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: <FRM>JUDGEMENT_274_ILRDLH22_2012_1.html</FRM>

(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.

(3.) It may be noticed that the index of the suit referred to Shri Gursharan Singh Sandhu & Ors." as defendants" but only one defendant Gursharan Singh Sandhu" was impleaded. The plaint also in some places referred to defendants" despite there being one defendant. The significance of this came to light when the written statement was filed by GSS. GSS pleaded that he was not the sole owner of the property and that respondent No.1 had been informed that he would have to take consent of other co-owners and the Flat-Buyers Agreement dated 27.10.1976 was shown to respondent No.1 which recorded the names of all the co-owners, being Lt. Col. Harcharan Singh Sandhu, Harcharan Singh Sandhu (HUF), Tripat Kaur Sandhu, Master Gursharan Singh (Minor) and Kumari Roopan Sandhu (Minor). It was, thus, pleaded that there was no completed agreement to sell, GSS being owner of only part of the property. Harcharan Singh Sandhu (for short HSS) had passed away and his personal share devolved on two heirs, viz., his wife and GSS his son as per a Will. The HUF share of late HSS devolved on GSS and his mother. The knowledge of this fact is attributed to respondent No.1 and since all the parties were not ad idem on sale, GSS was willing to return the amount received by him with whatever interest the Court determined. This written statement was filed on 23.10.2004 with advance copy served on learned counsel for the plaintiff (respondent No.1 herein) on 14.10.2004. Respondent No.1 thereafter filed his replication. The admission/denial of documents was completed and the issues were framed on 7.3.2005. The list of witnesses was directed to be filed vide that order within two (2) weeks with affidavits of witnesses of the plaintiff (respondent No.1 herein) to be filed within six (6) weeks thereafter and the suit was listed for cross-examination of the witnesses of the plaintiff before the Joint Registrar on 19.7.2005.