Indian Kanoon - Search engine for Indian Law

Delhi District Court

Baldev Raj Wadhwa vs Atul Kumar Nangia on 30 January, 2020

               IN THE COURT OF SH. PRASHANT SHARMA:
                ADDITIONAL DISTRICT JUDGE-05: WEST:
                      TIS HAZARI COURTS: DELHI

                                         CivDJ/598/19


Baldev Raj Wadhwa
S/o Sh. Laxman Das
R/o H. No. BL-39, L-Block,
Har Nagar, New Delhi-110064.
                                                             ..........Plaintiff

Vs.

Atul Kumar Nangia
S/o Sh. Sushil Kumar
R/o UC-36, First Floor, Usha Park,
Hari Nagar, New Delhi-110064.
                                                            ...............Defendant


                                                    Date of institution :-09.08.2019
                                                    Order Reserved On:-30.01.2020
                                                      Date of Decision:-30.01.2020


For the Plaintiff:- Sh. Manish Tanwar, Advocate.
For the Defendant:- Defendant is exparte.

                     SUIT FOR SPECIFIC PERFORMANCE

JUDGMENT

1. Plaintiff namely Baldev Raj filed present suit for specific performance against defendant namely Atul Kumar Nangia alleging following facts:-

"That plaintiff had entered into an agreement to sell on 02.06.2017 vide which defendant had agreed to sell property i.e. entire Second Floor, with roof right portion of property no. UC/36, measuring 100 sq. Baldev Raj Wadhwa Vs Atul Kumar Nangia Page No. 1/5 yards, out of Kh. No. 874, situated in the area of Village Tihar colony, Usha Park, Hari Nagar, New Delhi-110064 (hereinafter referred to as "Suit property"). It was agreed that out of the total sale consideration of Rs.20 lacs, the plaintiff had paid Rs.10 lacs as earnest money to the defendant at the time of execution of agreement to sell. It is further agreed that the remaining sale consideration of Rs.10 lacs shall be paid by the plaintiff to the defendant on or before 30.04.2019 and in lieu of the same, the defendant shall execute sale documents in favour of the plaintiff or in the name of his nominee. Further, it was agreed by defendant that after receiving the said amount, he will hand over the vacant peaceful physical possession of the suit property to the plaintiff. Plaintiff was ready and willing to perform his part of contract and repeatedly requesting the defendant to receive the remaining payment and to execute sale document of the suit property in his favour , however, defendant failed to perform his part of contract even by 30.04.2019. In May 2019, plaintiff again requested the defendant to receive the payment of the sale consideration and execute the sale documents in his favour on which the defendant told the plaintiff that there was a tenant in the suit property in question and he would vacate the same by 20.06.2019, so, defendant shall execute the sale documents by 25.06.2010. Consequently, on 25.06.2016, plaintiff Baldev Raj Wadhwa Vs Atul Kumar Nangia Page No. 2/5 reached at the office of Sub Registrar concerned at 10:00 AM on that defendant did not turn up. Consequently, plaintiff issued legal notice dated 03.07.2019 despite receiving the said notice, defendant did not perform his part of contract. Hence, plaintiff moved to the Court by filing present suit with the prayer that a decree of Specific performance be passed in his favour thereby directing the defendant to accept the remaining amount of sale consideration and get registered the sale deed in favour of the plaintiff in respect of the suit property in question. He also prayed that defendant be directed to handover the vacant peaceful possession of the said property in question to the plaintiff or in alternative, defendant be directed to refund the entire earnest money of Rs.10 lacs with interest @24% per annum from the date of payment till realization. He also prayed that decree of compensation as court deems fit and proper for breach of contract dated 02.06.2017 be passed in his favour. "

2. Defendant did not appear in the Court despite service, therefore, he was proceeded exparte on 07.12.2019. Matter was then fixed for exparte plaintiff's evidence.

3. Plaintiff examined himself as PW-1, who tendered his evidence by way of affidavit as Ex.PW-1/1 which reiterated the contents of plaint which are not repeated here for the sake of brevity. PW-1 relied upon following documents:-

(1) Ex. PW1/A is agreement of sell dated 02.06.2017. (2) Ex. PW1/B is Receipt dated 02.06.2017. (3) Ex. PW1/C is cash receipt dated 25.06.2019. (4) Ex. PW1/D is legal notice dated 03.07.2019. (5) Ex. PW1/E is Postal receipt.

(6) Ex PW1/F is Delivery Report.

3.1 Plaintiff also examined Sh. Amit Luthra as PW2 who tendered his evidence by way of affidavit as Ex.PW-2/1 in which he deposed that he was witnessed to the agreement to sell dated 02.06.2017 and receipt dated 02.06.2017.

4. After examining him, plaintiff evidence was closed at the request of counsel for plaintiff. Matter was then fixed for exparte final arguments. After hearing of exparte final arguments matter was listed for exparte judgment.

5. The only issue which needs for adjudication in this case is whether plaintiff is entitled for relief claimed by it or not?

6. Plaintiff had examined himself as PW1 and Sh. Amit Luthra as PW2. The testimonies of both theses witnesses remained unrebutted and unchallenged. There is no reason to disbelieve the same. PW1 & PW2 have relied upon agreement to sell Ex PW1/1 which clearly shows that the defendant had executed the same in favour of the plaintiff. Coupled with same since unchallenged testimony of plaintiff remained that defendant had not executed remaining part of the agreement so plaintiff is entitled for decree of specific performance of the contract dated 02.06.2017 with respect to suit property in question.

7. The suit was filed within limitation period and within proper territorial and pecuniary jurisdiction.

8. I have no reason to doubt the case of the plaintiff which plaintiff proved through his evidence. Therefore, present suit stands decreed. Plaintiff is entitled for decree of specific performance of agreement dated 02.06.2017 with respect to suit property in question. Defendant is further directed to execute sale deed with respect to suit property in question by receiving balance amount of Rs.10 lacs from the plaintiff. Defendant is also directed to hand over the peaceful possession of the suit property after execution of sale deed to the plaintiff.

9. The relief of refund of earnest money of Rs.10 lacs stands declined.

10. Further, considering the said conduct of defendant, plaintiff is awarded with compensation of Rs.20,000/- recoverable from defendant. Litigation cost of Rs.5000/- is also awarded in favour of the plaintiff.

Suit accordingly stands decreed in favour of plaintiff. Decree sheet be prepared accordingly.

File be consigned to record room after completion of necessary formalities.

Announced in the open Court (PRASHANT SHARMA) Dated : 30th January 2020 ADJ-05, WEST DISTRICT TIS HAZARI COURT, DELHI Baldev Raj Wadhwa Vs Atul Kumar Nangia Page No. 5/5