2015 Supreme(Del) 1612

IN THE HIGH COURT OF DELHI AT NEW DELHI
PRADEEP NANDRAJOG, MUKTA GUPTA, JJ.
Lakhbir Singh - Appellant
Versus
Arun Khanna – Respondent
RFA (OS) 111/2014
Decided on : 23-07-2015

The subsequent suit seeking specific performance of an agreement to sell was held to be barred under Order II Rule 2 of the Code of Civil Procedure because a previous suit had been instituted by the plaintiff seeking a decree for permanent injunction against the defendant concerning the same cause of action.

Headnote:

Specific Performance - Agreement to Sell - Order II Rule 2 of the Code of Civil Procedure - 2. Sale consideration agreed is Rs. 1,20,00,000/- (Rupees One Crore and Twenty Lacs only). The first floor of property bearing Municipal No.3 on road No.5 in Punjabi Bagh Extension, New Delhi, has to be sold. Rs. 12,00,000/- (Rupees Twelve Lacs only) are acknowledged as having been received by Arun Khanna. The sale has to be completed on or before 300 days, the agreement to sell is executed on November 18, 2006. The parties have thus recorded that the sale-deed has to be executed by August 15, 2007. In the suit instituted on May 26, 2009, seeking specific performance of the agreement to sell Ex.P-1, case pleaded by Lakhbir Singh is that after Ex.P-1 was executed and he paid Rs. 12,00,000/- (Rupees Twelve Lacs only) to Arun Khanna, and that balance sale consideration had to be paid when sale-deed was executed, at the asking of Arun Khanna he paid further sums, and in all paid Rs. 72,00,000/- (Rupees Seventy Two Lacs only) to Arun Khanna. Admittedly, before the suit seeking specific performance of Ex.P-1 was executed on May 26, 2009, a prior suit seeking a decree for permanent injunction to restrain Arun Khanna from selling, parting with the possession or creating any third party right in the property agreed to be sold was filed by Lakhbir Singh on September 26, 2007. It was registered as Suit No.551/2007 in the Court of Ms. Savitri, Civil Judge, Delhi. Vide impugned judgment and decree dated April 21, 2014, suit instituted by Lakhbir Singh seeking specific performance of Ex.P-1 has been held to be barred under Order II Rule 2 of the Code of Civil Procedure; and needless to state the reason is that on the same cause of action, having filed on September 26, 2007 the suit for permanent injunction without obtaining leave of the Court to institute the suit for specific performance, the subsequent suit was barred under Order II Rule 2 of the Code of Civil Procedure. The learned Single Judge has noted that both parties had cited various decisions, but none had cited the decision reported as 2013 (1) SCC 625 Virgo Industries (Eng.) P. Ltd. Vs. Venturetech Solutions P. Ltd.; recording in the order dated March 06, 2014 that neither party had cited the same and hence after giving an opportunity to the parties to advance arguments in light of the law declared in the said decision, the learned Single Judge has held that in view of the law declared by the Supreme Court in Virgo Industries’case, the suit seeking decree for specific performance of Ex.P-1 was barred.

Fact of the Case:

Post completion of pleadings, called upon to admit/deny the documents filed by the parties, execution of Ex.P-1 was admitted by the parties. It is the agreement to sell executed on November 18, 2006 by Arun Khanna (the seller/defendant) and Lakhbir Singh (the purchaser/plaintiff). It’s second recital and the covenants read as under: - “And whereas the first party/Seller has agreed to sell the Entire Ist Floor without roof rights of property No.3, Road No.5, Punjabi Bagh Extn. New Delhi – 110026, measuring : 299.15 sq.yds. to the second party/Purchaser, with well furnished fittings and fixtures with electricity and water connection in all manners at his own bona fide needs requirements, for a total sale consideration amount of Rs. 1,20,00,000/- (Rupees One Crore Twenty Lacs only) and the second party/Purchaser has agreed to purchase in which the second party/Purchaser had paid a sum of Rs. 12,00,000/- (Rupees Twelve Lacs only) as earnest money/Byana to the first party and the balance sale consideration Amount of Rs. 1,08,00,000/- (One Crore Eight Lacs only) which shall be paid by the Second party/purchaser to the first party/Seller on or before 300 days i.e. TEN MONTHS. 15.08.2007. NOW THIS AGREEMENT TO SELL IS WITNESSETH AS UNDER: - 1. That the first party/Seller hereby assures to the Second Party that the above noted property under sale is free from all kinds of encumbrances, liens decree, court case, attachments etc., if found otherwise the First party held liable for the same. 2. That all the outstanding dues, charges, taxes, penalties shall be borne by the first party/Seller. 3. That the first party/Seller shall deliver the peaceful vacant possession after well furnished requirements as per the settlement of both the parties to the Second party/Purchaser as and when he/she will receive the balance amount within stipulated periods, with all proper documents regarding the above said property under sale. 4. That if first party/Seller shall fails to comply this agreement then he/she shall liable to payable the double amount of the Earnest Money to the Second party/Purchaser. 5. That if Second party/Purchaser shall fails to comply this Agreement then his/her earnest money shall be forfeited by the First party/Seller. 6. That the Second party shall fully be entitled to transfer the said property in his/her name or in the name of his/her nominee, after paying the full consideration amount to the First Party/Seller. 7. That all the expenses of Stamp Paper, Registration Fees shall be borne by the Second party/Purchaser. 8. That one water meters and one electricity meters installed by the first party in favour of second party at his expenses. 9. That all the legal heirs, executors, administrators of both the parties shall also bound by all these terms and conditions of this Agreement. 10. That this agreement to Sell & Purchase is made between both the parties by their mutual consents, sound mind, good health and without any force from anywhere.”

Finding of the Court:

Vide impugned judgment and decree dated April 21, 2014, suit instituted by Lakhbir Singh seeking specific performance of Ex.P-1 has been held to be barred under Order II Rule 2 of the Code of Civil Procedure; and needless to state the reason is that on the same cause of action, having filed on September 26, 2007 the suit for permanent injunction without obtaining leave of the Court to institute the suit for specific performance, the subsequent suit was barred under Order II Rule 2 of the Code of Civil Procedure.

Issues: The suit seeking specific performance of Ex.P-1 has been held to be barred under Order II Rule 2 of the Code of Civil Procedure; and needless to state the reason is that on the same cause of action, having filed on September 26, 2007 the suit for permanent injunction without obtaining leave of the Court to institute the suit for specific performance, the subsequent suit was barred under Order II Rule 2 of the Code of Civil Procedure.

Ratio Decidendi: The suit seeking specific performance of Ex.P-1 has been held to be barred under Order II Rule 2 of the Code of Civil Procedure; and needless to state the reason is that on the same cause of action, having filed on September 26, 2007 the suit for permanent injunction without obtaining leave of the Court to institute the suit for specific performance, the subsequent suit was barred under Order II Rule 2 of the Code of Civil Procedure.

Final Decision: Since the view taken by the learned Single Judge is in conformity with the law declared by the Supreme Court on the issue which arose for consideration, we dismiss the appeal, leaving the parties to bear their own costs in the appeal.