SANJAY BHARDWAJ Vs. ARVIND KUMAR LALIT GULATI

JUDGEMENT

(1.) A portion (50 sq. yards, as shown in red in the site plan) of residential Property No.F-2/9, Krishna Nagar, Delhi, (hereinafter referred to as the suit property) is the subject matter of this suit for specific performance of the Agreement to Sell of 27th July, 2004. The plaintiff, who by virtue of the aforesaid Agreement to Sell, is said to have entered into a transaction for the purchase of 50 sq. yards of the suit property for a total consideration of Rs.27 lacs and plaintiff claims to have paid earnest money of Rs.11 lacs to the defendant in respect of this transaction. Balance sale consideration of Rs.16 lacs was payable to the defendant on or before 1st March, 2005, upon execution of the necessary documents i.e. Sale Deed etc. and in the event of default by the defendant, he would be liable to pay double the amount of the part sale consideration received i.e. Rs.22 lacs. As per the plaintiff, the defendant at the time of entering into the aforesaid Agreement to Sell had handed over the certified copies of title documents of the suit property to the plaintiff, upon receiving a sum of Rs.5,40,000/- in cash and Rs.10000/- by cheque, purportedly given by the plaintiff to the defendant on 7th April, 2004, and on the same day, a further sum of Rs.5,50,000/- in cash against receipt is said to have been paid by the plaintiff to the defendant. The execution of the aforesaid Agreement to Sell, Special Power of Attorney, Will etc. is said to have been witnessed by Shri Manoj Mudgal and Shri Rohit Kumar. Plaintiff avers that in the first week of February, 2005, and thereafter on various dates, he had been requesting the defendant to receive the balance sale consideration of Rs.16 lacs and to execute the Sale Deed before the concerned Sub Registrar, but the defendant had resorted to dilatory tactics.

(2.) IT is also plaintiff's case that despite legal notice of 29th March, 2005, no positive response was received from the defendant and when the plaintiff had apprehended that the defendant is proceeding to create third party interest in the suit property, the instant suit was instituted. While entertaining this suit, defendant was directed not to create any third party interest in the suit property.

(3.) PLAINTIFF's evidence comprises of his deposition as PW-1 and the deposition of the Shri Rohit Kumar (PW-2), who claims to have witnessed payment of earnest money, Agreement to Sell (Ex.PW.1/13, Mark 'A'), Special Power of Attorney (Ex.PW.1/15, Mark 'B'), Will (Ex.PW.1/14, Mark 'C') and Receipts (Ex.PW.1/1 and Ex.PW.1/1-A.). To assert that a cheque of Rs.10,000/- was encashed on 29th April, 2004, plaintiff has got examined his banker's Senior Assistant Shri Sanjiv Sharma as PW-3. The last witness of the plaintiff is Shri Naveen Puri (PW-4), a stamp vendor, who has deposed that stamp paper worth Rs.50/- were sold by him to the defendant on 16th April, 2004. Solitary evidence of the defendant is his own deposition as DW-1.