Smt. Santosh & Anr. v. Ashok Kumar & Anr.

CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Jai Vir Yadav, Advocate for the applicant-appellants. * * * L. N. MITTAL, J. (Oral) : C. M. No.4631-C of 2010 : Allowed as prayed for. C. M. No.4632-C of 2010 : For reasons mentioned in the application, which is accompanied by affidavit, delay of 166 days in re-filing the appeal is condoned. Main Appeal : Defendants no.1 and 3 have filed the instant second appeal. Ashok Kumar – respondent no.1 filed suit against appellants and proforma respondent no.2. Appellants are wife and husband, whereas proforma respondent no.2 is brother of appellant no.1. It is not disputed that R. S. A. No. 1547 of 2010 (O&M) 2 defendant no.1, vide agreement dated 28.08.2006, agreed to sell the disputed shop to plaintiff for Rs.16 lacs and received Rs.2 lacs as earnest money. The plaintiff's case is that remaining sale consideration was to be paid at the time of execution and registration of the sale deed on or before

30.11.2006. Defendant no.1 was in actual possession of disputed shop at the time of agreement, as also recited in the agreement and confirmed by her husband – appellant no.2/defendant no.3. However, defendants no.1 and 3 became dishonest and threatened to alienate the suit property to some other person, on account of which the plaintiff had to file suit for injunction restraining the defendants no.1 and 3 from alienating the disputed shop. However, from the written statement filed by them in the said suit, their dishonest intention became clear. However, in the Court, defendant no.1 agreed to execute the sale deed and the Court directed that the sale deed be executed on 18.10.2006. Copy of the draft sale deed was given to the counsel for defendant no.1 by the plaintiff. The plaintiff also got prepared two demand drafts for Rs.5 lacs and Rs.9 lacs i.e. for balance sale consideration for payment to defendant no.1. The plaintiff went to office of Sub Registrar on 18.10.2006, but defendant no.1 did not turn up. On the other hand, defendant no.2 filed suit against defendant no.1, the present plaintiff and his father alleging that defendant no.2 is tenant in possession of the suit property. However, defendant no.2 has no interest in the suit property as tenant therein and the said suit was collusive among the defendants inter se on account of rise in prices of the property. The defendants inter alia pleaded that the plaintiff willfully avoided proper description of the suit property in the agreement. The suit property was wrongly recorded in the name of defendant no.2 in municipal record, at the instance of plaintiff, in connivance with officials of municipal committee. Defendant no.2 is tenant in the disputed shop. Defendant no.1 never refused to perform her part of the contract. Various other pleas were also raised. R. S. A. No. 1547 of 2010 (O&M) 3 Learned Additional Civil Judge (Senior Division), Gurgaon, dismissed the plaintiff's suit. However, first appeal preferred by plaintiff has been allowed by learned Additional District Judge, Gurgaon, vide judgment and decree dated 24.04.2009. Cross-objections preferred in the said appeal by defendant no.2 have been dismissed. Feeling aggrieved, defendants no.1 and 3 only have preferred the instant second appeal. I have heard learned counsel for the appellants and perused the case file. Learned counsel for the appellants, while admitting the impugned agreement, contended that defendant no.1 was ready to execute the sale deed on 18.10.2006, but the plaintiff did not get the same executed because defendant no.1 was not in a position to deliver actual possession of the disputed shop to the plaintiff because defendant no.2 was tenant in possession of the disputed shop. The contention is completely devoid of merit and result of sheer dishonesty on the part of the appellants in collusion with defendant no.2, who is none else but real brother of defendant- appellant no.1. Admittedly, in the impugned agreement, it was not mentioned that the shop was under tenancy of defendant no.2. If the shop had been under tenancy of defendant no.2, this fact would have been mentioned in the agreement. Moreover, in that event, the plaintiff was not likely to purchase the disputed shop measuring one marla only situated in Pataudi for huge consideration of Rs.16 lacs, if the plaintiff was not even to get actual possession of the shop. The appellants are estopped from taking this plea that the shop was under tenancy of defendant no.2 because this fact was not mentioned in the agreement. On the other hand, on 18.10.2006, defendant no.1 admittedly did not go to the office of Sub Registrar to execute the sale deed in compliance with the agreement and order passed by the Court in injunction suit. Learned counsel for the appellants contended that defendant no.3, who is husband and general attorney of defendant no.1, went to the office of Sub Registrar. However, learned counsel for the R. S. A. No. 1547 of 2010 (O&M) 4 appellants is unable to state that defendant no.3 had authority to execute the sale deed on behalf of defendant no.1. In addition thereto, admittedly, the appellants were not ready to deliver actual possession of the disputed shop to the plaintiff and therefore, breach of the contract is manifest on the part of the appellants. It may be added that cross-objections preferred by defendant no.2 against finding of the trial court, that defendant no.2 is not tenant in the disputed shop, have been dismissed by the first appellate court. Thus, there is concurrent finding that defendant no.2 is not tenant in the disputed shop. Defendant no.2 has not assailed the judgment of the lower appellate court. So, the said finding against defendant no.2 has attained finality. From the aforesaid discussion, it emerges that breach of contract was committed by the appellants and the plaintiff had sufficient cause of action to file the suit for specific performance. The instant second appeal is result of dishonesty of the appellants. It is gross abuse of the process of Court. The appeal is devoid of any merit and is rather frivolous and vexatious. No question of law, much less substantial question of law, arises for determination in the instant second appeal. Such frivolous and dishonest litigation deserves to be curbed with exemplary cost. The appeal is accordingly dismissed in limine with cost of Rs.25,000/-, to be deposited with the Registry of this Court. If the cost amount is not deposited within one month from today, the case shall be listed again for this purpose. April 29, 2010 monika ( L. N. MITTAL ) JUDGE