Sanjay Kumar and Another vs Inderjeet N. Suri

V.K. Jain, J.

IA No. 4755/2011 (Order 39 Rule 1 and 2) and IA No. 9677/2011 (Order 39 Rule 4 CPC)

This is a suit for specific performance of the agreement dated 27th December, 2010 alleged to have been executed by the defendant in favour of the plaintiffs for sale of house bearing no. EXB-28A, Gali no. 1, Hari Nagar, New Delhi for a total sale consideration of Rs. 65 lakhs. A sum of Rs. 5 lakh was paid as earnest money to the defendant on 27th December, 2010 and the sale deed was to be executed on or before 15th May, 2011.

The case of the defendant as disclosed in the written statement is that he is a Canadian citizen and he came to India along with his wife on 3rd December, 2010. The plaintiffs approached him on 27th December, 2010 to purchase the suit property for a consideration of Rs. 1,10,00,000/- with the condition that they would re-construct a four storeyed building on the land underneath the property and provide the first floor to him for a consideration of Rs. 45 lakhs. It has been admitted that the plaintiffs paid a sum of Rs. 5 lakhs to the defendant on 27th December, 2010 and obtained a receipt from him. It is alleged that believing the plaintiffs, the defendant signed the receipt without going through its contents. It is further alleged that the plaintiffs got prepared an agreement and sent it to the defendant for signature. On going through the contents of the agreement, the defendant discovered that the terms and conditions incorporated therein were not as per their agreement. The defendant thereupon reported the matter to the police and also sent a notice to the plaintiffs.

The document termed as advance receipt is a printed proforma wherein blanks have been filled by hand in English. The document has been signed by the defendant in English. This is not the case of the defendant that he is illiterate and is not conversant with English language. The learned counsel for the plaintiff, on instructions from the plaintiffs, who are present in the Court, states that the blanks in the document were filled by Mr. Chopra of M/s Chopra Estate Agency through whom the deal was started. Since the defendant has admitted not only his signature on the document but also on the receipt of Rs. 5 lakh, the plaintiffs have been able to make out a prima facie case in their favour. As per clause 3 of the agreement dated 27th December, 2010, the sale deed was to be got registered and possession was to be delivered to the plaintiffs on or before 15th May, 2011. The document contains all the necessary ingredients of an agreement to sell. The identity of the seller as well as the purchaser is borne out from the document. The identity of the property subject matter of the agreement is also not in dispute. The sale consideration as well as the earnest money has also been indicated therein. The period within which the transaction was to be completed is also contained in the document. Hence, no material ingredient of an agreement to sell an immovable property is missing in this document.

Since the defendant does not claim to be an illiterate person, prima facie, I find it difficult to accept that he signed the document dated 27th December, 2010 without going through its contents particularly when he does not claim that the plaintiffs were previously known to him.

It is defendant''s own case that a formal agreement was got prepared by the plaintiffs and was given to him for signature. The document got prepared by the plaintiffs is also a formal agreement to sell the suit property to the plaintiffs for a total sale consideration of Rs. 65 lakhs, and not an agreement for a sale consideration of Rs 1.10 crores, with a stipulation for sale of the first floor to the defendant for a consideration of Rs 45 lakhs. This is yet another indicator of what the transaction between the parties was.

The above-referred formal agreement which the learned counsel for the defendant has brought in the Court has been filed by him and placed on the Court file. The plaintiffs who are present in the Court admit that this is the same document which they had got prepared and which they had given to the defendant for his signature on it. The conduct of the plaintiffs in getting prepared an agreement for sale of the suit property to them for a consideration of Rs. 65 lakhs, in my view, corroborates the case set up by them. In these circumstances, I am of the view that prima facie the plaintiffs have been able to show that the defendant had agreed to sell the suit property to them for a total sale consideration of Rs. 65 lakhs and had received the earnest money of Rs. 5 lakh from them. The balance amount of Rs. 60 lakhs has already been deposited by the plaintiffs in Court.

In case interim protection is not granted to the plaintiff, the defendant may dispose of the suit property or may create third party interest therein, thereby defeating the very object behind filing of the suit. On the other hand, the defendant is not likely to suffer any irreparable loss in case he is restrained from selling, assigning or transferring the suit property and from creating any third party interest therein during pendency of the suit. He will continue to enjoy the suit property as he is doing at present. The balance of convenience thus lies in favour of maintaining status quo during pendency of the suit.

In N. Srinivasa Vs. Kuttukaran Machine Tools Ltd., , Supreme Court noticing that the only ground taken by the respondent was that since time was the essence of the contract and the appellant had failed to perform his part of the contract within the time specified in the agreement and, therefore, the question of grant of injunction against transfer or alienation of the suit property did not arise at all, the Supreme Court observed that it must be kept in mind that it would be open to the respondent to transfer, alienate or create any third party interest in respect of property in dispute before passing the award in which one of the main issues would be whether time was essence of the contract or not. The Court was of the view that if at the stage when application of the appellant u/s 9 of the Arbitration and Conciliation Act was pending, if the respondent is permitted to transfer, alienate or create any third party interest in respect of the property in dispute then the award, if any, which may be passed in his favour would get nugatory and it would be difficult for him to ask the respondent to execute a sale deed when a third party interest has already been created by sale of property in dispute and delivering the possession to the third party.

The parties are, therefore, directed to maintain status quo with respect to title and possession of the suit property during the pendency of the suit.

Both the applications stand disposed of in terms of this order.

IA No. 11111/2011 (Order 1 Rule 10)

Dismissed as not pressed.

CS(OS) 719/2011

The parties are directed to complete admission/denial of documents before the Joint Registrar on 30th November, 2011 for admission/denial of documents.

The matter shall be listed before the Court on 16th April, 2012 for framing of issues.