Delhi District Court
Krishan Kumar & Anr vs And on 27 April, 2010
SUIT NO.132/2010
IN THE COURT OF SH. NARESH KUMAR MALHOTRA,
ADMINISTRATIVE CIVIL JUDGE (E), KARKARDOOMA, DELHI
SUIT NO.132/2010
IN THE MATTER OF:-
KRISHAN KUMAR & ANR. ........ Plaintiff
AND
MAHENDER S ........ Defendant
DATED: 27.04.2010
ORDER
1. Vide this order, I shall dispose off an application U/O 39R 1&2CPC filed by the plaintiff.
2. The essential facts for the disposal of present application as per plaint are that the plaintiffs have purchased two flats at property no. H- 23/B, measuring 107 square yards (upper first floor) & (upper second floor), Garwali Mohalla, Laxmi Nagar, Delhi-92 (hereinafter will be referred as the suit property) for 55 lac from defendant no.1 as per agreement of sale and purchase dated 15.09.09 and they have given a sum of Rs.15 lac as advance to defendant no.1. After this agreement, on 06.03.10 plaintiff no.1 gave an amount of Rs.1,11,000/- to defendant no.1 and on 09.03.10, he gave a sum of Rs.20 lac in the office of Ramesh Baluni at H-15, Garhwali Mohalla, Laxmi Nagar to the defendant no.1 in the presence of all remaining defendants no. 2 to 6. Defendants no.2 to 6 earlier executed agreement to sell in favour of defendant no.1 and thereafter defendant no.1 executed agreement to sell in favour of plaintiffs and handed over the possession of flats to them on 09.03.10. The plaintiffs are in peaceful 1 SUIT NO.132/2010 possession of the suit property. On 09.03.10, plaintiff asked the defendant no.1 to come to the court for execution of sale deed. Plaintiff no.1 went to the court but defendant no.1 did not reach the court. Defendant no.1 stated that he could not come to the court due to some family dispute. Plaintiffs lodged a complaint in this regard on 15.03.10 in police station Shakarpur vide DD entry no.55-B dated 15.03.10. Plaintiff further averred that on 21.03.10, defendant no.1 came with some gunda elements at the suit property and threatened the plaintiffs to vacate the two flats in their possession. On 22.03.10 when the plaintiffs contacted the defendant no.5&6 for execution of sale deed in respect of said flats, they also extended threat of forcible dispossession to the plaintiffs. As per plaintiffs, defendant no.1 and other defendants are in collusion with each other and they are adopting every mean to take the forcible possession of the suit property from the plaintiffs who are the bonafide purchaser of the same. It is also averred that the suit property is also known as H-23/B measuring 107 square yards (upper first floor) & (upper second floor), Garwali Mohalla, Laxmi Nagar, Delhi-92. It is prayed by the plaintiffs that the defendants be restrained from dispossessing them from the suit property. Plaintiffs also prayed that the defendants be restrained from creating third party interest in respect of suit property.
3. Defendants no.1&3 filed written statement and have taken preliminary objections that the present suit is not maintainable as the plaintiffs are seeking relief of specific performance of contract in the garb of permanent injunction. There is a delay on the part of the plaintiffs in compliance of terms & conditions of agreement dated 15.09.09 which expired on 21.02.10. Plaintiffs have not come to the court with clean hands. Plaintiffs have not made the balance payment to the defendant 2 SUIT NO.132/2010 no.1 nor had shown any willingness to perform their part of contract as per agreement of sale and purchase dated 15.09.09 which expired on 21.02.10. As per the agreement, the sale consideration was to be made by 21.02.10. On merits, it is denied that an agreement for purchase was executed between plaintiffs and defendant no.1 and a sum of Rs15 lac was paid to him. It is denied that plaintiffs purchased two flats. It is denied that on 06.03.10 plaintiff no.1 gave amount of Rs.1,11,000/- to defendant no.1. It is also denied that on 09.03.10, plaintiffs gave a sum of Rs.20 lac in the office of Ramesh Baluni at H-15, Garwali Mohalla, Laxmi Nagar to defendant no.1 in the presence of all remaining defendants 2 to 6. As per defendant no.1 an agreement to sell and purchase dated 24.08.09 was executed between him and other defendants and in that agreement, it was mentioned in clause 7 that defendant no.1 has full right to sell the above suit property to any third party and also have right to receive the full and final consideration from the intending buyer in presence of any one person of the first party (defendant no.2 to 6). Plaintiffs are trying to make a false story. On the one hand, plaintiffs alleged that the work of the flats