ANANT KAUSHAL Vs. KRISHNAN SHARMA

JUDGEMENT

(1.) In the present suit instituted by the plaintiff against the defendants praying for a decree of specific performance of the agreement with physical possession of the suit property in favour of the plaintiff or in the alternative for payment of Rs. 17,50,000.00 with interest @ 24% per annum to the plaintiff, the plaintiff filed an application under Order 39 Rules I and 2 of the Code of Civil Procedure which is registered as I.A.I 0107/1994. By this order, I propose to dispose of the said application filed by the plaintiff after hearing the Counsel appearing for the parties.

(2.) The plaintiff instituted the suit contending, inter alia, that in respect of the suit property being a flat on No. E-14/7,Vasant Vihar, New Delhi, late K. M. Sharma was the owner and that Satish Seth, the predecessor in interest of defendant No. 4 entered into an agreement with late K. M. Sharma on 5.9.1988. Late K. M. Sharma and late Satish Seth also entered into an agreement of collaboration with M/s. Saraswati Builders through its proprietor, Satish Seth, for the construction of a building on the said piece of land wherein it was agreed to that the building to be constructed would consist of six flats situated on the ground floor, first floor and second floor besides a basement to provide accommodation for servants for each of the flat owners out of which late Satish Seth would have the right of disposal in respect of 3 flats, one in each floor. In pursuance of the aforesaid agreement entered into between late K. M. Sharma and Satish Seth, late K. M. Sharma gave full authority to Satish Seth to sell and handover the flats which had fallen to his share to the buyers directly and that said late Satish Seth also had the full and exclusive right to sell the flats under his share as deemed fit and proper.

(3.) In pursuance of the said agreement, Satish Seth entered into an agreement with the plaintiff for sale of the flats situated in the front portion of the second floor for a sum of Rs. 18,50,000.00 out of which the plaintiff paid a sum of Rs. 11.00 lakhs in cash on various dates between 11.3.1989 to 31.3.1989, besides making a token sum of Rs. 10.000.00 being paid through a cheque dated 31.3.1989 by the plaintiff to late Satish Seth. No receipt for the sum of Rs. 11.00 lakhs handed over by the plaintiff to late Satish Seth was executed and handed over to the plaintiff and it was represented that the same would be handed over to the plaintiff under the signature of late K. M. Sharma. It is stated that subsequently, the plaintiff also made a further payment of Rs. 6,40,000.00 to said Satish Seth in between 31.5.1989 to 1.8.1989 and thereby leaving a balance of Rs. 1.00 lakh only to be paid by the plaintiff towards the entire sale consideration of the aforesaid flat. In token of receipt of the advance amount and a major part of the sale consideration, it is stated, that possession of the flat was also handed over to the plaintiff and that the plaintiff put his own lock on the main entry door of the said flat.