F.A.O. (OS) no. 292/2009Page 1 of 13

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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F.A.O. (OS) no. 292/2009 with CMs 9685-86 of 2009

Reserved on: 20^th July, 2009

Pronounced on: 27^th July, 2009.

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RAJESH KUMAR

........Petitioner

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Through:

Mr. N.N. Aggarwal, Advocate

With Mr. Kapil Gupta, Advocate,

VERSUS

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GOPAL KRISHAN KAPOOR & ORS......Respondents

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Through:

Mr. Sanjeev Sachdeva, Advocate

with Mr. Preet Pal Singh, Advocate

CORAM:-

THE HON’BLE MR. JUSTICE VIKRAMAJIT SEN

THE HON’BLE MR. JUSTICE V.K.JAIN

1.Whether Reporters of Local newspapers may be

allowed to see the Judgment? Yes.

2.To be referred to the Reporter or not? Yes.

3.Whether the Judgment should be reported in the

Digest? Yes.

2009:DHC:2909-DB

F.A.O. (OS) no. 292/2009Page 2 of 13

V.K.Jain, J.

1. This is an appeal against the order of the learned Single

Judge dated 29^th April, 2009, passed in Suit No.691/2007, whereby

he has dismissed the application of the appellant/defendant No.2

under Order XXXIX Rule 1 and 2 of CPC.

2.

The facts giving rise to the filing of the appeal are briefly as

follows: The appellant, vide a Memorandum of Understanding

dated 28^th February, 2005, entered into an agreement to purchase

property No.14-B/14-C, Bazar Marg, Old Rajinder Nagar, New

Delhi-110060 from respondents No. 1 to 4 and late Smt. Sanjogta

Kapoor, deceased mother of respondents No. 6 to 9 (hereinfatter

referred to as „Sellers‟), for a total sale consideration of Rs. 5.2

crores and paid a sum of Rs. 55 lakhs to them as earnest money. A

second payment of Rs. 25.00 lacs was made to them on March 13,

2005 followed by another payment of Rs. 20.00 lacs.

3.

On

April

20, 2005,

the

appellant

entered

into

a

Memorandum of Understanding with respondent No. 5 Shri R.S.

Chhabra, agreeing to sell, transfer, convey and assign the

aforesaid property to Shri R.S. Chhabra for a total consideration of

Rs. 5.20 crores on the terms and conditions as contained in the

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F.A.O. (OS) no. 292/2009Page 3 of 13

Memorandum

of

Understanding

dated

28^th

April,

2005.

Respondent No. 5 Shri R.S. Chhabra paid a sum of Rs. 80.00 lacs

to the appellant. The balance amount of Rs. 20.00 lacs was agreed

to be paid at the time of assignment of agreement by the sellers in

favour of Shri R.S. Chhabra. He also undertook to make efforts so

as to assign the agreement within a period of 10 days. No right

was to be left with the appellant, in the aforesaid property, after

receiving the balance amount of Rs. 20.00 lacs and all his rights

under the Memorandum of Understanding were to be transferred

to Shri R.S. Chhabra. The balance payment of Rs. 4.20 crores was

to be made by respondent No. 5 Shri R.S. Chhabra directly to the

sellers, before the Sub Registrar, after mutation of the property in

their name and its conversion from leasehold into freehold Under

the Memorandum of Understanding, Shri R.S. Chhabra was

entitled to get the sale deed executed from the sellers in his

favour. The possession of the property was to be handed over, by

the sellers, to Shri R.S. Chhabra, after receipt of the sale

consideration and at the time of execution and registration of the

sale deed.

4. A civil suit, being CS (OS) No. 353/06, was filed by

respondent No. 5 against the sellers as well as the appellant,

claiming assignment of rights in his favour by virtue of

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F.A.O. (OS) no. 292/2009Page 4 of 13

Memorandum of Understanding dated 20^th April, 2005 executed by

the appellant in his favour. After issue of summons to the

defendants in that suit, the matter was compromised between the

sellers and respondent No. 5 who filed the compromise, in the

court, vide I.A. No. 3182/2006. The suit was decreed, in terms of

the compromise, on March 20, 1006. After receipt of court

summons, the appellant filed an application on May 18, 2006 for

setting aside the compromise decree date