MADHU JAIN Vs. SAROJINI DEVI SHARMA

JUDGEMENT

(1.) The present appeal is directed against an order dated the 9th January, 1995, passed by the learned Additional District Judge, Delhi in Suit No. 211/93--entitled Smt. Madhu Jain v. Smt. Sarojini Devi Sharma, rejecting the application of the appellant filed by her under Order XXXIX, Rules 1 & 2 of the Code of Civil Procedure, 1908 (hereinafter referred to as `the CPC').

(2.) The facts relevant for the disposal of the present appeal, briefly stated, are that the appellant filed a suit for specific performance of an agreement to sell dated the 15th December, 1990 entered into between the appellant and the respondent whereby the respondent agreed to sell the property bearing No. B-26, Suraj Mal Vihar, Shahdara, Delhi (hereinafter referred to as `the property in question') to the appellant for a consideration of Rs. 1,65,000.00 upon the terms and conditions as contained in the abovesaid agreement. It is averred that the respondent is the owner of the property in question in terms of a tripartite perpetual sub-lease dated the 10th September, 1990 executed between the President of India through the Delhi Development Authority, the Delhi School Teachers Co-operative House Building Society Ltd. & the respondent which was duly registered in the office of the Sub-Registrar, Delhi on 17.9.1990. It is also averred that the entire consideration was tendered and received at the time of the execution of the said agreement to sell by means of a draft dated the 13th December, 1990 for Rs. 1,65,000.00 , drawn on the Canara Bank, Munirka Branch, New Delhi in favour of the respondent and the possession of the property in question was handed over to the appellant simultaneously with the execution of the abovesaid agreement to sell. It is alleged that in terms of the agreement executed between the parties the respondent was required to obtain all necessary permissions for the purpose of the execution of the sale deed and the respondent was also responsible for the performance of all the acts, deeds and things necessary for the transfer of the said property in the name of the appellant. The respondent, it is alleged, also executed a receipt acknowledging receipt of the sale consideration. It is stated that the respondent also executed two general and four special power of attorneys in favour of the husband of the appellant on 15.12.90 to effectuate the control and management of the property in question pending the execution of the sale deed and an indemnity bond and an affidavit confirming the execution of the above stated documents were also executed by the respondent on 15.12.90. It is further stated that it was agreed between the parties that the respondent would register one of the two irrevocable General Power of Attorneys at the office of the Sub-Registrar, Asaf Ali Road, New Delhi on 17.12.90. It is stated that the parties attended the office of the Sub-Registrar on the abovesaid date and the abovesaid General Power of Attorney was also tendered for registration. But when the time actually came for the appearance before the Sub-Registrar, the respondent refused to appear and demanded an additional amount of Rs. 50,000.00 over and above the agreed consideration, already paid, from the appellant. On appellant's refusal to agree to the above illegal request, the respondent refused to appear before the Sub-Registrar and left the premises.

(3.) It is stated that the appellant thereafter approached the respondent time and again requesting and demanding for the execution of the sale deed and completion of all other formalities in favour of the appellant but the respondent refused to accede to the request of the appellant and insisted that she must first be paid a sum of Rs. 50,000.00 . It is further averred that the appellant thereafter approached the Delhi School Teachers' Co-operative House Building Society Ltd. (lessees of the property in question) and had her name inserted in the records as the owner of the property in question after paying a sum of Rs. 21,000.00 to the Society on 22.4.92. It is stated that on 25.4.92 the respondent issued a notice to the appellant purporting to cancel the said agreement stating that the respondent had signed undated and blank documents and that the documents had been taken away from the respondent by appellant's husband without paying the consideration on 17.12.90. Since the respondent failed to execute the sale deed the appellant filed the suit (Suit No. 211/93) in the Court of District Judge, Delhi seeking a decree of the specific performance of the contract.