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Date of Decision: 13.12.2013 CS (OS) 1479 of 2012
MR. CHANDERVEER SINGH ..... Plaintiff
Through Mr. Alok Tripathi, Advocate
Through None
JUDGMENT
1. Arguments have been heard.
2. The defendant entered appearance and filed his written statement. The written statement however was under objection. Since the defendant did not take any steps for removal of objections their right to file the written statement was closed vide Order dated 17.07.2013. None appeared on behalf of the defendant thereafter. They were hence proceeded ex parte vide Order dated 31.07.2013.
3. The present suit has been filed by the plaintiff seeking a decree of specific performance directing the defendant to perform her part of the obligation by executing and registering the sale deed in respect of property being Flat no. 82D, Pocket A-2, Mayur Vihar Phase- III, Delhi (hereinafter referred as „the suit property‟) and also restraining the defendants from creating any third party interest in the suit property. 2013:DHC:6431
4. It is the contention of the plaintiff that the defendant and her husband had taken a friendly loan of `12,00,000/- in cash from the plaintiff in the month of March, 2011, for purchasing the suit property from one Mrs.Shakuntala Devi. The plaintiff states that a sale deed was executed by the said Mrs. Shakuntala Devi in favour of the defendant on 15.03.2011. It is averred that the value of the said property as informed by the defendant in March, 2011 was `33,00,000/-. It is further contended by the plaintiff that apart from the amount taken by the plaintiff, the defendant had also taken a loan of `22,00,000/- from Punjab National Bank Housing Finance Ltd., wherein the son of the defendant namely, Mr. Vishal Tyagi was the coapplicant and the monthly installment of `22,008/- towards the loan is being paid by him.
5. It is the contention of the plaintiff that the defendant was supposed to return the said amount of `12 lacs to the plaintiff on or before November, 2011 which the defendant failed to return. The plaintiff states that he in good faith extended the time period for payment of the said amount.
6. It is contended by the plaintiff that due to the inability to pay the plaintiff‟s money, the defendant approached the plaintiff in the first week of December, 2011 with a proposal to sell the suit property. It is stated that the plaintiff agreed to purchase the said property for a total consideration of ` 37 lacs. It is further stated that it was agreed between the plaintiff and the defendant that the amount of friendly loan being ` 12 lacs already paid to the defendant by the plaintiff will be adjusted and considered as an advance payment and the balance amount of `25 lacs would be paid to the defendant. It was also agreed that the defendant would hand over the possession of the property to the plaintiff in the month of January, 2012 and the sale deed in regard to the suit property would also be executed on or before 31.03.2012. It is stated that it was further agreed that the plaintiff will pay the EMI of `22,008/- to the bank till the property has not been transferred in the name of the plaintiff i.e. till 31.03.2012.
7. It is stated by the plaintiff that as per the agreed terms between the plaintiff and the defendant, the possession of the suit property was handed over to the plaintiff in the first week of January, 2012. The plaintiff also states that he issued three cheques of `22,008/- each towards the bank installment for the months of January to March, 2012 in the name of defendant‟s son, Mr. Vishal Tyagi.
8. It is the contention of the plaintiff that in view of the oral understanding between the plaintiff and the defendant, the defendant was supposed to execute the sale deed in favour of the plaintiff on or before 31.03.2012, in anticipation of which, after taking permission from the defendant the plaintiff started renovation work in the suit property by spending more than `3 lacs. It is stated by the plaintiff that in the meanwhile, it came to the knowledge of the plaintiff that the defendant has entered in an agreement with one Smt. Mala Devi for sale of the said property and has also accepted a token money of `50,000/-. It is contended by the plaintiff that when he protested against the malafide act of the defendant, the defendant and her husband with malafide and ill intention lodged a frivolous complaint against the plaintiff with the Police on 09.02.2012. The defendant on the other hand presented the cheque issued by the plaintiff towards monthly installment for the month of February, 2012 for encashment. It is stated by the plaintiff that he withdrew the amount from his account after getting to know the malafide intentions of the defendant so that no further amount could be deducted from the account of the plaintiff.
9. It is stated that thereafter the plaintiff and the defendant settled the matter between them and according to the said settlement the defendant agreed to pay the entire amount to the plaintiff on or before 30.03.2012, after which the plaintiff agreed to vacate the premises. In case the defendant failed to make the payment, he was to execute the sale deed in favour of the plaintiff with respect to the suit property. It is contended by the plaintiff that in furtherance of the settlement, the defendant issued two cheques of `5 lacs each in the name of the plaintiff dated 25.03.2012 and 26.03.2012 as part payment. However, the said cheques were dishonoured on presentation due to insufficient funds. It is the contention of the plaintiff that the defendant breached the condition of the settlement as after failing to make good the payment, the defendant also did not execute the Sale Deed in favour of the plaintiff. It is the contention of the plaintiff that in the meanwhile the said Smt. Mala Devi had cancelled the agreement with the defendant and the defendant had returned her token money as well.
