Delhi District Court
At Present vs Shri Ashok Nagpal on 22 November, 2013
IN THE COURT OF SH. PITAMBER DUTT; ADJ (CENTRAL)11,DELHI
Suit No. 239/09/05
Unique Case ID No. 02401C0928632005
Shri Manoranjan Prashad
S/o Sh. Bishnu Kumar Das
Permanent R/o Quarter No. 97A
Rail Coach Factory,
Hussainpur,
Kapoorthala, Punjab
At Present
C/o Sh. S.P. Gupta
A-1/88, Hastsal Road,
Uttam Nagar,
New Delhi-110059
.......Plaintiff
Versus
1. Shri Ashok Nagpal
S/o Sh. Jagan Nath
2. Smt. Meena
D/o Late Shri Jagan Nath
W/o Sh. Ashok Nagpal
3. Shri Anil Kumar
S/o late Shri Jagan Nath
Def. No. 1 to 3 all
R/o G-1/553-554
Uttam Nagar,
New Delhi-110059
4. Smt. Prem Lata
W/o Sh. Naresh Bhutani
R/o 3/78, Geeta Colony,
Delhi
.........Defendants
Date of Institution of Suit : 13.10.2005
Date when reserved for orders : 07.11.2013
Date of Decision : 22.11.2013
JUDGMENT
1 Vide this judgment I shall decide a suit for declaration, specific performance of contract and permanent injunction filed by the plaintiff Suit no.239/09/05 1/42 against the defendants. The brief facts giving rise of filing to the present suit are given as under-:
2 That plaintiff had entered into an agreement to sell dated 2.6.2005 with one Smt. Ram Pyari, mother of defendant no. 2 & 3 and mother-in-law of defendant no. 1, with respect to the property bearing no. G-1/553-554, part of Khasra no. 76/22, Situated at Village Hastsal Abadi known as Uttam Nagar, Block-G, New Delhi ( hereinafter called Suit Property) for a total sale consideration of Rs. 9,90,000/- out of which he paid a sum of Rs. 1,50,000/- in cash as earnest money in the presence of defendant no. 1. The remaining sale consideration of Rs. 8,40,000/- was agreed to be paid by the plaintiff on or before 7.10.2005.
3 Smt. Ram Pyari had expired as informed by defendant no. 2 & 3 who are her only legal heirs. The plaintiff met defendant no. 2 & 3 for seeking execution of the sale deed in his favour, the defendant no. 2 & 3 had agreed to execute the sale deed on or before 7.10.2005 after receiving the remaining sale consideration. But, to the utter shock of the plaintiff, defendant no. 1 handed him over a photocopy of the sale deed with respect to the suit property wherein suit property was shown to be sold by defendant no. 2 in favour of defendant no. 1. The plaintiff became angry and contacted defendant no. 2 & 3, who agreed to get a fresh sale deed executed in favour of plaintiff from defendant no. 1 on or before 7.10.2005.
4 The plaintiff approached the defendants on 4.10.2005 and asked them to appear before Sub-Registrar for execution of the sale deed and accept the balance sale consideration, but defendants flatly refused to execute sale deed. Having left with no alternative, plaintiff served a legal notice dated 5.10.2005 upon defendant no. 1 to 3 calling upon to appear before the Sub-Registrar and execute sale deed after receiving balance sale consideration. The plaintiff reached at the Sub-Registrar office on 7.10.2005 alongwith balance sale consideration of Rs.8,40,000/- but Suit no.239/09/05 2/42 defendant no. 1 to 3 did not turn up there. The plaintiff called defendant no. 1 as a last resort at his mobile no. at about 2.28 p.m and requested him to reach at the Sub- Registrar office but he flatly refused to execute the sale deed in favour of the plaintiff.
5 The further plea of plaintiff is that a perusal of the photocopy of the sale deed handed over by defendant no. 1 clearly shows that the same is sham document, which has been created just to deprive the plaintiff from his valuable right. As per the plaintiff he has always been ready and willing to perform his part of the contract but defendants have failed to perform their part as per the agreement dated 2.6.2005. On the basis of the aforesaid averments, present suit has been filed for adjudication.
6 During the pendency of the suit the plaintiff has impleaded defendant no. 4 & 5 and amended the plaint to the effect that during the pendency of the suit defendant no. 1 sold the suit property to defendant no. 4 vide GPA, agreement to sell dated 12.4.2006 and defendant no. 4 further sold the suit property to defendant no. 5 vide sale deed dated 22.12.2006. As per the plaintiff, defendant no. 1 was having no authority to execute the sale documents in favour of defendant no. 4. Similarly defendant no. 4 was also not competent to execute document in favour of defendant no. 5, therefore, the documents executed by defendant no. 1 in favour of defendant no. 4 and documents executed by defendant no. 4 in favour of defendant no. 5 are liable to be declared as null and void.
7 Pursuant to the summons, defendant No. 1 appeared and filed his written statement taking preliminary objection that suit filed by the plaintiff is bad for mis-joinder and non-joinder of parties, that plaintiff has not approached the court with clean hands and deliberately concealed the material facts, that this court has no pecuniary jurisdiction, that plaintiff has not filed the appropriate court fees as required under law, that suit does not disclose cause of action.
Suit no.239/09/05 3/428 On merit it is averred that plaintiff has played fraud upon smt. Ram Pyari who was a illiterate lady. The plaintiff approached her for purchasing suit property for a total sum of Rs. 27,40,000/-. He purchased two stamp papers on 02.06.2005. The plaintiff misrepresented Smt. Ram Pyari that as per the procedure two separate agreement to sell need to be executed, he got prepared two agreement to sell for a total sale consideration of Rs. 27,40,000/- believing the representation of the plaintiff as true, Smt. Ram Pyari put her thumb impression on both the agreement to sell which were executed on 02.06.2005. The plaintiff promised to pay a sum of Rs. 2 lacs as earnest money to Smt. Ram Pyari within 10 minutes but he left the spot alongwith both the original agreement to sell and did not come back to pay any earnest money. It is further averred that one agreement to sell was prepared for a sum of Rs. 9,90,000/- and another for 17,50,000/-. The plaintiff was supposed to pay a sum of Rs. 2 lacs as the earnest money but till date he has not paid even a single penny either to Smt. Ram Pyari or to her legal heirs.
9 It is further averred as per both the agreement to sell, the entire sale consideration was to be paid on or before 7.10.2005 but plaintiff has failed to pay the said amount within stipulated time. Smt. Ram Pyari has expired on 7.6.2005, after her demise plaintiff never approached the legal heirs of late Smt. Ram Pyari and had not arranged for payment of earnest money or sale consideration. The defendant no. 3 being the legal heir of Smt. Ram Pyari, executed a Relinquishment deed in favour of defendant no. 2, who executed the sale deed in respect of suit property in favour of defendant no. 1. It is denied that as per the terms and condition of the agreement the remaining sale consideration of Rs. 8,40,000/- was to be paid by the plaintiff on or before 7.10.2005. It is stated that agreement to sell executed in favour of plaintiff has no legal value as both the agreements were without any consideration, thus are void document. All other averments have been denied. It is prayed that suit be dismissed with cost.
Suit no.239/09/05 4/4210 The Defendant no. 2 & 3 have failed to contest the suit despite the service of the summon. Their right to file written statement was closed by ld. Predecessor of this court vide order dated 23.01.2006.
11 The Defendant no. 4 has filed a separate written statement taking preliminary objection that suit is not maintainable and she has been unnecessary harassed, that suit is bad for mis-joinder of parties, that suit does not disclose any cause of action, that this court has no pecuniary jurisdiction to file the suit, that plaintiff has not paid appropriate court fees.
12 On merit it is averred that defendant no. 1 has sold the suit property to her by virtue of power of attorney, agreement to sell, possession letter dated 12.04.2006 She has further sold the suit property vide registered sale deed to Smt. Prabha Rani Gupta. It is averred that she had no knowledge about any litigation pending between plaintiff and defendant no. 2 & 3. It is further averred that suit of the plaintiff was dismissed in default on 23.01.2006 and has been restored on 3.11.2006. The defendant no. 4 was served with the application under order 1 Rule 10 CPC on 19.4.2007 and has been impleaded only on 26.4.2007. She transferred the suit property in favour of defendant no. 5 on 22.12.2006 and there was no order against defendant no. 1 on that day. All other averments have been denied. It is prayed that suit be dismissed with cost.
13 The defendant no. 5 has filed separate written statement and averred that defendant no. 5 is the bonafide purchaser of the suit property and was not aware about any dispute with regard to the suit property. She has purchased the suit property for valuable consideration without notice. All other averments have been denied. It is prayed that suit be dismissed with cost.
14 The plaintiff has filed replication to the written statement of defendant no. 1 thereby reiterated the averment made in the plaint and denied the averment made in the written statement.
