SANJEEV KANSAL Vs. LAXMI CHAND SHARMA

JUDGEMENT

(1.) THIS is a suit for grant of mandatory injunction or in the alternative for specific performance of an oral agreement to sell dated 25.03.2010. The case of the plaintiff is that defendant Shri Laxmi Chand Sharma, who died during pendency of the suit, was the owner of Property No.41-A/1, Yusuf Sarai, New Delhi and vide agreement dated 25.03.2010, he agreed to sell the aforesaid property to him for a consideration of Rs 77 lakh. This is also the case of the plaintiff that the defendant had received earnest money, amounting to Rs 1 lakh form him by way of a cheque and the balance sale consideration of Rs 76 lakh was agreed to be paid on or before 30.10.2010, at the time of execution and registration of the sale deed. It is further alleged that on or about 03.10.2010, the defendant requested the plaintiff to purchase requisite stamp papers for execution and registration of the sale deed of the said property. Accordingly, the plaintiff purchased requisite stamp papers on 04.10.2010 and a sale deed, incorporating the terms mutually agreed between the parties, was got prepared on the stamp papers purchased by the plaintiff. It is further alleged that on 25.10.2010, the plaintiff handed over a cheque of Rs 76 lakh, drawn on ICICI Bank, Green Park, New Delhi to the defendant, who voluntarily signed and executed the sale deed on that date. The parties to the suit also put their respective thumb impressions on the sale deed so executed. The plaintiff, immediately after execution of the sale deed, rushed to the office of Sub- Registrar for registration of the sale deed and waited there for the defendant. However, the defendant did not reach the office of the Sub-Registrar for registration of the sale deed. It was then agreed between the parties that they will appear before the concerned Sub-Registrar on 11.11.2010 for registration of the sale deed, which the defendant has executed in favour of the plaintiff. The plaintiff made necessary arrangements for registration of the sale deed on 11.11.2010 and also got prepared a pay order of Rs 50,100.00 towards payment of registration fee. The plaintiff reached the office of Sub-Registrar on 11.11.2010, but the defendant did not reach there. On being approached by the plaintiff, the defendant assured him that he would appear before the Sub-Registrar on 03.12.2010 for registration of the sale deed. Again, the plaintiff made arrangements for registration of the sale deed and reached the office of Sub-Registrar on 03.12.2010, but the defendant did not appear even on that date. The plaintiff wrote a letter to the Sub-Registrar on 10.12.2010, requesting him not to register any document in relation to the said property and, thereafter, sent a legal notice dated 14.12.2010 to the defendant, requiring him to get the sale deed registered. The notice, however, was not complied. The plaintiff, therefore, approached this Court on 25.01.2011 seeking the reliefs claim in the suit.

(2.) THE defendant was served with the suit summon through his son Ramesh for 23.03.2011. Earlier, an interim order passed by this Court on 28.01.2011 which was also served upon him through his son Ramesh on 21.02.2011. There was appearance by a counsel on behalf of the defendant on 23.03.2011 though no Vakalatnama in favour of any counsel is on record. On that date, the matter was adjourned to 12.07.2011. In the meanwhile, two IAs being IA No. 6495/2011 and 6498/2011 were filed by one Yad Ram Sharma, one for impleading him as a party to the suit and the other for appointment of a guardian for the defendant, who was stated to be a person of unsound mind. The application under Order 1 Rule 10 CPC was dismissed by the Joint Registrar vide detailed order dated 01.03.2012, whereas the application for appointment of a guardian was dismissed by him vide order dated 03.03.2012. On death of defendant, during pendency of the suit, IA No. 12527/2012 was filed by the plaintiff seeking exemption from impleading his legal representative on the ground that no written statement had been filed by the defendant in his life time. The application was allowed in terms of the Order 22 Rule 4 (4) of the Code of Civil Procedure. The plaintiff, however, was directed to file affidavit by way of evidence in order to satisfy the case with respect to the merits of his case.

(3.) EX .PW-1/7 is Form-A purporting to be signed by the defendant as well as the plaintiff. This Form is required to be submitted to the concerned Sub-Registrar for the purpose of registration of the sale deed. The plaintiff has placed on record two affidavits purporting to be sworn by Balram Sharma and Ramesh Sharma, sons of the defendant, stating therein that property No.41-A/1, Yusuf Sarai, New Delhi was owned by their father Shri Laxmi Chand Sharma and they had no objection to the sale deed of the aforesaid property to the plaintiff. Ex. PW-1/11 is the pay order which the plaintiff had obtained in the name of Deputy Commissioner (South) for the purpose of payment of registration fee. Ex.PW-1/2 is the letter dated 10.12.2010, written by the plaintiff to the Sub-Registrar, Mehrauli, informing him that he had paid the entire consideration for purchase of Property No.41-A/1, Yusuf Sarai, New Delhi to the defendant Laxmi Chand Sharma though he had not got the sale deed registered. The Sub-Registrar was requested not to register any document pertaining to the said property. Ex.PW-1/13 is the legal notice sent by the plaintiff to the defendant through his counsel, stating therein that he had agreed to sell the suit property to him for a consideration of Rs 77 lakh and had received Rs 1 lakh by way of cheque dated 25.03.2010 and Rs 76 lakh by way of cheque dated 25.11.2010 both drawn on ICCI Bank, Green Park, New Delhi. It was further stated in the notice that though the defendant has signed the sale deed in advance, he had not appeared before the Sub-Registrar for getting the same registered. The defendant was called upon to get the sale deed registered before the Sub-Registrar. Ex.PW-1/14 (Colly.), are postal address and certificate of posting & A.D. Card, whereby this notice is stated to have been served upon the defendant.