have not been completed and on the other hand alleged that the possession was handed over to them on 09.03.10. In the notice dated 30.03.2010 the plaintiffs alleged that the time for handing over the possession and execution of documents was extended by 01.04.10 and no possession was handed over to them. Plaintiffs want to grab the property of defendants. Plaintiffs could not arrange the balance payment because they cannot find further buyer of the flat at higher rate as per their demand and in order to avoid the balance payment they have concocted a false story. It is denied that any consent from defendants no.2 to 6 was given to the plaintiffs for taking possession of the suit property. Plaintiffs failed to make the total sale consideration of the suit property. It is denied that on 09.03.10, 3 SUIT NO.132/2010 defendant no.1 received a sum of Rs.20 lac from the plaintiff. As per defendant no.1, plaintiffs are not in possession of the suit property. The agreement executed between the plaintiff and defendant no.1 has been cancelled as the plaintiffs have failed to comply the terms & conditions of agreement, therefore, the agreement stands cancelled and the question of giving consent to the plaintiffs and having their in peaceful possession of the suit property does not arise. It is averred that merely putting the locks on the door does not constitute possession on the suit property. Defendant no.1 and his wife, defendant no.3 is continuously receiving threats from the plaintiffs. Dismissal of application is prayed by the defendants.
4. Defendants no.2&4 filed written statement and have taken preliminary objections that there is no cause of action in filing the present suit. The suit is abuse of process of law. The plaintiffs have no right to present the suit. The agreement dated 15.09.09 executed between the plaintiffs and defendant no.1 is a fraud. The suit property and the property in which plaintiff allegedly entered agreement for sale and purchase with defendant no.1 is different. This court has no jurisdiction to try the present suit. Plaintiffs have no right, title and possession over the suit property. It is denied that on 06.03.10 plaintiff gave amount of Rs.1,11,000/- to defendant no.1. It is also denied that on 09.03.10, plaintiffs gave a sum of Rs.20 lac in the office of Ramesh Baluni at H-15, Garwali Mohalla, Laxmi Nagar to Sh. Mahender Singh Rana in the presence of all remaining defendants 2 to 6. It is averred that the agreement to sell and purchase dated 24.08.09 was executed between defendant no.1 and defendants no.2 to 6 with respect to property no.H-23-B for 67 square yards which was cancelled due to failure of defendant no.1 to pay the total sale consideration of Rs.5 lac each to defendant no.2 to 6 on or before the due 4 SUIT NO.132/2010 date i.e. 30.01.10. As per declaration, the earnest money of Rs.2 lac mentioned in the agreement forfeited by defendant no.6. Defendant no.1 has no legal right over the suit property. Defendants no.2 to 4 are not aware about any agreement to sell executed by defendant no.1 in favour of plaintiffs. No possession of suit property has been handed over to the plaintiffs on 01.03.10. Defendant no.1 has no right over the suit property. The suit property is in possession of defendants no.2 to 6. Defendants no.2 to 6 are not party to the agreement. The agreement executed between plaintiff and defendant no.1 is a fraud as the stamp paper for agreement dated 15.09.09 was purchased on 06.10.09. Dismissal of application is prayed by the defendants no.2 to 4.
5. Defendant no.5 filed written statement and has taken preliminary objections that the plaintiffs are in collusion with defendant no.1 and wants to grab the suit property. The construction of property no.H-23- B is incomplete. Defendant no.5 is the owner and in possession of the suit property. He has made an agreement with defendant no.1 in respect of property no.H-23B which has already been terminated. It is denied that plaintiffs have purchased two flats in the suit property for a sum of Rs.55 lac from defendant no.1 as per agreement to sell and purchase dated 15.09.09 with the advance payment of Rs.15 lac. It is denied that on 06.03.10 plaintiff gave amount of Rs.1,11,000/- to defendant no.1. It is also denied that on 09.03.10, plaintiffs gave a sum of Rs.20 lac in the office of Ramesh Baluni at H-15, Garwali Mohalla, Laxmi Nagar to Sh. Mahender Singh Rana in the presence of all remaining defendants 2 to 6. The defendant no.5 terminated the agreement with defendant no.1. It is denied that plaintiffs are in possession of the suit property.