10. It is the contention of the plaintiff that on 10.04.2012 the defendant again approached the plaintiff with a proposal to execute the Sale Deed. On the other hand, the son of defendant issued a legal notice dated 18.04.2012 calling upon the plaintiff to pay the cheque amount issued for the month of March, 2012. It is submitted by the plaintiff that he replied to the said legal notice and further made the payment of ` 22,008/- vide cheque.
11. It is contended by the plaintiff that it served a legal notice dated 02.05.2012 calling upon the defendant to execute the Sale Deed in respect of the suit property in favour of the plaintiff within a week. It is submitted that no steps towards the same were taken by the defendant till date. It is submitted that the defendant sent a legal notice to the plaintiff dated 30.04.2012 calling upon the plaintiff to vacate the suit premises on false and frivolous grounds. The notice was duly replied by the plaintiff vide its letter dated 10.05.2012.
12. It is stated by the plaintiff that the defendant has partly performed the agreement by handing over the possession of the suit property to the plaintiff and the plaintiff is still residing in the same. Further, the plaintiff states that the defendant has failed to fulfill its part of obligation under the agreement and the plaintiff has always been ready and willing to perform its part. The plaintiff states that the defendant is avoiding performance of her part of the contract with dishonest and malafide intention as the value of real estate has gone up in the meanwhile. It is also stated that the plaintiff has paid a sum of `12 lacs to the defendant, which is still being used and enjoyed by the defendant and that the plaintiffs have acquired valuable right in the suit property and are entitled to the specific performance of the agreement/oral understanding between the parties.
13. The plaintiff Chanderveer Singh has filed his evidence by way of affidavit. He states that in the month of March, 2011 he gave a friendly loan of `12,00,000/- to the defendant for purchasing the property being Flat NO. 82D, Pocket A-2, Mayur Vihar Phase- III, Delhi and a Sale deed dated 15.03.2011 was also executed in respect thereof in favour of the defendant. He has placed on record the photocopy of the Sale Deed which is marked as Mark A. It is stated that the defendant also took a loan of `22 lacs from Punjab National Bank Housing Finance Ltd., monthly installment of which being `22,008/-. It is stated that the friendly loan amount was to be returned to the plaintiff on or before November, 2011 and that, however, the defendant failed to do the same. It is averred that in the first week of December, 2011, the defendant approached him with a proposal of sale of the abovementioned flat for consideration of `37 lacs. It is stated that it was further agreed that the amount of `12 lacs of loan would be adjusted against the total sale consideration. It is stated that the defendant agreed to handover the possession of the flat to the plaintiff in the first week of January, 2012 and agreed to execute the Sale Deed on or before 31.03.2012. The plaintiff would pay the EMI of `22,008/- to the Bank for the period of January to March, 2012. The plaintiff states that the possession of the flat was handed over to him in the first week of January, 2012. As agreed the defendant also handed over the copies of the documents relating to the suit property. It is stated that these understandings were agreed between the parties orally and no written agreement was signed by them. The plaintiff avers that in anticipation of the transfer of the suit property in his name on or before 31.03.2012, he with the consent of the defendant renovated the said flat by making an investment of `3,12,382.42 p. The original bills are placed as Exhibit PW1/1(colly).
14. The plaintiff further states that despite the oral understanding with the plaintiff, the defendant with malafide and ill intention executed another agreement to sell with a third party and accepted token money of ` 50,000/from the third party. The plaintiff states that after he protested against the said agreement of the defendant with the third party, the defendant lodged a frivolous complaint dated 09.02.2012 in the Police Station against the plaintiff. The plaintiff states that thereafter, the plaintiff and the defendant settled the matter and the said complaint was withdrawn by the defendant. The certified copy of the withdrawal of the complaint is placed as Exhibit PW 1/2.
15. It is averred that in terms of the settlement, the defendant agreed to pay the entire money advanced to her on or before 30.03.2012 to the plaintiff. The defendant in lieu of that issued cheques no. 110963 and 110964 dated 25.03.2012 and 26.03.2012 respectively for `5 lacs each which on presentation by the plaintiff to the Bank were dishonoured due to insufficient funds. The plaintiff states that thereafter he filed a complaint under section 138 of Negotiable Instruments Act, which is pending before the Karkardooma Court, Delhi.
