 and time was sought accordingly whereby the matter was put for further proceedings on 30.5.1997. Since the Defendants No. 2 and 3 being the daughters of Smt. Usha Sibal were the only legal heirs, on 30.5.1997 it was so recorded and the matter was fixed thereafter on 29.8.1997. On 29.8.1997 since no one appeared for the Defendants No. 2 and 3/Respondents/daughters of Sh. Maharaj Kishan Sibal, the matter was therefore proceeded ex parte against the Defendants.