RAJEEV MEHRA Vs. SUDHIR KUMAR SACHDEV

JUDGEMENT

(1.) THE plaintiff seeks decree for specific performance of an agreement of sale of immovable property under Order 12 Rule 6 CPC. The application has been filed after the framing of issues.

(2.) THE plaintiff instituted the suit on 19th January, 2004 on the averments that the defendant had vide agreement to sell dated 15th February, 2001 agreed to sell the full terrace rights above the second floor of the building situated on plot of land admeasuring 725 square yards and bearing No. 33, NH -IV, Lajpat Nagar, New Delhi 110 024 for a total sale consideration of Rs 40 lacs out of which the plaintiff had paid Rs 15 lacs at the time of agreement to sell on 15th February, 2001 and remaining sale consideration was payable at the time of execution of the sale deed after conversion of lease hold rights in the land underneath into freehold. The plaintiff claimed that on 15th February, 2001 the defendant in part performance of the agreement to sell had handed over the vacant, physical possession of the said open terrace to the plaintiff and which fact was also mentioned in the agreement to sell. Besides the agreement to sell, a receipt and an affidavit, also stated to have been executed by the defendant on 15th February, 2001, have also been filed. The agreement to sell provided that the defendant, after obtaining of the requisite permissions, will inform the plaintiff within a period of 12 months by registered AD letter and also send photocopies of the said permissions and the defendant will take the balance sale consideration from the plaintiff at the time of registration of the sale deed within 60 days of the receipt of the said registered AD letter. The plaint further avers that on the request of the defendant the plaintiff gave a further sum of Rs 8 lacs to the defendant on 10th April, 2001 for which also a receipt was issued; it is averred that the defendant had represented that the said amount was required by him for getting the leasehold rights in the land converted into freehold. As per the plaint, the defendant failed to perform his part of the agreement and to get the requisite permissions for execution of the sale deed; that on 15th February, 2002 the defendant had issued a letter to the plaintiff unequivocally acknowledging that he had not been able to complete the formalities for registration of the sale deed. The plaintiff claims that on 1st March, 2003 he noticed from outside that he may have been dispossessed from the terrace aforesaid and on attempts was not allowed by the defendant to go up to the terrace. The said instances are averred to have been repeated on 8th March, 2003. Para 11 of the plaint is important and is reproduced hereinbelow:

(3.) THE defendant filed a written statement. The defendant did not deny the agreement to sell or the receipt or the affidavit all dated 15th February, 2001 stated to have been executed by him. The defendant also admitted receipt of further payment of Rs 8 lacs and execution of receipt therefor. The defendant, however, contested the relief of specific performance averring that though it was so mentioned in the agreement but the possession of the terrace was not delivered to the plaintiff and was to be delivered on the execution of the sale deed only; that the defendant made repeated reminders to the plaintiff for balance payment so as to hand over the possession of the terrace to the plaintiff but the plaintiff was delaying the matter; that the defendant had applied for conversion of leasehold rights into freehold which was still pending as the LandDO had raised a demand of Rs 18 lacs; however, the plaintiff came to the office of the defendant in December, 2001 alongwith Mr Gurinder Singh and told the defendant that he was no longer interested in the said deed and asked for refund of the money; that the defendant agreed to the cancellation of the agreement to sell and to refund the sum of Rs 23 lacs received under the agreement to sell from the plaintiff; that in the month of January, 2002 the defendant paid a sum of Rs 15 lacs in different phases to the plaintiff but the plaintiff did not issue any receipt on the ground that he will issue full and final receipt after entire refund; that the plaintiff insisted upon security for the balance of Rs 8 lacs and for which purpose the defendant issued three cheques and promissory notes to the plaintiff wherein the name of the payee was left blank; that the plaintiff had however filled up the name of his father on the cheques and the promissory notes and the father of the plaintiff had instituted the suit under Order 37 CPC and complaint under Section 138 of the Negotiable Instrument Act against the defendant. The defendant further pleaded that subsequently since the plaintiff had meted threats to the defendant, the defendant had also lodged complaints against the plaintiff. The defendant thus contested that, the plaintiff having himself cancelled the agreement to sell, was not entitled to specific performance thereof.