Suit no.239/09/05 5/4215 On the basis of the pleadings of the parties, the Ld. Predecessor of this court vide order dated 05.09.2009 framed the following issues for adjudication:-
1. Whether the suit is not maintainable for mis-joinder of parties? OPD
2. Whether the suit is not maintainable for non-joinder of necessary parties? OPD
3. Whether this court has no pecuniary jurisdiction to entertain and try the suit? OPD
4. Whether the suit is without any cause of action? OPD
5. Whether the suit is not maintainable on account of non- filing of Site Plan on record? OPD
6. Whether the plaintiff is entitled to a decree of declaration that Sale Deed executed by defendant no. 4 in favour of Defendant no. 5 in respect of the suit property is null and void? OPP
7. Whether the plaintiff is entitled to a decree of Specific Performance of Agreement to Sell dated 2.06.2005 in respect of the suit property? OPP
8. Whether the plaintiff is entitled to a decree of Permanent in respect of the suit property as prayed? OPP
9. Relief
16 The plaintiff thereafter filed an application under order 14 Rule 5 CPC for framing of additional issues. The said application has been allowed by this court vide order dated 08.04.2010 and following three additional issues have been framed:-
Additional Issue No. 1 to 31. Whether the plaintiff is entitled for a decree of declaration thereby declaring the GPA bearing registration no. 104434, Block no. 4, pages 171-174 dated 12.04.2006 registered with Sub-Registrar, Janakpuri, Delhi as null and void? OPP
2. Whether the plaintiff is entitled for relief of declaration thereby declaring the sale deed bearing registration no. 23969 book no. 14376 pages 105-107 dated 22.11.06 executed by the defendant no. 4 in favour of defendant no. 5 as null and void? OPP
3. Whether the plaintiff is entitled for a decree for declaring thereby sale deed dated 27.07.2005 on registration on 07.08.05 vide registration no. 21843 additional book no. 13056 pages 119-124 with sub-registrar, Janakpuri, Delhi executed by defendant no. 2 in favour of defendant no. 1 as null and void?
OPP Suit no.239/09/05 6/42 17 In order to prove his case, plaintiff has examined himself as PW-1 and reiterated the averment made in the plaint in his examination in chief. PW-1 exhibited the original agreement to sell as Ex. PW-1/1, Notice dated 5.10.2005 as Ex. PW-1/2, Registered receipt, UPC, telegramme, speed post, A.D card and courier receipt Ex. PW-1/3 to 7 ( Colly), application dated 30.3.2006, Original receipt of STD booth 7.10.2005 as Ex. PW-1/9 & 10, Copy of sale deed dated 27.7.2005, 12.4.2006 as Ex. PW-1/11 &
12. 18 During cross-examination PW-1, briefly deposed that he was introduced with Smt. Ram Pyari by his brother Sh. S.P. Gupta. He met Smt Ram Pyari at her home alongwith Ashok Kesri, Priyadarshi Prakash, Satya Prakash, Shri Har Bhagwan and Sh. Ashok Nagpal, defendant no. 1. On first occasion he discussed with regard to the suit property with Ram Pyari. One Har Bhagwan was present on behalf of the property dealer. He further deposed that the earnest money was paid by him to Smt. Ram Pyari at her residence. He does not remember if he had taken any receipt or not. Again said no receipt was executed only an agreement to sell was executed. He denied that he had paid a sum of Rs. 2 lacs as earnest money and not Rs. 1.5 lacs. He denied that total sale consideration of Rs. 27,47,0000/- was agreed. He further deposed that he had taken the money from UCO Bank, Begu Sarai, he took loan from R.C.F, Kapurthalla, from LIC and also arranged money from his relatives Ashok Dass and Mukesh Kumar. He further deposed that one agreement was entered between him and Ram Pyari. He had not purchased any stamp payer for execution of agreement to sell. He volunteered that same was purchased by Ashok, defendant no. 1. He denied that two agreements were got signed on the same day between the parties i.e one for sale consideration of Rs. 9,90,000/- and another for 17,50,000/-. He admitted that no document was executed between him and defendant no. 1 in writing. He further deposed that he arranged a sum of Rs. 8,50,000/- from other persons including loan. He denied that he could not arrange the entire sale consideration before the date agreed for execution of sale document.
Suit no.239/09/05 7/42He also denied that he demanded some more time through property dealer on the ground that loan could not be sanctioned. He further deposed that he came to know on 27.07.2005 that Ram Pyari had expired. He asked defendant no. 2 & 3 in August, 2005 to execute necessary sale documents. He admitted that he had not written any letter to defendant no. 1 to execute necessary sale documents but only legal notice was given. He denied that legal notice Ex. PW-1/2 was never sent to defendant no. 1. He also denied that he has not got prepared the banker draft for a sum of Rs. 2.50 lacs. He further stated that he has not filed any police complaint against the defendants. He admitted at the time of agreement to sell photocopy of the chain of deed were handed over to him. He further deposed that he has never given any money to defendant no. 4. There was no contract between him and Smt. Prem Lata. He admitted that present suit was dismissed in default on 23.01.2006 and restored on 3.11.2006. He has no knowledge that defendant no. 1 had sold the suit property to defendant no. 4 on 12.04.2006. he admitted that defendant no. 4 has sold the suit property to defendant no. 5 on 22.12.2006. He denied that defendant no. 4 has nothing to do with the present case as on the date of purchase of the suit property. He further deposed that he has not sent any legal notice to defendant no. 4. He also admitted that he has no agreement or privity of contract with defendant no. 5. He further admitted that no money was given to defendant no. 5 by him at any point of time regarding the suit property. He admitted that no legal notice was given by him to defendant no. 5 at any point of time. He denied that he has filed a false suit against the defendant no. 5.
19 The plaintiff has also examined Sh. Ashok Kesari as PW-2 who stated to be present at the time of execution of agrement Ex. PW-1/1. During cross-examination PW-2, briefly, deposed that at the time of sale transaction six persons were present, namely, Sat Prakash Gupta, plaintiff, Priyadarshi, Ashok Nagpal, Ram Pyari, he and one other person. He does not remember if he signed the agreement to sell or not. He does not know if defendant no. 1 sold the suit property to defendant no. 4 on 12.04.2006 Suit no.239/09/05 8/42 or not. He does not know defendant no. 5. The earnest money of Rs. 1.50 lacs was paid in the presence of property dealer. He did not put his signatures on the receipt of the earnest money. The said amount was paid in his presence. The agreement was executed in the house of Smt. Ram Pyari. She was hale and hearty at that time. In his presence only a sum of Rs. 1,50,000/- was paid by the plaintiff to Smt. Ram Pyari and no further amount was paid in his presence. He visited the house of Smt. Ram Pyari on one or two occasions. He admitted that the transaction with the plaintiff was entered into through one property dealer.
20 The Plaintiff has also examined one Sh. Priyadarshi Prakash as PW-3. During cross-examination PW-3, briefly deposed that the name of the property dealer was Harbhagwan. Smt. Ram Pyari has signed the agreement in his presence. He does not know who were the witness of agreement to sell. He had not seen Smt. Ram Pyari signing the agreement to sell. He saw the plaintiff signing the agreement to sell. He came to know through plaintiff that Rs. 9,90,000/- was the sale consideration of the suit property. He does not remember who paid the amount to Smt. Ram Pyari in his presence. He had not put his signatures on any of the paper at that time. He denied that two agreements were executed between the plaintiff and Smt. Ram Pyari i.e one for Rs. 9,90,000/- and another for Rs. 17,50,000/-.
21 The Plaintiff has also examined Sh. Rajesh Sekhri, Assistant, State Bank of Patiala, Kapurthala as PW-4 who brought the statement of account and exhibited the same as Ex. PW-4/1 ( Collectively). During cross-examination PW-4, briefly deposed that he cannot say whether EMM GEE is anywhere associated with manoranjan Prasad. He cannot say on the basis of his memory that Mukesh Kumar is the owner of EMM GEE. On perusal of both the statement of accounts reflects transfer of founds from one account to another and the relevant entries are marked at point A & B. The entries of statement of account reflects that there was no housing loan applied and sanction in these accounts. The plaintiff is their Suit no.239/09/05 9/42 customer. He has not brought the account opening form. He admitted that he is deputed by his senior only to hand over Ex. PW-4/1 and Ex. PW-4/D1 and he is not authorised to give oral statement on behalf of the bank.
22 The Plaintiff has also examined Sh. Nagmani, officer from Punjab & Sindh Bank, Kapoorthala as PW-5 who produced the certified copy of the loan account and salary account of the plaintiff as Ex. PW-5/1.
23 The Plaintiff has also examined Sh. Amarjit Kumar, Assistant Manager, SBI, Kathara, Bokaro, Jharkhand as PW-6 who produced the certified copy of the statement of account of Ashok Kumar Dass as Ex. PW-6/1, attested copy of the cheque no. 819188 and copy of draft voucher as Mark A & B, his authority letter as Ex. PW-6/2. During cross- examination PW-6 deposed that he is working as a field officer and handling the advances of the bank. The Ex. PW-6/1 page 1 & 2 are the computer generated copy, certified by Branch Manager, namely, Madan Mohan Bariar. He has brought the document as per letter Ex. PW-6/2. The relevant entries is marked at point A on Ex. PW-6/1. He further deposed that no money was transferred in the name of plaintiff. Plaintiff has not having any account with their bank.
24 The plaintiff has also examined Sh. Lakshmi Prasad, Manager UCO Bank as PW-7 who brought the record of DD Voucher Mark A and withdrawal slip dated 6.6.2005 Mark B. During cross-examination PW-7 deposed that he cannot say whether Mr. Ashok was the father of the plaintiff or not. The draft was prepared in the name of Ashok. No surname of Mr. Ashok was mentioned in the said bank draft.
25 The plaintiff has also examined Sh. Jitender Kumar Gera, Manager RCF, Employees Co-operative Thrift & Credit Society Ltd as PW-8 who produced the statement of account of the plaintiff as Ex. PW-8/2, loan voucher dated 26.09.2005 as Ex. PW-8/3, Application for loan as Ex. PW-8/4, Loan receipt as Ex. PW-8/5 and his authority letter is Ex. PW-8/9.
Suit no.239/09/05 10/42During cross-examination PW-8 deposed that plaintiff is the member of their society, therefore he is entitled for applying loan. A loan agreement was filled by the plaintiff. The purpose of loan as reflected in application for loan is purchasing a plot only. He has brought the entire set of loan documents. The loan was disbursed vide cheque no. 796701 dated 24.09.2005.
