JAI DEEP Vs. KIRAN GUPTA

JUDGEMENT

(1.) Challenge in the present appeal has been directed against concurrent findings recorded by the Courts whereby suit for specific performance of agreements dated 16.05.1996, 17.05.1996 and 23.05.1996 with consequential relief of injunction was decreed by the trial Court to the following effect:-

(2.) The appeal preferred by unsuccessful defendants/appellants did not find favour with the Additional District Judge, Yamuna Nagar at Jagadhari and the same was dismissed vide judgment and decree dated 05.05.2011. Indisputably, the appellants/defendants through their General Power of Attorney Sh. Satyendra Kumar entered into agreement of sale of land measuring 4 kanal 13 marlas out of land measuring 75 kanal 14 marlas at the rate of Rs.357/- per square yard and received Rs.50,000/- as earnest money against receipt in presence of witnesses. The sale deed was agreed to be executed and registered on 15.09.1996. On 17.05.1996, Rs.50,000/- more was paid to defendants through Sh. Satyendra Kumar against receipt. There is also no dispute that on 23.05.1996, plaintiff paid Rs.1,00,000/- more to Satyendra Kumar through Pay Order No.1020752 and 1020753 dated 23.05.1996. Another sum of Rs.3,50,000/- was paid to appellants through their Attorney Sh. Satyendra Kumar against receipt made on back of the agreement dated 23.05.1996. On 16.09.1996, a sum of Rs.2,50,000/- more was paid to defendants through their Attorney against receipt and in this way a total sum of Rs.8,00,000/- was paid to defendants as a part of property in question was mortgaged with Haryana Financial Corporation and they were to clear their dues as per terms of agreement dated 16.05.1996. As per case set up by the plaintiff, on 17.09.1996, another sum of Rs.2,00,000/- was paid in the account of firm M/s Garg Fruit Processor, Jagadhri through a voucher and Anuj Kumar - defendant No.5 made a writing that this amount was received from plaintiff against land and as such total amount of Rs.10,00,000/- was paid to defendants/appellants. It is further averred that 15.09.1996 was Sunday and on 16.09.1996 and 17.09.1996, defendants did not come present in office of the Sub Registrar, Jagadhri for execution and registration of sale deed despite receiving payment on 16.09.1996 and 17.09.1996 and as such she got her presence marked. Possession of land in question was delivered to her by defendants on 13.09.1996 and she has constructed a motel over the same. The plaintiff always been ready and willing to perform her part of contract and requested the defendants many a times to execute and get register the sale deed regarding land in question on receipt of balance sale consideration of Rs.6740/- but they failed to do so. Eventually, the plaintiff filed the suit seeking specific performance of the agreement with consequential relief of injunction restraining the defendants from alienating or creating any charge/encumbrance over the suit land on 15.09.1999.

(3.) Defendants No.1 to 4, 6 and 7 filed joint written statement and in turn raised preliminary objections inter alia that the suit is not maintainable; plaintiff is estopped from filing the suit by her own act and conduct; she has no locus standi to file the suit and she has not come to the Court with clean hands etc. On merits, they have not specifically denied execution of agreements as well as receipt of Rs.8 lakhs on various dates. However, they denied plea of delivery of possession of suit property to plaintiff with the averments that forcible possession of land in question was taken on the intervening night of 28/29.09.1996 regarding which matter was reported to the police by Satyendra Kumar Garg on 29.09.1996. They have denied receipt of Rs.2,00,000/- on 17.09.1996 either by their Attorney or by way of deposit in the account of M/s Garg Fruit Processor, Jagadhri. Anuj Kumar - defendant No.5 was never authorized to receive any money or issue any receipt on their behalf. It is further averred that on the last day fixed for execution and registration of sale deed Satyendra Kumar Garg, Attorney, remained present in office of the Sub Registrar, Jagadhri but respondent/plaintiff did not turn up. He got his presence marked through an affidavit. On 18.09.1996, their Attorney informed the plaintiff through registered A.D. letter that all her money paid till date was forfeited because of her default. Plaintiff did not reply the said letter, rather filed the suit on the last day of limitation. All other material averments have been denied with a prayer for dismissal of suit and for directing the respondent/plaintiff to vacate and hand over possession of suit property to them.