S K GUPTA Vs. ASHOK MALHOTRA

JUDGEMENT

(1.) In the suit for specific performance of agreement of sale allegdiy arrived at between the parties on 15.12.1987 and for specifically performing th.e terms thereof requiring the defendants to accept the. balance price of sale consideration of Rs.7,90,000.00 , transfer complete and clear title in the property bearing No.1 adjoining Block No.90, measuring 194.5 sq. mts. situated at Malviya Nagar, New Delhi and for vacant possession thereof and in the alternative decree for exemplary damages for Rs.8,00,000.00 with costs, the plaintiff by this application seeks to restrain the defendants from transferring, selling or otherwise disposing of or parting with possession of the suit property or any portion thereof to or in favour of any person other than the plaintiff.

(2.) It has been submitted by Ms. Kumud Nijhawan counsel for the plaintiff that the receipt dated 15.12.1987 is a conclusive contract for the property worth Rs.8,00,000.00 ; that defendant No.2 is the wife of defendant No.1 and defendant No 1 had the implied authority; that defendants agreed to sell the suit property for Rs.8,00,000.00 and passed the writing with RS.10,000.00 given as earnest money by the plaintiff; that defendants want to back out from the agreement to sell as some more monies are intended to be exhorted from the plaintiff; that in December, 1987 the prevailing market rate of the suit properly was Rs.8,00,000.00 and that is the consideration for suit transaction and that defendants now want to wriggle out of the suit transaction dated 15.12.1987. It is further submitted that husband of defendant No.l would be liable apart from the implied authority by defendant No.2- wife. As against this it is submitted by Mr. Makhija, counsel appearing for the defendants that the plaintiff has come forward with a case of oral agreement to sell. The receipt dated 15.12.1987 Annexure-P-4 which is only a corroborative piece of evidence and it is nothing else but negotiations; that the value of the suit property was Rs.15 lakhs in the year 1987 whereas according to the plaintiff the property was agreed to be sold at Rs.8 lakhs by the plaintiff. There can not be a gap between Rs.8 lakhs and Rs.15 lakhs. The receipt Annexure-P-4 does not refer to any oral agreement to sell the property nor there is any averment in the plaint for an agreement to sell the property.

(3.) In the plaint it is averred that on the morning of Thursday December 15, 1987, the defendants (who are husband and wife) agreed to sell unto the plaintiff all that plot No.1 adjoining Block No.90 measuring 194.5 sq. mtrs, situated at Malviya Nagar, New Delhi at the prevailing market price of Rs.8 lakhs and after delivering photo copies of the title deeds, possession letter and the site plan, delivered receipt for Rs.10,000.00 paid by way of advance by the plaintiff against the sale of aforesaid property.