26 The Plaintiff has also examined Sh. Daljeet Kumar Kundal, AAO, LIC of India as PW-9 who produced statement of account of the plaintiff as Ex. PW-9/1. During cross-examination PW-9 deposed that the total loan of Rs. 50,000/- was granted on the basis of the policy of plaintiff. He cannot say what was the purpose of the loan.
27 In order to answer the claim of the plaintiff, defendant no. 1 has examined himself as D1W1 and reiterated the averment made in the written statement in her examination in chief. During cross-examination D1W1 briefly deposed that he live with his wife. defendant no. 2 and have good relationship with his wife. His brother in law, defendant no. 3, stays with him. His mother in law and brother in law shifted to the suit property in the year 2004 when his mother in law brought the suit premises. His mother in law used to remain unwell, therefore, he alongwith his wife shifted in the suit property to look after her. The defendant no. 3 was also residing in the same premises. He further deposed that they shifted at his own house alongwith defendant no. 2 & 3 after his mother in law sold the suit premises to plaintiff. But his mother in law could not shifted because she expired. He does not remember when his mother in law Smt. Ram Pyari died. She died at the suit premises and was cremated as per Hindu Rites. He further deposed that he shifted from suit premises in the year 2006 when his mother in law sold the suit property to the plaintiff in the year 2005. His mother-in-law had expired in the year 2005 but he does not remember the date and month. He was residing with her mother-in-law during her life time in the suit property. He admitted that her mother-in-law expired in June 2005 but he does not remember if she has expired on 7 th or 8th of June 2005. He further deposed that defendant no. 2 is aware that Suit no.239/09/05 11/42 he has come to depose in this case. He further deposed that the name of his sisters are Ramesh Kumari and Prem lata. Prem Lata is defendant no. 4 in the present suit. He was present on the day when plaintiff and his mother in law entered into transaction with respect to the suit property. He does not know since how long talks between the plaintiff and his mother in law was going on with respect to the transaction. The documents of transaction were got prepared by plaintiff. He had met the plaintiff one or two occasion prior to said transactions. He never showed property documents to the plaintiff either before the transaction or after. He does not know if his mother in law showed title documents to the plaintiff or not. He further deposed that stamp paper for the agreement dated 2.6.2005 was purchased by the plaintiff. He does not know who supplied the necessary details to the plaintiff which have been incorporated int he agreement to sell Ex. PW-1/1. After seeing the agreement Ex. PW-1/1 he deposed that he does not remember if plaintiff brought the same agreement on that day or not. The agreement Ex. PW-1/1 bears his signatures at point A. He admitted that agreement Ex. PW-1/1 bears the thumb impression of his mother in law, Ram Piyari on each page. He also admitted that all parties put their signatures over the document Ex. PW-1/1 in his presence. Agreement to sell Ex. PW-1/1 has been signed by other witness. Defendant no. 3 who was present there. He does not recognize the signatures of defendant no. 3. he cannot say if defendant no. 3 put his signatures over Ex. PW-1/1. He further deposed that beside him, his wife and his brother in law were present at the time of execution of agreement to sell Ex. PW-1/1. He does not know if Ex. PW-1/1 bears the signatures of his wife as a witness or not. He does not remember if copy of the agreement Ex. PW-1/1 was handed over to him by his mother in law before its execution. He has not met plaintiff after execution of the agreement to sell. He does not remember if his mother in law, his wife and his brother in law met the plaintiff after the execution of agreement to sell or not. He further deposed that he had not made any complaint to the police or any other authority against the plaintiff when he had taken the original agreement after its execution with him without making the payment Suit no.239/09/05 12/42 of earnest money. He further deposed that he had not read the contents of the agreement Ex. PW-1/1 before putting his signatures. He was not aware if it was mentioned in the agreement to sell that plaintiff had given Rs. 1,50,000/- to Smt. Ram Pyari. He denied that plaintiff had given Rs. 1,50,000/- to Smt. Ram Pyari. He further deposed that he came to know about the fact after one month of the execution of the agreement to sell that it was incorporated in the agreement that plaintiff had given Rs. 1,50,000/- to Smt. Ram Pyari. He further deposed that he came to know that this fact he demanded the said money from the plaintiff orally. He had not filed any case or any complaint against the plaintiff till date. He further deposed that photocopy of the agreement Ex. PW-1/1 was delivered by the plaintiff to them through one Bhagwan Dass on the day of its execution. He denied that stamp paper for agreement to sell was purchased by him. He further deposed that he not informed the plaintiff about the death of Smt. Ram Pyari but plaintiff was aware about the said fact because his brother has been residing in the same locality. He did not get the suit property mutated in the name of defendant no. 2 & 3 after the death of Smt. Ram Pyari. Plaintiff was to make the payment after the death of Smt. Ram Pyari to defendant no. 2 & 3. He does not remember if balance payment was to make on or before 7.10.2005. The plaintiff had not visited him for making the balance payment on or before 7.10.2005. He does not remember when he purchased the suit property from defendant no. 2. He denied that he purchased the suit property from his wife prior to 7.5.2005 deliberately to defeat the right of plaintiff. He did not tell the plaintiff about the purchase of suit property from his wife. He does not know the meaning of Relinquishment Deed. The stamp paper for the sale deed in his favour was purchased by defendant no. 2 & 3. He did not pay any amount to his wife at the time of execution of sale deed. He paid Rs. 4 lacs to defendant no. 2 after 2-3 months. The sale consideration in the sale deed Mark A has been mentioned as Rs. 1,50,000/-. He denied that plaintiff had met in July 2005 and that he informed him that Smt. Ram Pyari had already died and suit property was purchased by him from defendant no. 2.
Suit no.239/09/05 13/4228 He further deposed that legal notice Ex. PW-1/2 was received by him subsequently but he does not remember when he received the same. He does not remember if he received telegram sent by the plaintiff on 5.10.2005. He denied that plaintiff made a telephonic call on 4.10.2005 and requested to him to execute sale deed in his favour on 7.10.2005. He further deposed that he sold the suit property in favour of defendant no. 4 when the suit was dismissed in default. Defendant no. 4 is his real sister. He did not inform defendant no. 4 about the present case filed by plaintiff against him at the time of execution of sale documents in her favour. He admitted that defendant no. 4 knew his mother in law. He further deposed that he may have sold the suit property for a sum of Rs. 1,50,000/- or 1,75,000/- to defendant no. 4. he denied that he inform defendant no. 4 that plaintiff had filed a suit for specific performance against him and that sit has been dismissed in default that is why she purchased the suit property during that period. He also denied that suit property was sold by him to defendant no. 4 in low price in order to defeat the right of the plaintiff. He also denied that defendant no. 4 never paid any sale consideration to him. He also denied that transaction between him and defendant no. 4 was sham transaction and was entered into to retain the property in the family. He does not know if defendant no. 4 executed the sale deed in favour of defendant no. 5. he denied that defendant no. 4 executed the sale deed in favour of defendant no. 5 under his instructions.
29 The defendant no. 4 has examined herself as D4W1 and reiterated the averment made by him him in written statement during her examination in chief. He exhibited the certified copy of the sale deed as Ex. D4W1/1. During cross-examination defendant no. 4 briefly deposed that she has no source of income independently. Se was working in the year 2006, She is not a sister of defendant no. 1. She is not related to defendant no. 1. She does not remember as to how long it took to complete the transaction with defendant no. 1. She does not remember whether it was completed within a week, within a month or it took longer time. She paid a sum of Rs. 1,75,000/- to defendant no. 1 for purchasing said property in cash. She Suit no.239/09/05 14/42 does not remember if she had seen previous title document in favour of defendant no. 1 before getting the sale deed executed. She did not consult with her husband before purchasing property from defendant no. 1. The property purchased by her is a residential house and not shop. She does not know the market value of the property purchased by her in the year 2006. She also does not remember the exact expenses incurred by her for getting the sale deed registered. She does not remember if any stamp paper was purchased for getting sale deed executed. She was not aware if suit property was earlier owned by Smt. Ram Pyari. She was not knowing the defendant no. 1 prior to the transaction entered between her and defendant no. 1. Again said she was visiting the house of defendant no. 1 off and on. She was knowing the defendant no. 1 for 5-6 years before entering into transaction with him. She knew the mother in law of defendant no. 1 whose name was Ram Pyari. She came to to know about the present suit in the year 2007. She did not do anything after coming to know about present suit as she had already sold the said property. She is not aware if she is one of the defendant in the present suit. She did not file any written statement in the present suit. After seeing the written statement Ex. D4W1/X she admits that it bears her signatures but she cannot recognize the other signatures. She further deposed that she sold the suit property to Smt. Prabha Rani Gupta, defendant no. 5 on 22.12.2006 for a sale consideration of Rs. 2 lacs. She does not remember who purchased the stamp paper for the execution of the sale deed. She does not know if plaintiff has filed suit with respect to the suit property. She had not read over the contents of her affidavit Ex. D4W1/X before signing the same. She informed the counsel about the fact before her affidavit got prepared by him.
30 The defendant no. 5 examined herself as D5W1 and reiterated the averment made by her in her written statement in her examination in chief. She also exhibited the document executed by defendant no. 4 in her favour as Ex. D5W1/1.
Suit no.239/09/05 15/4231 During cross-examination defendant no. 5 briefly deposed that she has purchased the house against sale consideration of Rs. 32 lacs. She admitted that Ex. D5W1/A at para 2 the total valuable consideration of the said house is mentioned as Rs. 2 lacs. She paid Rs. 30 lacs in cash to Prem Lata. She does not remember if she given receipt of an amount of Rs. 30 lacs by Smt. Prem Lata. The said amount was available with her and she had not taken any loan from anywhere. She was not aware about the dispute with respect to the suit property at the time of its purchase. She came into contract of Prem lata at the time of said transaction only.
