SYED AIJAJ HASAN Vs. MALIK MOHAMMED TAHSEEN

JUDGEMENT

(1.) Suit seeking specific performance of an agreement to sell dated March 21, 2006 filed by the respondent against the appellant has been decreed by the learned Single Judge vide impugned judgment and decree dated December 20, 2010. The appellant has been directed to execute and have the sale-deed registered with respect to Flat No.22, Zakir Bagh, New Delhi upon respondent paying the balance sale consideration in sum of Rs. 40,00,000/- (Rupees Forty Lacs only). Since the appellant did not receive Rs. 40,00,000/- (Rupees Forty Lacs only) tendered by the respondent to him after the decree was passed the said sum has been deposited by the respondent in this Court evidenced by orders passed in the suit after the decree was passed.

(2.) Case pleaded by the respondent was that after negotiations between the respondent and the appellant the agreement to sell Ex.P-1 was executed in which appellant agreed to sell Flat No.22, Zakir Bagh, New Delhi to him for a sum of Rs. 75,00,000/- (Rupees Seventy Five Lacs only). Appellant received Rs. 5,00,000/- (Rupees Five Lacs only) in cash towards earnest money-cum-part sale consideration as recorded in Ex.P-1. He paid a further sum of Rs. 12,00,000/- (Rupees Twelve Lacs only) in cash to the appellant towards part sale consideration on April 27, 2006 receipt whereof was acknowledged by the appellant vide receipt Ex.P-2. He paid further sum of Rs. 5,00,000/- (Rupees Five Lacs only) in cash to the appellant on May 03, 2006 to the appellant who acknowledged receipt whereof vide receipt Ex.P-3. On May 14, 2006 he paid Rs. 13,00,000/- (Rupees Thirteen Lacs only) in cash to the appellant receipt whereof was acknowledged by the appellant vide receipt Ex.P-4. He paid a further sum of Rs. 9,00,000/- (Rupees Nine Lacs only) to the appellant vide bankers' cheque Ex.P-5 on May 16, 2006 issued by ICICI Bank Ltd. New Delhi. In this manner he paid Rs. 43,00,000/- (Rupees Forty Three Lacs only) to the appellant. He pleaded that the appellant assured that the deal shall be completed within three months from the date when Ex.P-1 was executed i.e. March 21, 2006. He pleaded further in paragraph 5 of the plaint, and since said pleading is relevant we reproduce the same:-

(3.) In paragraphs 6 onwards of the plaint the respondent pleaded that the appellant orally agreed to execute the sale-deed in favour of respondent's daughter Ms.Shumsha Tehsim and accordingly his daughter purchased stamp papers Ex.PW-1/9 in her name on May 10, 2006 in sum of Rs. 2,28,000/- (Rupees Two Lacs Twenty Eight Thousand only) on the basis of sale consideration being Rs. 40,00,000/- (Rupees Forty Lacs only) because appellant wanted to receive the remaining amount towards fittings and fixtures in the flat which was agreed to by the respondent. He pleaded that as instructed by the appellant his daughter came to Delhi from Dubai on May 11, 2006 to complete the transaction and reach the office of the Sub-Registrar V on May 12, 2006 with balance sale consideration to complete the registration formalities and for which she had executed a special power of attorney Ex.PW-1/10 in favour of Mohd.Tariq Amin to complete the sale transaction. Pleading that the appellant turned dishonest and through his lawyer sent a legal notice terminating the agreement alleging defaults against him, refuting any default by him, respondent sued praying to the Court that the agreement to sell Ex.P-1 should be specifically enforced. In other words having pleaded that he took back Rs. 9,00,000/- (Rupees Nine Lacs only) paid by a bankers' cheque from the appellant, respondent claimed to have paid Rs. 35,00,000/- (Rupees Thirty Five Lacs only) to the appellant.