ORDER

% 19.01.2024 I.As. 17931-17932/2023(Exemption) The applications for exemption are allowed, subject to the plaintiff granting inspection of the documents filed, as and when required to do so, or filing the original documents at the stage of admission/denial.

The applications stand disposed of.

CS(OS) 569/2023

1. The present suit has been filed for specific performance of an agreement to sell, in relation to an immovable property bearing No. D-38, Defence Colony, New Delhi-110024. The plaintiff contends that the terms of the agreement are indicated in a document entitled “Advance Payment Receipt” dated 30.06.2017 executed by the then owner of the property, Smt. Kamal Kumar, in favour of the plaintiff. The document records that the total sale consideration for the property was fixed at ₹24 crores, out of which the vendor had received a payment of ₹21 lakhs by cheque.

2. The defendants in the present suit are Mr. Varendhishakt Prdhiesubhaag [defendant No. 1], who claims to the adopted son of the daughter of Smt. Kamal Kumar, Mr. Maninder Singh [defendant No. 2] who claims to be the son of Shri Jagat Singh, pre-deceased brother of Smt. Kamal Kumar, and Mr. Harinder Singh [defendant No. 3] who claims to be the son of Smt. Mohinder Kaur, pre-deceased sister of Smt. Kamal Kumar.

3. The three defendants in this suit were parties to a partition suit [CS(OS) 281/2017] filed by defendant No. 2 herein against late Smt. Kamaljeet Kaur @ Smt. Suresh Kumar [also known as Smt. Kamal Kumar] and late Smt. Mohinder Kaur. After the death of the two original defendants in that suit, defendant Nos. 1 and 3 herein were impleaded in that suit. The suit was decreed in terms of a Memorandum of Family Settlement dated 10.07.2023 between the three defendants herein on 11.07.2023. In the present suit, the plaintiff has also sought setting aside of the said Memorandum of Family Settlement.

4. The suit is pending for issuance of summons.

5. Learned counsel for defendant Nos. 2 and 3 submit that the suit is barred by limitation. They rely upon an application filed by the plaintiff herein in the partition suit [I.A. 219/2021] in which the plaintiff inter alia averred that it was mutually agreed between the parties that the execution and registration of the sale deed would be done on or before 30.09.2017.

6. Learned counsel for the defendants also submit that, well prior to the decree dated 11.07.2023, a preliminary decree was passed in that suit on 23.01.2020 by which each of the defendants was given 1/3rd share in the property. They state that the present plaintiff was represented on the said date as contemnor No. 2 in CCP 70/2018.

7. As against this, Mr. Sanjeev Sindhwani, learned Senior Counsel for the plaintiff, submits that no time for execution of the sale deed was fixed at the time the agreement was made between the parties, and none is mentioned in the Advance Payment Receipt. He submits that the suit in the present case is not only for specific performance, but also for a decree of declaration with regard to the Memorandum of Family Settlement which was entered into only on 10.07.2023. The contention of Mr. Sindhwani is that its cause of action in terms of Article 54 of the Limitation Act, 1963 would commence only upon refusal to perform as no time was fixed under the agreement. In this context, Mr. Sindhwani draws my attention to an affidavit dated 23.07.2019, filed by Smt. Kamal Kaur in response to an application under Order XXXIX Rule 2A of the Code of Civil Procedure, 1908 [CCP 70/2018 in CS(OS) 281/2017]. In the said reply, Smt. Kamal Kumar has admitted receipt of the aforesaid amount of ₹21 lakhs, although she has contended that the property could not be sold on the basis of the said receipt. She has further averred that she would await the outcome of the suit prior to sale of the property. It is Mr. Sindhwani’s contention that, in view of these averments, the occasion did not arise for the plaintiff to seek specific performance of t