32 I have heard all ld. Counsel for the parties and perused the pleadings, evidence and documents placed on record. My issue wise findings is as under:-
33 Issue no. 1: Whether the suit is not maintainable for mis-
joinder of parties? OPD The defendants have taken a plea that suit filed by the plaintiff is bad for mis-joinder of parties as there is no privity of contract between plaintiff and defendant no. 1, 4 & 5. As per the defendants, suit of the plaintiff is liable to be dismissed on this ground. The plaintiff has controverted the said fact in the corresponding para of the replication.
34 In support of their plea both the parties have led their respective evidence.
35 The plaintiff has filed a suit for declaration , cancellation of sale deed, specific performance and mandatory injunction against all the defendants. The plea of the plaintiff is that he entered into agreement to sell with Smt. Ram Pyari who was the owner of property bearing no. G-1/553-554 part of Khasra No. 76/22, Vilalge Hastsal, Uttam Nagar, New Delhi. The further plea of the plaintiff is that after entering into the agreement to sell, Smt. Ram Pyari died leaving behind defendant no. 2 & 3 as her legal heir but defendant no. 2 & 3 failed to comply the agreement Suit no.239/09/05 16/42 to sell dated 2.6.2005. The defendant no. 2 illegally executed a sale deed in favour of defendant no. 1 who in turn executed necessary documents with respect to suit property in favour of defendant no. 4 and defendant no. 4 executed the sale deed in favour of defendant no. 5.
36 The plaintiff has filed a suit for declaration for seeking cancellation of documents executed by defendant no. 2 in favour of defendant no. 1 as well as documents executed by defendant no. 1 in favour of defendant no. 4 and by defendant no. 4 in favour of defendant no. 5 on the ground that he had entered into an agreement to sell with Smt. Ram Pyari and always ready and willing to perform his part of the contract. The presence of defendant no. 1, 4 & 5 is thus just and necessary for the complete adjudication of the dispute, they are the necessary and proper parties and the suit cannot be treated bad for mis-joinder of parties.
37 In view of the above, facts and circumstances, I am of the considered view that presence of defendant no. 1, 4 & 5 is necessary and proper for the complete adjudication of the dispute, therefore, suit is not bad for mis-joinder of parties. The Defendants have failed to discharge the onus of issue no. 1, same is accordingly decided against defendants.
38 Issue no. 2 : Whether the suit is not maintainable for non-
joinder of necessary parties? OPD The defendants have taken a plea that suit is bad for non-joinder of necessary parties as Sub-Registrar II, Janak Puri, Delhi has not been impleaded as one of the parties in the present suit. The plaintiff has controverted the said plea in the corresponding para of the replication.
39 The defendants have taken a plea that suit is bad for non-joinder of necessary parties as Sub-Registrar-II, Janak Puri, New Delhi has not been impleaded as one of the party in the present suit. They, however, have failed to point out as to how and in what manner Sub-Registrar, Janak Puri is necessary party for the just and complete adjudication of the dispute.
Suit no.239/09/05 17/42The presence of Sub-Registrar, Janak Puri, is not at all required for the just and complete adjudication of the dispute thus he is not the necessary party in the present suit.
40 In view of the above facts and circumstances, I am of the considered view that Sub-Registrar, Janak Puri is not the necessary party, and the suit is not bad for non-joinder of necessary parties. The defendants have failed to discharge the onus of issue no. 2, same is accordingly decided against the defendants.
41 Issue no. 3: Whether this court has no pecuniary jurisdiction to entertain and try the suit? OPD The defendant no. 1 has taken a plea that this court has no pecuniary jurisdiction to entertain, try and decide the suit because two agreement to sell dated 2.6.2005 were executed between the plaintiff and Smt. Ram Piyari for total sale consideration of Rs. 27,40,000/- thus this court has no pecuniary jurisdiction.
42 The plaintiff has controverted the said fact in the corresponding para of the replication and pleaded that Smt. Ram Piyari had entered into only one agreement to sell dated 2.6.2005 for a total sale consideration of Rs. 9,90,000/-, therefore, this court has pecuniary jurisdiction.
43 In order to substantiate their plea, both the parties have led their respective evidence.
44 An examination of the pleadings and evidence led on record shows that defendant no. 1 has sought to raise a plea that plaintiff and Smt. Ram Piyari had entered into two agreement to sell dated 2.6.2005 and the total sale consideration of suit property was agreed as Rs. 27,40,000/-. The defendant no. 1, however, has not placed any material whatsoever on record which can show or suggest that two agreement to sell dated Suit no.239/09/05 18/42 2.6.2005 were entered into between plaintiff and Smt. Ram Piyari. The plaintiff has placed on record agreement to sell Ex. PW-1/1 which clearly shows that Smt. Ram Piyari agreed to sell the suit property for a total sale consideration of Rs. 9,90,000/-, out of which, he paid a sum of Rs. 1,50,000/- as earnest money on 2.6.2005 i.e at the time of execution of the said agreement and the remaining amount of Rs.8,40,000/- was to be paid on or before 7.10.2005. The defendant no. 1 has failed to lead any evidence to show that two agreement to sell were executed and the total sale consideration was Rs. 27,40,000/-.
45 The aforesaid fact thus clearly shows that plaintiff had entered into a sale transaction with Smt. Ram Pyari with respect to the suit property vide agreement to sell Ex. PW-1/1 for a total sale consideration of Rs. 9,90,000/- and not Rs. 27,40,000/- lacs as sought to be contended by defendant no. 1, therefore this court has pecuniary jurisdiction to entertain, try and decided the present suit. The defendant no. 1 has failed to discharge the onus of issue no. 3, same is accordingly decided against him.
46 Issue no. 4: Whether the suit is without any cause of action?
OPD Issue no. 7: Whether the plaintiff is entitled to a decree of Specific Performance of Agreement to Sell dated 02.06.2005 in respect of the suit property? OPP Issue no. 4 & 7 are taken together as they are inter-connected. The plaintiff has taken a plea that he entered into an agreement to sell dated 2.6.2005 with late Smt. Ram Piyari for purchasing suit property bearing no. G-1/553-554, Part of Khasra No. 76-22, Village Hastsal Abadi, Uttam Nagar, G-Block, New Delhi for a total sale consideration of Rs. 9,90,000/-, out of which he paid Rs. 1,50,000/- to Smt. Ram Piyari as earnest money, the remaining sale consideration of Rs. 8,40,000/- was agreed to be paid on or before 7.10.2005. He has further pleaded that defendant no. 2 & 3 informed him that Smt. Ram Piyari has died. they also agreed to execute the sale deed on or before 7.10.2005, but defendant no. 1 handed him Suit no.239/09/05 19/42 over photocopy of sale deed executed by defendant no. 2 in his favour. The plaintiff pleaded that defendant no. 2 & 3 assured him that they would get the sale deed executed in his favour from defendant no. 1 on or before 7.10.2005 but they failed to do so despite various request. As per the plaintiff he has always been ready and willing to perform his part of the agreement to sell but defendant no 1 to 3 have failed to perform their part in terms of the agreement to sell.
47 The defendant no. 2 & 3 have not contested the suit despite service and their right to file written statement was closed by the ld. Predecessor of this court vide order dated 23.01.2006.
48 The defendant no. 1 has taken a plea that late Smt. Ram Piyari was the land lady of the suit property, the plaintiff approached her for purchasing the suit property for a sum of Rs. 27,40,000/-. The plaintiff got prepared two separate agreement to sell, one was for Rs. 9,90,000/- and another was for Rs.17,50,000/-. As per both those agreements, plaintiff was supposed to pay Rs. 2 lacs as earnest money but he had not paid even a single panny either to Smt. Ram Piyari or to her legal heirs. The plaintiff promised to pay the earnest money of Rs. 2 lacs within 10 minutes after obtaining thumb impression of Smt. Ram Pyari over both the agreements but he left the spot alongwith original agreements and did not come forward thereafter. As per defendant no. 1 has neither paid any amount towards earnest money nor he had arranged the remaining sale consideration on or before 7.10.2005. The agreement to sell dated 02.06.2005 has no value in the eyes of law because plaintiff has not paid even a single panny to the defendants, therefore, same is without consideration.
49 In order to substantiate their plea, both the parties have led their respective evidence.
Suit no.239/09/05 20/4250 An examination of the pleadings and evidence led on record shows that it is not in dispute that late Smt. Ram Piyari was the owner of suit property bearing no. G-1/553-554, Part of Khasra No. 76-22, Village Hastsal Abadi, Uttam Nagar, G-Block, New Delhi. The plaintiff has taken a plea that he entered into an agreement to sell dated 2.6.2005 Ex. PW-1/1 with Smt. Ram Piyari. The defendant no. 1 in his cross-examination has admitted that agreement to sell Ex. PW-1/1 bears his signatures as a witness at point A. He has also admitted that Ex. PW-1/1 bears the thumb impression of Smt. Ram Piyari, his mother in law on each page. He has also admitted that all the parties put their signatures over document Ex. PW-1/1 in his presence. He has further stated that Ex. PW-1/1 has been signed by defendant no. 3 as a witness who was also present there. He has further stated that besides him, defendant no. 2 & 3 were also present at the time of execution of agreement to sell Ex. PW-1/1. The defendant no. 1 has thus admitted that plaintiff and Smt. Ram Piyari had entered into agreement to sell Ex. PW-1/1 which was also signed by him as one of the witness at point A. 51 A perusal of the agreement to sell Ex. PW-1/1 shows that Smt. Ram Pyari had agreed to transfer the suit property in favour of plaintiff for a total sale consideration of Rs. 9,90,000/- out of which Smt. Ram Piyari had received Rs. 1,50,000/- as earnest money and remaining amount of Rs. 8,40,000/- was agreed to be paid by the plaintiff to her on or before 7.10.2005.
