VIJAYA MYNE Vs. SATYA BHUSHAN KAURA
HIGH COURT OF DELHI
Satya Bhushan Kaura
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(1.) THE respondent herein filed the suit for specific performance of agreement to sell dated 6.4.2005. It was in respect of suit property
measuring 325 sq. yards bearing No. C-2/270, Janak Puri Residential
Scheme, New Delhi. After the pleadings, the respondent moved application
under Order 8 Rules 3 and 5 read with Order, 12 Rule 6, CPC praying for
passing of a decree in his favour on the ground that there were
sufficient admissions made by the defendant (the appellant herein)
warranting the passing of the judgment on the basis of such admissions
and decreeing the suit. The learned Single Judge has allowed this
application, vide judgment dated 22.12.2006 and as a necessary corollary,
has passed the decree in favour of the respondent herein. Dissatisfied,
the appellant has preferred this appeal.
(2.) BEFORE coming to the grounds on which the said judgment and decree is impugned, we may take stock of the necessary pleadings. The appellant is
the owner of the suit property by virtue of perpetual lease hold rights
given to her vide conveyance dated 14.11.1979. She entered into agreement
to sell dated 13.4.2004 with the respondent agreeing to sell the property
for a total consideration of Rs. 99 lacs. Rs. 8 lacs was paid as earnest
money and another sum of Rs. 2 lacs was also paid on the same day vide
separate receipt (Ex. P2). This amount of Rs. 2 lacs was to be utilized
towards payment of dues of electricity, house tax and getting the
property converted from leasehold to freehold. The balance payment was to
be made by the respondent within one month of getting the property
converted as freehold failing which the earnest money was to be
forfeited. Deal was struck through M/s. Raja Property Dealer, New Delhi.
According to the respondent, when he tried to contact the appellant after
some time in order to find out the status of conversion of property from
leasehold to freehold, the appellant started ignoring the queries of the
respondent. The respondent even made inquiries from the property dealer.
Finally, the respondent met the appellant with property dealer some time
in December 2004 and found that the appellant was prevaricating on
account of escalation of the prices of the properties and wanted sale
consideration to be increased. The respondent even agreed to that.
Revised agreement to sell dated 6.4.2005 was entered into between the
parties enhancing the consideration to Rs. 1.27 crores. With the
execution of this agreement, earlier agreement dated 13.4.2004 was
revoked. Further sum of Rs. 7 lacs, in addition to Rs. 8 lacs given
earlier as earnest money, was handed over which was acknowledged in the
agreement itself thereby making a total payment of Rs. 15 lacs. Balance
payment of Rs. 1.12 crores was to be given within one month after the
conversion of the property from leasehold into freehold.
It was further the case of the respondent that he again pursued the matter with the appellant with request to expedite the matter in getting
the property freehold and found reluctance on the part of the appellant
in going ahead with the deal and, therefore, filed the suit for specific
performance on the basis of aforesaid averments. Before filing the suit
the respondent even caused a public notice published in the Hindustan
Times and Times of India on 19.3.2006. Thereafter, he received legal
notice dated 22.3.2006 from the appellant in which the appellant had
stated that she was no longer interested in selling the property to the
respondent for 'personal reasons'. The respondent replied, vide dated
5.4.2006, to the said notice requesting her to give information regarding conversion of the property and also stated that he was still ready and
willing to purchase the property. The appellant, however, vide her
Counsel's letter dated 10.4.2006, again showed her disinclination,
forcing the respondent to file the suit seeking help of the Court in
getting the agreement enforced.
(3.) THE appellant filed the written statement. First agreement to sell dated 13.4.2004 and subsequent agreement to sell dated 6.4.2005 were not
denied. Receipt dated 13.4.2004 for Rs. 2 lacs was also admitted. It was
also admitted that a sum of Rs. 8 lacs while executing the agreement
dated 13.4.2004 and further sum of Rs. 7 lacs when agreement 6.4.2005 was
entered into were received by the appellant. It was, however, alleged
that the said property dealer was of the respondent who failed to get the
property converted from leasehold to freehold and it was the obligation
of the respondent to do so as he was a builder by profession. Therefore,
it is respondent who was failing to get the property converted into
freehold and to get the sale transaction despite the request of the
appellant. The appellant, thereafter, got disinterested in selling the
property because she wanted to shift there along with her family members.
She offered to return the money received from the respondent along with
interest at the agreed rate of interest.;
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