Shama Bajaj v. Rakesh Kumar Gaur & Ors

VEENA BIRBAL, J JULY 27, 2012 ssb

* IN THE HIGH COURT OF DELHI AT NEW DELHI + RSA 123/2012 Date of decision: July 27, 2012 SHAMA BAJAJ ..... Appellant Through Mr Rajender Sharma, Adv. versus RAKESH KUMAR GAUR & ORS ..... Respondent Through Nemo. CORAM: HON'BLE MS. JUSTICE VEENA BIRBAL Veena Birbal, J. (Oral) 1. By way of this Regular Second Appeal under section 100 CPC challenge has been to the judgment dated 26.5.2012 by which learned Addl. District Judge-01, (North-East), Karkardooma Courts has upheld the judgment dated 8.4.2011 by which the learned Civil Judge has allowed the application filed by objectors i.e., respondents 4 and 5 herein under Order 21 Rule 99 CPC and has set aside the judgment and decree dated 25.1.2008 and directed the decree holder i.e., appellant herein to hand over the vacant possession of the suit property to the objectors i.e., respondent nos. 4 and 5. 2. Factual background of the case is as under:- On 5.9.2006, the appellant herein i.e., plaintiff before the the Ld.trial court had filed a suit praying for decree for permanent injunction against the defendants i.e., Shri Rakesh Kumar Gaur and Shri Kamal Jaiswal, respondents 1 and 2 in the present appeal. In the said suit, she had averred that respondents 1 and 2/defendants were in the business of construction of flats. Respondent no.1/defendant no.1 had entered into agreement dated 12.2.2005 with the appellant wherein he represented her that he was the absolute owner of property bearing no,G-67, measuring 160 sq. yds with the rights of its construction from ground floor upto last storey in Khasra No.1076/5/2, Dilshad Garden Extension (now known as Dilshad Colony) Shahdara, Delhi-95. At that time, property was under construction. Appellant/plaintiff had alleged that by the said agreement, respondent no.1 had agreed to sell two flats, one MIG and one LIG on the ground floor with the area of both flats measuring 160 sq. yds with fixtures and fitting in the aforesaid property to her. Total sale consideration agreed was Rs.21,25,000/- . As per her, she had paid Rs.3,00,000/- to respondent no.1/defendant no.1 as part sale consideration and a receipt was executed in the name of M/s Abhi Promoters and builders of which respondent no.1 was the sole proprietor. It was averred that she had paid in all Rs.8 lakhs to respondent no.1. Some of the receipts were issued by respondent no.1/defendant no.1 and some were issued by respondent no.2/defendant no.2. After completion of construction, appellant had approached them with balance sale consideration but respondent no.1 refused to give possession of flats to her. Thereupon, appellant had filed the aforesaid suit praying for decree for permanent injunction to restrain the respondents 1 and 2/defendants from creating third party interest in the suit premises. After service of summons on respondents 1 and 2/defendants, they had appeared in court on 10.10.2006 and informed the court that a settlement was entered into between the parties on 9.10.2006 and accordingly an application along with settlement was filed in the court. Thereafter, the suit was decreed in terms of settlement Ex.C-1. There was a settlement to the effect that Sh.Kamal Jaiswal i.e., respondent no.2/defendant no.2 would pay Rs.4,45,000/- to Smt.Shama Bajaj and would become the owner of the MIG flat. In case Sh.Kamal Jaiswal failed to make payment, then Smt.Shama Bajaj would pay Rs.13,00,000/- to Sh.Kamal Jaiswal who would then execute a sale deed in respect of the said property in favour of Smt.Shama Bajaj. Appellant had averred that respondent no.2 failed to make payment to her and accordingly she had filed execution petition bearing no.1072/2006 for execution of compromise decree dated 10.10.2006 against respondents 1 and 2/defendants. Respondent no.2/J.D.2 had filed objections which were dismissed vide order dated 24.4.2007. Against the said order, respondent no.2/J.D.2 had filed MCA No.9/2007 which was dismissed in default on 22.2.2010. Thereafter, on 14th December, 2007, the exe