Vikas Singh Malik vs Smt. Geeta Devi

Manmohan Singh, J.—By this order I shall dispose of the present suit filed by the plaintiff for specific performance and permanent injunction. An application for ex-parte ad interim stay was also filed by the petitioner. The defendant is the owner of the property bearing No. 46, Block H, Pocket 1, Sector-11 Rohini, Delhi- 1100085 (hereinafter referred to as the "said property"), admeasuring about 25.90 sq yards. The plaintiff herein is seeking a decree for Specific Performance with respect to the First Floor of the said property and also a decree for permanent injunction restraining the defendant or her legal heirs or representatives from creating any third party rights over the said property.

Vide order dated 29.08.2008 the defendant was proceeded ex-parte.

It is averred in the plaint that by virtue of an agreement for sale dated 21.02. 2007 executed by and between the parties, it was agreed that the defendant would sell the said property for a consideration of Rs. 22,50,000/- (rupees twenty two lac and fifty thousand). A sum of Rs. 2,00,000/- had already been paid by the plaintiff and the receipt was duly acknowledged by the defendant and notarized and subsequently, the Sale Deed was to be executed in favor of the plaintiff.

As per clause 1 of the Agreement, the whole transaction was to be completed by 10.06.2007. However, on the request of the defendant, the said Deed was executed and registered on 11.06.2007 before the Sub Registrar, Sub District North West, Pitampura, Delhi.

According to the plaintiff, on the said date i.e. 11.06.2007, the defendant failed to come to the office of the Sub-Registrar. On 13.06.2007, plaintiff sent a legal notice but it was not accepted by the defendant.

Thereafter, somewhere in the 3rd week of August, the plaintiff learned that the defendant was trying to negotiate with some third party.

Hence, the plaintiff filed the present suit for specific performance and permanent injunction. The suit along with interim application was listed before Court on 28.11.2007. The summons were issued to the defendant and the interim order was also passed not to sell, transfer, mortgage or part with possession of the suit property consisting of the first floor of the property bearing No. 46 and 47, Block H, Pocket 1, Sector II, Rohini, Delhi-110085. Since the defendant refused to accept the summons by ordinary process as well as the registered AD cover, therefore, vide order dated 29.08.2008 the defendant was proceeded ex-parte. The plaintiff filed five affidavits, in ex-parte evidence, of PW-1 Vikas Singh Malik, PW-2 Rajesh, PW-3 Mange Ram, PW-4 Rajesh Kumar and PW-5 Joginder Kumar, who have tendered their affidavits in evidence as Ex.PW1/A, Ex.PW2/A, Ex.PW3/A, Ex.PW4/A and Ex.PW5/A respectively.

The plaintiff in his evidence has almost reiterated the statement made in the plaint and proved the agreement dated 21.02.2007 as Ex.PW-1/1. The receipt of the earnest money of Rs. 2 lac dated 21.02.2007 is proved as Ex.PW-1/2. It is stated in the affidavit that the plaintiff arranged the balance consideration from his own account and took the loan from his father-in-law Sh. Mange Ram. The defendant agreed to execute and get the sale deed registered on 11.06.2007 before the Sub Registrar but when the plaintiff and Sh. Mange Ram went there along with the balance payment, she failed to come. She was even called by the plaintiff. But despite giving him an assurance that she would be coming, she did not come.

PW-2 Rajesh has deposed that he was present when the plaintiff handed over an amount of Rs. 2 lac to the defendant and she signed the receipt in his presence. PW-3 Mange Ram has deposed that he was having sufficient fund in his account as well as cash in hand. He proved the bank statement as Ex.PW3/1.

PW-4 Rajesh Kumar deposed that he accompanied the plaintiff to appear as witness before the Sub-Registrar and waited for the defendant. PW-5 Joginder Kumar deposed the similar statement that he went to the Office of the Sub-Registrar Pitampura, Delhi, at the request of the plaintiff. However, the defendant did not appear.

Before filing of the suit, the plaintiff also issued a legal notice dated 13.06.2007 to the defendant through UPC as well as speed post AD but the defendant refused to accept the same. The plaintiff proved the said notice dated 13.06.2007 as Ex.PW-14, speed post receipt as Ex.PW-1/5, UPC receipt as Ex.PW-1/6 and two envelopes with noting "refused" as Ex.PW-1/7 and Ex.PW-1/8. It is specifically stated in the plaint that the plaintiff is always willing and ready to perform his part of the obligations as contemplated under the agreement dated 21.02.2007 and is ready to pay the balance amount of Rs. 20,50,000/- as per the agreement.

The learned counsel for the plaintiff has referred the case of Raj Kumar Sharma Vs. Pushpa Jaggi & Ors. 128 (2006) Delhi Law Times 96.

In view of the facts and circumstances of the present case, it is clear that the plaintiff has been able to prove his case beyond any doubt by producing the evidence. Therefore, the plaintiff is entitled for a decree. I pass a decree for specific performance of the agreement to sell dated 21.02.2007 and direct that the plaintiff shall deposit the balance consideration in Court within four weeks from today. Thereafter, the defendant shall take steps in accordance with the agreement to sell for execution and registration of the sale deed within four weeks thereafter, failing which, the Registrar shall take the necessary steps in accordance with the law for getting the sale deed executed and registered after obtaining the legal sanction. No costs.