KAMLA DEVI Vs. V K SHARMA

JUDGEMENT

(1.) On the first hearing of the suit the Defendant was restrained from selling, transferring or alienating in any manner or parting with possession of the property bearing No. 2187, Upper Bela Road, Jamuna Bazar, Delhi-110 006 (hereinafter referred to as the suit property) in terms of Orders dated December 23, 1999. On that very date, since the Plaintiff had claimed specific performance of the contract between the parties, he had sought permission for depositing the balance sale consideration of Rs. 11,50,000/- in the Court. This permission was granted and the deposit was duly carried out. Summons/notices were issued returnable for 20.4.2000 on which date Counsel for the Defendant sought and was granted time to file a Written Statement. Thereafter on 25.7.2000 the parties were directed to maintain status quo till the next date of hearing. It is in this background that the Plaintiffs' application (IA No. 12875/1999) under Order XXXIX Rule 1 & 2 of the CPC and the Defendant's application (IA No. 4789/2000) under the similar provisions praying for restraint orders against the Plaintiffs from taking over possession of the suit premises, as also Defendant's application (IA No. 4788/2000) under Order XXXIX Rule 4 of the CPC for vacation of stay, have to be disposed of.

(2.) Parties admit that the Agreement to Sell dated 1.1.1999 was entered into by the Defendant on one side and the Plaintiffs on the other, in respect of the purchase of the Defendant's one-half share in the suit property. The salient terms are that the entire sale consideration was agreed upon as Rs. 12,00,000 /- out of which a sum of Rs. 50,000/- has admittedly been received by the Defendant from the Plaintiffs. The balance was to be paid before the Sub-Registrar at the time of the execution of the Sale Deed up to 15.2.1999. The address of the Defendant in the Agreement to Sell has been recorded as H.No. 59, Sector 14, Raj Nagar, Ghaziabad, U.P., and that of the Plaintiffs at the suit property. The Agreement envisages in Clause 3 that half share (presumably of the Defendant) in the said property is occupied by different tenants. It was agreed that the symbolic and proprietary possession of this share in the entire built up property with its roof would be handed over to the Plaintiffs by the Defendant at the time of the registration of the Sale Deed. Therefore, it cannot be disputed that the Defendant was not in actual possession of any part of the said property. It is quite reasonable to conjecture that this may have been the reason for the Defendant's decision to sell his half share in the suit property.

(3.) The Plaintiffs assert that a letter dated 8.2.1999 was addressed to the Defendant calling upon him to sent the decree sheet of the Award filed in the Court of Shri R.P.Singh, Sub-Judge, Delhi for the preparation of the Sale Deed. This letter has been denied although a Postal Registration Receipt dated 9.2.1999 is available. Thereafter, admittedly a telegram was received by the Defendant from the Plaintiff No. 3, requesting the former to contact the latter immediately for "final salary along with documents". There is no correspondence whatsoever emanating from the Defendant in the period January, 1999 to October, 1999. Ms. Luthra, learned Counsel appearing for the Defendant has contended that the Plaintiffs had full knowledge of the Award, and since one of them is a practising lawyer, the demand made on the Defendant for furnishing a copy thereof was palpably an excuse for not going through with the contract. The supply of these papers was not contemplated by the Agreement. Mr. Makkar, learned Counsel for the Plaintiffs has contended that since the Defendant is the "Chacha' of Plaintiff Nos. 2 to 4 and the brother-in- law of Plaintiff No. 1 the time for execution of Sale Deed was not strictly adhered to and was amicably enlarged. Since no demur was made by the Plaintiffs in respect of non-receipt of the balance sale consideration of Rs. 11,50,000/- and since no action either returning the sum of Rs. 50,000/- contemporaneously received with the execution of the Agreement to Sell or its forfeiture, at this stage, I would accept the contention made on behalf of the Plaintiff.