Yogesh Tyagi v. Kela Devi

PRADEEP NANDRAJOG, J.

J.R. MIDHA, J. November 26, 2008 rk

* IN THE HIGH COURT OF DELHI Judgment reserved on : November 20, 2008 % Judgment delivered on : November 26, 2008 + RFA 192/2007 YOGESH TYAGI ..... Appellant Through: Mr.Anil Kumar Gupta, Advocate VERSUS KELA DEVI ..... Respondent Through: Mr.R.C. Nangia, Advocate CORAM: Hon'ble Mr.Justice Pradeep Nandrajog Hon'ble Mr.Justice J.R. Midha 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether judgment should be reported in Digest? : PRADEEP NANDRAJOG, J. 1. Appellant who was the plaintiff, had filed a suit for specific performance of an agreement to sell, Ex.PW-1/1, stated to have been executed by the defendant i.e. the respondent in the appeal on 19.10.2004, agreeing to sell to him the property referred to in the agreement, for a total sale consideration of Rs.16,50,000/- (Rupees Sixteen Lakhs Fifty Thousand only), out of which Rs.3,00,000/- (Rupees Three Lakhs only), was stated to have been paid, as recorded in the agreement, as part sale consideration when Ex.PW-1/1 was executed. It was pleaded that the agreement recorded that the respondent would execute the sale deed by 15.2.2005 and that the appellant made an attempt twice to tender the balance sale consideration of Rs.13,50,000/- on 24.2.2005 and 10.3.2005; receiving no response from the respondent when she did not even respond to a legal notice dated 24.3.2005, Ex.PW-1/3, the appellant had no option but to file the suit. 2. First prayer made in the suit was to specifically enforce the contract between the parties. Alternate prayer was that if specific performance was not granted, as per Clause 1 of the agreement, which stipulated that if respondent did not comply with her obligations she would pay double the amount of part sale consideration received, a decree in sum of Rs.6,00,000/- (Rupees Six Lakhs only) be granted in his favour. 3. Defence taken in the written statement was of a complete denial. The respondent denied having executed any agreement to sell, much less Ex.PW-1/1. It was pleaded that the appellant was a tenant under the respondent in respect of one room in the subject property and had earned the confidence of the respondent who required a separate electricity connection, for which, the appellant obtained signatures of the respondent on blank papers. It was pleaded that Ex.PW-1/1 was created by using the blank stamp paper on which the respondent had affixed her signatures. 4. On the pleadings of the parties following issues were settled on 19.1.2006:- "1.Whether there is no cause of action for filing the present suit as claimed for by the defendant in Preliminary Objection No.5 of her written statement? OPD. 2. Whether plaintiff is tenant under the defendant as claimed for by her in Preliminary Objection No.2 of her written statement? OPD. 3. Whether Plaintiff is entitled to relief of specific performance as claimed for by her or in alternative plaintiff is entitled to recover a sum of Rs.6.00 lakhs from the defendant as claimed for by him? OPP. 4. Whether Plaintiff is entitled to relief of permanent injunction as sought for by him? OPP. 5. Relief." 5. At the trial, the appellant examined himself as PW- 1 and Ram Kumar and Mohd. Iqbal as PW-2 and PW-3 respectively. 6. Appellant deposed that he had purchased the stamp paper on which PW-1/1 was drawn from the courts at Seelampur and withdrew Rs.90,000/- from his account maintained with Vijaya Bank, Loni Road, Shahdara and borrowed the balance sum from his father when he paid Rs.3,00,000/- to the respondent and that when he paid the money to the respondent, Mukesh Sharma, Dhiraj Sharma, Mohd. Iqbal, Ram Kumar and Chhotey Lal were also present. He stated that time was extended for completion of the transactions firstly on 4.2.2005 and secondly on 24.2.2005. He stated that he got issued the legal notice, Ex.PW-1/3, dated 24.3.2005, since on 10.3.2005 the respondent did not appear before the Sub-Registrar for execution of the sale documents.