- (1.) The two plaintiffs seek a decree for specific performance against the defendants No.2,3&4, by directing the defendant No.2 to execute the Sale Deed of 1/3 rd share in respect of property bearing No.C-23, Hauz Khas, New Delhi and by directing the defendants No.3&4 to execute the Sale Deeds of 1/6 th share each, in favour of the plaintiffs.
(2.) The case set out in the plaint is:- (i). that Shri Shiv Prasad Bhatnagar father of the defendants No.1&2 and grandfather of defendants No.3&4 was the owner of property No.C-23, Hauz Khas, New Delhi; (ii). that Shri Shiv Prasad Bhatnagar died on 14 th May, 1985 leaving a registered Will dated 19 th January, 1978 whereunder the said property was bequeathed in favour of the his three sons namely defendants No.1&2 and Shri Prem Nath Bhatnagar and the said property was also mutated in the records of the MCD vide letter dated 1 st November,1990 in the names of the defendants No.1&2 and their brother Shri Prem Nath Bhatnagar; (iii). that the defendants No.1&2 and their brother Shri Prem Nath Bhatnagar entered into an Agreement of Construction dated 14 th January, 1992 with M/s D.S. Associates for re-development of the said property and the re-developed property was then divided amongst the defendants No.1&2 and their brother Shri Prem Nath Bhatnagar as per the Family Settlement/Agreement dated 17 th March, 1998; (iv). that under the aforesaid Family Settlement/Agreement dated 17 th March, 1998 the defendants No.1&2 and their brother Shri Prem Nath Bhatnagar became co-owners to the extent of 1/3 rd share each in respect of the complete dwelling unit at the rear side of the second floor and the roof of the total second floor of the said property together with proportionate undivided share in the land underneath the said property; (v). that Shri Prem Nath Bhatnagar died on 18 th November, 2004 leaving defendants No.3&4 as his son and daughter as his only legal heirs; (vi). that vide Memorandum of Family Settlement dated 5 th March, 2005 between the defendants No.3&4, they became owners of 1/6 th share each in the 1/3 rd share of their father Shri Prem Nath Bhatnagar in the aforesaid second floor flat; (vii). that the plaintiff No.1 in November, 2006 approached the defendant No.1for purchase of the aforesaid second floor flat and the defendant No.1 on 2 nd December, 2006 informed the plaintiff No.1 that he had obtained the consent of the defendants No.2 to 4 by communicating with them on telephone to sell off the said second floor flat with terrace thereon for a total consideration amount of Rs.48 lacs and that they had also authorized the defendant No.1 to negotiate and finalize the deal; (viii). that the plaintiff No.1 and the defendant No.1 entered into an Agreement to Sell dated 9 th December, 2006; the defendant No.1 signed the Agreement on his behalf as well as on behalf of defendants No.2 to 4; (ix). the plaintiff No.1 in the second week of January, 2007 requested the defendant No.1 to obtain the formal consent of the defendants No.2 to 4 in writing; the son of the defendant No.1 Mr. Rahul Bhatnagar affirmed that he had already sent one email dated 12 th December, 2006 to defendants No.3&4; he further affirmed that an email dated 10 th January, 2007 for obtaining the consent of defendants No.3&4 was again sent; that through two emails dated 17 th January, 2007 sent by defendant No.3 to defendant No.1 and Mr. Rahul Bhatnagar, consent was given for sale of the property in suit; copy of the email dated 1 st February, 2007 confirming the consent given by defendants No.3&4 was delivered by the defendants No.1 to the plaintiffs; (x). the defendant No.1 also confirmed that he had obtained the consent of defendant No.2 on telephone by making three phone calls in November 2006, for sale of the share of the defendant No.2 for Rs.16 lacs; copy of the bill of three telephone calls made was also given by the defendant No.1 to the plaintiff; (xi). that Clause No.6 of the Agreement to Sell dated 9 th December, 2006 allowed the plaintiff No.1 to get the Sale Deed executed in favour of a nominee and exercising which right specific performance is claimed in favour of both the plaintiffs; (xii). that the defendants through defendant No.1 received a sum of Rs.5 lacs as earnest money and the balance of Rs.43 lacs was to be paid by the plaintiff No.1 when the vacant physical possession was to be delivered by the defendants to the plaintiff No.1; (xiii). that the defendant No.1 being authorized by the defendants No.2 to 4, accepted the balance sale consideration of Rs.43 lacs and executed a Sale Deed dated 3 rd September, 2008 of his 1/3 rd share in the said second floor flat; the defendant No.1 accepted Rs.16 lacs on account of his share, Rs.16 lacs on account of share of defendant No.2 and Rs.8 lacs each on account of share of the defendants No.3&4; (xiv). that the defendant No.1 handed over vacant physical possession of the second floor flat to the plaintiffs; (xv). however the cheques given by the plaintiffs to the defendant No.1 in the names of defendants No.2 to 4 were not presented for encashment and the defendants No.2 to 4 also did not come forward to execute the Sale Deed; (xvi). that upon the plaintiffs approaching the defendant No.1, he informed that he had couriered the cheques in the name of defendants No.2 to 4 to the defendants No.2 to 4 and also vide letter requested the defendants No.2 to 4 to come to Delhi and execute the Sale Deeds of their respective shares in favour of the plaintiffs; however the defendants No.2 to 4 had not complied;
(3.) Though the relief claimed in the suit is against the defendants No.2 to 4 only and who as per the plaint also were/are not residing at C-23, Hauz Khas, New Delhi but the plaintiffs, in the plaint and the memo of parties, qua the defendants No.2 to 4, made an endorsement "Service to be effected through Defendant No.1 C-23, Hauz Khas, New Delhi 16".;