Sucha Singh Sodhi Decd Thr Lrs v. Baldev Raj Walia & Anr

RAJIV SAHAI ENDLAW, J. FEBRUARY18, 2014. 'bs'

* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 18th February, 2014. + RFA 353/2012 SUCHA SINGH SODHI (DECEASED) THROURH LRS ...........Appellant Through: Mr. Bheem Sain Jain, Adv. Versus BALDEV RAJ WALIA & ANR ..... Respondents Through: Mr. S.K. Bhaduri & Ms. Kiran Dharam, Advs. for R-1. Mr. B.B. Gupta & Mr. Udyan Srivastava, Advs. for R-2. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. The appeal impugns the judgment and decree dated 8th May, 2012 of dismissal of CS No.135/2008, instituted on 25th February, 1999, by Sh. Sucha Singh Sodhi, predecessor-in-interest of the four appellants, for specific performance of an Agreement of Sale of immovable property, consequent to rejection (under Order VII Rule 11 of Civil Procedure Code (CPC), 1908 and on a preliminary issue framed in that regard) of the plaint as barred by Order II Rule 2 of the CPC. 2. The appeal was accompanied with an application for condonation of 68 days delay in re-filing the same. Notice only of the said application was issued to the two respondents. The respondent No.1 was proceeded against ex-parte in the appeal. However, on 26th November, 2013 the counsels for each of the two respondents appeared and after hearing them, the delay in re-filing the appeal was condoned and the appeal admitted for hearing and considering the nature of the controversy, arguments were finally heard in the appeal and the judgment reserved. 3. The predecessor-in-interest of the appellants, on 25th February, 1999 as aforesaid, instituted the suit from which this appeal arises, only against the respondent/defendant No.1 Sh. Baldev Raj Walia, pleading: (i) that the respondent/defendant No.1 vide Agreement to Sell dated 27th February, 1996 had agreed to sell the building consisting of basement and half portion of the first floor constructed on Plot No.1, admeasuring 169 sq. yds. situated in Gali No.9, Sanwal Nagar P.O. Raipur Khurd, New Delhi to the predecessor-in-interest of the appellants for a consideration of Rs.11,50,000/- out of which a sum of Rs.2,00,000/- was paid at the time of Agreement to Sell and the balance Rs.9,50,000/- was payable within 120 days; (ii) that the respondent/defendant No.1 on 29th February, 1996 i.e. within two days of the Agreement to Sell took a further sum of Rs.2,00,000/- in cash from the predecessor-in-interest of the appellants/plaintiffs, leaving a balance sum of Rs.7,50,000/- to be paid at the time of execution and registration of title deed and also delivered possession of the property agreed to be sold to the predecessor-in-interest of the appellants/plaintiffs; (iii) that the predecessor-in-interest of the appellants/plaintiffs after so taking over possession, carried out extensive repairs, additions and alterations in the basement as well as in the half portion of the first floor at a cost of Rs.4,00,000/-; (iv) that though the predecessor-in-interest of the appellants/plaintiffs was always ready and willing to perform his duty and in this regard approached the respondent/defendant No.1 several times but the respondent/defendant No.1 avoided the same; (v) that on 10th May, 1996, the respondent/defendant No.1 requested for payment of a further sum of Rs.50,000/- out of sale consideration but the predecessor-in-interest of the appellants/plaintiffs was reluctant since the respondent/defendant No.1 had been avoiding completion of transaction; however the respondent/defendant No.1 handed over all the original papers/documents relating to the property and also agreed to complete the transaction at the earliest and in consideration whereof, the predecessor-in-interest of the appellants/plaintiffs paid a further sum of Rs.36,000/- in cash on 10th May, 1996; (vi) that however the respondent/defendant No.1 issued letters dated 22nd June, 1996 and 24th June, 1996 stating that the period of 120 days agreed for completion of the transaction was over and as the balance sale consideration had not been paid, the Agreement dated 27th February, 19