* IN THE HIGH COURT OF DELHI AT NEW DELHI + CS(OS) No. 572/2006 & CS(OS) No. 380/2009 % 21st AUGUST, 2015 + CS(OS) No. 572/2006 HARVINDER PAL SINGH & ANR. ..... Plaintiffs Through None.

versus S.K.MUKHERJEE & ANR. ..... Defendants Through Mr. M. Dutta, Advocate + CS(OS) No. 380/2009 SHRI S.K.MUKHERJEE & ANR. ..... Plaintiffs Through Mr. M. Dutta, Advocate Versus SHRI HARVINDER PAL SINGH DUA & ANR. ..... Defendants Through None.

CORAM:

HON’BLE MR. JUSTICE VALMIKI J.MEHTA To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. Two suits are being disposed of by the present judgment, being CS(OS) No. 572/2006 and CS(OS) No. 380/2009. The 2006 suit is a suit for specific performance. The suit of 2009 is a counter suit by the proposed sellers seeking back possession of the property which was agreed to be sold in terms of the Agreement to Sell dated 21.10.2004. It is conceded before me on behalf of the plaintiffs/proposed sellers in the 2009 suit namely Sh. S.K. Mukherjee and Smt. Neelam Mukherjee that if the 2006 suit is decreed, then automatically the 2009 suit would stand dismissed. The proposed purchasers under the Agreement to Sell dated 21.10.2004 are Sh. Harvinder Pal Singh Dua and Smt. Harjinder Kaur, and who are the plaintiffs in CS(OS) No. 570/2006. In this suit the defendants are Sh. S.K. Mukherjee and Smt. Neelam Mukherjee, who are proposed sellers under the Agreement to Sell dated 21.10.2004, and they are the plaintiffs in CS(OS) No. 380/2009. The Agreement to Sell is with respect to ground floor and first floor of the property bearing no.8/70, Punjabi Bagh (West), New Delhi-110 026 (hereinafter referred to as the ‘suit property’). The sale consideration fixed under the Agreement to Sell dated 21.10.2004 is a sum of Rs.91,51,000/- (Rupees ninety one lac and fifty one thousand only).

2. These two matters were on the ‘Finals’ Board of this Court since 29.06.2015. Yesterday when the matters were heard, the matters were effective item nos.1 and 2 on the ‘Finals’ Board. Since no one appeared for the proposed buyers being plaintiffs in CS(OS) No. 572/2006, I heard the counsel for the defendants/proposed sellers, Sh. S.K. Mukherjee and Smt. Neelam Mukherjee. I have also gone through the entire record with the assistance of the counsel for the proposed sellers being defendants in CS(OS) No. 572/2006. Since there was no time yesterday to dictate the judgment on account of a Full Court Reference, the matters were adjourned to today for dictating the judgment.

3. The facts of the case are that the parties admittedly entered into the Agreement to Sell on 21.10.2004 with respect to the suit property. It is also admitted that the agreed sale consideration was Rs.91,51,000/- (Rupees ninety one lacs and fifty one thousand only) and out of which amount, a sum of Rs. 10,21,000/- (Rupees ten lacs and twenty one thousand only) was paid by the proposed buyers to the proposed sellers on 21.10.2004 (receipt Ex.PW-1/2/Ex.PW1/2). It is also the agreed position that thereafter three payments were made by the proposed buyers to the proposed sellers; Rs.25,30,000/- (Rupees twenty five lacs and thirty thousand only) on 30.11.2004 (receipt Ex.P-5/Ex.PW-1/6), Rs.15,00,000/- (Rupees fifteen lacs only) on 03.01.2005 (receipt Ex.P-3/Ex.PW-1/4) and another sum of Rs.15,00,000/- (Rupees fifteen lacs only) which as per the proposed buyers was paid on 11.03.2005, whereas, the proposed sellers say that this payment of Rs.15 lacs was made but actually the date of payment was of 01.03.2005 and not 11.03.2005 inasmuch as the numerical ‘1’ before 1.3.2005 has been added to the date of this document afterwards by the proposed buyers. This receipt of Rs.15 lacs is Ex.P-4/Ex.PW-1/5.

4. The dispute between the parties is as to who has committed breach of contract i.e whether the proposed buyers failed to pay the balance sale consideration of Rs.26 lacs as envisaged as per the payment date/period under the Agreement to Sell or it is that the proposed sellers