TRIPAT KAUR SANDHU Vs. VIJAY GUPTA

JUDGEMENT

(1.) MR. Vijay Gupta (respondent No.1 herein) filed a suit for specific performance, declaration, permanent & mandatory injunction as well as a decree of damages in the alternative against Shri Gursharan Singh Sandhu (for short ,,GSS)/respondent No.2 in respect of flat No.113, 1st Floor, New Delhi House, Plot No.27, Barakhamba Road, New Delhi-110001 admeasuring 872 sq.ft. (hereinafter referred to as the ,,suit property). Respondent No.1 alleged that GSS has represented himself as the owner of the flat and agreed to sell the same to him for a total consideration of Rs. 38,80,400.00, amount being calculated @ Rs. 4,450.00 per sq.ft. Respondent No.1 paid a sum of Rs. 1.00 lakh in cash as part payment to GSS for which a receipt was executed (Exhibit P-1), which reads as under:

(2.) AS per the receipt GSS was to pay all the dues up to the date of the agreement along with transfer charges payable to the builder. The receipt is witnessed by Shri Pavan Kumar and Shri Mahesh Goel. The plaint states that the transaction was to be completed within two (2) months or soon thereafter, after obtaining necessary permissions and clearances and the balance amount was payable on receipt of possession as per the said understanding though not evidenced in the receipt. Respondent No.1 contacted GSS on 15.5.2004 before the expiry of the said period informing that he has made arrangement for the entire sale consideration but was informed that the permissions/clearances had not been obtained. Despite number of endeavours of respondent No.1 and his readiness and willingness to perform the obligations for sale of the property, the transaction was not completed but on the other hand he came to know that GSS was attempting to sell the flat to some other person at a higher price. This resulted in filing of the suit for specific performance and in the alternative for recovery of Rs. 25.00 lakh towards compensation, including advance paid along with interest @ 24 per cent per annum. The suit was filed on 7.7.2004.

(3.) RESPONDENT No.1 filed IA No.10750/2010 seeking recall of the order dated 18.5.2010 but this application was dismissed by the Joint Registrar on 16.8.2010. On the same date DW-1 was partly cross-examined subject to the right reserved by the plaintiff/respondent No.1 herein to take recourse against the order dated 18.5.2010 and 16.8.2010. Thereafter OA No.64/2010 was filed assailing the order dated 18.5.2010 and 16.8.2010. The prayer was partly allowed by the learned single Judge on 9.12.2010 in terms whereof subject to the plaintiff/respondent No.1 herein depositing the costs imposed on 21.4.2010 and further payment of Rs. 5,000.00 to each of the defendants, last and final opportunity was granted to the plaintiff/respondent No.1 herein to produce all his witnesses before the Joint Registrar on 18.1.2011, date fixed for cross-examination of DW-1 with a clear direction that no further opportunity will be given.