Jayant Nath, J.

IA No. 17034/2012 (u/S 5 of the Limitation Act)

1. This is an application under Section 5 of the Limitation Act for condonation of delay in re-filing the application under Order 37 Rule 3 (5) CPC. There is no serious opposition to this application. The same is allowed and the delay in re-filing the application under Order 37 Rule 3 (5) CPC is condoned.

2. The application is disposed of.

IA No. 17033/2012 [u/O 37 R 3(5) CPC]

3. This is an application filed on behalf of the defendant under Order 37 Rule 3 (5) of the Code of Civil Procedure seeking leave to defend the present suit. The plaintiff has filed the present suit under Order 37 CPC seeking a decree for a sum of Rs. 28 lacs against the defendant along with interest at the rate of 12% per annum till the date of realisation. It is the contention of the plaintiff that on 06.10.2008, the plaintiff had entered into an agreement with the defendant in respect of sale of ground floor of property bearing No. 23, Prem Nagar Market, Tyagraj Market, New Delhi. It is stated that a sum of Rs. 28 lacs was paid in advance. It is claimed that Rs.15 lacs was paid in cash on 04.10.2008, Rs. 8 lacs was paid in cash on 06.10.2008 and Rs. 5 lacs was paid by cheque on 06.10.2008. The total sale consideration was Rs. 1.50 crores.

4. It is the further contention of the plaintiff that at the time of the agreement to sell, the defendant had claimed to be the absolute owner of the suit property. However, it is stated that subsequently, the plaintiff realized that though the defendant had supplied photo copies of some documents pertaining to the chain of ownership of the suit property but the complete chain of ownership has not been supplied by the defendant. It is further stated that on enquiry from the concerned authorities, it was found that there are huge dues pending against the property. It is further stated that even a tenant is sitting on the property. Hence, the plaintiff submits that on 05.02.2009, 13.03.2009 and 01.09.2009 request was made to the defendant to perform his part of the agreement or to refund the advance payment of Rs.28 lacs. Hence, it is stated that the plaintiff has cancelled the deal and demanded back the amount. Hence, the present suit has been filed for the recovery of said sum of Rs. 28 lacs.

5. In the application for leave to defend, the defendant has denied his liability to pay any amount whatsoever. It is contended that the defendant has not entered into any agreement with the plaintiff and the alleged agreement to sell dated 06.10.2008 is a forged and fabricated document. The defendant has along with the present application attached photocopies of two documents being agreement to sell and purchase dated 06.10.2008 as Annexure A and B. He submits that in Annexure A has the same stamp paper number as Annexure B. In the first agreement, Annexure A there are forged signatures of the defendant on all pages and witnesses have also signed on the last page. It is further stated that the other agreement being Annexure B does not bear the signatures of the witnesses and the column of the signature of the witnesses is blank. It is further stated that first three pages of the said agreement to sell do not bear the signatures of the defendant and on the last two pages of the alleged agreement, signatures of the defendant has been forged. It is stated that both the agreements are forged and fabricated just to give a false story.

6. It is further stated that the plaintiff’s father has been a tenant in the suit property for the last 20 years and it was he who showed the willingness to purchase the suit property in the name of his son i.e. the plaintiff. Hence, it is stated that it was orally agreed between the parties after satisfaction of the parties in all respect and scrutinizing the title document of the defendant to enter into an oral agreement to sell and the plaintiff had agreed to give Rs. 15 lacs as Bayana out of total sale consideration of Rs. 1.50