KAILASH CHAND Vs. GANESH

JUDGEMENT

(1.) Ganesh field a suit being CS(OS) No.1445/2005 against the appellant/ defendant seeking specific performance of the agreement to sell dated June 18, 2004 for sale of 1/3rd share of half Kila (2 bigha and 8 biswas) out of khasra No.28/11 situated in the Revenue Estate of Village Kakrola near Colony Bharat Vihar, New Delhi (in short the suit property) for a total consideration of Rs. 20 lakhs with delivery of vacant possession; injunction from conveying, alienating or transferring the suit property or in the alternative compensation and damages. In the plaint Ganesh claimed that out of a total sum of Rs. 20 lakhs earnest money of Rs. 2 lakhs was paid with further payments of Rs. 4 lakhs in cash and Rs. 2 lakhs by way of cheques; thus totalling to Rs. 8 lakhs. The bayana receipt was exhibited as Ex.P-1 and the receipt of total consideration of Rs. 8 lakhs as Ex.P-2. To show his readiness and willingness to perform the agreement, Ganesh also proved the pay orders and the banker's cheques got prepared on September 14, 2004 for payment of the balance consideration, however they were got cancelled on a mutual agreement entered into between the parties on September 14, 2004 exhibited as Ex.P-6 wherein the final date of payment of balance consideration and execution of the documents was agreed to be October 04, 2004. Ganesh pleaded that he sent a telegram on October 02, 2004 calling upon Kailash Chand to complete the sale transaction by October 04, 2004. However, despite no reply received Ganesh went to the office of SubRegistrar Janakpuri, New Delhi on October 04, 2004 inspected the records and marked his attendance. The affidavit dated October 04, 2004 and the receipt issued by the Sub-Registrar were exhibited as Ex.P-9 and P-8 respectively. On coming to know about the intended sale of the suit property by Kailash Chand, Ganesh filed a suit with the prayers as noted above.

(2.) In the written statement preliminary objections were taken that Kailash Chand was not competent to execute the sale deed in favour of Ganesh by virtue of Section 4/5 of the Delhi Land (Restrictions on Transfer) Act, 1972 (in short the DLRT Act) and that no proper division of the property had taken place between the co-owner, thus the suit was not maintainable. On merits Kailash Chand, however, admitted receiving the earnest money on June 18, 2004. Kailash Chand denied plaintiff being ready and willing to pay the balance amount or that he received the telegram. The agreement dated September 14, 2004 was entered into between the parties was admitted however it was stated that the agreement was entered into when Ganesh took the entire responsibility of getting the sale completed but he had no intention to get the sale deed executed as he never purchased the necessary stamp papers for registration of sale deed and without completion of these formalities there was no question of execution and registration of sale deed. Kailash Chand admitted having signed necessary forms for obtaining permission/ transfer under Section 4 and 5 of the DLRT Act.

(3.) On the pleadings of the parties following issues were settled: