Full Text
HIGH COURT OF DELHI
Date of Decision: 12th March, 2013
SMT. SWATI VERMA ..... Plaintiff
Through: Mr. Kishore M. Gajaria & Mr. Piyush Sachdeva, Advs.
Through: None.
JUDGMENT
1. This suit was originally filed by one Sh. Sanjay Panda against the now sole defendant Shri Jagdish Baweja and the now sole plaintiff Smt. Swati Verma, for specific performance of an Agreement dated 9th July, 2004 by the said Shri Jagdish Baweja for sale of property no.E-78, DDA Flat, Ground Floor, Malviya Nagar Extension, Saket, New Delhi to the said Shri Sanjay Panda for a total sale consideration of Rs.32,50,000/-. The now sole plaintiff Smt. Swati Verma was impleaded as defendant no.2 in the suit averring that Sh. Jagdish Baweja had subsequently vide Agreement to Sell dated 20th April, 2005 agreed to sell the same flat to the said Smt. Swati Verma. Accordingly, relief of declaring the Agreement to Sell dated 20th April, 2005 in favour of Smt. Swati Verma as void, was also claimed. 2013:DHC:1353
2. Summons of the suit were issued to both Sh. Jagdish Baweja and Smt. Swati Verma and vide ex parte order dated 9th May, 2005 they were also restrained from selling, transferring, parting with possession, creating third party rights or from effecting any change in the said flat. Vide subsequent order dated 23rd May, 2005 on the application of Smt. Swati Verma, she was permitted to carry out repair works of plumbing, sewage, electrification etc. in the said flat.
3. The defendant Sh. Jagdish Baweja appeared through Advocate on 2nd September, 2005 and 23rd November, 2005 but neither filed any written statement nor appeared thereafter.
4. Smt. Swati Verma filed a written statement inter alia stating that the said Sh. Jagdish Baweja, vide registered Agreement to Sell, General Power of Attorney, Will, Receipt, Possession Letter all dated 20th April, 2005, had agreed to sell the flat to her for a total sale consideration of Rs.15 lacs of which 10 lacs had been paid by her and the balance Rs.[5] lacs was to be paid at the time of Sale Deed after conversion of the leasehold in the flat into freehold, and denying the claim of Sh. Sanjay Panda for specific performance of the Agreement to Sell dated 9th July, 2004 in his favour. Collusion was also alleged between Sh. Sanjay Panda and Sh. Jagdish Baweja.
5. IA No.2720/2006 was filed by the said Sh. Sanjay Panda and Smt. Swati Verma under Order 23 Rule 3 of the CPC. As per the compromise recorded in the said application, the said Smt. Swati Verma who was then defendant no.2 agreed to pay to Sh. Sanjay Panda a sum of Rs.[8] lacs in full & final settlement of all his claims under the Agreement to Sell dated 9th July, 2004 in his favour and Sh. Sanjay Panda agreed to assign all his rights under the said Agreement in favour of the said Smt. Swati Verma. It was also a term of the said settlement that the said Smt. Swati Verma will continue this suit against Sh. Jagdish Baweja.
6. It may be mentioned that the said Smt. Swati Verma had also, after the institution of the present suit, filed CS(OS) 638/2005 in this Court against Sh. Sanjay Panda and Sh. Jagdish Baweja for injunction, declaration etc. relating to the same flat. In the Compromise Application aforesaid it was also recorded that Smt. Swati Verma shall withdraw the said CS(OS) 638/2005 and transpose herself as plaintiff in the present suit.
7. The said Compromise Application came up before this Court on 7th March, 2006 when none appeared for Sh. Jagdish Baweja. This Court in the order of that date, finding the compromise to be lawful, and after recording the statements of the parties, allowed the compromise. Accordingly Smt. Swati Verma was transposed as the plaintiff.
8. The suit was listed before this Court on 9th March, 2007 when finding that the defendant Sh. Jagdish Baweja was not appearing, notice was ordered to be issued to him as well as to the Advocate who had earlier appeared for him. Notice could not however be issued to the Advocate who had earlier appeared for Sh. Jagdish Baweja since no Vakalatnama in his favour was on record. Sh. Jagdish Baweja failed to appear inspite of service of notice and was vide order dated 27th July, 2007 proceeded against ex parte and the plaintiff Smt. Swati Verma was directed to file affidavits by way of her ex parte evidence.
