Rahul Gupta & Anr v. Ashok Biswal & Anr

KAILASH GAMBHIR, J

JANUARY 07, 2013

Page | 1 *IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment delivered on: 07.01.2013 + CS(OS) 312/2012 RAHUL GUPTA & ANR ..... Plaintiff Through: Mr.Ujjawal Jha, Advocate versus ASHOK BISWAL AND ANOTHER ..... Defendant Through: Mr. Pradeep Diwan, Sr. Advocate with Mr. Aditya Singh and Mr. Aman Garg, Advocate For defendant no.1. Mr. Rajiv Aneja, Advocate for defendant no.2. CORAM: HON'BLE MR. JUSTICE KAILASH GAMBHIR 1. By this order, I propose to decide the preliminary issue no.1. By an order dated 13.08.2012, the following issues were framed:- 1) Whether the suit is barred limitation? 2) Whether the plaintiff is entitled to seek relief of specific performance of the agreement to sell dated 02.08.2006 ? 3) Whether the plaintiff is entitled to relief of mandatory injunction as prayed for? 4. whether the plaintiff is entitled to permanent injunction? 5. Whether the agreement to sell dated 2nd August, 2006 stood terminated and the amount forfeited by defendant No.1 on account of default in payment of the balance sale consideration amount by the plaintiff? 6. Whether the plaintiff has not properly valued the present suit for the purposes of the Court fees therein? 7. Relief. Page | 2 Considering the fact that the issue no.1 concerns the very maintainability of the present suit, therefore, the same was directed to be treated as a preliminary issue. 3. Addressing arguments on the said preliminary issue, Mr. Ujjawal Jha, learned counsel appearing for the plaintiffs submitted that present suit filed by the plaintiffs is within the prescribed period of limitation as envisaged under Article 54 of the Limitation Act, 1963. Counsel further submitted that the plaintiffs in the present suit are seeking specific performance of an Agreement to sell dated 2.8.2006 which was executed by the defendant no. 1, in order to sell the property bearing no. E- 929, Chittranjan Park, New Delhi- 110019 in favour of the plaintiffs for a total sale consideration amount of Rs. 85 lacs. Counsel further submitted that the plaintiffs have already paid an amount of Rs. 30 lacs to the defendant no. 1 and the balance consideration amount was to be paid by the plaintiffs in terms of the Schedule of payment as set- out in the said Agreement to Sell. Counsel further submitted that an amount of Rs. 20 lacs was paid by the plaintiffs by way of three separate cheques of the same date i.e, 2.8.2006, while an amount of Rs. 10 lacs was paid in cash by the plaintiff no.1 on 14.8.2006, in good faith, without any receipt. 4. Counsel also submitted that the time period for completion of Page | 3 the contract was 9 months, as per the agreement, from the date of execution of the Agreement to Sell, but since defendant no. 1 himself derived his strength by virtue of Agreement to Sell dated 27.12.2005, therefore, defendant no.1 was not in a position to transfer the title of the property in favour of the plaintiffs before the execution of the sale deed of the suit property by the erstwhile owners in his favour. Counsel also submitted that the plaintiffs had approached the defendant no.1 on various occasions and every time; the defendant no.1 gave an assurance that he will execute the sale deed in favour of the plaintiffs immediately after the sale deed is executed in their favour by the erstwhile owners. 5. Counsel further submitted that it is only in the 2nd week of November, 2011, that the plaintiff no.1 came to know that the sale deed in respect of the aforesaid property has been executed by the erstwhile owners in favour of the defendant no. 2 and immediately thereafter, the plaintiffs approached the defendant no.1, requesting them to transfer the title of the suit property in their favour and when no action was taken by the defendant no.1, the plaintiffs approached this court by way of filing the present suit. Counsel further stated that the defendant no.1 has perfected his title over the said property through his nominee, who is the wife of defendant no.2, therefore, the suit fi