SUNIL AGGARWAL Vs. M C SHARMA

JUDGEMENT

(1.) THIS order in a suit for specific performance of Agreement of sale of immovable property and in the alternative for damages shall dispose of I. A. No. 9811/2005 of the Plaintiff under Order 39 Rules 1 and 2 CPC, I. A. No. 2375/2006 of the Defendants No. 8 and 9 under Order 39 Rule 4 CPC for vacation of the ex parte ad interim order dated 5th December, 2005 and I. A. No. 2376/2006, also of the Defendants No. 8 and 9 under Order 7 Rule 11 CPC.

(2.) THE Plaintiff claims that the Defendants No. 1 to 3 through the property broker/defendant No. 4 offered for sale to the Plaintiff, the entire proposed construction of ground, 1st, 2nd and 3rd floor on adjoining plots of land bearing nos. C-2/15 and C-2/16, Sector 15, Rohini, Delhi-110085. It is further the case in the plaint that the Defendant No. 1 posed himself as a builder, the Defendant No. 2 posed himself as the owner of plot no. C-2/15 and the Defendant No. 3 as the owner of plot no. C-2/16; that it was represented that the Defendant No. 1 had been authorised to construct and sell the house to be built on the aforesaid 2 plots of land. The Plaintiff claims that 4 agreements to Sell for each of the aforesaid 4 floors respectively were executed by the Defendant No. 1 only in favour of the Plaintiff on 20th and 23rd April, 2001 for a total sale consideration of Rs. 38,75,000/- out of which the plaintiff paid Rs. 12 lacs and the balance sale consideration of Rs. 26,75,000/-was agreed to be adjusted with respect to two other properties owned by the plaintiff and his mother Smt. Angoori Devi, respectively and with respect to which two properties, documents of transfer were executed by the Plaintiff and his mother in favour of the Defendant No. 2, though possession thereof remained with the Plaintiff, to be delivered upon completion of construction on the aforesaid 2 plots of land and delivery of possession thereof to the Plaintiff. It is further the case in the plaint that construction on the said 2 plots was commenced by the Defendants No. 1 to 3 in July, 2001 but the work of construction was abandoned after a few days only and not resumed despite repeated requests of the Plaintiff. The Plaintiff claims to have subsequently learnt that the aforesaid 2 plots of land were not owned by the Defendant No. 1 and that the Defendant No. 1 alongwith the Defendants No. 2 to 4 had committed a fraud on the Plaintiff. The Plaintiff on 19th November, 2001 made a complaint to the police of the fraud and cheating committed by the Defendants No. 1 to 4. It is further pleaded that the Plaintiff in the circumstances had no option but to presume that the Defendants No. 1 to 4 were resiling from the deal with respect to the said 2 plots of land and therefore, the Plaintiff and his mother on 29th November, 2002 cancelled the documents executed with respect to the other two properties against the price/value whereof the balance sale consideration of Rs. 26,75,000/- was adjusted. FIR No. 668/2002 dated 10th november, 2002 of police station Prashant Vihar, Delhi is also stated to have been registered against the Defendants No. 1 to 4. The Plaintiff during the investigation claims to have learnt that plot no. C-2/16 was owned by the defendant No. 5 who is the brother of the Defendant No. 3; that the Defendant no. 5 has sold the said plot to the Defendant No. 7 who is stated to have purchased the same with the knowledge of the prior Agreement in favour of the plaintiff. The Defendant No. 7 is stated to have transferred the plot no. C-2/16 to the Defendant No. 8. The Defendant No. 9 is the husband of the defendant No. 8.

(3.) THE Plaintiff claims to have further learnt that plot no. C-2/15 was got registered by the Defendants No. 1 and 2 in favour of the Defendant No. 6 on 9th May, 2001 i. e. after the Agreement to Sell in favour of the Plaintiff. In para 19 of the plaint it is stated "