9. It may be recorded that CS(OS) 638/2005 supra filed by Smt. Swati Verma was withdrawn by her on 7th March, 2008 with liberty to pursue the present suit and which liberty was granted. Though the copy of the said order was not on record but the counsel for the plaintiff Smt. Swati Verma has today handed over the same in Court and which is taken on record.
10. The plaintiff Smt. Swati Verma filed her affidavit by way of evidence and additional affidavit by way of evidence and closed her ex parte evidence. The counsel for the plaintiff has been heard.
11. The plaintiff Smt. Swati Verma has in her ex parte evidence proved the registered Agreement to Sell for a sale consideration of Rs.15 lacs executed by the defendant Sh. Jagdish Baweja in her favour as Exhibit PW- 1/2, the registered General Power of Attorney with respect to the said flat executed by the defendant Sh. Jagdish Baweja in her favour as Exhibit PW- 1/3, the registered Will with respect to the said flat executed by the defendant Sh. Jagdish Baweja in her favour as Exhibit PW-1/4 and the receipt executed by the defendant Sh. Jagdish Baweja of Rs.10 lacs from the plaintiff Smt. Swati Verma as Exhibit PW-1/5 and the possession letter confirming delivery of possession by the defendant Sh. Jagdish Baweja of the said flat to the plaintiff Smt. Swati Verma as Exhibit PW-1/6. She has further proved that she, since 20th April, 2005, and in pursuance to the Registered Agreement to Sell, is in possession of the said flat; that the defendant Sh. Jagdish Baweja is missing.
12. Though there is no document to show the title of the defendant Sh. Jagdish Baweja to the said flat but the registered Agreement to Sell in favour of the plaintiff Smt. Swati Verma records that the said flat was allotted to the defendant Sh. Jagdish Baweja by the Delhi Development Authority vide DDA file dated 25th March, 1981. Even otherwise it can safely be presumed that the Sub Registrar of Assurances before registering the Agreement would have satisfied itself of the title of the defendant Sh. Jagdish Baweja to the said flat.
13. The defendant Sh. Jagdish Baweja having chosen not to contest the suit, there is no reason to not accept the ex parte evidence of the plaintiff Smt. Swati Verma also to the effect that she has been ready and willing to perform her part of the Agreement and it is the defendant Sh. Jagdish Baweja who has failed to get the flat converted into freehold.
14. I am therefore satisfied, of the Agreement by the defendant Sh. Jagdish Baweja to sell the flat aforesaid to the plaintiff Smt. Swati Verma and of the plaintiff Smt. Swati Verma having always been ready and willing to perform her part of the Agreement and the discretion implicit in the grant of the relief of specific performance being required to be exercised in favour of the plaintiff Smt. Swati Verma.
15. The plaintiff Smt. Swati Verma is thus entitled to a decree for specific performance of the Agreement to Sell dated 20th April, 2005.
16. As per the said Agreement, the plaintiff Smt. Swati Verma was entitled to get the said flat transferred, mutated in her name and the unearned increase or conversion charges were agreed to be borne by the defendant Sh. Jagdish Verma.
17. The defendant Sh. Jagdish Verma having failed to get the same, the plaintiff Smt. Swati Verma is entitled to pay unearned increase or conversion charges if any payable to the DDA with respect to the said flat and to deduct the amount thereof from the balance sale consideration of Rs.[5] lacs payable to the said Sh. Jagdish Baweja and either pay balance if any remaining to Sh. Jagdish Baweja or if he is not available, to deposit the same in this Court.
18. A decree is accordingly passed in favour of the plaintiff Smt. Swati Verma and against the defendant Sh. Jagdish Baweja of specific performance of the Agreement to Sell dated 20th April, 2005 by directing the defendant Sh. Jagdish Baweja to have the leasehold rights in flat no. E-78, DDA Flat, Ground Floor, Malviya Nagar Extension, Saket, New Delhi converted into freehold and to thereafter execute the Sale Deed of the said flat in favour of the plaintiff Smt. Swati Verma. The plaintiff Smt. Swati Verma shall also be entitled to costs of this suit as per schedule, from the defendant Sh. Jagdish Baweja. Decree sheet be drawn up.
RAJIV SAHAI ENDLAW, J MARCH 12, 2013 pp