52 The defendant no. 2 & 3, the legal heirs of late Smt. Ram Piyari have not contested the suit despite service. The Defendant no. 1 has sought to raise a plea that Smt. Ram Piyari had agreed to sell the suit property to the plaintiff for a total sale consideration of Rs. 27,47,000/- and the plaintiff got her thumb impression on two agreements. The defendant no. 1, however, has failed to lead any evidence in order to substantiate his above plea.
Suit no.239/09/05 21/4253 The defendant no. 1 in his written statement as well as in his evidence stated that plaintiff had not given any amount to Smt. Ram Piyari. But ld. counsel for defendant no. 1 had given a suggestion to PW-1 during his cross-examination that he had paid Rs. 2 lacs to Smt. Ram Piyari and not Rs. 1,50,000/-. The said suggestion given by ld. counsel for defendant no. 1 to PW-1 itself falsify the plea of defendant no. 1 that plaintiff had not given any amount to Smt. Ram Pyari towards earnest money.
54 The defendant no. 1 who has examined himself as DW-1 has deposed in his cross-examination that Smt. Ram Piyari put her thumb impression over the agreement to sell Ex. PW-1/1 in his presence as well as in the presence of defendant no. 2 & 3. The defendant no. 1 has not given any explanation as to when plaintiff had not given any amount to Smt. Ram Piyari at the time of execution of agreement to sell Ex. PW-1/1 then what step Smt. Ram Piyari and defendant no. 2 & 3 had taken in that regard. The defendant no. 1 to 3 have not placed any material whatsoever on record to show that they ever called upon the plaintiff to pay the amount as mentioned in the agreement to sell or made any complaint against him till date.
55 The defendant no. 1 has stated that the agreement to sell Ex. PW-1/1 was executed in the presence of defendant no. 2 & 3. But, defendant no. 2 & 3 the legal heirs of late Smt. Ram Piyari, have failed to contest the suit despite the service. These defendants thus deemed to have admitted the claim put forth by the plaintiff.
56 The defendant no. 1 has not examined the other witness of agreement to sell. He has also not examined defendant no. 2 & 3 who are residing with him to prove his plea that Smt. Ram Piyari had agreed to sell suit property to the plaintiff for a total sale consideration of Rs. 27,47,000/- or that Rs. 2 lacs was agreed to be paid as earnest money. The defendant no. 1 has not led any evidence to prove that two agreements to sell were executed between plaintiff and late Smt. Ram Pyari.
Suit no.239/09/05 22/4257 The aforesaid fact thus clearly shows that plaintiff has proved on record that he entered into an agreement to sell dated 2.6.2005 Ex. PW-1/1 with Smt. Ram Piyari for purchasing suit property for a total sale consideration of Rs. 9,90,000/-, out of which he paid Rs. 1,50,000/- as earnest money. The defendant no. 1 has failed to substantiate his plea that Smt. Ram Piyari agreed to sell the suit property for total sale consideration of Rs. 27,47,000/-. He has also failed to substantiate that two agreements were executed between the plaintiff and Smt. Ram Piyari.
58 The plaintiff has filed a suit for specific performance on the ground that defendant no. 1 to 3 have failed to perform their part of agreement to sell Ex. PW-1/1. It is settled law that relief of specific performance is equitable remedy and is the discretion of the court. This discretion requires to be exercised according to settled principle of law and not arbitrarily as mentioned under Section 20 of Specific Relief Act 1963.
59 As per Section 20 of Specific Relief Act, the court is not bound to grant the relief of specific performance just because there was a valid agreement to sell. Section 16-C of the Act envisages that plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other then those therms, the performance of which has been prevented or waived by the defendant. The continues readiness and willingness on the part of the plaintiff is the condition precedent to grant the relief of specific performance. In a suit for specific performance of contract the court has to independently examined whether the material placed on record entitles the plaintiff to the decree sought for. Two important consideration weigh while adjudicating the claim of specific performance of the contract of sale of immovable property i.e (1) Whether plaintiff has pleaded and proved his readiness and willingness to perform his part of the contract and (2) whether the equities of the case demand that such a decree be passed.
Suit no.239/09/05 23/4260 The idea behind Section 16(C) read with Explanation (ii) of Specific Relief Act, is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief. Since the relief sought is equitable and discretionary, the court can not grant the relief on the basis of the person who seeks it. Section 16-C of the Act mandates the plaintiff to aver in the plaint and establish the fact by evidence that he has always been ready and willing to perform his part of the contract.
61 A perusal of the plaint shows that plaintiff has made necessary averment in the plaint in compliance of Section 16-C of Specific Relief Act in para 11 of the plaint. To substantiate the plea of his readiness and willingness, the plaintiff has examined himself as PW-1 and made necessary averment in Para 6 to 10 of his examination in chief. During cross-examination PW-1 has deposed that he had taken money from UCO Bank, Begu Sarai. He took society loan from RCF, Kapurthalla and loan from LIC. He has also arranged money from his relative Ashok Dass and Mukesh Kumar. He arranged a sum of Rs. 8.5 lacs or 9 lacs from other persons including loan. He denied that he could not arrange the entire sale consideration before the date agreed for execution of the sale documents. He further stated that he came to know on 27.07.2005 that Smt. Ram Piyari had expired. He asked defendant no. 2 & 3 in August, 2005 to execute necessary sale documents. He further stated that he has not written any letter in writing to defendant no. 2 & 3 asking them to execute the sale documents except the legal notice.
62 The PW-1 has been throughly cross-examined by ld. counsel for defendant no. 1 but his testimony qua his readiness and willingness made by him in Para 6 to 10 of his examination in his chief remained uncontroverted and unchallenged and no incriminating material has come out of his testimony in this regard.
Suit no.239/09/05 24/4263 The plaintiff has also examined PW-4 to PW-9 to prove the availability of remaining sale consideration. These witnesses have produced on record the relevant document which shows that plaintiff had arranged the requisite amount of Rs. 8,45,000/- prior to 7.10.2005 i.e the date fixed for execution of sale documents as per the agreement to sell Ex. PW-1/1. The plaintiff has placed on record the statement of his account with State Bank of Patiala, Ex. PW-4/1 which shows that an amount of Rs. 1.50,000/- was lying in his said account during the relevant period. He has also placed another statement of his account with Punjab & Sindh Bank, Kapurthalla, Ex. PW-5/1, it also shows that amount of Rs. two lacs was available in the said account during the relevant period.
64 A perusal of the documents placed by PW-4 to PW-9 shows that plaintiff had arranged further sum of Rs. one lac from his brother which has been shown in the statement Ex. PW-6/1. The plaintiff got prepared a bank draft of Rs. 2,50,000/- in the name of defendant no. 1 dated 6.6.2005, Mark A produced by PW-7. The plaintiff had also taken a loan of Rs. one lac from RCF Society and relevant record of the said loan Ex. PW-8/1 to 5 has been placed on record. He has also taken loan of Rs. 50,000/- from LIC and relevant record in this regard has been placed as Ex. PW-4/1.
65 The plaintiff has thus arranged a sum of Rs. 8,50,000/- prior to 7.10.2005 whereas as per the agreement to sell he was required to pay Rs. 8,40,000/- to late Smt. Ram Piyari or to her legal heirs in compliance of agreement to sell Ex. PW-1/1. He had also purchased the requisite stamp paper for the execution of the sale deed and photo copy of stamp paper has been placed as Mark D-1 which were subsequently cancelled. The plaintiff has thus proved on record that he was ready to perform his part of the contract and had arranged the requisite sale consideration as per the agreement to sell Ex. PW-1/1.
Suit no.239/09/05 25/4266 To prove his willingness, the plaintiff has pleaded that he reached at the Sub- Registrar on 7.10.2005 in compliance of the agreement to sell Ex. PW-1/1 alongwith the remaining sale consideration but defendant no. 1 to 3 did not reach there. He has placed on record the receipt issued by the Sub-Registrar office as Ex. PW-1/9 which proves his presence at the Sub- Registrar office on 7.10.2005. The plaintiff has also placed on record a legal notice dated 5.10.2005 Ex. PW-1/2 by which he called upon defendant no. 1 to 3 to comply the agreement to sell Ex. PW-1/1.
67 The defendant no. 1 stated that he has not received the said notice whereas defendant no. 2 & 3 have not contested the suit. The legal notice Ex. PW-1/2 was sent at the correct address of defendant no. 1 to 3 through registered post, UPC and courier. Thus the presumption of due service under Section 27 of General Clause Act arises. The defendant no. 1 has simply denied that receipt of legal notice. Mere denial of legal notice is not sufficient to rebut the said presumption of due service. The defendant no. 1 has not placed any further evidence on record to show that process of transmission was interrupted by the plaintiff. In the absence of any material in this regard, I am of the considered view that the legal notice Ex. PW-1/2, which was sent at the correct address through registered post was served upon the defendants.
68 The Hon'ble High Court in "Kalu Ram Vs. Sita Ram" reported as 1980 RLR (N) 44 has held:- "If plaintiff before filing suit makes serious assertions in a notice to defendant, then, defendant must not remain silent by ignoring to reply. If he does show then adverse inference may be raised against him."
69 The plaintiff had sent the legal notice Ex. PW-1/2 upon defendant no. 1 to 3 at the correct address through registered post. The said notice thus deemed to have served upon defendant no. 1 to 3. Despite the service of the legal notice neither defendant no. 1 to 3 have given any reply to the said legal notice nor they comply the same. Vide legal notice Suit no.239/09/05 26/42 Ex. PW-1/2, plaintiff called upon defendant no. 1 to 3 to execute the necessary sale documents in his favour on 7.10.2005 in terms of agreement to sell Ex. PW-1/1 but defendant no. 1 to 3 have failed to comply the said legal notice.