16. It is stated that the son of defendant, Mr. Vishal Tyagi, sent a legal notice dated 18.04.2012 to the plaintiff calling upon him to pay the cheque amount issued for the month of March, 2012. The said legal notice is placed on record as Exhibit PW1/3. The plaintiff states that he replied to the said notice on 03.05.2012 and also made payment of ` 22,008/- vide cheque NO. 012927 dated 03.05.2012. He states that the cheque was encashed by the defendant. The reply to the legal notice of the defendant by the plaintiff is filed as Exhibit PW1/4. It is stated that vide legal notice dated 02.05.2012 filed as Exhibit PW1/5 (colly), plaintiff called upon the defendant to execute the Sale Deed in respect of the suit property, which the defendant has failed to do till date. It is stated that on 07.05.2012 the plaintiff received a legal notice dated 30.04.2012 of the defendant which is proved and placed as Exhibit PW1/6. The plaintiff replied to the said notice on 10.05.2012 which is marked as Exhibit PW1/7. It is averred by the plaintiff that various meetings have taken place between the parties and during the course of which the defendant has repeatedly reassured the plaintiff to execute the Sale Deed with respect to the suit property, but the same has been avoided by her.
17. The plaintiff pleads an oral agreement to sell. It is urged that as per terms agreed upon between plaintiff and defendant the total sale consideration was `37 lakhs. It is urged that the advance of `12 lakhs given was to be adjusted against the consideration payable for purchase of the suit property. It is further pleaded that in terms of the agreement to sell the physical possession of the suit property was given by the defendant to the plaintiff in the first week of January, 2012. It is further urged that 3 EMIs payable to the bank of `22,008/- had been paid by the plaintiff from January to March, 2012.
18. The onus to prove the existence of an oral agreement to sell was on the plaintiff. In my view the plaintiff has in its un-rebutted evidence proved the existence of the agreement to sell and the terms and conditions. On 18.04.2012 the son of the defendant Mr. Vishal Tyagi sent a legal notice to the plaintiff being Exhibit PW1/3. In the said legal notice he claims that his father had taken a loan of `10 lakhs from the plaintiff and in lieu of the said loan, the mother of the defendant gave two cheques dated 26.03.2012 of `5 lakhs each as security. He admits in the legal notice that physical possession of the property has been handed over to the plaintiff. The notice was sent as one of the cheques for installment of `22,008/- had returned unpaid. The plaintiff sent a reply to the said legal notice through his counsel on 03.05.2012 (Exhibit PW1/4) where details of the terms of the agreement to sell are elaborated.
19. Another legal notice has also been sent by the plaintiff to the defendant on 02.05.2012 (Exhibit PW1/5). The said legal notice also elaborates the terms and conditions of the agreement to sell as narrated in the plaint. The original postal receipt and original courier receipt indicating dispatch of the said legal notice are placed on record.
20. The defendant sent a legal notice through her counsel on 30.04.2012 (Exhibit PW1/6) where she claimed that the suit property was given to the plaintiff as a licensee and she sought return of the possession of the said property. The plaintiff has again on 10.05.2012 through counsel sent a reply to the said legal notice (Exhibit PW1/7) which again elaborates the terms and conditions of the agreement to sell. Proof of dispatch of the said reply i.e. the postal receipt is also placed on record.
21. This court in the case of Anil Kumar vs. Seema Thakur and Ors. 166 (2010) DLT 619 in para 13 held as under:- “13. In Mool Chand Bakhru v. Rohan (2002) 2 SCC 612, the Supreme Court held that when an oral agreement is put forward, for purchase of property (in that case an inference was drawn from letters which adverted to such oral agreement), the terms of the agreement should be ascertained with reasonable certainty. Essential terms of the agreement to sell, such as the time-frame within which the sale deed is to be executed, and also who would pay the registration charges etc. should be discernable.”
22. The above notices sent by the counsel for the plaintiff have gone unrebutted. The defendant has been served in the present suit. She has entered appearance and filed a written statement which was returned under objections and thereafter the defendant stopped appearing. In these circumstances, I hold that the plaintiff has proved the existence of an oral agreement for sale of the suit property for a consideration of `37 lakhs and that the plaintiff has been ready and willing to perform his part of the agreement. In view of the above, a decree of specific performance is passed in favour of the plaintiff and against the defendant directing the defendant to perform her part of the obligation by executing and registering the sale deed in respect of Flat No.82-D Pocket A-2, Mayur Vihar Phase-III, Delhi in favour of the plaintiff against receipt of the balance sale consideration of `25 lakhs. A decree of permanent injunction is also passed in favour of the plaintiff and against the defendant restraining her or any other person through her from selling, alienating, transferring or creating third party interest in the suit property.
23. The plaintiff shall also be entitled to costs.