LAWS(DLH)-2013-9-133

VIJENDRA KUMAR Vs. SHAILENDER KAPOOR

Decided On September 05, 2013
VIJENDRA KUMAR Appellant
V/S
Shailender Kapoor Respondents

JUDGEMENT

(1.) BY this application under Order XII Rule 6 CPC read with Section 151 CPC the plaintiff prays for passing of a decree of specific performance directing the defendant to perform his part of agreement dated 29 th August, 2010 and hand-over possession of ground floor, measuring 200 sq. yards, half portion of terrace/ roof rights at back side portion of third floor of suit property bearing No. 7/8, West Patel Nagar, New Delhi (hereinafter referred to as the 'suit property') to the plaintiff and damages along with interest till realization and costs.

(2.) LEARNED counsel for the plaintiff/ applicant contends that a preliminary decree for part performance of the agreement to sell and purchase dated 29 th August, 2010 is liable to be passed in favour of the plaintiff and against the defendant in view of the admissions made by the defendant. The defendant has admitted the agreement to sell and purchase dated 29 th August, 2010, the ownership in the suit premises, receipt of part payment of Rs. 14 lakhs and the legal notice dated 1st July, 2011 which was not replied to by the defendant. The only defence taken by the defendant is that the agreement to sell and purchase has become un-executable in view of the changed circumstances. Thus, even if the defendant is not able to comply with the terms of agreement fully, it can sell portions of the property which are in his possession and conclude the part performance of the contract. In order to avoid the present contract, collusive suit was filed between one Shri Sanjeev Kumar Bahal and the defendant, thus ensuring that the agreement to sell and purchase between the plaintiff and defendant could not be executed due to change in circumstances. Reliance is placed on Satya Bhushan Kaura Vs. Vijaya Myne 142 (2007) DLT 426, Vijaya Myne Vs. Satya Bhushan Kaura 142 (2007) DLT 483 (DB); Sunrise Construction Vs. Veena Wahi 2009 (111) DRJ 710 and order dated 16th September, 2011 in CS(OS) No.(OS) 2528/2008 titled Nitin Arora Vs. Yashoda Nand Sharma and Ors. passed by this Court. Relying upon Surjit Kaur Vs. Naurata Singh and Anr. (2000) 7 SCC 379 it is also contended that a party can elect to accept part- performance of the contract at any stage of the litigation. Mere filing of a suit for specific performance of the agreement and not averring that the party was willing to accept performance in part does not preclude a party from subsequently electing to accept performance in part.

(3.) HEARD learned counsel for the parties. The case of the plaintiff is that the defendant represented to the plaintiff that the defendant was the exclusive and absolute owner and in possession of property with structure thereon in respect of built-up back side portion of basement measuring 900 sq. feet, entire ground floor measuring 200 sq. yards and half portion of the terrace/ roof rights at back side portion of third floor, out of property bearing No. 7/8, West patel Nagar, New Delhi along with proportionate undivided, indivisible and impartial ownership right undearneath land of the said property, by way of two Gifts Deeds duly registered executed by the defendant's father Shri Narender Nath Kapoor. The defendant represented and assured that the suit property was free from all encumbrances, decree, sale, mortgage, gift, lien, liability, legal flaws, litigation, attachment etc. Thus, the plaintiff agreed to purchase the suit property along with fittings and fixtures, with electric and water connection in working order etc. for a total sale consideration of Rs. 1,40,00,000/- and entered into an agreement to sell and purchase dated 29th August, 2010 with the defendant. The plaintiff paid a sum of Rs. 14 lakhs out of which Rs. 12,50,000/- was paid by four cheques and Rs. 1,50,000/- by cash as earnest money and the balance amount of Rs. 1,26,00,000/- was to be paid by the plaintiff within three months from the date of signing of the agreement dated 29th August, 2010 and at the time of execution and registration of necessary documents in favour of plaintiff before the Sub-Registrar. As per the agreement the defendant was to hand-over vacant and peaceful possession of the suit property to the plaintiff on or before 28th November, 2010. Further all dues such as electricity & water bills, house-tax, lease money/ ground rent etc. in respect of the suit property were to be paid by the defendant. The defendant, however, failed to supply the details to the plaintiff regarding clearance of all the dues relating to the suit property and also failed to execute the sale deed, though the plaintiff was ready and willing to perform his part as per the terms and conditions of the agreement dated 29th August, 2010. The defendant instead of taking initiative to get the suit premises vacated and perform his part of the agreement dated 29th August, 2010 informed the plaintiff for the first time on 21st November, 2010 through e-mail that a Civil Suit No. 557/2010 titled as 'Sanjay Kumar Bahal Vs. Shailender Kapoor and Anr.' pertaining to the back portion of basement of 7/8, West Patel Nagar was pending in the Court of learned Civil Judge, West, Tis Hazari, Delhi, thus the same was affecting the defendant's ability to perform his part of the contract.