70 The aforesaid fact thus clearly show that plaintiff was ready and willing to perform his part of the agreement Ex. PW-1/1 but defendant no. 1 to 3 have failed to perform their part of the agreement. As per agreement Ex. PW-1/1, Smt. Ram Piyari had agreed to sell the suit property to plaintiff for total sale consideration of Rs. 9,90,000/- out of which plaintiff has paid Rs. 1,50,000/- to her as earnest money at the time of execution of agreement to sell Ex. PW-1/1. The remaining amount of sale consideration of Rs. 8,40,000/- was to be paid by the plaintiff to late Smt. Ram Piyari or her legal heir on or before 7.10.2005. The defendant no. 2 & 3 were well aware that their mother Smt. Ram Piyari had entered into an agreement to sell with plaintiff with respect to the suit property and had received Rs. 1,50,000/- as earnest money. They were also aware that Smt. Ram Piyari had agreed to execute necessary sale documents in favour of plaintiff on or before 7.10.2005. Despite the same, defendant no. 2 & 3 have failed to execute the sale documents in favour of the plaintiff. As per the agreement to sell Ex. PW-1/1, the plaintiff was to pay Rs. 8,40,000/- to Smt. Ram Piyari or her legal heir on or before 7.10.2005. The plaintiff had made arrangement of the said amount. He has also purchased the stamp papers for execution of the sale documents and reached at Sub-Registrar Office on 7.10.2005. The plaintiff has also called upon defendant no. 1 to 3 vide legal notice Ex. PW-1/2 to perform their part. The plaintiff has thus done whatsoever he could have done for seeking enforcement of agreement Ex. PW-1/1 but defendant no. 1 to 3 have failed to perform their part.
71 The above fact clearly shows that plaintiff was ready and willing to perform his part of the contract and defendant no. 1 to 3 have failed to execute sale documents in compliance of agreement to sell Ex. PW-1/1.
Suit no.239/09/05 27/42The plaintiff has thus proved that he has been ready and willing to perform his part of the obligation as per agreement to sell Ex. PW-1/1. He has also proved that defendant no. 1 to 3 have failed to perform their part of the agreement as per the agreement to sell Ex. PW-1/1. In view of the above discussion, my issuewise findings is as under:-
72 Issue no. 4: Whether the suit is without any cause of action?
OPD In view of the above facts and circumstances, I am of the considered view that plaintiff has cause of action for filing the present suit against the defendants. The defendants have failed to prove on record that plaintiff has no cause of action for filing the present suit against them. The defendants have thus failed to discharge the onus of issue no. 4, same is accordingly decided against the defendants.
73 Issue no.7: Whether the plaintiff is entitled to a decree of Specific Performance of Agreement to Sell dated 02.06.2005 in respect of the suit property? OPP In view of the above facts and circumstances, I am of the considered view that plaintiff has proved on record that he entered into an agreement to sell dated 02.06.2005 Ex. PW-1/1 with Smt. Ram Piyari for purchasing suit property bearing G-1/553-554, part of khasra no. 76/22, Village Hastsal Abadi known as Uttam Nagar for total sale consideration of Rs.9,90,000/- out of which he paid Rs. 1,50,000/- as earnest money to late Smt. Ram Piyari. He has also proved on record that as per Ex. PW-1/1 he was required to pay the remaining sale consideration of Rs. 8,40,000/- to Smt. Ram Piyari on or before 7.10.2005. The plaintiff has also proved on record that he was ready and willing to perform his part of the agreement to sell Ex. PW-1/1 and has arranged the requisite amount of Rs. 8,40,000/- on or before 7.10.2005 and reach at the office of Sub-Registrar but defendant no. 1 to 3 have failed to reach at the Sub-Registrar to execute necessary sale documents in his favour.
Suit no.239/09/05 28/4274 The plaintiff has thus proved on record that he entered into an agreement to sell Ex. PW-1/1 with Smt. Ram Piyari and was ready and willing to perform his part of the agreement but defendant no, 1 to 3 have failed to perform their part of the agreement. The plaintiff has further proved on record that he paid Rs. 1,50,000/- to late Smt. Ram Pyari as earnest money. The agreement to sell was executed 2.6.2005. Since 2005 much water has fallen under the bridge and the value of the real estate has shifted up very high, therefore, while exercising my discretion under Section 20 of the Specific Relief Act 1963, I would like to be equitable and would not allow sale of the property to be executed for a sum of Rs. 9,90,000/-. The litigation has been prolonging for almost eight years and now reached at the end of the its journey, therefore, I have to settle the equity between the parties. I hold that the agreement to sell Ex. PW-1/1 was genuine and was executed by Smt. Ram Piyari in favour of the plaintiff for a total sale consideration of Rs. 9,90,000/- but, because of passage of time, I direct that the plaintiff shall pay a sum of Rs. 10 lacs in addition to Rs. 8,40,000/-, out of Rs. 9,90,000/. Rupees 1,50,000/- has already been paid as earnest money to defendant no. 2 & 3 for getting the sale deed executed in his favour. The plaintiff has successfully discharged the onus of issue no. 7, same is accordingly decided in favour of the plaintiff.
75 Issue no. 5: Whether the suit is not maintainable on account of non-filing of the Site Plan on record? OPD The defendant has taken a plea that plaintiff has not filed the site plan of the suit property and in the absence of site plan, the suit is not maintainable. The plaintiff has controverted the said plea in the corresponding para of replication.
76 The plaintiff has filed a suit for specific performance and cancellation of documents on the ground that he entered into agreement to sell with Smt. Ram Piyar with respect to the suit property. The plaintiff has sought a decree for specific performance of agreement to sell Ex. PW-1/ 1 Suit no.239/09/05 29/42 against defendants. The dimension of the suit property has been clearly enumerated in the agreement Ex. PW-1/1. No site plan is required to be file in a suit for specific performance or for cancellation of documents. The defendants have failed to specify as to how and in what manner the suit filed by the plaintiff is not maintainable in the absence of site plan.
77 In view of the above, facts and circumstances, I am of the considered view that site plan is not required to be filed in a suit for specific performance and the suit is maintainable without filing of the site plan. The defendants have failed to discharge the onus of issue no. 5, same is accordingly decided against the defendants.
78 Issue no. 6 and Additional issue no. 1 to 3 Issue No. 6 Whether the plaintiff is entitled to a decree of declaration that Sale Deed executed by defendant no. 4 in favour of defendant no. 5 in respect of the suit property is null and void? OPP Addl. Issue no. 1 to 3:
1. Whether the plaintiff is entitled for a decree of declaration thereby declaring the GPA bearing registration no. 104434, Block no. 4, pages 171-174 dated 12.04.2006 registered with Sub-Registrar, Janakpuri, Delhi as null and void? OPP
2. Whether the plaintiff is entitled for relief of declaration thereby declaring the sale deed bearing registration no.
23969 book no. 14376 pages 105-107 dated 22.11.06 executed by the defendant no. 4 in favour of defendant no. 5 as null and void? OPP
3. Whether the plaintiff is entitled for a decree for declaring thereby sale deed dated 27.07.2005 on registration on 07.08.05 vide registration no. 21843 additional book no. 13056 pages 119-124 with sub-registrar, Janakpuri, Delhi executed by defendant no. 2 in favour of defendant no. 1 as null and void? OPP Issue no. 6 & additional issue no. 1 to 3 are taken together as they are inter-connected. The plaintiff has taken a plea that he entered into an agreement to sell with Smt. Ram Piyari who was the owner of the suit property. Smt. Ram Piyari died leaving behind defendant no. 2 & 3 as her legal heirs but defendant no. 2 illegally and unlawfully executed a Suit no.239/09/05 30/42 registered sale deed dated 27.7.2005 in favour of her husband, defendant no. 1 in order to defeat the valuable right of the plaintiff. The defendant no. 2 was not competent to execute the sale deed because she was well aware that her mother, Smt. Ram Piyari had already entered into an agreement to sell with the plaintiff. She was also not competent to execute the sale deed on the basis of General Power of Attorney dated 9.3.2004 allegedly executed by late Smt. Ram Piyari, after her death. The plaintiff has further taken a plea that during the pendency of the suit, defendant no. 1 has sold the property to his sister i.e defendant no. 4, who further sold it to defendant no. 5 vide sale deed dated 22.2.2006. As per the plaintiff all the sale documents have been created by the defendant just to deprive the plaintiff from his valuable right and all these sale documents are required to be declared as null and void.
79 The defendant no. 1 has taken a plea that plaintiff has failed to perform his part as per the agreement to sell. He also pleaded that after the death of Smt. Ram Piyari, defendant no. 2 & 3 became the owner of the suit premises being her legal heir. The defendant no. 3 being the legal heir of late Smt. Ram Piyari executed a Relinquishment Deed in favour of defendant no. 2 who executed a sale deed in his favour. As per the defendant no. 1, sale deed dated 27.7.2005 is a valid document and same is not required to declare null and void.
80 The defendant no. 4 has taken a plea that defendant no. 1 has sold the suit property in her favour vide General Power of Attorney, agreement to sell Will etc dated 12.4.2006 and she has further sold the same vide sale deed dated 22.12.2006 to defendant no. 5. As per defendant no. 4 she has no knowledge of any litigation between plaintiff and defendant no. 2 & 3. She has further stated that suit of the plaintiff was dismissed in default on 23.01.2006 and was restored only on 3.11.2006 thus there was no stay order in operation at the time when defendant no. 1 transferred the suit property in her favour.
Suit no.239/09/05 31/4281 The defendant no. 5 has taken a plea that she is bonafide purchaser of the suit property without any notice and she was not aware of any dispute between the parties regarding the suit property.
