HEMANT KUMAR Vs. RAMESH KUMAR SHARMA

JUDGEMENT

(1.) The present suit has been filed by the plaintiff to seek a decree of specific performance of the contract against defendant No. 1 for the sale of property bearing No. N-22, South Extension Part-1, New Delhi 110049 consisting of basement, ground, first and second floor.

(2.) It is the case of the plaintiff that defendant No. 1 was the owner of the said suit property bearing No. N-22, South Extension Part-1, New Delhi 110049 and he had agreed to sell the said property in favour of the plaintiff for a total sale consideration of Rs. 80 lakhs. It is also the case of the plaintiff that he had paid an amount of Rs. 45 lakhs as an advance (bayana) to defendant No. 1 vide three cheques bearing No. 102002 dated 20.9.2007 for Rs. 15,00,000/-, 504187 dated 20.09.2007 for Rs. 5,00,000/- and 504190 dated 3.10.2007 for Rs. 25,00,000/- all drawn on Central Bank of India, Khan Market, New Delhi and bayana receipt dated 16.9.2007 was duly executed by defendant No. 1 at the time of receipt of the said three cheques. It is also the case of the plaintiff that possession of the basement and first floor of the said property was handed over by defendant No. 1 to the plaintiff at the time of the receipt of the said advance amount of Rs. 45 lakhs and it was also agreed by defendant No. 1 that possession of the ground floor and second floor would be delivered to the plaintiff as soon as the tenant who are occupying the same would vacate it. It is also the case of the plaintiff that possession of the ground floor of the said property was handed over to the plaintiff by the tenant pursuant to the order dated 2.9.2008 passed by this Court in CS(OS) No. 1910/2006. So far as possession of the second floor of the suit property was concerned, as per the plaintiff the same was still in the possession of the tenant. It is also the case of the plaintiff that defendant No. 1 had further sold the said property in favour of defendant No. 2 for a total sale consideration of Rs. 1 crore and on receipt of the said amount, the defendant No. 1 also executed a sale deed in favour of defendant No. 2. After having come to know about the said illegal sale by defendant No. 1 in favour of defendant No. 2, the plaintiff made a complaint to the Commissioner of Police and concerned SHO on 22 nd August, 2008. Based on these averments the plaintiff has claimed grant of decree for the specific performance of the contract against defendant No. 1 for the transfer of the said property bearing No.N-22, South Extension Part-1, New Delhi 110049 in favour of the plaintiff. The plaintiff has also claimed a decree of declaration to declare the sale deed executed by defendant No. 1 in favour of defendant No. 2 as null and void.

(3.) Defendant No. 1 had earlier been appearing in the matter and in fact has also filed his written statement but later on stopped appearing and vide orders dated 21.12.2011, the defendant No. 1 was proceeded ex parte. So far as defendant No. 2 is concerned, the plaintiff had arrived at a settlement with him and pursuant to the settlement the plaintiff had delivered the peaceful and vacant possession of the said property under his occupation in favour of defendant No. 2. Based on the said settlement, the plaintiff sought deletion of name of defendant No. 2 from the array of parties in the present case and vide orders dated 21.12.2011, the same was allowed by this Court. The relief now sought by the plaintiff is for the recovery of the said amount of Rs. 45 lakhs, which was advanced by the plaintiff to the defendant No. 1 at the time of execution of bayana receipt dated 16.9.2007. As due to the sale of the said property by defendant No. 1 in favour of defendant No. 2 and subsequent handing over of the possession of the property under the occupation of the plaintiff to defendant No. 2, no decree for specific performance of the contract in favour of the plaintiff can be granted anymore.