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2019 Supreme(Del) 1485
IN THE HIGH COURT OF DELHI
G.S. Sistani, Sangita Dhingra Sehgal, JJ.
Sushma – Appellant
Versus
Gamesh Mathur and Others – Respondents
Regular First Appeal (OS) No. 31 of 2018
Decided On : 16-05-2019
Advocate Appeared:
S.K. Anand, Anand Yadav, Anita Tomar.
The court upheld the validity of the agreement to sell based on the appellant's admission of receiving the payment and found no merit in the appellant's submissions regarding insufficient funds and discriminatory treatment.
Headnote:
Condonation of Delay - Civil Procedure - Code of Civil Procedure, 1908, Order XLI Rule 1 - Delhi High Court Rules - The court condoned the delay in re-filing the appeal and in filing the present appeal. The appeal was set down for final hearing and disposal. The suit involved specific performance of an agreement to sell land. The appellant failed to file a written statement, and a decree of specific performance was passed. The appellant challenged the judgment and decree on grounds of lack of jurisdiction, fraud, misrepresentation, and lack of consideration. The court found that the appellant had received the payment and had admitted to receiving her share. The court also found no merit in the appellant's submissions regarding insufficient funds and discriminatory treatment. The appeal was dismissed.
Fact of the Case:
The appellant sought condonation of delay in re-filing the appeal and in filing the present appeal. The suit involved specific performance of an agreement to sell land. The appellant failed to file a written statement, and a decree of specific performance was passed. The appellant challenged the judgment and decree on grounds of lack of jurisdiction, fraud, misrepresentation, and lack of consideration. The court found that the appellant had received the payment and had admitted to receiving her share. The court also found no merit in the appellant's submissions regarding insufficient funds and discriminatory treatment. The appeal was dismissed.
Finding of the Court:
The court found that the appellant had received the payment and had admitted to receiving her share. The court also found no merit in the appellant's submissions regarding insufficient funds and discriminatory treatment. The appeal was dismissed.
Issues: Condonation of delay, lack of jurisdiction, fraud, misrepresentation, lack of consideration, discriminatory treatment, insufficient funds
Ratio Decidendi: The appellant had received the payment and had admitted to receiving her share. The court found no merit in the appellant's submissions regarding insufficient funds and discriminatory treatment.
Final Decision: The appeal was dismissed.
JUDGMENT :
G.S. Sistani, J.
CM APPL 19984/2018 (delay in re-filing)
1. This application has been filed by the applicant seeking condonation of 2 days delay in re-filing the appeal.
2. The prayer made in this application is not opposed.
3. Accordingly, delay of 2 days in re-filing the appeal is condoned.
4. The application stands disposed of.
CM APPL 19983/2018 (delay in filing)
5. This application has been filed by the applicant seeking condonation of 22 days delay in filing the present appeal.
6. The prayer made in this application is not opposed.
7. Accordingly, delay of 23 days in filing the appeal is condoned.
8. The application stands disposed of.
RFA (OS) 31/2018
9. This is an appeal under Section 96 and Order XLI Rule 1 of the Code of Civil Procedure, 1908 read with rule 10 of Delhi High Court Rules, assailing the ex-parte judgment and decree dated 03.01.2018 passed by the learned Single Judge in CS (OS) 1097/2011.
10. At the outset, counsels for the parties submit that it is not necessary to call for the record as the entire record has already been filed alongwith the appeal. With the consent of learned counsels for the parties, the appeal is set down for final hearing and disposal.
11. A suit for specific performance of an agreement to sell dated 24.12.2010 was filed by respondents no. 1 to 3. The appellant herein as also respondent nos. 4 and 5 were parties to the agreement to sell and were arrayed as defendants in the suit. The subject matter of the agreement to sell was land measuring 31 bighas 18 biswas comprised in Khasra No. 11/6 (1-18), 11/15 (4-9), 11/16 (4-5), 11/25 (4-5), 12/11 (1-10), 12/201 (4-3), 12/21 (4-16), 12/22 (4-0), 28/1/1 (2-06) and 28/1/2 min. (0-06), situated in the revenue estate of Village Jat Khore, Delhi (hereinafter referred to as the 'subject land'). The agreement to sell pertains to 3/4th share in the subject land. It is not in dispute that during the pendency of the suit, respondents no. 4 & 5 herein, being defendants no. 1 & 2 in the suit, settled the matter with the purchaser being respondents no. 1 to 3 herein and a decree was passed in terms of the settlement. It may also be noted that despite various opportunities having been granted, the appellant did not file her written statement. Accordingly, her right to file written statement was closed by an order dated 02.08.2013 passed by the learned Single Judge. However, the plaintiffs/respondents no. 1 to 3 were directed to lead evidence and an opportunity to cross-examine the witnesses was granted to the appellant. Total 9 witnesses were produced. They were subjected to cross-examination. Decree of specific performance was passed on 03.01.2018. Learned counsel for the appellant has challenged the judgment and decree dated 03.01.2018 on the grounds that the ex parte judgment and decree, which has been passed is without jurisdiction. The respondent no. 1 to 3 allegedly entered into agreement to sell dated 24.12.2010 with respondents no. 4, 5 and the appellant for sale of share of 31 bighas 18 biswas land for the consideration Rs. 2,06,18,778/-. Respondents no. 1 to 3 paid an amount of Rs. 25,00,000/- to the respondent no. 4 on 02.03.2010 with a prayer for specific performance of an agreement to sell dated 24.12.2010 with an alternative relief of Rs. 2,06,18,778/-. Since the relief of specific performance is allowed to respondents no. 1 to 3 without adjudicating the other relief. The value of the limited dispute is only Rs. 25,00,000/- , which is less than one crore. Also, as per the terms of the said agreement in case of breach of an agreement by the seller the purchasers are entitled to recover double of earnest money/bayana, which is computed at Rs. 50,00,000/-. Hence the impugned order passed by learned Single Judge lacks jurisdiction.
12. Counsel for the appellant further submits that since the respondents have obtained the alleged agreement to s
