AMIT BAJAJ Vs. HARISH KHURANA

JUDGEMENT

(1.) THIS is an application for condonation of delay in filing the written statement. For the reasons stated in the application, the delay in filing the written statement is condoned, subject to payment of Rs 5000/- as costs. This is an application for restraining the defendants from creating any third party interest in the suit property during pendency of the suit. The case set out on the plaint is that vide agreement to sell dated 09.05.2011, the defendant agreed to sell property No. B-324, Sudershan Park, New Delhi to the plaintiffs for a total sale consideration of Rs 72,00,000/- and received a part payment of Rs 10,00,000/-. Another part payment of Rs 20,00,000/- was to be made on 11.06.2011 and the balance amount of Rs 42,00,000/- was to be paid on or before 08.08.2011.

(2.) THE case of the plaintiff is that the defendant has committed breach of the agreement by not accepting the balance sale consideration from them and not executing the sale deed in their favour. Vide notice dated 22.06.2011, sent to the defendant at the address of the suit property and also at the address of D-6, Harbhajan Enclave, Pusa Enclave, New Delhi, the plaintiffs wrote to the defendant that they had approached him on 11.06.2011 with the amount of Rs 20,00,000/-, but he had avoided to accept the same. Vide that notice, the defendant was asked to acknowledge further payment of Rs 20,00,000/- and execute the sale deed in favour the plaintiffs. The notice was sent by registered post. The case of the plaintiffs is that no reply to this notice was sent by the defendant. This notice was followed by a notice dated 02.08.2011 which also contains reference to the notice dated 22.06.2011 sent through Shri O.P. Bhatia, Advocate. It appears that this notice was not served upon the defendant either at the address of the suit property or at the address of D-6, Harbhajan Enclave, Pusa Campus, New Delhi and the envelopes were returned with the report that the addressee was not available at the given address. A fresh notice dated 29.08.2011 is alleged to have been sent by the plaintiffs to the defendant at the same addresses by registered post as well as through courier.

(3.) THE allegation of the plaintiffs is that, in fact, the defendant was not in Delhi and the SMS on 08.08.2011 was sent from Mumbai. Averment to this effect is contained in the notice dated 29.08.2011, which the plaintiffs sent to the defendant through counsel. That apart, the two SMSs sent by the defendant to the plaintiffs on 08.08.2012 are somewhat contradictory. In the first SMS, sent at about 2.00 PM, the defendant stated that the deal had been cancelled by him, whereas in the SMS sent at about 5.00 PM, he asked the plaintiffs to fix a date for execution of the documents. The learned counsel for the plaintiffs states that, in fact, the plaintiffs all along had the capacity to raise the funds and also had the actual funds available with them to make payment to the defendant in time. It would be pertinent to note here that there is not a single notice sent by the defendant to the plaintiffs, asking them to make payment of the balance sale consideration. If there was default on the part of the plaintiffs in making payment of Rs 20,00,000/- by 11.06.2011, the defendant, in ordinary course of events, would have at least sent a notice to the plaintiffs, informing them that since they had not paid the amount of Rs 20,00,000/- by 11.06.2011, he was terminating the agreement and forfeiting the earnest money. This becomes more important considering the fact that the plaintiffs had already sent a legal notice to the defendants on 22.06.2011.