J K KASHYAP Vs. J K GUHA

JUDGEMENT

(1.) This is an application filed by the plaintiff under Order 39 Rule 1' and 2 of the Code of Civil Procedure (hereinafter referred to as the Code). In this application it has been prayed that the defendant No.1 be restrained from selling, alienating, transferring or parting with possession of the suit premises in collusion with defendants 2 and 3 to the Italian company and/or any thud party except to the plaintiff. This application was listed for hearing on 27.7.90 and notice on this application was issued for 9.11.90. Notice of the application was, however, accepted on the same date in the Court on behalf of the defendants 1,2 and 3. Meanwhile, the defendant No.1 was restrained by this Court from transferring, alienating or parting with possession of the property till further orders. Thereafter reply .was filed on behalf of the defendant No.l and the rejoinder was also filed on behalf of the plaintiff.

(2.) The facts of the case briefly stated are that defendant No.l is the owner of l/3rd share of the property bearing No.l 3, Golf Link, New Delhi which is build up house on a plot measuring 1718 sq.yards'. As per averments made in para 2 of the plaint, the plaintiff is alleged to have entered into an .agreement to sell with the defendant No.1 whereby defendant No.l had agreed to sell his l/3rd share in the suit property to the plaintiff and the plaintiff had paid to the defendant No.l a sum of Rs.2,50,000.00 on 22.8.89 (Rs.l,50,000.00 by pay order dated, 22.8.89, Rs.50,000.00 by-cheque dated ..22.8.89 and Rs.50,000.00 in cash, on account of earnest money. - It has further been alleged that the plaintiff paid a sum of Rs.69.000.00on 3.2.90.and a sum of Rs.51,000.00 on 25.2.90 to defendant No.1 as further part payment against the sale consideration. -It may be pointed out here that total amount of sale consideration was not mentioned in the plaint

(3.) The defendant No.l in his written statement has, however, stated that there was no contract and/or any agreement'between the pames which can be specifically enforced. It has further been stated that the transaction between the" panics was merely an'agreement for entering into an agreement to sell and the "agreement to sell was to be entered into after the plaintiff had,paid a sum of Rs.20.00 lacs, being the 10% of total consideration of Rs.2.00 crores. The defendant No.1, however, admitted that he had received a sum of Rs.2.50 lacs which according to him included a sum of Rs.50,000.00 received in cash on one, day prior to execution of the receipt dated 22.8.89. It was further stated that on 21.8.89 the defendant No.1 had issued a kacha receipt which was undated, for Rs.51,000.00 which he had received in cash from the plaintiff on that day and out of this amount a sum of Rs.1000.00 was spent on a party on the same day, and the remaining Rs.50,000.00 was included in the sum of Rs.2,50,000.00. It was alleged mat the plaintiff .has fraudulently fabricated above mentioned kacha receipt of Rs.51,000.00 as dated 25.2.90 and there was no occasion to make payment on 25.2.90 as the disputes between the parties have already arisen on 2nd February, 1990. The amount of Rs.69,000.00 was also not admitted by the defendant No.1.