BALKISHAN @ SHARMA Vs. SHYAMSUNDER MITTAL

JUDGEMENT

(1.) The present petition, under Article 226/227 of the Constitution, is directed against the order dtd. 12/5/2022 passed by Fourth District Judge, District Morena in Misc. Civil Appeal No.28 of 2021 whereby while allowing the said appeal preferred by the petitioners/plaintiffs, the order dtd. 17/9/2021 passed by Fourth Civil Judge, District Morena in Civil Suit No.156-A of 2020 by which the application preferred by the plaintiffs/petitioners under Order 39 Rules 1 & 2 read with Sec. 151 of CPC was rejected, was reversed.

(2.) Facts in nutshell are that a suit was filed by the respondents/plaintiffs with regard to recovery of an amount and permanent injunction. In the suit, an application under Order 39 Rule 1 & 2 of CPC was filed to the effect that an agreement to sale with regard to a building situated in a populated area of Ward No.23, Bihari Ji Ward, Jahar Singh Sharma Marg, Nagar Palika Nigam, Morena was executed between the plaintiffs and defendant on consideration amount of Rs.1,75,00,000.00 dtd. 18/11/2019. The petitioner/defendant had transferred Rs.2,50,000.00 from the account of one Smt. Anita Mittal vide Cheque No.323718 of State Bank of India, in M.S. Road Branch, Morena through RTGS on 18/11/2019 in the account of defendant and remaining Rs.12,50,000.00 was given in cash on the same day. Thus, the defendant had received Rs.17,50,000.00 as the advance amount which is still in his possession.

(3.) In the application, it was also averred that in the agreement dtd. 18/11/2019, it was agreed between the parties that the defendant/seller would get the nomination done within 15 days before the sale registration in the Municipal Corporation, Morena and hand over its documents to the plaintiffs/buyer and the plaintiffs/buyer would publish a notice regarding purchase of the said building for themselves satisfying the seller/defendant was the sole owner and possession holder of the said building and then would execute the sale deed on 30/4/2020 and it was also agreed that if for any reason, the plaintiffs delayed the sale deed by the stipulated date of 30/4/2020 then the entire sale amount remaining of Rs.1,57,00,000.00 would bear interest @ 1% per month, but if any dispute arose regarding ownership of the seller, the said interest amount not be recovered until the resolution of the said dispute and the period of the sale agreement would automatically be considered extended. It was also agreed in the sale agreement that until this sale agreement letter is cancelled, the defendant will not sell the property to any other person, and the first party (i.e. defendant) would pay all types of all government taxes like, water tax, electricity tax, house tax, etc., before registration of the sale deed and hand over the original receipt to the second party (plaintiffs).