Delhi District Court
S. Gurcharan Singh vs Smt. Shashi Singh on 21 August, 2012
Suit No. 399/12 S. Gurcharan Singh v. Shashi Singh DOD : 21/08/2012
IN THE COURT OF VINOD YADAV: ADDL. DISTRICT JUDGEIV:
SOUTHWEST DISTRICT: DWARKA COURTS: NEW DELHI
Suit No. 399/2012
In the matter of:
S. Gurcharan Singh
S/o S. Mehtab Singh
R/o IIIB/43A, Vishnu Garden,
New Delhi - 110 018 .....Plaintiff
Versus
Smt. Shashi Singh
W/o Sh. Jitender Singh
R/o RZB482, Kailash Puri Extn.,
Nasirpur, New Delhi .....Defendant
Date of Institution of Suit : 30/05/2011
Date of Receipt in this court by way of transfer : 16/08/2012
Date of reserving judgment : 21/08/2012
Date of pronouncement : 21/08/2012
SUIT FOR SPECIFIC PERFORMANCE AND PERMANENT
INJUNCTION AN IN THE ALTERNATIVE FOR DAMAGES
EXPARTE JUDGMENT:
1. The facts of the case as borne out from the record are that the
plaintiff was approached by the defendant for the sale of her entire free
hold built up property bearing No. RZB482, land underneath measuring
90 sq. yards with all its land rights with complete ownership rights of the
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Suit No. 399/12 S. Gurcharan Singh v. Shashi Singh DOD : 21/08/2012
roof/terrace thereof, situated in the colony known as Kailashpuri
Extension in the BBlock, Nasir Pur, New Delhi part of Khasra No. 421,
in the area of Village Nasir Pur, Delhi, State Delhi (herein referred to as
"suit property").
2. The plaintiff entered into a written agreement to sell and purchase,
dated 16/09/2010, with the defendant for the purchase of the suit property
for a total sale consideration of Rs. 18,50,000/ (Rupees eighteen lakhs
fifty thousand only). The plaintiff paid a sum of Rs. 6,00,000/ (Rupees
six lakhs only) as bayana/advance/part sale consideration to the defendant
on 16/09/2010 itself which was duly accepted/received by the defendant
vide receipt of even date. As the per the said agreement the last date for
payment of balance amount i.e. Rs. 12,50,000/ (Rupees Twelve lakhs
fifty thousand only) and for the execution of necessary sale documents
with respect to suit property and also for the delivery of vacant
possession of the suit property to the plaintiff by the defendant was
agreed as on or before 16/03/2011.
3. As per the plaintiff he was ready and willing to perform his part of
the agreement and to make the payment and to purchase the suit property.
Plaintiff on various occasions contacted the defendant and offered her to
receive the balance amount of Rs. 12,50,000/ (Rupees Twelve lakhs fifty
thousand only) and to get the sale deed of the suit property executed in
his favour, but the defendant on one pretext or the other deferred the
execution of the sale deed.
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4. Thereafter in the month of February 2011, the plaintiff filed a suit
for permanent injunction against the defendant because the plaintiff was
under genuine apprehension that the defendant may create third party
interest in the suit property. The defendant was duly served in the above
said suit, but she chose not to appear in that suit. The trial court
proceeded exparte against the defendant and also granted interim stay
vide order dated 01/03/2011. Thereafter plaintiff has filed present suit
praying for following reliefs :
a) Pass a decree of specific performance in favour of the plaintiff and
against the defendant thereby directing the defendant to execute the Sale
Deed in favour of the plaintiff and get the same registered in the office of
Subregistrar concerned, in respect of sale of "suit property" and
consequently the plaintiff be also put in possession of suit property.
b) This court may kindly be pleased to pass a decree for recovery of
damages to the tune of Rs. 12,00,000/ (Rupees twelve lakhs only) in
favour of the plaintiff and against the defendant, along with interest @
24% per annum from the date of filing of the present suit till actual
realization.
c) This court may pass a decree for permanent injunction in favour of
the plaintiff and against the defendant thereby restraining the defendant,
their family members, legal heirs, nominees, attorneys, agents, henchmen
etc., from entering into any agreement with anyone else in respect of the
sale of "suit property".
d) Costs of the present suit may also be awarded in favour of the
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plaintiff and against the defendant.
5. After filing of the present suit, the summons were issued to the
defendant but the defendant could not be served by ordinary process and
as such was finally served by way of publication in the newspaper
"Statesman". However, despite service by way of publication, the
defendant did not appear before this court and was proceeded exparte by
my learned Predecessor vide order dated 01/05/2012.
