Sunil Kapoor v. Himmat Singh & Ors

RAJIV SAHAI ENDLAW, J OCTOBER 10, 2018 "gsr"..

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 10th October, 2018 + RFA 293/2017 SUNIL KAPOOR ..... Appellant Through: Mr. Akshay Makhija with Mr. Aditya Goyal, Ms. Mahima Bahl & Ms. Seerat Deep Singh, Advs. Versus HIMMAT SINGH & ORS ..... Respondents Through: Mr. Sanjiv Kakra, Mr. Irfan Khan & Ms. Savi Abbot, Advs. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. This First Appeal under Section 96 of the Code of Civil Procedure Code, 1908 (CPC) impugns the judgment and decree [dated 24th December, 2016 in Suit No.193/16/04 (Unique Case ID No.02406C0024022016) of the Court of Additional District Judge-04, South-East] of dismissal of the suit filed by the appellant / plaintiff for specific performance of an Agreement of Sale of property described as first floor of house No.N-246, Greater Kailash, Part-I, New Delhi. 2. This appeal came up first before this Court on 15th March, 2017 when the counsel for the respondents / defendants appeared on caveat. The appeal, on 14th December, 2017 was admitted for hearing. Mediation, to which the parties were referred, remained unsuccessful. On 2nd August, 2018, finding that the appellant / plaintiff, in possession of the property agreed to be sold, admittedly inducted as a tenant therein, was wanting to keep this appeal pending to perpetuate his possession of the premises, last opportunity was given to the appellant / plaintiff to argue the appeal on 29th August, 2018. However, on 29th August, 2018 also the appellant / plaintiff was not willing to argue the appeal and wanting to keep the appeal pending. Resultantly, the interim arrangement recorded in the order dated 14th May, 2018 was vacated and the appeal ordered to be listed in the category of "Regulars" and respondents / defendants permitted to recover possession in pursuance to a decree for ejectment in a separate proceeding in their favour. However, upon the counsel for the appellant / plaintiff on the same day subsequently mentioning the matter and assuring that he will argue the appeal on the next date, the appeal was posted for hearing today. 3. The respondents / defendants have not recovered possession as yet. 4. The counsel for the appellant / plaintiff, without prejudice to his rights and contentions, at the outset states that the appellant / plaintiff would not press this appeal if the respondents / defendants grant two years time to the appellant / plaintiff to vacate the premises and if the respondents / defendants refund to the appellant / plaintiff the sum of Rs.10,00,000/- received under the Agreement to Sell for a total sale consideration of Rs.80,00,000/-. 5. The aforesaid proposal is not agreeable to the counsel for the respondents / defendants who also denies that a sum of Rs.10,00,000/- has been received. 6. The counsel for the appellant / plaintiff states that the finding in this regard has been returned by the Suit Court in favour of the appellant / plaintiff and the respondents / defendants have not challenged the said finding by preferring an appeal or by preferring cross-objections. 7. The counsel for the respondents / defendants contends that though the finding is in favour of the appellant / plaintiff but the respondents / defendants dispute receipt of Rs.8,00,000/- and admit receipt of Rs.2,00,000/- only. It is further contended that the respondents / defendants are entitled in this appeal to, without filing cross-objections, demonstrate to this Court that the finding with respect to remaining Rs.8,00,000/- in favour of the appellant / plaintiff is contrary to law. 8. Be that as it may, the counsels have been heard on merits. 9. The undisputed position is, that the appellant / plaintiff was a tenant under the respondents / defendants on the entire first floor of property no.N- 246, admeasuring 800 sq.yds., Greater Kailash, Part-I, New Delhi, since the year 1990 and the lease deed in favour of appellant/plaintiff was last renewed on 13th November, 2002, till 31st October, 2005, at a rent of Rs.4