Delhi High Court
Shri Ashok Kumar Goenka vs Shri Krishan Kumar Gupta on 10 July, 2003
Equivalent citations: 2004IAD(DELHI)109, 107(2003)DLT569, 2003(71)DRJ154
Author: H.R. Malhotra
Bench: H.R. Malhotra
JUDGMENT H.R. Malhotra, J.
1. This order shall deal with an application made by the plaintiff under the provision of Order 39 Rule 1 & 2 CPC and shall also simultaneously deal with the application made by the defendant under Order 39 Rule 4 CPC, as the points raised in both the applications are common.
2. This is a suit for specific performance of the contract dated 15th September, 2002 whereby a deal was struck between the plaintiff and the defendant in respect of the sale of the second floor of the property bearing No.A-59, Ashok Vihar, Phase-III, Delhi-52.
3. As averred in the plaint the defendant agreed to sell the aforesaid property to the plaintiff for a consideration of Rs.8,00,000/-. The plaintiff paid a sum of Rs. 2,00,000/- as part performance of the contract. He agreed to pay further sum of Rs.5,50,000/- by first Navratras. Remaining amount, as full and final payment, was agreed to be paid on or before 30th November, 2003. This is so incorporated in receipt dated 15th September, 2002 duly signed by the defendant acknowledging the receipt of sum of Rs.2,00,000/-. Since the defendant did not perform the contract despite plaintiff being always ready and willing to perform his part of the contract, hence the present suit was filed.
4. The plaintiff was granted ex-parte ad interim injunction restraining the defendant from creating third party interest of the suit property.
5. Defendant by moving application under Order 39 Rule 4 CPC seeks vacation of this injunction whereas the plaintiff prays for confirmation of the injunction.
6. The defendant has challenged the maintainability of the suit on the grounds inter alia that the contract on the basis of which the plaintiff approached the Court is an ambiguous contract not capable of execution and uncertain in nature as it has not been clearly specified in the receipt cum contract dated 15th September, 2002 as to what would be total sale consideration. Receipt-cum-agreement is also assailed on the ground that it is not sufficiently stamped.
7. Whatelse is pleaded by the defendant in the written statement is that the defendant had agreed to sell this property for a total consideration of Rs.20,00,000/- and not 8,00,000/- as alleged by the plaintiff and, therefore, according to the defendant the plaintiff has not approached the Court with clean hands and is not entitled to the injunction and therefore, it is liable to be vacated.
8. I have heard learned counsel for the parties on their respective applications. Learned counsel for the defendant has also placed reliance on certain judgments and also furnished written arguments wherein he refers all these judgments.
9. I have gone through the judgments referred to by learned counsel for the defendant.
10. True, sale consideration has not been clearly specified in the receipt-cum-agreement but the question which arise for consideration is whether defendant can take advantage of such omission at this juncture, more particularly when parties are yet put to trial. I may state that if it was the responsibility of the plaintiff to mention the amount for which property was required to be sold, it was equally obligatory on the part of the defendant to indicate the amount for which he had agreed to sell his property. The document on which the defendant is placing reliance is a receipt executed by defendant himself. He ought to have mentioned as to what was the sale consideration. The defendant claims that he had agreed to sell this property for a consideration of Rs.20,00,000/- whereas plaintiff states that consideration was fixed at Rs.8,00,000/-. In this case evidence is yet to be adduced by the parties.
11. Since it is not denied by the defendant about the execution of the receipt dated 15th September, 2002 therefore balance of convenience at this juncture lies in favor of the plaintiff as injunction if vacated, the defendant in all likelihood shall alienate this property and in that event it will give rise to multifarious litigation between the parties. Therefore, status of the property has to be preserved so that defendant does not deal with this property in any manner till the suit is decided.
12. For all these reasons, the ex party ad interim injunction as granted on 2nd January, 2001 stand confirmed. This results in dismissal of defendant's application under Order 39 Rule 4 CPC.