JUDGMENT

IA No.23676/2015 (moved by defendants under Order XXXVII Rule 3 (7) CPC r/w S.151 CPC)

1. The present application of the defendants under Order XXXVII Rule 3 (7) of Civil Procedure Code (CPC) relates to grant of leave to defend the present suit, which has been filed by the plaintiff under Order XXXVII CPC ‘

for recovery of a sum of 1,03,54,000/- along with interest at the rate of 18% per annum with effect from 02.11.2013 till actual payment. It is submitted by the plaintiff that they are dealing in the business of real estate and were interested in purchasing land in revenue estate of Village Surhera, Tehsil Najafgarh, New Delhi. Defendants approached them in first weeks of April, 2013 and offered to sell their agricultural land, the detail of which is as under:

(a) 1/3th share in total agricultural land measuring area 35 Bigha 9 Biswa, in Khata No. 101/100, in Khasra Nos/ 18//14 (4-16),17 (6-12), 24/2 (2-03), 25/2 (4-10), 45//6/2, (3-04), 15(4-16),16(4-16), 25(4-12), situated in the revenue estate of Village Surhera, Tehsil Najafgarh, New Delhi;

(b) 1/12 share in total agricultural land measuring area 6 Biswa, in Khata No. 102/101, in Khasra Nos. 18//25/1 (0- 06), situated in the revenue estate of Village Surhera, Tehsil Najafgarh, New Delhi.

(c) 1/6 share in total agricultural land measuring area 6 Bigha 18 Biswa, in Khata No. 103/102, in Khasra Nos. 159 (3-18), 203 (3-0), situated in the revenue estate of Village Surhera, Tehsil Najafgarh, New Delhi.

(These properties shall be hereinafter referred to as “suit property”)

It is further contended by the plaintiff that since they wanted to purchase land in that area, they agreed to purchase the suit property and paid a token amount of ‘ 80,54,000/- (vide Cheque no. 403870 dated 23rd April ‘

2013 for a sum of 40,27,000/- in favour of defendant no. 1 and another cheque no. 403871 dated 23rd April 2013 for ‘ 40,27,000/- in favour of defendant no.2). The defendants accepted the said token amount and promised to execute agreement to sell the suit property. However, they started delaying the execution of the agreement to sell. After much persuasion, the agreement to sell was executed on 18.07.2013 for total sale ‘ ‘

consideration of 3,60,00,000/- per acre and also paid a sum of 11,50,000/-

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to both the defendants and thus paid a total sum of 1,03,54,000/- to the defendants towards the part sale consideration price and that the defendants had also executed a receipt to this effect. In the agreement to sell, the defendants had represented that there was no legal impediment in selling the land. It is submitted that as per clause (1) of the agreement to sell it was agreed that the plaintiff would pay the balance sale consideration to the defendants within 90 days from the date of execution of the agreement to sell i.e. by 18.10.2013 subject to the defendants obtaining No Objection Certificate (NOC) from the concerned authority 15 days before 18.10.2013. It is submitted that the defendants, instead of obtaining NOC sent a notice dated 20.07.2013 alleging that the sale deed was to be executed on 18.07.2013 and that defendants had come to the office of Sub Registrar on 18.07.2013 for execution of the sale deed after obtaining NOC from the competent authority and that the sale would stand cancelled and the advance money would stand forfeited if the plaintiff failed to pay the balance sale consideration within 15 days from the date of receipt of the said notice. This notice was duly replied by the plaintiff on 14.08.2013 whereby the plaintiff had denied the contents of the notice and insisted that the balance consideration amount was payable by plaintiff only on furnishing the NOC to the defendants 15 days prior to the date of execution of the sale deed with defendants had failed to furnish. The plaintiff also disputed the contentions of the defendants in notice dated 20.07.2013 that agreement to sale was executed on 18.04.2013. The plaintiff further contends that the conduct of the defendan