SUMIT KUMAR Vs. SUDESH DOGRA AND ORS.

JUDGEMENT

(1.) Plaintiff Sumit Kumar filed suit for specific performance of contract dated 12.3.2007 pleaded therein that an agreement dated 12.3.2007 was executed between the plaintiff and co-defendant No.1. It is pleaded that at the time of execution of agreement plaintiff paid Rs. 1 lac (Rupees one lac only) as an advance amount to co-defendant No.1. It is pleaded that in addition plaintiff also paid Rs. 5 lacs (Rupees five lacs only) to co-defendant No.1. It is further pleaded that plaintiff has performed his part of contract and balance amount of Rs. 39 lacs (Rupees thirty nine lacs only) was to be paid to co-defendant No. 1 at the time of execution of sale deed which was to be executed on or before 31.7.2011. It is pleaded that plaintiff is still ready and willing to perform his part of contract dated 12.3.2007. It is also pleaded that plaintiff requested co-defendant No. 1 to execute the sale deed as per terms of agreement and on dated 27.6.2011 plaintiff requested co-defendant No.1 to remain present at Shimla to execute the sale deed in favour of the plaintiff. It is pleaded that co-defendant No. 1 is under legal obligation to execute the sale deed in favour of the plaintiff on the basis of agreement dated 12.3.2007. It is pleaded that cause of action arisen on dated 12.3.2007 when agreement to sell flat No. 9 was executed between plaintiff and co-defendant No.1. It is pleaded that cause of action further arisen on dated 25.7.2011 when plaintiff submitted an application before the Sub Registrar Shimla and further pleaded that cause of action again arisen on dated 1.8.2011 when plaintiff issued legal notice to the co-defendant No.1 asking her to perform her part of agreement. It is also pleaded that further cause of action arisen in favour of plaintiff in first week of August 2011 when co-defendant No.1 refused to execute the sale deed in favour of the plaintiff. Plaintiff sought the following relief. (1) That decree for specific performance of contract on the basis of agreement dated 12.3.2007 be passed. (2) That defendants be directed to hand over the possession of flat to the plaintiff and to execute the sale deed. (3) That defendants or their representatives be restrained by way of passing decree of permanent prohibitory injunction not to interfere in any manner in the ownership and possession of plaintiff in flat. (4) That any decree as Court deem just and proper be also passed. (5) That in alternative decree for recovery of earnest money received along with interest of 12% per annum be passed in favour of plaintiff.

(2.) Per contra written statement filed on behalf of the co-defendant Sudesh Dogra pleaded therein that present suit is bad for non-joinder of necessary parties. It is pleaded that Ms. Urvashi Dogra is owner of the property in dispute. It is further pleaded that co-defendant No. 1 by way of family settlement transferred the property in dispute in the name of her daughter Ms. Urvashi Dogra who thereafter transferred the said property in the name of her sister Sunita Anand by way of gift. It is pleaded that however possession of premises remained with Ms. Urvashi Dogra. It is pleaded that both daughters are aware about the existence of agreement. It is pleaded that Ms. Urvashi Dogra and Sunita Anand are necessary parties. It is admitted that an agreement to sell was executed inter se the plaintiff and co-defendant No. 1 on dated 12.3.2007. It is pleaded that co-defendant No. 1 is not owner of flat in question and therefore she is not in a position to execute the sale deed. Prayer for dismissal of suit is sought.

(3.) Plaintiffs also filed replication and re-asserted the allegations mentioned in plaint.