SARDARI LAL Vs. HARISH CHANDER SHARMA
HIGH COURT OF DELHI
Harish Chander Sharma
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PRADEEP NANDRAJOG,J. -
(1.) I shall be referring to the appellant as the plaintiff. I shall be referring to the respondent as the defendant.
(2.) PLAINTIFF is aggrieved by an order dated 16.3.2005 dismissing his application under Order 39 Rule 1 and 2 CPC praying that pending
adjudication of the suit filed by the plaintiff seeking relief of
specific performance of an agreement to sell dated 24.7.2002, defendant
be injuncted from transferring, alienating, parting with possession or
creating third party rights in the suit property.
The suit in question was filed on 22.12.2004.The agreement to sell relied upon records that the seller who was the owner of plot No.296-A,
Majlis Park admeasuring approximately 80 sq.yds. had agreed to sell the
same to the plaintiff for the sale consideration of Rs. 16 lacs out of
which Rs. 2 lacs in cash were being received at the time of execution of
the agreement to sell and that balance sum would be paid within 30 days
when purchaser would get executed the requisite sale documents before the
Sub Registrar, Delhi.
5. The defendant opposed the suit by filing a written statement. Inter alia, it was highlighted in the written statement that on 28.8.2002
plaintiff had caused to be served upon the defendant a lawyer's notice
calling upon the defendant to comply with the agreement to sell. The
notice was duly replied to on 21.9.2002 denying the existence of any
agreement to sell. It was further pointed out that it was unbelievable
that the defendants would execute any such agreement. Reason for said
plea was that the parties were involved in a continuous litigation since
1997. That defendant had a grievance against the plaintiff of having encroached upon adjoining public land and using the same for running an
eatery. A writ petition bearing No.2040/1997 filed in this court was
referred to as being the one evidencing past litigation. Orders passed by
this Court in the said writ petition on 16.2.2000 were relied upon which
contained a direction to the MCD to remove the encroachments from the
public land made by the plaintiff. It was additionally pointed out that
the defendant and his father had been making complaints to the police
against plaintiff on 23.1.1998, 3.5.2001, 8.5.2001, 28.5.2001 and as late
as on 27.8.2002. It was further pleaded that as recorded in the agreement
to sell the same was purportedly a result of intervention of a property
dealer M/s.Kapoor & Company who ostensibly acted as a broker. It was
pointed out that Mr.Kapoor, a property dealer was also carrying on
business of running a chit under the name and style M/s.Kapoor Sunny Pvt.
Ltd. It was stated that Mr.Kapoor had connived with the plaintiff to
fabricate a false document. Lastly it was pleaded that the total area of
plot bearing No.296-A, Majlis Park is 182 sq.yds. The same was valued at
more than Rs. 1.8 crores. It was unbelievable that 80 sq.yds. thereof
would be sold for a meagre sum of Rs. 16 lacs.
6. Considering the rival versions and declining interim injunction, the learned Trial Judge has noted 4 features. Firstly that the plot in
question admeasures 182 sq.yds. the agreement to sell records the same to
be only 80 sq.yds. Secondly, the past litigation between the parties and
police complaints right up to 27.8.2002 made it suspect that the
defendant would have entered into the agreement to sell. Thirdly, the
probability of Mr.Kapoor conniving in creation of the documents was found
to be a probable plea. Lastly, delay in institution of the suit was noted.
7. The result was that the injunction as prayed for has been denied. 8. From the pleadings of the parties and facts noted herein above view taken by the learned Trial Judge cannot be faulted with. It is settled
law that if on a given material 2 views are possible and the Trial Court
adopts 1 out of the 2 views the Appellate Court would not interdict the
order merely because another view is probable.
9. Adding on to what has weighed with the learned Trial Judge I may note that the plot in question admittedly measures 182 sq.yds. What part
thereof admeasuring 80 sq.yds. was agreed to be sold is not mentioned in
the agreement to sell. I wonder, which 80 sq.yds. of land could be put
under the Court injunction from out of 182 sq.yds. of land?
10. As noted herein above the sale deed had to be executed as recorded in the agreement to sell within 30 days thereof. In this connection delay in
filing the suit assumes importance and the importance get further
fortified when one considers that on 28.8.2002 plaintiff had caused a
legal notice to be served upon the defendant calling upon the defendant
to execute the sale deed pursuant to the agreement to sell in question.
On 21.9.2002 the defendant categorically denied having executed any
agreement to sell. In spite thereof, the plaintiff waited till 22.12.2004
to file the suit. Certainly, delay defeats equity.
11. I find no merits in the appeal. The same is dismissed. 12. LCR be returned. 13. No costs. Appeal Dismissed.;
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