DINESH TANWAR Vs. KUNWAR SINGH TANWAR

JUDGEMENT

(1.) The Plaintiff ? Shri Kanwar Singh Tanwar (hereinafter, ,,Plaintiff) filed the present suit for specific performance of bayana cum receipt agreement dated 15th March, 2010 against Mr. Devender Kumar and Mrs. Pratibha (hereinafter, ,,Defendants), both residents of WZ-508, Village Basai Dara Pur, New Delhi. The case of the Plaintiff was that the Defendants represented themselves to be the absolute owners of property bearing No. WZ-523/30, situated at village Basai Dara Pur, New Delhi admeasuring 170 Sq. Yards (hereinafter, ,,suit property). The agreed sale consideration was at the rate of Rs.35,000/- per sq. yard i.e. for a total consideration of Rs.59,50,000/-. According to the Plaintiff, the period for execution of the sale deed, in terms of the agreement, was to expire on 14th August, 2010. The Plaintiff had paid an advance of Rs.1 lakh. The Plaintiff approached the Defendants on several occasions that he is ready with the balance sale consideration, however, the Defendants avoided the issue and failed to even give original title documents to the Plaintiff.

(2.) Thereafter, legal notice dated 3rd July, 2010 was issued, calling upon the Defendants to appear before the Sub-Registrar on 16th August, 2010, to execute the sale deed in favour of the Plaintiff. However, the Defendants did not turn up. The Plaintiff then filed a suit for permanent injunction as he was apprehending that the Defendants may create third party interest in the suit property. The suit bearing No.143/2010 was filed before the Ld. Senior Civil Judge, Delhi seeking injunction. The Defendants moved an application under Order VII Rule 11 CPC, in the said suit, on the ground that the said suit is not maintainable, as an alternate remedy of specific performance was available to the Plaintiff. Accordingly, the present suit came to be filed where the Plaintiff seeks the following reliefs:

(3.) Summons were issued in the suit on 27th September, 2010. Thereafter, on 22nd March, 2011, the parties were referred to mediation. In the meantime, the Defendants filed their written statement. The case of the Defendants was that the bayana receipt dated 15th March, 2010 stood repudiated on 26th May, 2010. It was pleaded that on 11th May, 2010, the Defendants called upon the Plaintiff to produce the original bayana receipt and also to make payment of the balance sale consideration within 15 days. However, since the same was not done, on 26 th May, 2010 the bayana receipt stood repudiated. The Defendants further contended that the bayana receipt lacked the essential ingredients to constitute a binding agreement, as there was no description of the property or the area or the amount in it. Further, the stamp paper on which the bayana receipt was issued, was dated December, 2009, and the notarisation on the same was post-dated i.e., on 15th March, 2010, which is the date of the agreement as per the Plaintiff. Accordingly, the Defendants sought dismissal of the suit on the ground that it lacked cause of action.