82 In order to substantiate their plea all the parties have led their respective evidence.
83 An examination of the pleadings and evidence led on record by all the parties shows that late Smt. Ram Piyari was the owner of the suit property. It is further established that Smt. Ram Piyari had entered into an agreement to sell Ex. PW-1/1 with the plaintiff with respect to the suit property and had received Rs. 1,50,000/- as earnest money. The said agreement to sell was executed by late Smt. Ram Piyari in the presence of defendant no. 1 to 3 and defendant no. 1 was one of the witness of the said agreement. While deciding issue no. 7 I have already held that plaintiff was ready and willing to perform his part as per the agreement to sell Ex. PW-1/1 but defendant no. 1 to 3 have failed to perform their part as per the said agreement.
84 The defendant no. 2, who is the daughter of late Smt. Ram Piyari had executed a registered sale deed dated 27.7.2005 in favour of her husband, defendant no. 1. A copy of the sale deed Mark A has been placed on record by defendant no. 1. A perusal of the sale deed Mark A clearly shows that said sale deed was executed by defendant no. 2, Smt. Meena in favour of defendant no. 1 on the basis of General Power of Attorney executed by Smt. Ram Piyari dated 9.3.2004. The defendant no. 2 has thus executed the sale deed in favour of defendant no. 1 on the basis of General Power of Attorney dated 9.3.2004 of Smt Ram Piyari and not as a legal heir of late Smt. Ram Piyari.
85 The defendant no. 2 had executed the sale deed on 27.7.2005 on the basis of the General Power of Attorney of Smt. Ram Piyari whereas as per defendant no. 1 Smt. Ram Piyari had died on 07.06.2005 itself thus Suit no.239/09/05 32/42 Smt. Ram Piyari was not alive on 27.7.2005 when defendant no. 2 executed sale deed in favour of defendant no. 1 on the basis of General Power of Attorney of late Smt. Ram Piyari. A General Power of Attorney of Smt. Ram Piyari came to an end on her demise on 07.06.2005 and defendant no. 2 could not have executed the sale deed Mark A in favour of defendant no. 1 on the basis of General Power of Attorney of late Smt. Ram Piyari on 27.7.2005 because on the date of execution of the sale deed Smt. Ram Piyari was already dead, therefore, defendant no. 2 was not competent to execute any sale deed in favour of defendant no. 1 on 27.7.2005 as an attorney of late Smt. Ram Pyari.
86 The defendant no. 1 in his written statement has taken a plea that after the death of Smt. Ram Piyari, defendant no. 2 & 3 become the owner of the suit property and defendant no. 3 had executed a relinquishment deed in favour of defendant no. 2 on the basis of which defendant no. 2 has executed sale deed in his favour. The said plea of defendant no. 1 taken by him in his written statement cannot be accepted for the simple reason that in the sale deed Mark A it is clearly mentioned that defendant no. 2 had executed the said sale deed being the attorney of Smt. Ram Pyari and not as owner or her legal heir. The said sale deed no where stipulates that defendant no. 3 had executed any relinquishment deed in favour of defendant no. 2. The defendant no. 1 has also not placed on record any relinquishment deed stated to have executed by defendant no. 3 in favour of defendant no. 2 whereby defendant no. 2 has acquired ownership in the suit property.
87 It is pertinent to mention that defendant no. 2 & 3 were well aware that their mother late Smt. Ram Piyari had entered into an agreement to sell dated 02.06.2005, Ex. PW-1/1 with the plaintiff with respect to the suit property. They were also aware that late Smt. Ram Piyari had received earnest money of Rs. 1,50,000/- and the remaining sale consideration was to be paid by the plaintiff as per the said agreement on or before 7.10.2005. The defendant no. 2 & 3 being the legal heir of late Smt. Ram Suit no.239/09/05 33/42 Piyari stepped into the shoes of their mother and were bound to comply the terms and condition of the agreement to sale agreement Ex. PW-1/1 but defendant no. 2 in complete disregard of the agreement to sell Ex. PW-1/1 executed a sale deed Mark A in favour of her husband, defendant no. 1.
88 Vide sale deed dated 27.7.2005 Mark A, defendant no. 2 has sold the entire suit property in favour of her husband for total sale consideration of Rs. 1,50,000/- only whereas late Smt. Ram Piyari had entered into an agreement to sell the suit property to the plaintiff for total sale consideration of Rs. 9,90,000/-. When the market value of the suit property was Rs. 9,90,000/- then why defendant no. 2 sold the same in favour of defendant no. 1 for a meager amount of Rs. 1,50,000/- remained unanswered. No doubt, that sale consideration is a contract between the parties and a document cannot be declared null and void only on the basis of insufficiency of the sale consideration but the facts and circumstances of the instant case clearly shows that sale deed dated 27.7.2005 has been executed by defendant no. 2 in favour of defendant no. 1 only to avoid their liability to execute sale documents in favour of the plaintiff.
89 It is also pertinent to mention that in the sale deed Mark A it has been mentioned in Clause 1 that vendor has received entire sale consideration of Rs. 1,50,000/- in cash from vendee. The defendant no. 1 during his cross-examination has stated that he did not pay any amount to his wife at the time of execution of the sale deed. He has further stated that he paid Rs. 4 lacs to defendant no. 2 after two three months. The above testimony of DW-1 clearly shows that the stipulation of sale deed Mark A to the effect that the Vendor has received entire sale consideration of Rs. 1,50,000/- in cash in advance from Vendee is false. As a matter of fact the sale deed dated 27.7.2005 is not only executed by a person who was not competent to execute the same but same is also without consideration.
Suit no.239/09/05 34/4290 The defendant no. 1 on the basis of the sale deed Mark A stated to have transferred the said property in favour of defendant no. 4 on the basis of the GPA, Agreement to Sell, affidavit, will, possession letter etc dated 12.4.2006. As per the agreement to sell, the defendant no. 1 has transferred the suit property in favour of defendant no. 4 for a total sale consideration of Rs. 1,75,000/-. Whereas Smt. Ram Piyari had entered into the agreement to sell with plaintiff for total sale consideration of Rs. 9,90,000/-. These documents have been executed by defendant no. 1 in favour of defendant no. 4 during the pendency of the suit.
91 Ld. counsel for the defendant no. 1, 4 and 5 have contended that when defendant no. 1 transferred the suit property in favour of defendant no. 4 the suit was not pending as same was dismissed in default on 23.01.2006 and was restored on 3.11.2006. Thus the sale document executed by defendant no. 1 in favour of defendant no. 4 are not hit by doctrine of lis pendens as contemplated under Section 52 of Transfer of Property Act and there was not interim order in forced on the day when these documents were executed.
92 The above contention of ld. Counsel for the defendants cannot be accepted for the simple reason that no doubt that suit was dismissed in default on 23.01.2006 and was restored only on 3.11.2006, but the plaintiff filed an application for seeking restoration of the suit on 22.2.2006 which was allowed by ld. Predecessor of this court vide order 3.11.2006 and the suit was restored to its original number and position. The restoration of the suit vide order 3.11.2006 would relate back to date of filing of the application for restoration which was filed on 22.2.2006.
93 The Hon'ble Calcutta High Court in Ashutosh Roay Vs Ananta Ra, Bhattacharjee, reported as 1919, Indian case Vol. L, page 727 has held that," So far as the first contention of the appellant is concerned, we do not think that there is any substance in this. It appears that on the 23 rd April 1907 the suit was dismissed for default, neither party being present.
Suit no.239/09/05 35/42But on the 24th April 1907, that is to say, prior to the second sale of the 25 th April 1907 an application was put in for restoration of the suit, and on the 4th May 1907 the suit was restored. Under these circumstances, it does not seem to us that it really can be contended that there was no lis pendens at the time of the two sales in question. On the 4 th March, 1907, the date of the first sale, the lis was certainly pendens and on the 25 th April 1907, although the suit was dismissed for default on the 23 rd the application of the 24th April which was granted on the 4th May following would, it seems to us have the effect of restoring the suit as from the date the application was made, that is, the 24 th April. There is nothing in the first contention raised on behalf of the appellant."
94 The above legal preposition clearly shows that once the suit is restored, it relates back to the filing of the application. In the present case the suit was dismissed in default on 23.01.2006 and same was restored by ld. Predecessor of this court vide order 3.11.2006. The restoration of the suit would relate to the date of filing of the application for restoration which was filed on 22.2.2006. The defendant no. 1, admittedly executed GPA, agreement to sell etc, in favour of defendant no. 4 on 12.04.2006 i.e after 22.2.2006 thus the said transfer by defendant no. 1 in favour of defendant no. 4 is hit by doctrine of lis pendens under Section 52 of Transfer of Property Act and the said transfer was in violation of the interim order dated 8.11.2005.
95 The transaction entered into between defendant no. 1 and 4 is not only hit by Section 52 of Transfer of Property Act and was in violation of the interim injunction passed in this suit but same appears to have been done in order to create multiplicity of litigation and deprive the plaintiff from his valuable right.
96 The defendant no. 4 is the real sister of defendant no. 1 as deposed by DW-1 during his cross-examination though defendant no. 4 during her cross-examination has disputed her relation with defendant no. 1. The Suit no.239/09/05 36/42 said fact itself creates doubt about the transaction entered into between defendant no. 1 and defendant no. 4. The defendant no. 1 has entered into the said transaction with defendant no. 4 knowing fully well that a suit for specific performance filed by the plaintiff is pending before the court. Moreover, defendant no. 1 has not acquired any title in the suit property on the basis of the sale deed Mark A executed by defendant no. 2. When defendant no. 1 himself was not having any title in the suit property he could not have transferred better title to defendant no. 4.
