HARJINDER PAL SINGH Vs. VIJAY SHARMA

JUDGEMENT

(1.) By the present suit the plaintiff, inter alia, prays for a decree for specific performance of the contract dated 29th May, 2009 in favour of the plaintiff and against the defendant thereby directing the defendant to hand-over the vacant and peaceful possession of property No. S-381, Lower Ground Floor, Greater Kailash Part-I, New Delhi measuring about 200 sq. yards and to execute the sale deed and other documents in favour of the plaintiff along with the cost of the suit or in the alternative to pay double the amount of earnest money paid to the defendant along with up to date interest calculated at the rate of 18% per annum till the date of realisation.

(2.) The suit came up for hearing on 2nd February, 2010 when in view of the prima facie case being made out by the plaintiff as he had paid Rs. 34 lakhs out of a total sale consideration of Rs. 36 lakhs, this Court directed status quo qua the suit property to be maintained. On 20th April, 2010 learned counsel for the defendant entered appearance and was granted four weeks time to file the written statement and reply to the interim applications. On 5th August, 2010 learned counsel for the plaintiff took an objection that the written statement has been filed beyond the statutory period of time. When the matter came up on 27th September, 2010 learned counsel for the defendant sought time to file an application under Order VIII Rule 1. However, since learned counsel for the defendant did not appear to address arguments on this application i.e. IA No. 16884/2010 thus the same was dismissed by the learned Joint Registrar vide order dated 14th September, 2011. No appeal against the said order was filed, hence the same has become final. In the meantime, the plaintiff filed an application under Order VIII Rule 10 CPC. However keeping in view the reliefs prayed in the suit this Court did not pass a decree under Order VIII Rule 10 CPC. The defendant was proceeded ex-parte on 8th May, 2012 where after the plaintiff led ex-parte evidence. Plaintiff examined five witnesses.

(3.) The case of the plaintiff is that the defendant agreed to sell property No. S-381, Lower Ground Floor, Greater Kailash Part I measuring about 200 sq. yards for a total consideration of 36 lakhs. Out of the said sale consideration, the plaintiff paid to the defendant a sum of Rs. 34 lakhs on various dates, receipts whereof were issued by the defendant. The time for completion of the agreement was fixed on or before 28th November, 2009. The balance amount of Rs. 2 lakhs was to be paid by the plaintiff to the defendant at the time of handing over the vacant and peaceful possession of the suit property along with executing the original documents in favour of the plaintiff before the Sub-Registrar Office. However, the defendant failed to perform the agreement dated 29th May, 2009 and execute the documents regarding the same even after receiving Rs. 34 lakhs. The plaintiff showed his readiness and willingness to pay the balance amount of Rs. 2 lakhs. As the defendant did not come forward to fulfil his promise, a legal notice dated 4th December, 2009 through counsel was sent to the defendant. Subsequent to the issuance of notice a settlement was arrived at between the plaintiff and defendant on 22nd December, 2009 wherein the defendant paid two cheques of Rs. 34 lakhs each i.e. double the amount paid by the plaintiff as the earnest money and assured that the cheques would be encashed on presentation. However, when the cheques were presented, they were not honoured and thus the plaintiff took legal action against the defendant even on that ground by filing a criminal complaint under Section 138 Negotiable Instruments Act.