Delhi District Court
M/S Solace Exports Pvt. Ltd vs Smt. Amar Kanta on 28 August, 2012
IN THE COURT OF MS. SNIGDHA SARVARIA, CIVIL JUDGE,
CENTRAL05 TIS HAZARI COURTS , DELHI
Suit No. 514/2010
IN THE MATTER OF:
M/s Solace Exports Pvt. Ltd.
having its registered address at
1E/2, Jhandewalan Extension,
New Delhi110055
through its AR ............................Plaintiff
VERSUS
Smt. Amar Kanta
W/o Shri Vijay Kumar,
R/o 3276, Sector B3,
Vasant Kunj, New Delhi. ................Defendant
Date of Institution: 01.06.2010
Date of Reserving for Judgment: 28.08.2012
Date of Judgment : 28.08.2012
SUIT FOR SPECIFIC PERFORMANCE
JUDGMENT: ( ExParte)
1. Vide this judgment, I shall dispose of the suit for Specific performance filed by the plaintiff.
2. The brief facts of the case as per the plaintiff are as follow: The plaintiff company through its Director Sh. Vikas Mahajan approached the defendant for the purchase of defendant's Suit No. 514/2010 Page No. 1/6 undivided share in the property bearing No. 1E/2, Jhandewalan Extension, New Delhi. The defendant made some representation in respect of the suit property . In view of the representation made by the defendant , the plaintiff through its AR entered into an agreement to sell dt. 03042008 with the defendant in respect of the suit property. But in spite of the payment of the full consideration, the defendant has failed to perform her part of the contract under the said agreement to sell dt. 03042008. The plaintiff vide a legal notice dt. 03042008 called upon the defendant to perform her obligation for obtaining the necessary permission from the DDA or any other concerned authority for executing the regd. Sale Deed in respect of her undivided share. But the defendant did not do so, hence the present suit is filed.
3. The summons were duly served to the defendant on 23052011, but none has appeared on behalf of the defendant, hence the defendant was proceeded exparte vide order dt. 26072011.
4. To prove its case, the plaintiff has examined his witness Sh. Vikas Mahajan as PW1. PW1 has produced his evidence by way of affidavit which is Ex. PW1. In his affidavit, the PW1 has reiterated the facts mentioned in the plaint and placed reliance on the following documents:
i) The certificate of incorporation is Ex. PW1/2. Suit No. 514/2010 Page No. 2/6
ii) Certified copy of lease deed dt. 03121956 is Ex. PW1/3
iii) The copy of the agreement to sell dt. 03042008 is EX. PW1/4.
iv) The copy of receipt dt. 03042008 is Ex. Pw1/5
v) Copy of legal notice dt. 17032010 along with postal receipt is Ex. PW1/6 & Ex. PW1/7.
5. The plaintiff has also examined Sh. Varun Mahajan as PW3. PW3 has produced his evidence by way of affidavit which is Ex. PW3. In his affidavit, the PW1 has reiterated the facts mentioned in the plaint and placed reliance on the documents Ex. PW1/2, PW1/4 to Ex. PW1/7 as relied upon by the PW1.
6. I have heard counsel for the plaintiff and have perused the record carefully.
7. The testimony of PW1 & PW3 remained unrebutted and uncontested. Therefore, there is no reason to disbelieve the testimony of PW1 & PW3.
8. The suit of the plaintiff is within limitation in view of the legal notice is dated 17/3/2010, whereby the plaintiff had called upon the defendant to perform her part of the agreement to sell, and as per Art. 54 of the Schedule appended to the Limitation Act.
The plaintiff company examined Sh. Vikas Mahajan, authorised representative of the plaintiff company as PW1 and he reiterated the averments made in the plaint. He proved the Board Suit No. 514/2010 Page No. 3/6 resolution appointing him as the authorised representative as PW1/1; Certificate of incorporation of the company as PW1/2; the certified copy of the lease deed dated 3/12/1956 showing that Late Smt. Sarla Devi Agnihotri was the absolute absolute owner of the suit property bearing no. 1E/2, Jhandewalan Extn., New Delhi110055 is Ex. PW1/3; copy of the agreement to sell dated 3/4/2008 entered between the plaintiff company and the defendant is PW1/4; copy of the receipt dated 3/4/2008 evidencing payment received by the defendant is Ex. PW1/5; the copy of the legal notice dated 17/3/2010 and proof of service are Ex. PW1/6 and Ex. PW1/7, respectively. PW2 Sh. Deepak Agnihotri, brother of the defendant, proved the copy of the agreement to sell dated 3/4/2008 entered between the plaintiff company and the defendant is PW1/4; and copy of the receipt dated 3/4/2008 evidencing payment received by the defendant is Ex. PW1/5. PW3 Sh. Varun Mahajan corroborated the version of PW1 and PW2, both.
The plaintiff has already made full payment of Rs. 2,25,000/ as was to be paid by the plaintiff to the defendant in terms of clause 1 of the agreement to sell dated 3/4/2008 entered between the plaintiff company and the defendant and the same is PW1/4. The receipt dated 3/4/2008 is the evidence of payment received by the defendant and the same is Ex. PW1/5. This shows that S. 16 of the Suit No. 514/2010 Page No. 4/6 Specific Relief Act has been complied with and further, even from the averments made in the plaint by the plaintiff and the witnesses examined it is made out that the plaintiff is ready and willing to perform whatever is required for execution of the sale deed. As per clause 3 to 5 the defendant was to do some formalities for the purpose of execution of the sale deed but failed to do the same. From the aforesaid discussion it is amply clear that the plaintiff is entitled to a decree for the specific performance of the contract dated 3/4/2008 and get a sale deed executed in its favour. As per clause 3 of the agreement, Ex. PW1/4, the plaintiff is liable to pay the defendant any unearned increase/levy before getting a sale deed executed. The agreement was entered in 2008 by the parties and now it is 2012, in the interegnum the rate of the property have increased manifold. Considering the same, the decree for specific performance of agreement to sell dated 3/4/2008 as entered between the plaintiff company and the defendant for the sale of the defendant's undivided share in the suit property bearing no. 1E/2, Jhandewalan Extn., New Delhi110055 is passed in favour of the plaintiff and against the defendant with a direction that the defendant in person and the plaintiff through its nominee/authorised representative shall appear before the SubRegistrar concerned to complete the formalities for the execution of the sale deed in respect Suit No. 514/2010 Page No. 5/6 to the undivided share of the defendant in the aforesaid suit property. The defendant shall bring with her her photo ID proof for the said purpose. The plaintiff shall pay Rs. 2,25,000/ to the defendant at the time of execution of the sale deed before the SubRegistrar concerned and get an acknowledgment from the defendant as proof of payment. The plaintiff is also entitled to get necessary permission from the concerned relevant authorities, as per the existing rules of the said authorities, for getting the sale deed registered and thereafter transferred and mutated in favour of the plaintiff in the event the defendant fails to do so.
9. Relief In view of the foregoing discussion, a decree for specific performance along with aforesaid directions in the aforesaid terms is passed in favour of the plaintiff and against the defendant. Cost of the suit is also awarded to the plaintiff.
Decree sheet be prepared accordingly. File be consigned to Record Room after due compliance.
Announced & signed in the ( Snigdha Sarvaria) ● open court on 28.08.2012. Civil Judge/Central05 Delhi Suit No. 514/2010 Page No. 6/6