J U D G M E N T

MANMOHAN, J: (Oral)

I.A. 13047/2011 in CS(OS) 2007/2011 [U/o. 39 Rules 1 & 2 CPC]

1. Present suit has been filed for specific performance of contract/agreement and permanent injunction.

2. Learned counsel for the plaintiff states that parties executed an Agreement to Sell dated 21st February, 2011 by virtue of which defendant agreed to sell 114 sq. yrds. of plot bearing No. B-1458, Shashtri Nagar, Delhi admeasuring 200 sq. yrds. (approx.). He further states that Rs.5,00,000/- out of the total consideration of Rs. 2,20,00,000/- was admittedly paid by cash at the time of execution of Agreement to Sell.

3. The relevant para of the Agreement to Sell is reproduced hereinbelow:-

“The Bayana of which is Rs.5,00,000/- (Five Lakh Rupees only), the half of which comes to Rs.2,50,000/- (Two Lakhs Fifty Thousand Only) which I had received in cash. The Registry/Power of Attorney of the said property should be transferred by 30 June 2011 and if the house is not transferred in his name by purchaser in time then the amount of Bayana shall be forfeited and if the seller does not transfers the property in time then the purchaser shall have the right to get double the amount of bayana which has to be paid by the seller. The house tax, electricity charges, sewerage charges, water bill & all liabilities till the date of transfer of property by Registry/Power of Attorney shall be the responsibility of seller. The buyer has the right to get the paper of property in anyone’s name. The previous title documents & vacant possession shall be handed over, Agreement is executed with full senses & consent and in case of need/time both the parties have full right & authority to sale and purchase and I take the responsibility on behalf of my family. In case of any impediment I shall be solely responsible. In case the buyer wishes to sell the property to someone even on bayana, I shall have no objection to the same.”

4. Learned counsel for the plaintiff has also drawn this Court’s attention to the Note executed by the parties at the back of the original Agreement to Sell, which reads as under:-

“NOTE: Purchaser has paid to the seller Rs. 3,00000/- (Rupees Three Lakhs Only) cash and Rs. 2,00000/- (Rupees Two Lakhs Only) by way of cheque No. 618853 drawn on PNB, Shastri Nagar Branch. Total Bayana as on 21.02.2011 is Rs. 5,00,000/- (Rupees Five Lakhs Only) out of total consideration. One shop in portion of 30 x 32 is in possession of Sh. Bharat Bhushan, Tenant and the sum payable to the tenant for vacating the premises shall be deducted from the balance consideration. This had been read over and heard by both the parties and they have no objection to the same – Site plan of the property has been prepared. One son of Sh. Inder Singh is residing in German whose responsibility shall be that of Inder Singh and his family.

Daughter is also one witness.”

5. According to learned counsel for the plaintiff the defendant was to get the property vacated from the existing tenant and as the defendant failed to do so, the plaintiff was constrained to file the present suit.

6. On the other hand, learned counsel for defendant states that it was the plaintiff who was to get the tenant evicted. He further states that plaintiff was not ready and willing to make payment of the balance sale consideration within the stipulated period.

7. Learned counsel for defendant relies upon the plaintiff’s legal notice dated 24th June, 2011 to contend that the plaintiff as a condition precedent to make any further payment insisted upon receipt of certain documents which to the plaintiff’s knowledge could not have been within the possession of the defendant. He further states that the documents asked for by the plaintiff in the legal notice are not even referred to in the Agreement to Sell. The relevant portion of the legal notice is reproduced hereinbelow:-

“4. That at the time of entering into the said agreement you agreed to provide the following documents to my client.

i. NOC from Tehsildar