SHARDA DHIR Vs. ASHOK KUMAR MAKHIJA

JUDGEMENT

(1.) This is plaintiff's chamber appeal by which an order of the Joint Registrar dated 28th August, 2001 passed on IA 4495/98 has been challenged- IA 4495/98 was filed by the plaintiff under Order 11 Rule 1 CODE OF CIVIL PROCEDURE, 1908 for the service of Interrogatories for examination of the defendant No.1 for discovery of facts on oath.

(2.) The facts leading to this application succinctly stated are as follows. The plaintiff has filed a suit for recovery of money against the defendants on the allegation that defendant No.1 in collusion with other defendants entered into an agreement of sale of property No.706, Sector 15~A, Faridabad for a sale consideration of Rs.19,40,000/-. The defendant No.1 executed a Receipt-cum-Agreement to Sell dated 10th January, 1997 on receipt of a sum of Rs . 1 lac in advance. It was recited in the agreement that the plot/property was free from all encumbrances and that the documents of title in original would be delivered to the plaintiff at the time of the payment of the balance sale consideration and the execution of the sale deed. Another sum of Rs.1 lac was paid by the plaintiff to the defendant No.1 as -desired by him on 10th January, 1997 against a separate receipt. On the request of the defendant No.l another sum of Rs.50,000/- was also paid to him, in all making the total advance payment to the defendant No.l of Rs.2,50,000/~. Despite repeated demands the defendant No.1 failed to produce the original title document for the inspection of the plaintiff and execute the sale deed on receipt of the balance amount of the sale consideration. The plaintiff asked the defendant No.l to be present in the office of the Sub-Registrar on 10.3.1997 for the execution and registration of the Sale Deed subject to production and verification of the original document which included the Original Title Deeds and other documents relating to the property, no due certificate and clearance certificate from the Income Tax Department, completion certificate of two and a half storeyed house and the Lease Deed executed in favour of the tenant in occupation of the property. The defendant No.1 failed to appear till 5 P.M. He then came but without the original title deed of the property. He, however, offered to return the money received in advance after deducting Rs.25,000/- allegedly incurred as expenses by him. The plaintiff declined this offer. Thereafter, the plaintiff received a letter dated l6th March, 1997 from the defendant No.l falsely alleging that he was present in the office of the Sub-Registrar and that the plaintiff had committed the breach of agreement. However, the defendant No.1 admitted that he did not have all the original document with him which were the essence of the agreement since there was no mention thereof in the letter. Later on the defendant No.l assured to refund the money taken by him and also to compensate her for the harassment caused to her. But all in vain. Subsequent enquiry made by the plaintiff revealed that the property in question was mortgaged by the defendant No.1 with his employer bank and at the time of execution of the agreement of sale he had no right to sell the property. The defendant No.1 had misrepresented about his title and right to sell the property or its being free from all encumbrances. The defendant No.1 in fact had utilised the money taken as advance from the plaintiff for making payment of the loan. He has played fraud upon the plaintiff. After making further enquiry the plaintiff lodged a complaint dated 16th May, 1997 and September, 1997 against the defendant No.1 at police station, Faridabad. Other defendants colluded with the defendant No.1 were equally liable for this fraudulent transaction. The plaintiff had originally claimed the relief of recovery of damages of Rs.8,15,6307- with interest @ 24% per annum in future; a decree of permanent injunction for restraining defendant No.2 from handing over the original title deed of the property to the defendant No. 1 and; decree of permanent injunction restraining the defendants from transferring, alienating or parting with the possession or dealing with the property in question in any manner. Later on the relief of permanent injunction in clauses b & c of the prayer were given up and the suit was restricted to the claim of the damages only.

(3.) The defendant contested the suit and raised diverse pleas. The allegations of the plaintiff were refuted and the blame was laid upon the plaintiff for non performance of the agreement of the sale. Execution of the sale deed and the receipt of Rs.2 lacs, however, was not disputed. It was alleged that the suit property was purchased as a single storey house after due permission from HUDA. Thereafter, additional construction of the first floor and the second floor was raised and the completion certificate in respect of this construction was obtained from the HUDA. The defendant No.1 was an employee of defendant No.2. Defendant No.1 raised loan from his employer for construction after due permission from HUDA. It was an agreement with the plaintiff that the amount received would be deposited by the defendant with his employer and the title deed deposited with the bank would be taken back. The defendant No.1 proposed to purchase another house in Delhi from the sale proceed and the title deed of the new property was to be deposited with the bank. The plaintiff, however, failed to pay the balance amount of the sale consideration as a result although the defendant No.l paid the amount to the bank and got back the title deed, he could not purchase the new property and the document of title of the new property deposited with the bank for security which had to be done within six months. He lost the benefit of concessional housing loan at nominal interest which his employer bank was advancing. It was submitted that the entire property was in occupation with the tenant. The ground floor and the first floor both were occupation of two different tenants and the allegation of the plaintiff that one tenant occupied the whole property is erroneous. All the communication received from the plaintiff were duly replied to and she was assured that all the necessary formalities required by HUDA were completed and that he would ensure that the property was free from all encumbrances. He however requested the plaintiff to reach Sub-Registrar's office on 10th March, 1997 where he would be present with all the documents on 8th March, 1997. He sent a telegram requesting the plaintiff to come at the office of Sub-registrar on 10th March, 1997 with balance amount of the sale consideration and assured that all the formalities would be completed. Plaintiff in reply wanted him to obtain completion certificate and clearance certificate besides no due certificate, and the title deed. He had already informed the .plaintiff that all the formalities have been completed. Whole day the defendant No.l waited for the plaintiff at the office of the Sub-Registrar office. The plaintiff did come there but she told that the bank draft for sale consideration was being brought by her representative. However nobody came. The plaintiff did not offer the sale consideration. Therefore on llth March, 1997 the defendant No.l wrote a letter to the plaintiff setting out all the facts which had transpired on 10th March, 1997 and for paying the amount of advance. Along with the written statement he filed the photocopy of all the documents with the completion certificate regarding whole of the property, clearance certificate, no due certificate from the Canara Bank and also claimed that the original document of title was in his possession. Other allegations made in the plaint were likewise repudiated by him. Replication was filed by the plaintiff reiterating her own case.