MADAN LAL JAIN Vs. SAROJ SARPAL

JUDGEMENT

(1.) R.L. Malhotra, defendant No. 2 has filed this application under Order 6, Rule 17 and Section 151, Civil Procedure Code alleging that the plaintiff filed suit for specific performance of the agreement dated 1.6.1991 and in the alternative for damages etc. against defendant No. 1 contending that the plaintiff was a tenant under defendant No. 1 in respect of front portion of the first floor of flat No. M- 84-A, Greater Kailash-I, New Delhi @ Rs. l,600.00 per month w.e.f. 1st May, 1983. On 1st June, 1991, defendant No. 1 entered into the aforesaid agreement to sell with the plaintiff for a consideration of Rs. 5,10,000.00 . Plaintiff paid Rs. 50,000.00 in cash by way of earnest money and the balance sale consideration was to be paid according to the schedule mentioned in the agreement. Defendant No. 2 is impleaded as a party as aforementioned flat was sold to him by defendant No. 1 under aregistered agreement to sell dated 19.11.1991.Plaintiff has further alleged that during the subsistence of the agreement dated 1.6.1991,defendantNo. 1 could not have entered into another agreement dated 19.11.1991 with defendant No. 2.

(2.) It is stated that the plaintiff has filed this suit in collusion with defendant No. 1 to cause loss to defendant No. 2. In her written statement, defendant No. 1 raised false plea that defendant No. 2 represented to her that he would get the aforesaid flat vacated from the plaintiff and as such a fake agreement dated 19.11.1991 was created. Defendant No. 1 further falsely alleged that a sum of Rs. l,00,000.00 which was given to her by defendant No. 2 through a cheque was returned to defendant No. 1 after the encashment of the cheque.

(3.) It is pleaded that prior to the execution of the alleged agreement dated 1.6.1991,defendant No. 1 and her husband Pratap Sarpal had entered into another agreement with defendant No. 2 for sale of the aforesaid flat on 5.4.1985 for a consideration of Rs. 3,00,000.00 . Out of this sale consideration. Rs. l,20,000.00 were paid inadvance by defendant No. 2 to defendant No. 1 and her husband. Defendant No. 1 and her husband, however, failed to execute the sale deed and transfer the flat in favour of defendant No. 2 in the record of the builder-M/s. Rama Prastha Builders Pvt. Ltd. In November, 1991, defendant No. 1 and her husband came to defendant No. 2 and asked him to advance some money as they were in financial crisis. Defendant No. 2 asked them to refund Rs. l,20,000.00 together with interest @18% per annum, totalling Rs. 2,60,000.00 . It is stated that defendant No. 1 and her husband pursuaded defendant No. 2 to pay another sum of Rs. l,15,000.00 to get the said flat transferred in defendant No. 2's favour in the record of the builder. At that stage, agreement dated 19.11.1991 was reduced into writing. Though, the sale consideration was mentioned therein as Rs. l,15,000.00 but in fact it was Rs. 3,75,000.00 including the said amount of Rs. 2,60,000.00 . Rs. 14,000.00 were paid in cash on 18.11.1991 while Rs. l,000.00 in cash on 19.11.1991 by defendant No. 2. Defendant No. 2 paid another sum of Rs. 75,000.00 for getting the flat transferred in his name in the record of the builder. He later on came to know that defendant No. 1 paid only Rs. 5,750.00 by cheque to the builder for the purpose of transferring his name in their record. It is further alleged that defendant No. 2 is a bona fide purchaser for valuable consideration without notice of the alleged agreement dated 1.6.1991 Defendant No. 1 and her husband wrote a letter to the plaintiff to attorn to defendant No. 2 and they also gave Power of Attorney to enable him to file petition against the plaintiff. Defendant No. 2 filed petition for eviction against the plaintiff in the Court of the Rent Controller, Delhi. It is alleged that when defendant No. 2 came to know about the execution of the alleged agreement dated 1.6.1991 from the written statement filed by the plaintiff in the eviction proceedings, he approached defendant No. 1 and her husband. They told him that the said agreement was cancelled prior to the execution of the agreement dated 19.11.1991 and they handed over to him relevant correspondence exchanged between them and the plaintiff. Defendant No. 2 could not raise the said pleas in the written statement since the original agreement and the receipt dated 5.4.1985 were not available. Aforesaid pleas are sought to be incorporated in the written statement by defendant No. 2 by seeking additions in existing para No. 3 of the preliminary objections and paras 4, 6, 14 & 19 of the written statement on merits.