JUDGMENT :

Pankaj Jain, J. (Oral) 

CM-721-C-2025

This is an application filed under Section 5 of Limitation Act seeking condonation of delay of 42 days in filing the application under Order XLI Rule 19 for restoration of the main appeal.

For the reasons recorded in the application, this Court is satisfied that the applicants/appellants have made out a sufficient cause for condonation of delay.

Consequently, the present application is allowed. The delay of 42 days in filing the application for restoration of the main appeal is hereby condoned.

Prayer in this application filed under Order XLI Rule 19 read with Section 151 CPC is for restoration of the main appeal, which was dismissed for want of prosecution on 06.11.2024.

For the reasons recorded in the application, the same is allowed. Main appeal is restored to its original number and taken on Board today itself for hearing.

RSA No. 5298 of 2019

Defendants are in second appeal aggrieved of the judgments and decrees passed by the Courts below. For convenience, parties hereinafter are referred to by their original position in the suit i.e. appellants as defendants and respondent as plaintiff.

2. Plaintiff filed suit seeking decree of specific performance qua agreement to sell dated 09.12.2013. Further prayer was made for grant of permanent prohibitory injunction restraining the defendants from interfering in his peaceful possession over the suit property. In the alternate, plaintiff sought decree for recovery of Rs. 5,00,000/- along with future interest @ 24% per annum.

3. Plaintiff pleaded that defendants are owners of the suit property as mentioned in the plaint. They entered into agreement dated 09.12.2013 whereby they agreed to sell suit property to the plaintiff for a valuable sale consideration of Rs. 5,00,000/-. Agreement to sell was a registered document. Actual physical possession of the property was handed-over to the plaintiff by the defendants. Plaintiff paid earnest money of Rs.4,50,000/-to the defendants in the presence of witnesses before the Sub Registrar. Separate receipt regarding the same was executed by the defendants. The parties agreed to get the sale deed executed on or before 09.06.2014. On 09.06.2014, plaintiff reached office of Sub Registrar, Faridabad at 10.00 AM along with balance sale consideration and expenses of stamp papers and registration charges. Plaintiff waited for defendants till 5.00 PM. However, defendants failed to turn up. Plaintiff served defendants with the legal notice dated 24.11.2024 calling upon them to execute and get the sale deed registered on receipt of balance sale consideration on 10.12.2014. The notice remained un-responded. On 10.12.2014, plaintiff reached O/o Sub Registrar, Faridabad at 10.00 AM and waited till 5.00 PM. Plaintiff got his presence marked before the O/o Sub Registrar by way of affidavit dated 10.12.2014. Plaintiff further claimed that despite having requested defendants several times to execute the sale deed, defendants are avoiding the claim of the plaintiff.

4. Suit was contested by the defendants. Execution of agreement to sell dated 09.12.2013 was denied. Defendants claimed that they borrowed a sum of Rs.4,50,000/- from the plaintiff in the month of December, 2013. They agreed to pay back the same in equal monthly installments of Rs.25,000/- per month. On the pretext of loan agreement, defendants were called in the O/o Sub Registrar, Faridabad and were made to thumb-mark documents. Defendants claimed fraud and cheating by the plaintiff They further claimed that defendants have paid 8 EMIs of Rs.25,000/- each to the plaintiff. However, the plaintiff did not issue any receipt. It was thus claimed that agreement to sell dated 09.12.2013 is illegal, sham and bogus document.

5. On the basis of the pleadings of the parties, Court of First Instance framed the following issues:

'1) Whether the plaintiff is entitled to decree of specific performance of agreement to sell dated 9.12.2013 are prayed for? OPP

2) Whether the plainti