97 The defendant no. 4 has further executed a sale deed Ex. D5W1/1 dated 22.12.2006 in favour of defendant no. 5. The said sale deed executed by defendant no. 4 is also hit by doctrine of lis pendens prescribed under Section 52 of Transfer of Property Act as well as was in violation of the interim injunction passed by this court. The said sale deed was executed by defendant no. 4 in favour of defendant no. 5 without any authority and title as defendant no. 4 has not acquired any title in the suit property on the basis of the documents executed by defendant no. 1 in her favour. The transaction entered into by defendant no. 1 in favour of defendant no. 4 and defendant no. 4 in favour of defendant no. 5 are the required to be declared as null and void.
98 The defendant no. 4 & 5 cannot be allowed to contend that they are the bonafide purchaser without any notice because defendant no. 4 is the real sister of defendant no. 1 and it cannot be accepted that the brother would not have disclosed the factum of pendency of suit between the plaintiff and defendant no. 1 to 3 to his sister. Moreover the period of transaction entered into by defendant no. 1 in favour of defendant no. 4 and by defendant no. 4 in favour of defendant no. 5 itself give an impression that these defendants were aware about the dispute pending between the parties, that is why various subsequent titles sought be to created by way of executing sale documents.
Suit no.239/09/05 37/4299 The sale deed executed by defendant no. 2 in favour of defendant no. 1 cannot sustain for the simple reason that defendanat no. 2 & 3 who are the legal heir of late. Smt. Ram Piyari were well aware that Smt. Ram Piyari had entered into an agreement to sell with the plaintiff. Despite having knowledge of the agreement to sell, the defendant no. 2 neither gave any notice to the plaintiff before execution of the sale deed in favour of defendant no. 1 nor she sought any declaration with respect to the agreement to sell Ex. PW-1/1 executed by her late mother in favour of plaintiff by filing the suit in the competent court.
100 The defendant no. 2 hurriedly executed the sale deed Mark A in favour of her husband on the basis of GPA executed by her mother late Smt. Ram Piyari. The said sale deed thus having no force of law because same was executed by defendant no. 2 on the basis of the GPA which was not existing on the day of execution of the sale deed because the principal of the said GPA i.e Smt. Ram Piyari was already dead on the date of execution of the sale deed. Moreover the said sale deed was executed by defendant no. 2 in favour of defendant no. 1 without consideration and just to deprive the plaintiff from his valuable right. Therefore, the sale deed executed by defendant no. 2 is required to be declared as null and void.
101 The defendant no. 1 on the basis of sale deed Mark A executed GPA, agreement to sell etc dated 12.4.2006 in favour of his sister Prem Lata, defendant no. 4, the documents executed by defendant no. 1 in favour of defendant no. 4 are also required to be declared as null and void as same were executed by the person who himself was not having any title in the suit property and those documents were executed just to deprive the plaintiff from his valuable right. Similarly, sale deed Ex. D5W1/1 executed by defendant no. 4 in favour of defendant no. 5 is also required to be declared null and void because defendant no. 4 was not the owner of the suit property thus she could not have transferred any title in favour of defendant no. 5.
Suit no.239/09/05 38/42102 The defendant no. 1 had not paid any consideration in lieu of execution of sale deed Mark A to defendant 2. The defendant no. 1 has stated to have received Rs. 1,75,000/- from defendant no. 4 while executing GPA, Agreement to sell etc in her favour. Similarly defendant no. 4 stated to have received Rs. 2 lacs from defendant no. 5 in lieu of execution of sale deed Ex. D5W1 in her favour. The defendant no. 4 & 5 have not acquired any titled in the suit property on the basis of these documents, however, they are entitled for refund of the amount paid by them in lieu of execution of these documents. The defendant no. 4 at best can recover the amount of Rs. 1,75,000/- from defendant no. 1 alongwith interest which was paid by her to defendant no. 1 at the time of execution of agreement to sell, GPA etc. Similarly defendant no. 5 can also recover amount of Rs. 2 lacs paid by her to defendant no. 4 at the time of execution of sale deed Ex. D5W1. But they cannot claim any titled in the suit property and the transaction entered into between defendant no. 1,2, 4 & 5 are required to be declared as null and void.
103 In views of my above discussion, my findings is as under:
104 Issue No. 6 Whether the plaintiff is entitled to a decree of declaration that Sale Deed executed by defendant no. 4 in favour of defendant no. 5 in respect of the suit property is null and void? OPP Addl. Issue no. 1 to 3:
1. Whether the plaintiff is entitled for a decree of declaration thereby declaring the GPA bearing registration no. 104434, Block no. 4, pages 171-174 dated 12.04.2006 registered with Sub-Registrar, Janakpuri, Delhi as null and void? OPP
2. Whether the plaintiff is entitled for relief of declaration thereby declaring the sale deed bearing registration no.
23969 book no. 14376 pages 105-107 dated 22.11.06 executed by the defendant no. 4 in favour of defendant no. 5 as null and void? OPP
3. Whether the plaintiff is entitled for a decree for declaring thereby sale deed dated 27.07.2005 on registration on 07.08.05 vide registration no. 21843 additional book no. 13056 pages 119-124 with sub-registrar, Janakpuri, Delhi executed by defendant no. 2 in favour of defendant no. 1 as null and void? OPP Suit no.239/09/05 39/42 In view of my above discussion, I am of the considered view that defendant no. 2 was not competent to execute sale deed dated 27.7.2005 which was registered on 4.8.2005 vide registration no. 21843, Addl. Book no. 13056, pages 119 to 124 with Sub-Registrar, Janak Puri in favour of defendant no. 1 because the GPA on the basis of which the said sale deed was executed by her in favour of defendant no. 1 had already come to end on the death of Smt. Ram Piyari. Moreover defendant no. 2 was well aware about the agreement to sell entered into between plaintiff and Smt. Ram Piyari which was subsisting on the day of execution of the sale deed. The defendant no. 2 thus could not have executed any sale deed in favour of defendant no. 1 and the said sale deed was without any consideration. The defendant no. 1 has thus not acquired any titled on the basis of the sale deed Mark A. 105 The plaintiff has further proved on record that defendant no. 1 on the basis of the sale deed Mark A could not have transferred the suit property in favour of defendant no. 4 by executing GPA dated 12.4.2006 alongwith agreement to sell etc. The defendant no. 1 himself has not acquired any titled in the suit property, therefore, he could not have transferred better title. The defendant no. 1 was thus not competent to execute these documents in favour of defendant no. 4 and these documents are thus required to be declared as null and void .
106 The plaintiff has further proved on record that defendant no. 4 has not acquired any titled in the suit property on the basis of the GPA dated 12.4.2006 alongwith agreement to sell etc. When defendant no. 4 has not acquired any titled in the suit property she could not have transferred better title in favour of defendant no. 5 vide sale deed dated 22.11.2006. The sale deed executed by defendant no. 4 in favour of defendant no. 5 is required to be declared as null and void. The plaintiff has thus successfully discharged the onus of issue no. 6 as well as additional issue no. 1, 2 & 3, same are accordingly decided in favour of the plaintiff.
Suit no.239/09/05 40/42107 Issue no. 8: Whether the plaintiff is entitled to a decree of Permanent in respect of the suit property as prayed? OPP In view of my findings on issue no. 6, 7 and additional issue no. 1 to 3, I am of the considered view that plaintiff is entitled for decree of permanent injunction as prayed by him against the defendants. The plaintiff has successfully discharged the issue no. 8, same is accordingly decided in favour of the plaintiff 108 Relief In view of above facts and circumstances, the suit filed by the plaintiff against the defendants is decreed with cost.
A decree for declaration is passed in favour of the plaintiff and against the defendants declaring the sale deed dated 27.7.2005 executed by defendant no. 2 in favour of defendant no. 1 registered on 4.8.2005 vide registration no. 21843, Addl. Book No. 13056, pages 119-124 with Sub-Registrar, Janak Puri, New Delhi alongwith Agreement to Sell, Will, etc dated 12.4.2006 as null and void.
A decree for declaration is also passed in favour of plaintiff and against defendants thereby declaring the General Power of Attorney dated 12.4.2006 executed by defendant no. 1 in favour of defendant no. 4 vide registration no. 104434, Book no. 4, page 171-174, registered with Sub- Registrar Janak Puri, New Delhi as well as Agreement to sell, Will etc dated 12.4.2006 as null and void.
A decree for declaration is passed in favour of plaintiff and against the defendants thereby declaring the sale deed dated 22.11.2006 executed by defendant no. 4 in favour of defendant no. 5 having registration no. 23961, Book No. 14376, pages 105-110, registered with Sub-Registrar, Janakpuri, New Delhi as null and void.
Suit no.239/09/05 41/42A decree for permanent injunction is passed in favour of plaintiff and against the defendants thereby restraining the defendants permanently from selling or creating third party interest in the suit property bearing no. G-1/553-554, part of Khasra no. 76/22, situated at Village Hastsal Abadi known as Uttam Nagar, Block-G, New Delhi .
A decree for specific performance is passed in favour of the plaintiff and against defendant no. 2 & 3 thereby directing defendant no. 2 & 3 to execute the sale deed in favour of plaintiff after receiving remaining sale consideration i.e Rs. 10 lacs plus Rs. 8,40,000/-, total Rs. 18,40,000/-.
The Plaintiff is directed to pay/deposit the remaining sale consideration of Rs. 18,40,000/- within three months from today. After receipt of the said amount, defendant no. 2 & 3 shall execute the sale deed in favour of the plaintiff. If defendant no. 2 & 3 fail to execute the sale deed, the plaintiff can seek execution of the decree as per the law. Decree Sheet be accordingly prepared. File be consigned to record room after due compliance.
Announced in the open court (PITAMBER DUTT)
22nd November, 2013 Additional District Judge
Delhi
Suit no.239/09/05 42/42
Suit no.239/09/05 43/42