VIJAYA MYNE Vs. SATYA BHUSHAN KAURA

JUDGEMENT

(1.) THE respondent herein filed the suit for specific performance of agreement to sell dated 6.4.2005. It was in respect of suit property measuring 325 sq. yards bearing No. C-2/270, Janak Puri Residential Scheme, New Delhi. After the pleadings, the respondent moved application under Order 8 Rules 3 and 5 read with Order, 12 Rule 6, CPC praying for passing of a decree in his favour on the ground that there were sufficient admissions made by the defendant (the appellant herein) warranting the passing of the judgment on the basis of such admissions and decreeing the suit. The learned Single Judge has allowed this application, vide judgment dated 22.12.2006 and as a necessary corollary, has passed the decree in favour of the respondent herein. Dissatisfied, the appellant has preferred this appeal.

(2.) BEFORE coming to the grounds on which the said judgment and decree is impugned, we may take stock of the necessary pleadings. The appellant is the owner of the suit property by virtue of perpetual lease hold rights given to her vide conveyance dated 14.11.1979. She entered into agreement to sell dated 13.4.2004 with the respondent agreeing to sell the property for a total consideration of Rs. 99 lacs. Rs. 8 lacs was paid as earnest money and another sum of Rs. 2 lacs was also paid on the same day vide separate receipt (Ex. P2). This amount of Rs. 2 lacs was to be utilized towards payment of dues of electricity, house tax and getting the property converted from leasehold to freehold. The balance payment was to be made by the respondent within one month of getting the property converted as freehold failing which the earnest money was to be forfeited. Deal was struck through M/s. Raja Property Dealer, New Delhi. According to the respondent, when he tried to contact the appellant after some time in order to find out the status of conversion of property from leasehold to freehold, the appellant started ignoring the queries of the respondent. The respondent even made inquiries from the property dealer. Finally, the respondent met the appellant with property dealer some time in December 2004 and found that the appellant was prevaricating on account of escalation of the prices of the properties and wanted sale consideration to be increased. The respondent even agreed to that. Revised agreement to sell dated 6.4.2005 was entered into between the parties enhancing the consideration to Rs. 1.27 crores. With the execution of this agreement, earlier agreement dated 13.4.2004 was revoked. Further sum of Rs. 7 lacs, in addition to Rs. 8 lacs given earlier as earnest money, was handed over which was acknowledged in the agreement itself thereby making a total payment of Rs. 15 lacs. Balance payment of Rs. 1.12 crores was to be given within one month after the conversion of the property from leasehold into freehold.

(3.) THE appellant filed the written statement. First agreement to sell dated 13.4.2004 and subsequent agreement to sell dated 6.4.2005 were not denied. Receipt dated 13.4.2004 for Rs. 2 lacs was also admitted. It was also admitted that a sum of Rs. 8 lacs while executing the agreement dated 13.4.2004 and further sum of Rs. 7 lacs when agreement 6.4.2005 was entered into were received by the appellant. It was, however, alleged that the said property dealer was of the respondent who failed to get the property converted from leasehold to freehold and it was the obligation of the respondent to do so as he was a builder by profession. Therefore, it is respondent who was failing to get the property converted into freehold and to get the sale transaction despite the request of the appellant. The appellant, thereafter, got disinterested in selling the property because she wanted to shift there along with her family members. She offered to return the money received from the respondent along with interest at the agreed rate of interest.