5 SUIT NO.132/20106. Defendant no.6 also filed the written statement and averred that this court has no jurisdiction to try the present suit. Plaintiffs are trying to dispossess the defendants no.2 to 6 from the suit property. On merits, it is denied that the plaintiffs have purchased the suit property. It is denied that any amount was given by plaintiffs to defendant no.1. As per defendant no.6, plaintiffs had not complied and not paid any amount to defendant no.1, thus the agreement was cancelled. Defendants no.2 to 6 never threatened the plaintiffs. Dismissal of the suit is prayed by the defendant no.6..
7. I have heard the counsels for all the parties and perused the record.
8. Perusal of record reveals that an agreement was executed between defendant no.1 and defendants no.2 to 6. Vide this agreement, defendants no.2 to 6 agreed to sell the flat in property no.H-23B measuring 67 square yards at H-Block, Garhwali Mohalla, Laxmi Nagar, Delhi for a sum of Rs.27 lac given to defendant no.1. As per this agreement, out of above Rs.27 lac, a sum of Rs.5 lac each was to be paid to defendantno.2,3,4&5 and a sum of Rs.7lac was to be paid to defendant no.6. Defendant no.6 received a sum of Rs.2 lac as advance payment. The balance payment was to be paid up to 30.01.10. Vide this agreement, full rights were given to defendant no.1 to sell the above property to the third party. Defendants no.2 to 6 also executed a relinquishment deed in favour of Sh. Avtar Singh Negi. The suit of plaintiff is based on agreement to sell and purchase dated 15.09.09 executed between defendant no.1 and plaintiffs. Vide this agreement, defendant no.1 has agreed to sell the upper 6 SUIT NO.132/2010 first floor and upper second floor in property no.H-23/4, Garhwali Mohalla, Laxmi Nagar, Delhi to the plaintiffs and the entire sale consideration was finalized as Rs.55 lac. It is also mentioned in this agreement that defendant no.1 has received a sum of Rs.15 lac as earnest money and the balance payment of Rs.40 lac was to be paid by 21.02.10. It is the case of plaintiffs that defendant no.1 has received a sum of Rs.1,11,000/- in cash on 06.03.10 and a sum of Rs.20 lac on 09.03.10. Admittedly, defendant no.1 has received a total sum of Rs.36,11,000/- from the plaintiffs.
9. On request of the counsel for plaintiffs, Sh. V.K. Sharma, advocate was appointed as Local Commissioner who gave his report that he visited the suit property. The suit property was in un-finished condition. The suit property was having two gates, one main gate from the still parking and other small gate for stairs to reach the floors of the building. As per report of Ld. LC, there were nine locks upon both the gates. Ld. LC stated in his report that plaintiff no.1 opened one lock and another lock. One Sh. Deepak Madan was having keys of the lock and he also opened two locks. Defendant no.6 was also having keys and he opened the locks with his keys. Defendant no.5 stated to Ld. LC that his daughter was having keys of the lock but she was not present at the spot. As per report of Ld. LC, seven locks were identified and six locks were opened in his presence. Ld. LC was not able to enter into the suit property to ascertain the possession. As per Ld. LC, plaintiffs have opened three locks and defendants no.1,3,5&6 were also having the keys. Ld. LC also mentioned in the report that he could not enter into the suit property thus he was not able to ascertain the possession of plaintiffs in the suit property.
As per agreement, the plaintiffs have agreed to purchase the suit property from defendant no.1 for a sale consideration of Rs.55 lac and 7 SUIT NO.132/2010 they also paid Rs.36,11,000/- to defendant no.1. I am of the view that the plaintiffs should have filed a suit for specific performance of agreement and Simplicitor suit of injunction is not maintainable. Present suit is barred U/S 41 (h) of Specific Relief Act. Moreover, as per plaintiffs, the sale consideration of the suit property is Rs.55 lac, therefore, this court has no pecuniary jurisdiction to try the present suit. The application of plaintiff is without any merit and the same is hereby dismissed.
10. However, nothing expressed above shall tentamount to expression of my opinion on the merits of the case.
ANNOUNCED IN OPEN COURT (NARESH KUMAR MALHOTRA)
ON 27.04.2010 ADMINISTRATIVE CIVIL JUDGE (E)
KKD COURTS, DELHI
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