PREM KUMAR BANSAL Vs. AMBRISH GARG

JUDGEMENT

(1.) An unsuccessful plaintiff appeals the decision of a learned Single Judge, dismissing his suit for specific performance of an agreement to sell dated 18.02.2005 ("Agreement" hereafter) in respect of property bearing No. E -23, Kalindi Colony, New Delhi (hereinafter referred to as the "suit property"). The plaintiff had also claimed a mandatory and permanent injunction.

(2.) The facts found - and undisputed in the appeal are that on 18.02.2005, the plaintiff and the defendant (Ambrish Garg) executed the Agreement by which the latter (i.e. the defendant) agreed to sell the entire ground floor of the suit property with a right to construct the basement for which a sale deed was to be executed at a later date. The agreed terms stipulated that parties would jointly demolish the property and reconstruct upon it within a period not exceeding five years. The basement and ground floor then were to fall to the plaintiff's share and the first and second floor, to the defendant's share. The garage, drive -way, passage and the terrace floor were to be common to both parties. The consideration of the agreement was Rs. 27 lakhs paid by the plaintiff to the defendant on the same date. On 22.02.2005, the defendant executed the sale deed in favour of the plaintiff in respect of the suit property. It was reiterated that a sum of Rs. 27 lakhs had been received by the defendant from the plaintiff and he became owner of the ground floor; he had a right to realize the rent from the ground floor which was tenanted then. The plaintiff got the suit property vacated. The property was also mutated in his name on 22.08.2007. The mutation documents specify that the plaintiff is the owner of the ground floor with 50% terrace rights.

(3.) The suit was premised on the ground that despite lapse of the five year period under the Agreement, the defendant did not comply with the terms in enabling demolition and reconstruction, despite legal notice. The suit sought specific performance of para 15 of the Agreement followed by mandatory and permanent injunction. In the Written Statement the defendant's primary objection was that clause 15 of the Agreement to sell dated 18.02.2005 stood superseded by the registered sale deed dated 22.02.2005 and that the agreement to sell was no longer in existence. Clause 15 of the agreement to sell was not reiterated in the sale deed dated 22.02.2005 and this subsequent document superseded the agreement dated 18.02.2005 rendering it inoperative and unenforceable. The other objection was that the sale deed was dated 22.02.2005; the agreement to sell was dated 18.02.2005; the plaintiff had to express his grievance within three years from the date of the agreement which period expired in 2008. Legal notice dated 20.05.2010 would not enlarge the period of limitation. The suit filed in May 2010 was time -barred. On merits, the averments in the plaint were denied; it was alleged that the plaintiff was disentitled to seek the relief of specific performance of the Agreement which stood superseded by the sale deed dated 22.02.2005. The plaintiff's claim that it could get the suit property sold and to share the proceeds equally was also denied.