Raj Rattan Samdaria v. Balwant Singh and Ors

RAJIV SAHAI ENDLAW, J.

MARCH 31, 2014 pp..

*IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 31st March, 2014 + CS(OS) No.1738/2005 RAJ RATTAN SAMDARIA ….. Plaintiff Through: Mr. Mir Akhtar Hussain, Adv. Versus BALWANT SINGH AND ANR ….. Defendants Through: None. CORAM :- HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. The plaintiff seeks, (i) specific performance of an Agreement dated 7th April, 2004 by the defendant no.1 for sale / transfer of property bearing No.157, Gali No.4, Bhagat Singh Market near Gole Market, New Delhi; and, (ii) a direction to the defendants to pay appropriate compensation for illegally and unauthorizedly delaying the transfer, pleading:- (i) that the defendant no.1 is the owner of Shop No.157 measuring 385 sq. fts. situated at Bhagat Singh Market, New Delhi; (ii) that in or around the month of January, 2004, the defendants no.1&2 negotiated for sale of the said shop to the plaintiff and ultimately it was decided that the plaintiff will purchase the said shop for an amount of Rs.35 lacs; (iii) that an Agreement to Sell dated 7th April, 2004 was executed by the defendant no.1 as the seller and by the plaintiff as the purchaser and the said Agreement was also witnessed by the defendant no.2 Shri Tajinder Singh who is the son of the defendant no.1; (iv) that the plaintiff at the time of Agreement to Sell, paid Rs.2 lacs in cash and Rs.1,50,000/- vide cheque i.e. total Rs.3,50,000/- and payment whereof is acknowledged in the Agreement to Sell; (v) that since as per the Agreement to Sell the expenses on conversion of the leasehold rights into freehold were to be borne by the plaintiff, the plaintiff also delivered to the defendants cheque dated 30th April, 2004 for Rs.89,550/- in favour of the Land and Development Office and on the request of the defendants paid a further sum of Rs.15,000/- towards expenses for execution of a Conveyance Deed of freehold rights in the property; (vi) that the plaintiff on the request of the defendant no.2, on 22nd December, 2004, paid a further sum of Rs.1 lacs in cash towards sale consideration; (vii) that though the leasehold rights in the shop were converted into freehold on 9th December, 2004 and further though the defendants were to execute Sale deed in favour of the plaintiff within 15 days thereof, but did not do so inspite of repeated requests and reminders, leading the plaintiff to ultimately issue a legal notice dated 4th January, 2005; (viii) that the defendants, in reply dated 14th January, 2005 to the legal notice denied the receipt of Rs.1 lacs and showed willingness to execute the Sale Deed upon the plaintiff paying the balance sale consideration of Rs.31,50,000/- and Rs.15,000/- towards expenses for execution of conveyance deed of freehold rights and further stated that upon the plaintiff not paying the said balance sale consideration within 15 days, the Agreement to Sell shall stand cancelled and the sum of Rs.3,50,000/- and Rs.89,550/- paid by the plaintiff will stand forfeited; (ix) that the plaintiff got sent a rejoinder notice dated 22nd January, 2005 to the defendants enclosing the draft Sale Deed and contending that the balance sum of Rs.30,50,000/- only was payable; and, (x) that the defendants however stuck to their demand for the balance sale consideration of Rs.31,50,000/-. accordingly, on 17th December, 2005 this suit was filed for the reliefs aforesaid. 2. Summons of the aforesaid were issued and vide ex parte ad interim order dated 19th December, 2005, the defendants restrained from transferring, selling, alienating, parting with possession of or creating third party interest in the shop aforesaid. 3. The plaintiff was lax in effecting service of the summons, requiring repeated orders dated 3rd April, 2006, 26th July, 2006, 25th September, 2006, 16th November, 2006, 25th January, 2007 & 21st March, 2007 for the plaintiff to take steps for service of the defendants. The order dated 31st May, 2007 records that the defendant no.1 had expressed inability to accept summons; he was deemed