6. Thereafter the plaintiff lead exparte evidence inter alia proving on
record agreement to sell dated 16/09/10 as Ex. PW1/1, receipt in the sum
of Rs. 6,00,000/ (Rupees six lakhs only) dated 16/09/2010 as Ex. PW1/2,
copy of police complaint dated 14/02/2011 and postal receipts in respect
thereof as Ex. PW1/3 and Ex. PW1/4.
7. I have heard Sh. Vikas Yadav, Learned Counsel for the plaintiff
and considered the entire material on record. A perusal of Ex. PW1/1 &
Ex. PW1/2 reveals that these are not registered documents. The learned
counsel for the plaintiff has vehmently argued that non registration of
these documents cannot be a bar in seeking specific performance of Ex.
PW1/1 in this matter. He has referred to the provisions of Sections 17(1
A) of The Registration Act to put forward the point that had the defendant
handed over the possession of the suit property to the plaintiff then the
agreement to sell would have required compulsory registration. He has
also referred to the judgment of Hon'ble Punjab & Haryana High Court
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reported as 2009 (4) Civil Court Cases 025 (P&H) wherein it has been
held in Para No. 16 that
"since the possession was proved not to have been delivered
to the plaintiffrespondent at the time of execution of the
impugned agreement to sell, the Lower Appellate Court rightly held that agreement to sell did not require registration".
8. From the perusal of the evidence of the plaintiff and the documents proved on record it is apparent that the defendant has not come forward to perform her part of obligation as per agreement to sell Ex. PW1/1 and has usurped the earnest money of the plaintiff in respect of the sale of the suit property. There is a clear averments in the evidence of the plaintiff that he has been ready and willing to perform his part of agreement. As such the plaintiff has also satisfied the requirement of the provisions of Section 16 of the Specific Relief Act.
9. Learned Counsel for the plaintiff has further submitted at bar, on instructions that the plaintiff is ready and willing to deposit the balance sale consideration along with up to date interest specified by this court in court for the purpose of specific performance of Ex. PW1/1.
10. Considering the facts and circumstances of the case in totality, I am of the considered opinion that the plaintiff has made out a good case for grant of decree of specific performance of Ex. PW1/1. Suit for Specific Performance & Permanent Injunction Page 5 of 07 Suit No. 399/12 S. Gurcharan Singh v. Shashi Singh DOD : 21/08/2012
11. Accordingly, the suit of the plaintiff is decreed as under :
a) A decree of specific performance is passed in favour of the plaintiff and against the defendant, her assignees/legal heirs/legatees etc. and defendant is hereby directed to execute sale deed in respect of suit property bearing No. RZB482, Land underneath measuring 90 sq. yards with all its land rights with complete ownership rights of the roof/terrace thereof, situated in the colony known as Kailashpuri Extension in the B Block, Nasir Pur, New Delhi part of Khasra No. 421, in the area of Village Nasir Pur, Delhi, State Delhi, in favour of the plaintiff within 2 weeks after accepting the balance sale consideration of Rs. 12,50,000/ (Rupees twelve lakhs fifty thousand only) along with interest @ 8% per annum w.e.f. 16/03/2011 till the date the amount is actually recieved by defendant from the plaintiff. The defendant is further directed to get the sale deed registered in the office off the Sub Registrar concerned in accordance with law and shall further put the plaintiff in possession of the suit property immediately after receipt of balance consideration as directed herein above ;
b) In case the defendant does not come forward to accept the balance sale consideration along with interest and further does not execute and get the sale deed registered, plaintiff would be at liberty to deposit the said amount in court within a week of the refusal of the defendant and get the sale deed executed through the process of court as per law. On deposit of such amount in court by the plaintiff the defendant would be at liberty to seek withdrawal of the same from the court.
c) The defendant, her family members, legal heirs, nominees, Suit for Specific Performance & Permanent Injunction 6 of 3 Suit No. 399/12 S. Gurcharan Singh v. Shashi Singh DOD : 21/08/2012 attorneys, agents, henchmen etc., are hereby restrained from parting with the possession of suit property bearing No. RZB482, Land underneath measuring 90 sq. yards with all its land rights with complete ownership rights of the roof/terrace thereof, situated in the colony known as Kailashpuri Extension in the BBlock, Nasir Pur, New Delhi part of Khasra No. 421, in the area of Village Nasir Pur, Delhi, State Delhi, to anybody except plaintiff.
d) Plaintiff is also entitled to costs.
Decree sheet be prepared accordingly.
File be consigned to record room.
ANNOUNCED IN THE OPEN COURT
ON 21/08/2012
( VINOD YADAV )
ADJ IV, SouthWest District,
Dwarka Courts, New Delhi
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