KAVITA KACKER Vs. MUKESH KUMAR & ANR

JUDGEMENT

(1.) The plaintiff has filed the suit for recovery of money and damages of Rs.21 lac. The case of the plaintiff is that the defendant No.1 approached the plaintiff and informed that he along with defendant No.2 were owners of a residential apartment No.N-706, approximately measuring 1015 sq. ft. in Amrapali, Princely Estate, Sector 16, Noida, Uttar Pradesh (hereinafter referred to as the "suit property"). The defendants also represented that they had the authority to sell and transfer the suit property and that the suit property was free from all sorts of encumbrances such as previous sale, dispute, wills, mortgage, gift, lien, decree, charges, court injunctions, enactment, surety, security, litigation etc. and there was no legal defect in the title or the suit property.

(2.) The defendants also assured that prior to the proposed agreement to sell with the plaintiff they had not entered into any agreement to sell in respect of the suit property with any other person. Believing the said assurances and representations made by the defendants to the plaintiff, the plaintiff entered into an agreement to sell and purchase on 18th September, 2013 (though initially it was executed on 7th September, 2013 and signed on 18th September, 2013) for the suit property, for a total consideration of Rs.44,66,000/-. As per the aforesaid agreement to sell between the plaintiff and defendants, out of the total sale consideration of Rs.44,66,000/-, Rs.32,73,375/- was to be paid by the plaintiff to the defendants and the balance sum of Rs.11,92,625/- was to be paid to the builder at the time of possession of the flat.

(3.) The plaintiff paid a sum of Rs.10,50,000/- towards earnest money to the defendants vide four cheques dated 29th August, 2013, 17th September, 2013, 19th September, 2013 and 18th September, 2013 for a sum of Rs.1,00,000/-, Rs.4,00,000/-, Rs.1,00,000/- and Rs.4,50,000/- respectively, two drawn on Bank of Maharashtra, and one each on IndusInd Bank and IDBI Bank. The said cheques were drawn in the name of the defendant No.1 as per his instructions and the same were encashed by the defendant No.1. The balance amount was to be paid on or before 15th October, 2013 and the sum of Rs.11,92,625/- was to be paid to the builder at the time of possession of the flat. The plaintiff had more than sufficient amount available with her to pay the balance sale consideration at all times.