PARAMJIT SINGH NAGPAL Vs. PERM SAGAR SETHI

JUDGEMENT

(1.) BY this petition under Article 227 of the Constitution of India, the petitioner has assailed the order dated 11th July 2007 passed by learned ADJ disallowing an application of the petitioner under Order 12 Rule 6 CPC for a decree in favour of the petitioner on the basis of admission made by the respondent.

(2.) THE plaintiff (petitioner herein) had filed a suit for specific performance stating that his father was earlier a tenant of the defendant (respondent) qua premises No. 18/31d, East Patel Nagar, New Delhi. On 7th August 1987, the defendant agreed to sell the first floor and the roof above the first floor of the said premises , to the plaintiff for a consideration of rs. 3,50,000/-, and an amount, Rs. 25,000/- was given as earnest money against receipt dated 7th August 1987. Defendant was to obtain sale permission from the land and Development Office, and clearance from Competent Authority under the land Ceiling Act and the Income Tax Clearance certificate from the Income Tax office. The defendant further made a demand of Rs. 1,25,000/- in April 1987. However, the plaintiff did not give this amount to the defendant before 13th april 1987 but gave the same subsequently. The defendant again approached the plaintiff for releasing an amount of Rs. 90,000/-, which plaintiff gave by way of a demand draft dated 12th April 1988 on Allahabad Bank and defendant agreed to obtain requisite sale permission from the Land and Ceiling Department and Income tax Clearance Act. Thus, the defendant had received a payment of Rs. 2,40,000/ -. However, the defendant did not seek permission as the plaintiff filed a suit for the specific performance. In the written statement, defendant denied the facts as stated by the plaintiff in the plaint. Defendant's contention was that the plaintiff's father was inducted as a tenant at the first floor of the said premises on a monthly rental of Rs. 575/- on 12th October 1979 under Section 21 of the Delhi Rent Control Act. However, the plaintiff's father Mr. Bhagwan Singh failed to vacate the premises after expiry of the fixed tenancy period and with malafide intentions started harassing and humiliating the defendant. The defendant was unable to bear more humiliation from Bhagwan Singh. The said Mr. Bhagwan Singh did not vacate the premises despite the fact that the defendant was in dire need of the same and was living in a godown at the back of the shop. The defendant was coerced to enter into a sale agreement, which defendant had to agree thinking that he may make his own residence elsewhere as his children were growing up and it had become impossible to continue to live in the godown. The defendant was forced to sign the agreement under undue influence as the plaintiff had created horrible circumstances and was extending serious threats to the defendant. The defendant admitted that a sum of Rs. 1,50,000/- was received by the defendant but it is stated that plaintiff failed to make remaining payment of Rs. 2 lac which was to be made on or before 18th April 1988 and as such the plaintiff committed breach of the terms and conditions of agreement to sell. He denied that he had received an amount of Rs. 90,000/- by way of a demand draft.

(3.) ISSUES were framed in the case and after framing of issues, the case was going on for recording evidence. The plaintiff sought to examine one official of Allahabad Bank in order to prove the preparation of a draft for an amount of Rs. 90,000/- by the plaintiff through this bank. Learned counsel for the defendant made a statement in the Court that there was no need to examine this witness as he does not want to dispute preparation of the draft. After this statement of the counsel for the defendant, the plaintiff took the plea that the defendant has accepted the payment of an amount of Rs. 90,000/- , therefore, a decree for specific performance should be passed in favour of the plaintiff. The learned trial court, however, rejected this contention, and I think rightly so.