MALKIAT SINGH JOHAL Vs. PRAN CHOPRA

JUDGEMENT

(1.) This is a suit for specific performance of an Agreement to Sell alleged to have been executed on 18.08.2007 whereby defendants No. 1 and 2 agreed to sell the second floor of the property bearing number F-7/7, Vasant Vihar, New Delhi - 110057, along with terrace rights, to plaintiff for a consideration of Rs.65,00,000/-. The plaintiff was a tenant in the aforesaid premises and a notice dated 16.7.2007 terminating the tenancy of the plaintiff was given to him. The case of the plaintiff is that after issuance of notice to him, the defendants expressed desire to sell the premises in question and the matter was negotiated through Anil Kumar and Rahul Arora, both dealing in real estate. It is also the case of the plaintiff that the defendants No. 1 and 2 executed a receipt on 18.8.2007 after receiving a sum of Rs. 5 lac in cash and Rs.2 lac by way of two separate cheques. According to plaintiff, it was also agreed that the sale deed will be executed within one year and the balance sale consideration would be paid at the time of execution of the sale deed. It has been further alleged in para 8 of the plaint that thereafter to plaintiff had continued to approach defendants No. 1 and 2 with the offer of the entire balance sale consideration for the suit property but on each and every such request of the plaintiff, the defendants No. 1 and 2 always sought extension of time on one or the other pretext. The plaintiff, on the request of defendants, agreed to defer the execution of the sale documents and kept on waiting for signal from them. However, on 9.5.2011, the Court Bailiff came to the suit premises to execute a warrant of possession which defendant No. 3 had obtained against the plaintiff in respect of the premises, subject matter of the agreement. The case of the plaintiff is that only then he could realize the malafide intentions of the defendants and came to know that the aforesaid second floor with terrace rights had been sold to defendant No. 3. The plaintiff is now seeking specific performance of the agreement dated 11.8.2007. He is also seeking declaration that the sale deed executed by defendants No. 1 and 2 in favour of defendant No. 3 is null and void and not binding on him.

(2.) This application has been filed by defendants for rejection of the plaint. The contention of learned counsel for the defendants is that the plaint does not disclose any cause of action and the suit is barred by limitation.

(3.) It is settled preposition of law that while considering an application under Order VII Rule 11 CPC, the Court can take into consideration only the averments made in the plaint and the documents filed by plaintiff. Neither the written statement nor the documents filed by the defendant can be considered at this stage. It is also settled preposition of law that the truthfulness or otherwise of the averments made in the plaint cannot be gone into at this stage and the averments have to be taken at their face value and as correct. In Avtar Singh Narula & Anr. Vs. Dharambir Sahni & Anr., 2008 150 DLT 760, this Court reiterated that the power to reject the plaint has to be exercised sparingly and cautiously though it does have the power to reject the plaint in a proper case.