SHASHI MALHOTRA Vs. LAKSHMAN KUMAR AGGARWAL

JUDGEMENT

(1.) This Order will dispose of the two applications (IA No. 5394/88 & 3297/88), both filed by the plaintiff under Order XXXIX Rule 1 & 2 read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the CPC'). Vide application, diarised as IA 5394/88 the plaintiff has prayed for grant of an ex parte order of injunction restraining the defendants, their servants, agents from registering any agreement to sell and/or sale deed in favour of any person, other than the plaintiff in respect of properly bearing No. E-28, Saket. New Delhi. In the second application, numbered as IA 3297/88, the plaintiff has prayed for grant of an ex parte order of injunction restraining the defendants from transferring, alienating and parting with the possession of the suit properly bearing No. E-28, Saket, New Delhi. It has also been prayed that the defendants, their servants, agents be also restrained from entering into any agreement to sell or selling or entering into any agreement with any person in respect of the above mentioned property situated at E-28, Saket, New Delhi in breach of the agreement to sell executed with the plaintiff.

(2.) The facts relevant for the disposal of the above mentioned two applications, briefly slated are that the plaintiff has filed a suit for specific performance averring that the plaintiff is residing at E-28, Saket, New Delhi, owned by the defendants who are the co-owners of the above said property, consisting of ground floor, first floor and a Barsati floor. The defendants, it is alleged, had been negotiating with various tenants in the suit property to vacate the premises as they were interested to sell the same. 2.2 It is alleged that defendant No.1 represented to the plaintiff that he was the attorney of defendant No.2, duly empowered and authorised to negotiate, enter into an agreement of sale and sell the suit properly for and on behalf of the defendant No.2. 2.3 It is further alleged that after prolonged negotiations on 20.1.88 the plaintiff agreed to purchase the above said properly and defendant No.1, for himself and his wife defendant No.2, agreed to sell the suit properly for a total consideration of Rs 15.25,000.00 and in pursuance of the above said agreement, the plaintiff paid a sum of Rs 30,000.00 to defendant No.1 on account of part payment towards the sale price of the suit properly which was acknowledged by them and defendant No.1 executed and delivered a receipt dated the 20th January, 1988 in respect of the said payment of Rs 30,000.00 made by the plaintiff. 2.4 It is averred that in pursuance of the above said understanding a draft agreement dated the 25th January, 1988 was drawn up between the parlies which was duly corrected, initialed and approved by defendant No.1. Necessary stamp papers were also purchased by the plaintiff for the aforesaid purpose. 2,5 It is alleged that in terms of the said agreement/understanding the plaintiff got two pay orders number 232102 and 232103, both dated 25.1.1988, issued by her Bankers, namely, the Indian Bank, New Delhi in favour of defendants and the above said two pay orders were duly handed over to the defendants by the plaintiff after finalisalion of the terms of the formal agreement to sell. 2.6 The defendants, it is alleged, did not encash the above said pay orders and returned the same to the plaintiff during the last week of February, 1988 and in this regard the plaintiff on 2.3.88 wrote to defendant No.1, calling upon him to explain the reasons for the return of the above said pay orders but the said defendant chose to remain silent. 2.7 It is averred that the plaintiff impressed upon the defendants that there was a valid and subsisting agreement to sell between the parlies and that thcy cannot resile from the same. The defendants were also informed that the plaintiff was ready and willing to perform her part of the agreement and in fact she had the remaining consideration ready with her to make the payment of the amount, in terms of the agreement. 2.8 It is alleged that the defendants deliberately failed and neglected to reply to the above letter of the plaintiff and on 23.5.88 the plaintiff was shocked to learn from one Shri Manoranjan Sarkar, a tenant, residing on the Barsati ftoor of the suit premises that three persons had come to his premises on 5.4.88 at 9.15 a.m. and informed him that thcy were purchasing the suit properly from defendant No.1 and threatened said Shri Manoranjan Sarkar to vacate the flat failing which the same would be got vacated by force. It is alleged that in respect of the above said incident said Shri Manoranjan Sarkar lodged a complaint with the SHO, Police Post Saket, New Delhi on the same dale. It is alleged that the defendants, it seems have now got a better buyer and that they are not arbitrarily and illegally honouring their commitment to perform their part of agreement to sell the property to the plainliff. It has been prayed by the plaintiff that a decree of specific performance in favour of the plainliff and against the dcfcndanls, calling upon the de fendants to sell the properly bearing No. E-28, Saket, New Delhi to the plaintiff in terms of agreement dated the 20the January, 1988 be passed with costs.

(3.) The defendants have resisted the claim of the plaintiff and have filed a written statement staling that there is no agreemenl to sell executed between the parlies and the documents relied upon by the plaintiff arc false and deliberately fabricated. The alleged receipt, it is contended, is a forged document. The defendants inter-alia have also taken a preliminary objection to the effect that the suit filed by the plaintiff is liable to be dismissed under Order VII Rule 11 Civil Procedure Code as there is no cause of action in favour of the plaintiff. Thus in the written statement the main thrust of the defendants is that no agreement to sell the property in question was entered into between the plaintiff and the defendants and that the receipt in question, relied upon by the plaintiff is a forged and fabricated document. It has been prayed in the written statement that the suit filed by the plaintiff be dismissed with costs.