MAHINDER Vs. RAJ KUMAR RATHI

JUDGEMENT

(1.) Appellant-plaintiff has filed this regular second appeal challenging judgments and decrees dtd. 22/9/2014 and 28/7/2017 passed by the learned Additional Civil Judge (Senior Division), Gurgaon and learned Additional District Judge, Gurugram, respectively, whereby suit for possession by way of specific performance of agreement dtd. 9/1/2001 filed by the plaintiff, has been dismissed.

(2.) Brief facts necessary for adjudication of the appeal are that, appellant/plaintiff filed a suit for specific performance of agreement to sell dtd. 9/1/2001 with the averments that defendant No.l was the owner of plot No.50 measuring 1.5 Kanals situated at Sector 21, Urban Estate Gurgaon vide allotment/intimation No.8650 dtd. 19/5/1986. Plot in question was under litigation as defendant No.4 i.e., Haryana Urban Development Authority (HUDA) had no such site at the spot, therefore, another plot bearing No.20 in Sector 5, Urban Estate, Gurgaon vide allotment No. 130 dtd. 24/8/1997 at a new rate, was offered to defendant No.l. It is pleaded that defendant No.l entered into an agreement to sell dtd. 9/1/2001 in respect to the said plot for a sum of Rs.15,00,000.00 out of which appellant/plaintiff paid a sum of Rs.5,00,000.00to defendant No.l at the time of execution of the agreement. Remaining consideration amount was agreed to be paid by appellant/plaintiff to defendant No.l at the time of transfer of the said plot by HUDA department/execution and registration of sale deed in his favour, which would be done when defendant No.l would secure possession of the newly offered plot. Appellant/plaintiff further pleaded that it was agreed that defendant No.l would give one month's notice to the plaintiff after taking possession of the newly offered plot. However, defendant No.l failed to execute the sale-deed in terms of the agreement to sell, whereas the plaintiff was and is always ready and willing to perform his part of the contract. Plaintiff, it is asserted, came to know that defendant No.l executed a power of attorney in favour of defendant No.2 on 31/10/2001 in respect to the plot in question, registered with the Sub-Registrar, Nuh and that defendant No.2 with a mala-fide and dishonest intention transferred the said plot in favour of his wife, defendant No.3, without any sale consideration and without the knowledge and notice of defendant No.l. It is pleaded that on inquiry from HUDA on 20/12/7 plaintiff came to know that defendant No.2 had already contracted to sell the plot to one Dalip Singh by way of agreement, who had further informed defendant No.4 on 6/6/2005 not to transfer the said plot to anyone. It is pleaded that defendants No.2 to 4 had colluded with each other and transferred the abovesaid plot in favour of defendant No.3. Appellant/plaintiff called upon defendant No.l to admit claim of the plaintiff and execute sale-deed in his favour in terms of the agreement dtd. 9/1/2001 after receipt of balance sale-consideration, but defendant No.l refused to do so on 20/12/2007. Hence, the suit was filed on 24/12/2007.

(3.) Suit was contested by the defendants with defendant No.l filing a separate written statement, which was adopted by defendants No.2 and 3. A preliminary objection was taken by defendant No.l that the suit was based upon forged and fabricated document, which the answering defendant has never signed/executed. The said document, it is stated, did not bear his original signatures, which are in fact a printed copy, which were electronically scanned from the second page of General Power of Attorney dtd. 31/10/2001 executed by defendant No.l in favour of defendant No.2, duly submitted before HUDA for the purpose of execution of Conveyance Deed of the plot, in question. It is pleaded that plaintiff gained access to the documents in order to achieve his ulterior motives. It is denied that defendant No.l ever signed or executed agreement to sell dtd. 9/1/2001 in favour of the plaintiff or that he ever received a sum of Rs.5,00,000.00 from the plaintiff as advance sale price or earnest money from him. It is stated that the plaintiff had never approached defendant No.l for execution of the alleged agreement and he is, in fact, a stranger to defendant No.l. It is further pleaded that the only deal in respect to the plot in question entered into by defendant No.l, was with defendant No.2, Naresh Kumar pursuant to which General Power of Attorney was registered in the office of Sub-Registrar, Nuh on 31/10/2001 and the said General Power of Attorney was duly submitted in the office of HUD A, Gurgaon. It is pleaded that defendant No.l had authorized defendant No.2 to represent him before HUDA in respect of the plot in question for every purpose, whatsoever, to enter into an agreement to sell with any party and to receive advance/earnest money and issue receipt, to get the sale-deed executed and get it registered before the Sub-Registrar and to receive the sale consideration etc. It is further pleaded that defendant No.2 executed sale-deed in favour of defendant No.3, his wife, on the basis of said valid General Power of Attorney and the said act of defendant No.2 was duly ratified by defendant No.l. Dismissal of the suit was thus prayed for by defendant No.l.