Pannalal Rathore & Anr v. M/S W.H Deeth(Ballabgarh) & Co & Ors

RAJIV SAHAI ENDLAW, J. MAY 16, 2018 "gsr/M".. (corrected and released on 29th May, 2018).

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 16th May, 2018 + PANNALAL RATHORE & ANR. .... Plaintiffs Through: Ms. Anjali J. Manish, Adv. Versus W.H. DEETH (BALLABGARH) & CO. & ORS. …...Defendants Through: Mr. Kunal Sinha, Adv. for D-1. Ms. Ripu Adlakha, Adv. for D-4. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. The two plaintiffs viz. Panna Lal Rathore and Vinay Gugnani have instituted this suit for cancellation of Agreement to Sell dated 1st April, 2012, pleading i) that the plaintiff no.1 Panna Lal Rathore, as sole proprietor of "Salem Handloom Textiles", was a tenant under the defendant no.1 W.H. Deeth (Ballabgarh) & Co. with effect from 1st January, 2003 till 11th June, 2008 at a monthly rent of Rs.70,000/- in GF-1, 75-76, Manisha Building, Nehru Place, New Delhi-110019 ad-measuring 1067 sq. ft.; ii) that the plaintiff no.1 was carrying on business from the aforesaid premises in the name and style of "Awesome", in partnership with the defendant no.4 Vijay Adlakha; iii) that the defendant no.1 suggested to the plaintiff no.1 its willingness to sell the aforesaid premises in possession of the plaintiff no.1 to the plaintiff no.2 Vinay Gugnani who is the business friend of the plaintiff no.1; iv) that the defendant no.1, on 12th June, 2008 entered into an Agreement to Sell the aforesaid premises to the plaintiffs for a consideration of Rs.4,00,12,500/- and it was agreed that the plaintiffs would pay Rs.25 lacs as advance and the rest of the consideration would be paid by 30th October, 2008; v) that the plaintiffs paid a sum of Rs.25 lacs to the defendant no.1 by way of cheque; vi) that the possession of the premises was already with the plaintiff no.1 as a tenant and the defendant no.1 asked the plaintiff no.1 to continue in the said premises; vii) that the status of the plaintiff no.1, since 11th June, 2008, was changed from lessee to that of a vendee; viii) that on 18th June, 2008, the plaintiff no.2 Vinay Gugnani paid a further amount of Rs.1 crore to the defendant no.1 by cheque and it was orally agreed that on receipt of remaining sale consideration of Rs.2,75,12,500/-, the Sale Deed would be executed; ix) that the aforementioned Agreement to Sell had no forfeiture or exit clause; x) that the plaintiff no.2 Vinay Gugnani sent a cheque dated 21st October, 2008 for Rs.5 lacs in furtherance of the consideration amount to the defendant no.1 and also sent an e-mail to the defendant no.1 but no reply was received from the defendant no.1; xi) that the defendant no.1, on 7th November, 2008 got issued a notice to the plaintiffs stating that the plaintiffs had failed to pay the balance sale consideration by 30th October, 2008 and he was terminating the Agreement to Sell dated 12th June, 2008; xii) that the defendant no.1 W.H. Deeth (Ballabgarh) & Co. filed CS(OS) No.211/2009 for ejectment of the plaintiffs as tenants from the aforesaid property by suppressing the Agreement to Sell dated 12th June, 2008 and the legal notice dated 7th November, 2008 and vide order dated 2nd February, 2009 in the said suit, the plaintiff no.1 Panna Lal Rathore was restrained from creating third party rights or transferring the property; xiii) the plaintiff no.1 Panna Lal Rathore filed a written statement in CS(OS) No.211/2009 aforesaid claiming to be in possession, after 12th June, 2008, as vendee under the Agreement to Sell dated 12th June, 2008 and entitled to protection under Section 53A of the Transfer of Property Act, 1882; xiv) that the plaintiffs instituted CS(OS) No.1094/2012 for specific performance of the Agreement to Sell dated 12th June, 2008; xv) that both CS(OS) Nos.211/2009 and 1094/2012 were pending; xvi) that the defendant no.1 W.H. Deeth (Ballabgarh) & Co., on 20th November, 2012 stated that it had sold the property to defendant no.2 Kunal Adlakha, son of defendant No.4 Vijay Adlakha; however in support of such sale, an Agreement to Sell dated 1st April, 2012 was handed over in the Court; xvi) that a perusal of