Sunil Kumar and Anr v. Rajeev Suri and Ors

RAJIV SAHAI ENDLAW, J JANUARY 20, 2020 "ak".. (Corrected and released on 10th February, 2020)

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 20th January, 2020 + CS(OS) 279/2018, IA No.7771/2018(u/O.XXXIX R-1&2 CPC) & IA No.4497/2019(u/O.XXXIX R-1&2 CPC) SUNIL KUMAR AND ANR. ..... Plaintiffs Through: Mr. Kuldeep Kumar & Mr. Ranjan Roy, Advs. with Mr. Sunil Kumar, plaintiff in person. Versus RAJEEV SURI AND ORS. ..... Defendants Through: Mr. R.K.Sachdeva, Adv. for D-1. Ms. Gunjan Sinha Jain, Adv. for D-3. Mr. Kuljeet Rawal & Mr.Vikram Alung, Advs. for D-4&5. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. The two plaintiffs, namely (i) Sunil Kumar; and, (ii) Quaid Johar, have instituted this suit against defendants no. 1 to 5 namely, (i) Rajeev Suri; (ii) Chhote Lal Pahlwan; (iii) Shweta Abbey; (iv) Satinder Singh; and, (v) Arvinder Singh, for (a) specific performance of Agreement of Sale and Purchase/bayana receipt dated 17th September, 2015; (b) permanent injunction to restrain the defendants from dealing with the property; and, (c) recovery of damages for Rs.10,00,000/-. 2. The plaintiffs plead, (i) that the plaintiffs and the defendant no.1 entered into the Agreement dated 17th September, 2015 for sale by the defendant no.1 to the plaintiffs of plot bearing no. E-124, Greater Kailash-I, New Delhi; (ii) that the said plot was purchased by Swaran Nayar, mother of the defendant no.3, who constructed a residential building thereon; (iii) Swaran Nayar died on 18th April, 1999 leaving behind the defendant no.3 as a daughter and one Anil Kumar Nayar as her son; (iv) on 19th November, 2009, a Collaboration Agreement was entered into by Anil Kumar Nayar with defendants no.4 and 5 for reconstruction of the property; (v) on 29th November, 2011, a separate agreement was executed between defendant no.3 and defendants no. 4 and 5, whereunder the defendant no.3 alienated certain rights in the property to the defendants no. 4 and 5; (vi) the defendant no.3 had filed a suit for partition being CS(OS) No.608/2010 which was dismissed on 25th November, 2010 and RFA(OS) No.42/2011 preferred thereagainst was also dismissed on 19th October, 2011 and SLP(C) No.12530/2012 preferred thereagainst was dismissed on 27th April, 2012; (vii) that defendants no. 4 and 5 instituted CS(OS) No.783/2013 against Anil Kumar Nayar and vide order dated 7th May, 2013 therein Anil Kumar Nayar was restrained from dealing with the property and which interim order was continuing; (viii) that Anil Kumar Nayar died on 9th May, 2014 and the defendant no.2 filed an application in CS(OS) No.783/2013 for substitution as an heir of Anil Kumar Nayar on the basis of a document dated 25th April, 2014 claimed to be the Will of Anil Kumar Nayar in favour of defendant no.2 with respect to the property; (ix) that the plainiffs, believing that the defendant no.2 was the absolute owner of the property under the Will of Anil Kumar Nayar and that the defendant no.2 had assigned the rights in the property in favour of the defendant no.1, entered into an agreement with the defendant no.1 for purchase of the property for Rs.2,10,00,000/- and paid advance sale consideration of Rs.50,00,000/-, out of which Rs.30,00,000/- was paid in cash and Rs.20,00,000/- by way of pay order; and, (x) the defendant no.2, on 23rd September, 2015 withdrew the application filed by him in CS(OS) No.783/2013 for substitution as heir of Anil Kumar Nayar. 3. Paragraph 19 of the plaint is as under:- "That the said defendant no.2 (herein) on dated 23.09.2015 one hand made agreement of sell other hand withdraw his stake from Hon'ble High Court reason best known to them." 4. This suit is ripe for framing of issues. 5. The counsel for the plaintiffs, the counsel for the defendant no.1 and the counsel for the defendant no.3 have handed over their proposed issues and which are taken on record and be tagged to Part I File. No issues have been proposed by counsel for the defendants no. 4 and 5. 6. None appears for the defendant no.2. 7. On enquiry, attention is drawn to the orders dated 27th March,