(1.) . The plaintiff has filed the suit under Order 37 CPC on the basis of the sale agreement agreement executed by the defendant in his favour for the sale of the first floor of the property bearing No. D-68, East of Kailash, New Delhi for a total sale consideration amounting to Rs. 25 lakhs.
(2.) . It is stated that the plaintiff has paid Rs. 6 lakhs through cheque No. 481325 dated 30.10.99 drawn on Bank of India, Haus Khas, New Delhi. The possession of the property was to be handed over after completion of construction on or before 30.6.2000 and simultaneously the sale of documents were to be executed and registered besides the balance consideration of Rs. 19 lakhs was to be paid at the time of registration of the documents. It is further stated that the defendant from time to time approached the plaintiff and expressed need for money on the ground that construction is going on and he is short of money. The plaintiff believed his representation and entrusted a sum of Rs. 6 lakhs in three installments of Rs. 2 lakhs each on 23.12.99, 19.4.2000, 14.6.2000. All the payments were made through cheques. As per the plaintiff he has made a total payment of Rs. 12 lakhs to the defendant under the agreement to sell. However, as per the plaintiff, he found that the progress of work is at a snail speed the defendant would not be able to give the possession and execute sale documents by the agreed date i.e, 30.6.2000. The apprehension of the plaintiff proved true and the date passed off without the plaintiff getting anything into his hands. As such, the plaintiff became suspicious and the defendant to refund his money advanced under the agreement to sell as the defendant had no intention to complete the sale transaction. As per the plaintiff, the defendant agreed and handed over a sum of Rs. 4.5 lakhs through cheque dated 8.8.2000 towards the refund of monies advanced by the plaintiff. The defendant undertook to repay the balance of Rs. 7.5 lakhs alongwith 25% interest within two months. However, lateron, the defendant failed to fulfill this promise as well. Hence a notice dated 5.12.2001 was served asking the defendant for payment of balance amount of Rs. 7.5 lakhs with interest. @ 24% per annum w.e.f. 23.12.1999, in alternative to execute the agreement of sale in favour of the plaintiff.
(3.) . The suit is under Order 37 CPC Defendant filed the leave to defend after the service of summons for judgment. The grounds raised by the defendant in the application for leave to defend are that firstly, the present suit is not maintainable under Order 37 as there is no acknowledgement of debt that in writing. Secondly, the defendant has stated that there was an oral agreement between the defendant and one Shri Ashok Gupta who is the son of the plaintiff. Under the said oral agreement, it was agreed that the defendant alongwith Shri Ashok Gupta would invest equal amount under the collaboration agreement with Mrs. Vinay Tuli who is the owner of the property in the reconstruction of the premises bearing No. D-68, East of Kailash Colony, New Delhi. In terms of the said oral agreement, Shri Ashok Gupta started making investment towards his share in the construction. However, he wanted to secure his interest and accordingly, he persuaded the defendant to execute an agreement to sell with regard to the first floor of the property in favour of his father, i.e, the plaintiff Nandan Prasad Gupta. Accordingly, the agreement to sell was executed by the defendant in favour of the plaintiff. However, there was no intention between the plaintiff and the defendant to enforce the agreement to sell and it was only a piece of paper and was executed only to secure finance invested by Shri Ashok Gupta, son of the plaintiff. It is also pleaded that the agreement to sell did not confer any right or create any interest in favour of the plaintiff. The defendant also pleads that Shri Ashok Gupta has not obeyed the collaboration agreement entered with the defendant and Mrs. Vinay Tuli. As per the defendant, Shri Ashok Gupta contributed Rs. 7,50,000/- (Rupees seven lakhs fifty thousand only) towards the collaboration agreement. He has also stated that initially Shri Ashok Gupta invested only Rs. 12 lakhs and he had taken back a sum of Rs. 4,50,000/- (Rupees four lakhs fifty thousand only). It is also stated that first and second floor of the property bearing No. D-68, East of Kailash, New Delhi were sold by defendant and Shri Ashok Gupta, jointly in consultation with each other to some one other than plaintiff and sales proceeds were equally distributed amongst Shri Ashok Gupta and the defendant. It is further stated in the application for leave to defend that as per the oral agreement between the defendant and Shri Ashok Gupta on one hand and between the owner Smt. Vinay Tuli on the other hand a sum of Rs. 23 lakhs is to be paid to Mrs. Vinay Tuli out of which, Shri Ashok Gupta has to pay his share amounting to Rs. 11,50,000/- (Rupees eleven lakhs fifty thousand only).