O.P.Dawar v. Sunil Kumar &Anr

PRADEEP NANDRAJOG, J.

J.R. MIDHA, J. December 17, 2008 rk

* IN THE HIGH COURT OF DELHI Judgment reserved on : 3rd December 2008 % Judgment delivered on : December 17, 2008 + RFA No. 329/2006 O.P.DAWAR ..... Appellant Through: Mr. T.A. Mir,Advocate, versus SUNIL KUMAR & ANR. ..... Respondents Through: Mr. D. K. Rastogi, Advocate for respndent No.1. Ms. Pinki Anand, Sr. Advocate With Ms. Aakanksha Munjhal,Advocate for respondent No. 2. RFA 660/2006 SUNIL KUMAR @ SUNNY .....Appellant Through: Mr. D. K. Rastogi, Advocate Versus O.P. DAWAR & ANR. ..…Respondents Through: Mr. T. A. Mir, Advocate for Respondent No. 1. Ms. Pinki Anand, Sr. Advocate With Ms. Aakanksha Munjhal,Advocate for respondent No. 2. 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. Sunil Kumar @ Sunny filed a suit for declaration and specific performance of an agreement to sell dated 14.1.1998, Ex-PW1/7 alleging that flat No. 1225A, Sector B-1, Vasant Kunj, Delhi was allotted by DDA to one Smt. Pushp Rajani Chhabra vide allotment letter dated 17.3.1989 and that on 15.9.1997, O.P.Dawar, purchased the said flat from Smt. Pushp Rajani Chhabra for a consideration of Rs.6,00,000/- ( Rupees Six Lakhs only) and that in October, 1997, O.P.Dawar agreed to sell the flat to him and pending formalization of the transaction delivered possession of the flat to him. It was further pleaded that he i.e. Sunil Kumar spent approximately Rs.3,00,000/- (Rupees Three Lakhs only) on renovating the flat and that in January, 1998 the agreement to Sell was executed. It was alleged that with mala fide intent, O.P.Dawar mortgaged the flat with Central Bank of India after obtaining a loan from the bank. Alleging that the agreed sale consideration was Rs.10,00,000/-(Rupees Ten Lakhs only) out of which, as recorded in Ex-PW1/7, Rs.8,00,000/-(Rupees Eight Lakhs only) had been paid to O.P.Dawar and that he was always ready and willing to pay the balance sale consideration; prayer made was to compel O.P.Dawar to execute the sale deed in his favour after receiving balance sale consideration of Rs.2,00,000/- (Rupees Two Lakhs only). Declaration sought was to declare that the bank did not have any lien on the flat. 2. O.P.Dawar denied having executed Ex-PW1/7. He stated that he had purchased the flat for resale to earn profit; and since it was lying vacant he permitted Sunil Kumar to occupy the flat with a clear understanding that possession would be restored on demand. He pleaded that on 28.10.2002, vide Ex-DW1/2, he served a legal notice asking Sunil Kumar to return possession. He denied having received Rs.8,00,000 (Rupees Eight Lakhs only) from Sunil Kumar. He admitted the mortgage in favour of the bank and justified the same as his right being the owner of the flat. 3. The bank filed a written statement affirming the mortgage and denying any interest of Sunil Kumar in the flat as claimed by Sunil Kumar. 4. Needless to state on the pleadings of the parties, the two material issues which arose for consideration were, whether there existed any agreement between Sunil Kumar and O.P.Dawar as alleged by Sunil Kumar and what was the effect of the mortgage of the flat by O.P.Dawar in favour of the bank by deposit of the title deeds. 5. Ex-PW1/7, the stated agreement to sell dated 14.1.1998, is scribed in hand. It is on a plain paper. It reads as under:- "RECEIPT. Received a sum of Rs.8,00,000 (Eight Lakhs only) from Sh. Sunil Kumar @ Sunny S/O Sh. Prem Singh R/o 63/9, Kishan Garh, Vasant Kunj, New Delhi for selling the flat No:-B-1/1225A, Vasant Kunj, New Delhi, out of total consideration of Rs:- 10,00,000(Rupees Ten Lakhs only). The balance payment of Rs.2,00,000(Rupees Two Lakhs only) shall be made on the date fixed for transfer deed the date fixed for transfer deed preferably within 30 days of the receipt of information of execution of perpetual