BHASKAR SAINI Vs. SATBIR SINGH

JUDGEMENT

(1.) This Regular First Appeal under Section 96 of Code of Civil Procedure, 1908(CPC) is filed by the defendant in the suit impugning the judgment of the Trial Court dated 20.4.2005 by which trial court has decreed the suit for specific performance filed by the respondent/plaintiff with respect to the Agreement to sell dated 29.8.2000 entered into between the parties for two plots of land bearing nos. 29 and 30, admeasuring 320 sq yds, out of khasra No.47/2/2/3 situated in the area of village Mundka, New Delhi 110041 also known as Gulshan Park, Block-II, Nangloi, New Delhi (hereinafter referred to as "suit property"). Respondent/plaintiff was directed to pay the balance sale consideration of Rs.5.40 lacs (out of the total sale consideration of Rs.6 lacs) within a period of one month and the appellant/defendant was directed to execute the necessary transfer documents of title in favour of the respondent/plaintiff.

(2.) The facts of the case are that admittedly the parties entered into an Agreement to Sell dated 24.8.2000 with respect to the suit property. Also there is no dispute that at the time of entering into of the agreement to sell an amount of Rs.60, 000/- was paid by the respondent/plaintiff to the appellant/defendant out of the total sale consideration of Rs.6 lacs. The period of performance fixed was of two months i.e up to 23.10.2000. Pleading that the appellant/defendant was guilty of breach of contract in not specifically performing the Agreement to Sell, a legal notice dated 17.10.2000 was sent by the respondent/plaintiff to the appellant/defendant for being present before the Sub Registrar when the respondent/plaintiff would be present before the Sub Registrar with the balance sale consideration and the necessary stamp papers. Respondent/plaintiff pleaded that in spite of appellant/defendant being served with the legal notice and the respondent/plaintiff appearing before the Sub Registrar, the appellant/defendant failed to appear before the sub Registrar for signing the transfer documents of the suit property in favour of the respondent/plaintiff and hence committed breach of Agreement to Sell dated 24.8.2000. Again on 24.10.2000, the respondent/plaintiff sent a legal notice and in reply to which the appellant/defendant pleaded that he had purchased the suit property from Sh. Hawa Singh but there seems to be some documents in favour of one Sh. Net Ram. Pleading that the appellant/defendant was guilty in failing to perform the agreement to sell, the subject suit for specific performance was filed.

(3.) Appellant/Defendant contested the suit and pleaded that parties had cancelled the Agreement to Sell dated 24.8.2000 and respondent/plaintiff had received back the sum of Rs.60, 000/- on 6.9.2000 by executing valid receipt in the presence of three persons, namely Sh. Ramesh Kumar, Sh. Ajendra Pal Kataria and Sh. Gyan Chand Saini. It was pleaded that the Agreement to Sell dated 24.8.2000 is highly unreasonable, inequitous and pre-judicial to the interest of the appellant/defendant and hence unforceable and thus the suit for specific performance should be dismissed. It was further pleaded in the written statement by the appellant/defendant that on the respondent/plaintiff being made aware of the suit filed by one Smt. Nihalo Devi claiming ownership of the suit property, the respondent/plaintiff said he was no longer interested in purchase and demanded repayment of the earnest money paid of Rs.60, 000/-. The appellant/defendant agreed to refund the amount subject to returning of the original Agreement to Sell but respondent/plaintiff pleaded unavailability of the original Agreement to Sell but the respondent/plaintiff signed the receipt cum cancellation deed in the presence of three witnesses, namely Sh. Ramesh Kumar, Sh. Ajendra Pal Kataria and Sh. Gyan Chand Saini. It was also pleaded that suit filed by Smt. Nihalo Devi was dismissed as withdrawn. The subject suit was therefore prayed to be dismissed.