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2017 Supreme(Del) 3732
IN THE HIGH COURT OF DELHI AT NEW DELHI
P.S. TEJI, J.
Devender Kumar Verma - Appellant
Versus
Tara Devi Thru L.R. Ram Kishor - Respondent
RFA 43 of 2007
Decided On : 31-10-2017
For the Appellant :Mr. Ajay Kumar, Ms. Nandini Nagpal, Advocates
For the Respondent:Mr. S.N. Gupta, Advocate
The court upheld the principle of specific performance and relied on the evidence presented to establish the execution of the agreement and the payment made, leading to the ruling in favor of the plaintiff/respondent.
Headnote:
Specific Performance - Property Dispute - Code of Civil Procedure, 1908 - [Section 96, Section 151] - [Agreement dated 04.01.2000, Specific Relief Act, 1963] - The court discussed the execution of the agreement dated 04.01.2000 and the payment of Rs.10 lakhs by the plaintiff/respondent to the defendant/appellant. The court upheld the impugned judgment and decree, ruling in favor of the plaintiff/respondent based on the evidence and material presented before the trial court.
Fact of the Case:
The plaintiff/respondent entered into a collaboration agreement with the defendant/appellant for construction of flats over a plot of land. The plaintiff sought specific performance of an agreement to sell a flat and alternatively prayed for recovery of Rs.11 lakhs with interest.
Finding of the Court:
The court found in favor of the plaintiff/respondent, upholding the impugned judgment and decree, and dismissing the appeal filed by the defendant/appellant.
Issues: The issues included the execution of the agreement dated 04.01.2000, payment of Rs.10 lakhs by the plaintiff/respondent, and the defendant/appellant's liability to refund the amount.
Ratio Decidendi: The court relied on the testimony of witnesses and the documents presented to establish the execution of the agreement and the payment made by the plaintiff/respondent. The court also noted that the judgments relied upon by the appellant did not assist the defendant/appellant's case.
Final Decision: The impugned judgment and decree were upheld, and the appeal filed by the appellant was dismissed. The parties were directed to bear their own costs.
P.S. TEJI, J.
1. Aggrieved by the judgment and decree dated 04.11.2006 passed by the learned Additional District Judge, Delhi in Suit No. 268/2003, the appellant has preferred the instant appeal under Section 96 read with Section 151 of the Code of Civil Procedure, 1908 (CPC).
2. In a nutshell, the facts of the case are that plaintiff/respondent was the owner of property No.JD-18, measuring 300 sq. yds out of Khasra No.2239/44 situated at Khirki Extension, Opposite Malviya Nagar, New Delhi. She entered into a collaboration agreement dated 09.09.1999 with the defendant/appellant for construction of flats over the plot of land, thereby agreeing that the plaintiff/respondent shall be the owner of six flats bearing Nos. JD-18/14, 17, 18, 21, 23, & 25 on different floors, and the defendant/appellant will retain six flats bearing Nos. JD-18/15, 16, 19, 20, 22, & 24. As per the agreement, flat No.JD-18/19 was to be retained by defendant/appellant but by way of further agreement to sell dated 04.01.2000 with the plaintiff/respondent, he agreed to sell the said flat for a total consideration of Rs.11 lakhs. In terms of the agreement the plaintiff/respondent paid a sum of Rs.8.5 lakhs as part consideration on 29.11.1999 and Rs.1.5 lakhs on 24.12.1999. Apart from the said amount the plaintiff/respondent sent a cheque for a sum of Rs. 1 lakh to the defendant/appellant as the balance sale consideration. However, when the plaintiff/respondent asked the defendant/appellant to execute a sale deed in respect of the said flat, she came to know that the defendant/appellant had entered into an agreement to sell with one Shri S.A. Naqvi. Thereafter, the plaintiff/respondent lodged a complaint with the police on 31.10.2000. The plaintiff/respondent also served a legal notice on the defendant on 03.10.2001. Therefore, the plaintiff/respondent filed a suit seeking a decree of specific performance of the agreement to sell dated 04.01.2000 in respect of flat no. JD-18/19, and in alternative prayed for a decree for recovery of Rs.11 lakh along with interest in her favour. Though the suit was initially filed against S.A. Naqvi as well, after recording statement of plaintiff/respondent the suit against him was allowed to be withdrawn and he was ordered to be deleted from the array of parties.
3. Defendant/appellant filed his written statement and denied the fact that the plaintiff/respondent was the exclusive owner of property No. JD-18 and claimed that after execution of collaboration agreement dated 09.09.1999 she did not remain the exclusive owner of the land in question. The fact of entering into a collaboration agreement was admitted by the defendant/appellant but with regard to the fact having entered into an agreement to sell in respect of flat No. JD-18/19 for a consideration of Rs.11 lakh was denied. Receipt of sum of Rs.8.5 lakh on 29.11.1999 and Rs.1.5 lakh on 24.12.1999 from the plaintiff/respondent was also denied. The fact regarding sending of a cheque for a sum of Rs.1 lakh was also denied.
4. Plaintiff/respondent filed her replication to the written statement wherein she reiterated the averments as were made in the plaint. After completion of pleadings, the court below framed the following issues:
1. “Whether the Agreement dated 04.01.2000 was executed by the defendant No. 1 in favour of the plaintiff, if so to what effect?
2. Whether the plaintiff paid a sum of Rs.10,00,000/- (Ten Lakh) to D-1 vide agreement/receipt dated 04.01.2000? OPP
3. Whether defendant is a bonafide purchaser with notice and for consideration of the property in dispute? OPD-2
4. Whether D-1 had no right to sell away the flat on question to D-2, if so to what effect? OPP
5. Whether there was a novation of the contract in view of the averments made in para No.9, 10 of the plaint? OPD
6. Whether the plaintiff is entitled to a decree of specific performance of the contract dated 04.01.2000?
7. Whether the plaintiff is entitled to a decree for recovery of Rs.11,00,000/- (
