DEEP RAMAN SINGH Vs. ASHWANI KUMAR

JUDGEMENT

(1.) This appeal is directed against the order passed by learned trial Court dated 13.8.2009, by which an application fried by the Plaintiff under Order 6 Rule 17 of the Code of Civil Procedure, 1908 (for short, "the Code of Civil Procedure") has been allowed subject to payment of Rs. 1000/- as costs.

(2.) Plaintiffs case is that on 12.11.2003, there were negotiations between the Plaintiff and Tej Pal Singh Kang (Respondent No. 1) who was Defendant No. 1. before the Court below for purchase of House No. 3293, Sector 21-D, Chandigarh for an amount of Rs. 53,00,000/- (Rs. Fifty three lacs only). A sum of Rs. 50,000/- was paid on that date against receipt which was signed by Tej Pal Singh Kang and two witnesses namely, Deepak Saini and Ravinder Kumar. As per this receipt, it was agreed by the parties that the agreement shall be executed within one week's time and 10% of the consideration amount would be paid to the Defendants. The last date of the bargain was fixed as one month from the date of issuance of 'No Objection Certificate' and all the expenses were agreed to be borne by the Petitioner/purchaser and all the dues regarding issuance of 'No Objection Certificate' were to be borne by the seller/Defendants. The purchaser was free to get the sale deed executed either in his name or in the name of any other person. On 18.11.2003, Tej Pal Singh Kang (Seller) received another sum of Rs. 5,00,000/- from the Petitioner towards earnest money. The said receipt was signed by Tej Pal Singh Kang, his wife Gurvinder Kaur and Deep Raman Singh (Petitioner herein) and the aforesaid two witnesses. Name of Jaswant Singh Kathuria was mentioned in the receipt but he did not sign. According to the Respondents, agreement to sell was executed on 18.11.2003 by three persons namely Tej Pal Singh Kang, his wife Gurvinder Kaur, Deep Raman Singh and was given for the purpose of signatures to Jaswant Singh Kathuria but the same could not be signed as he was not well. It is submitted that although the property is owned by Tej Pal Singh Kang and Jaswant Singh Kathuria in 1/2 share each yet according to the learned Counsel for the Respondents, the Petitioner/seller and Tej Pal Sjngh etc. were secretly negotiating for the purpose of sale of the property in question at a higher rate and therefore, the suit for permanent injunction was filed in which temporary injunction was granted by the Court on 16.4.2003.

(3.) In the written statement, the seller denied the execution of the agreement dated 18.11.2003 as well as the receipt. The Respondent/Plaintiff then filed an application under Order 6 Rule 17 of Code of Civil Procedure, 1908 (for short, the Code of Civil Procedure) to amend the suit from permanent injunction to a suit for specific performance on 20.9.2005 and during the pendency of the said application, filed a separate suit against Tej Pal Singh, and his wife Gurvinder Kaur on 23.5.2006 for specific performance of the agreement to sell dated 18.11.2003 which according to the Respondent/Plaintiff was separately executed with them with regard to = share of the suit property. The Respondent/Plaintiff then filed an application dated 11.12.2008 for withdrawing the present suit against Defendant Nos. 1, 2 and 4. The suit was withdrawn against Defendant No. 1 and 2. Suit against Defendant No. 4 was also withdrawn as there were no signatures on receipt dated 18.11.2003. Thus the suit remained only against Defendant No. 3, who is the Petitioner before this Court.