PRABHA CONSTRUCTION PRIVATE LIMITED Vs. SHAN TRILOCHAN SINGH

JUDGEMENT

(1.) IA 7750/93 has been filed on behalf of the plaintiff under Order 39 Rules 1 & 2 read with Section 151 Civil Procedure Code and in this application it has been prayed that the defendants be restrained from alianating, selling, transferring or parting with possession of the suit property bearing No.K-24-B.Houz Khas Enclave.NewDelhi-110016 consisting of the land and structure thereon. On 9.9.93 this application came up for hearing and notice of this application was issued to the defendants and the defendants were restrained from transferring, alienating and parting with possession of the said property. During the pendency of the case an application bearing No.lA 10179/93 was filed on behalf of the defendants under Order 39 Rule 4 read with Section 151 Civil Procedure Code for setting aside the order granting ex-parte injunction on 9.9.93. Reply to this application has been filed on behalf of the plaintiff and are joinder has also been fieled on behalf of the applicant. Since both the applications pertain to the injunction granted on 9.9.93 in respect of the suit property, both are being disposed of by this common order.

(2.) Briefly stated the facts of the case are that late Shri Trilochan Singh and the defendant entered into an agreement to sell with the plaintiff companies on 26.5.89 in respect of suit property and as per agreement the total consideration was Rs.70.00 lacs and the plaintiffs paid a sum of Rs.6.99 lacs as advance towards the sale consideration and promised to pay balance amount at the time of execution of the sale deed. In terms of the Clause 5 of the agreement to sell, the vendors after obtaining the clearance from appropriate authority and income tax clearance certificate in Form 34A were required to inform the vendee by means of a regd.A.D. letter.

(3.) The case of the defendants is that they had furnished the said information by Regd.A.D. letters dated 8.4.90 which were duly acknowledged by one Shri Manoj Kumar on behalf of the plaintiff companies. Besides the Regd. letters, the defendants are alleged to have sent one telegram dated 13.4.93 wherein it was stated that the vendors had obtained necessary ITCC Form-34A and the plaintiffs were requested to arrange to make the balance payment of Rs.63.01 lacs within the stipulated period of 45 days. It is further alleged by the defendants that thereafter the defendants had addressed one letter dated 1st May, 1990 to Shri Uma Shankar Sitani of the plaintiff companies and in this letter the plaintiffs were asked to notify to the defendants that they were ready with the balance payment and fix a date of registration at the Sub-Registrar Office. It was further stated in this letter that in case no reply was received, the defendants would be present at the Sub- Registrar office on the 45th day which fell on 25th May, 1990 at 10.00 AM. Since the plaintiffs did not turn up on the date Fixed at the ofFice of the Sub-Registrar, the defendants through their counsel sent a Regd. A.D. notice dated 5.6.90, which was admittedly received by the plaintiffs on 10th June, 1990. In this notice it was stated that the agreement to sell had become null and void and stood cancelled as the plaintiffs did not perform their part of the agreement.