SANJEEV ARORA Vs. AJAY KUMAR BABBAR

JUDGEMENT

(1.) IA No. 24704/2014 (for condonation of delay) For the reasons stated in the application, the delay of 120 days in re -filing the application for leave to defend is condoned. The application is disposed of. IA No.24703/2014 [u/O 37 R3(5) CPC] This is an application under Order 37 Rule 3(5) CPC for grant of leave to defend.

(2.) THE plaintiff has filed the accompanying suit for recovery of Rs.47lacs under Order 37 CPC. The plaint states that the parties entered into an agreement to sell dated 06.04.2013 whereby the plaintiff agreed to purchase the suit property bearing No.1 in Block D/2 Rana Pratap Bagh, Delhi. On 06.04.2013 an advance of Rs.10 lacs was paid. On 05.05.2013 an advance of Rs.13,50,000/ - was paid making a total of Rs.23,50,000/ -. The transaction was to be completed within two months from the date of signing of the agreement to sell and on making payment of the balance amount of Rs.60 lacs. As per the plaint on 03.07.2013 the plaintiff visited the office of Sub -Registrar and put his appearance vide a slip and waited for some time but the defendant did not come and finding no alternative, the plaintiff returned back. A legal notice was sent on 03.07.2013. Reliance is placed on Clause 7 of the Agreement to Sell which states that in case the defendant does a default the defendant will return double of the advance amount which comes to Rs.47 lacs. Hence the present suit has been filed seeking recovery of Rs.47lacs.

(3.) LEARNED counsel appearing for the defendant has submitted that the agreement to sell provides to make balance payment within two months. Thereafter the sale deed was to be executed by the defendant. Reliance is also placed on clause 6 of the agreement itself which states that in case the plaintiff fails to pay the balance amount within the time specified, the earnest money shall stand forfeited. It is urged that as the plaintiff has failed to tender the balance sum of Rs.60 lacs on time, hence, the defendant has forfeited the entire advance amount of Rs.23,50,000/ - as earnest. It is urged that the steps have been taken in terms of the agreement to sell and the defendant is entitled to unconditional leave to defend.