JAMNA DASS Vs. CHIMAN

JUDGEMENT

(1.) Shri Jamna Dass filed a suit for specific performance of the agreement to sell dated 9.2.1996 in relation to sale of half undivided share of 640 shares out of the total shares of 63783 shares measuring about 826.02 bighas situated in the revenue estate of village Aya Nagar, Tehsil Mehrauli, New Delhi. The respondent and his brother who were stated to be co-owners/bhumidars and in possession of the land as khudkasht, had agreed to sell the said land to the appellant for a total consideration of Rs. 4,31,800/- @ of Rs. 5,00,000/- per acre. The parties having agreed to the terms and conditions of the sale executed the agreement to sell dated 9.2.1996. The appellant had paid a sum of Rs. 43,000/-, receipt of which was acknowledged in the agreement itself. The balance sale consideration was agreed to be paid at the time of execution and registration of the sale deed before the Sub-Registrar, Delhi. The respondent was to obtain a no objection certificate under the Delhi Land (Restriction on Transfer) Act, 1972 and the property was to be transferred in favour of the appellant. According to the appellant, he had approached the respondent and his co-bhumidar for transferring of the said land in terms of the agreement but of no consequence. On the contrary, the co-owner who was the brother of the respondent informed the plaintiff that he had not signed any agreement and he was not willing to transfer his share of the property in favour of the appellant. The respondent when confronted with this situation stated to have agreed to sell his share i.e. 1/4th of the above land but later on, the respondent neither obtained any permission to transfer the said property nor acceded to any of the requests made by the appellant to the respondent. The appellant served a notice dated 19th July, 1997 requesting the respondent to perform his part of the agreement and transfer the property. Despite service of the notice, the respondent did not discharge any of the obligations under the terms of the agreement. The appellant having left with no alternative, thus, filed a suit for specific performance and in alternative, for decree for recovery of Rs. 2,15,900/- with interest @ 24 per cent per annum and at the same time also prayed for refund of Rs. 43,000/- which was given by the appellant as earnest money to the respondent.

(2.) The respondent was served in the suit but despite service he did not appear and was ordered to be proceeded against ex parte vide order of the trial court dated 15th July, 1999.

(3.) The learned trial court examined the evidence led by the plaintiff and the plaintiff had produced two witnesses - himself and Mr. Dayal Dass, PW2, and only exhibited the agreement as Ex.P-1 and the legal notice served upon the respondent as Ex.P-2. Considering this documentary and oral evidence, the learned trial court vide its judgment and decree dated 20th October, 2001 partially decreed the suit of the appellant and passed a decree for recovery of Rs. 43,000/- along with interest @ 18 per cent p.a. from the date of filing of the suit till realisation.