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Judgment
V.K. Jain, J.—Ex. P. 59/2009 has been filed by Raj Kumar Gaur for possession of the first floor in Anupam Plaza, Plot No. 3, Local Shopping Centre, West Trilok Puri, Mayur Vihar, Phase-I, in terms of the order dated 27.03.2008 passed in CS(OS) 1819/2007.
Ex. P.8/2010 has been filed by M/s. R.U. Builders Pvt. Ltd., seeking recovery of Rs. 8,38967.70 from Raj Kumar Gaur in terms of the aforesaid order passed in the same suit.
CS(OS) 59/2009 was filed by Raj Kumar Gaur against M/s. R.U. Builders Pvt. Ltd., which was disposed of vide order dated 27.03.2008. His case is that the judgment debtor/Defendant M/s. R.U. Builders Pvt. Ltd. was required to execute sale deed in his favour and give possession of the property subject matter of the suit to him on payment of Rs. 4,82718.75, which it has failed to do. According to him, the judgment debtor has been asking for a sum of Rs. 8,38,967.77 though only the amount of Rs. 4,82,718.75 is to be paid to it. It is also alleged that the judgment debtor has failed even to obtain the completion certificate and conveyance deed from DDA in its favour.
The case of M/s. R.U. Builders Pvt. Ltd. is that under the Agreement executed between the parties on 20.02.2007, the purchaser was required to pay VAT, maintenance charges, service tax and security deposit, in addition to the sale consideration agreed between the parties and, therefore, he was asked by it to make payment of a sum of Rs. 8,38,967.70, so that sale deed may be executed in his favour and the possession may be given to him. It is also alleged that the completion certificate has already been obtained on 29.07.2009 and the possession has also been offered to the decree holder on payment of Rs. 8,38,967.70.
A perusal of the documents shows that IA 3789/2008 was filed in CS(OS) No. 1819/2007 for disposal of the suit in terms of the settlement between the parties. This was a joint application filed by the parties as well as their respective counsels. Para VI of the application reads as under:
That the Defendant shall hand over the possession of the said property to the plaintiff on or before 30th September, 2008 on receipt of the balance payment of Rs. 482,718.75 as per the terms of Agreement, simultaneously, the sale deed thereby conveying the title of the said property shall be executed by the Defendant in favour of plaintiff. The cost of stamp papers and other charges for registration shall be borne by the plaintiff.
Vide order dated 27.03.2008 passed on the aforesaid application, the Court noted that the plaintiff had handed over to the Defendant post-dated cheques, details of which were given in para 4 of the joint compromise application. On receipt of the abovesaid cheques, the Defendant had agreed to revoke the cancellation dated 22.09.2007 to the plaintiff and to execute the sale deed in favour of the plaintiff on or before 30.09.2008 against balance payment of Rs. 482,718.75 to be paid by the plaintiff to the Defendant at the time of the execution of the sale deed.
It is an admitted case of the parties that the post-dated cheques which were delivered to the Defendant/judgment debtor in the Court on 27.03.2008 were dishonoured when presented to the Bank but later on the amount of those cheques was paid to the Defendant/judgment debtor along with the interest and has been accepted by it.
As noted earlier, para VI of the joint compromise application envisaged payment of the balance amount of Rs. 482,718.75 to the plaintiff in terms of the Agreement. The payment was to be made simultaneously with execution of the sale deed and possession was to be given to the plaintiff on or before 30.09.2008 on receipt of the aforesaid balance payment.
The contention of the Defendant/judgment debtor is that VAT amounting to Rs. 24768.75, service tax amounting to Rs. 39,630/-, security deposit amounting to Rs. 14, 574/- and maintenance charges amounting to Rs. 24151.20 are also required to be paid by the plaintiff in addition to the sale consideration, in terms of the Agreement dated 20.02.2007 which was entered into between the parties. This, however, is disputed by the decree holder who states that the compromise did not envisage any payments other than those specified in IA No. 3789/2008.
In my view, the joint compromise application which was filed in the Court and was the basis of the consent decree passed by the Court on 27.03.2008 does not envisage payment of anything more than Rs. 482,718.75. Assuming that under the Agreement which the plaintiff had entered into with the Defendant at the time of agreeing to purchase the property in question from it envisaged payment of the VAT amounting to Rs. 24768.75, service tax amounting to Rs. 39,630/-, security deposit amounting to Rs. 14,574/- and maintenance charges amounting to Rs. 24151.20, since there is no reference to any of these payments in the compromise application or in the order passed by the Court, the Defendant/judgment debtor cannot insist upon these payments before executing the sale deed in favour of the plaintiff and handing over the possession of the premises in question to him. The compromise application is the result of give and take on both the parties. If the Defendant despite the terms contained its Agreement with the plaintiff for payment of VAT, security deposit and maintenance charges, agreed to execute the sale deed in his favour and handover possession to him on accepting the payment of Rs. 482,718.75 in addition to the cheques mentioned in para 4 of the application, he cannot now claim those payments on the basis of his initial Agreement with the plaintiff. The Defendant/judgment debtor in these circumstances will be deemed to have given up/waived the aforesaid charges. Of course, the cost of stamp papers and other charges for registration shall be borne by the plaintiff in terms of para 6 of the application.
For the reasons given in the proceeding paragraphs, both the petitions are disposed of with the directions that the Defendant/judgment debtor will execute the sale deed in favour of the plaintiff/decree holder and hand over possession to him on receipt of balance payment of Rs. 482,718.75. The decree holder is directed to deposit a pay order of Rs. 482,718.75 in favour of the judgment debtor in the Court within two weeks, under intimation to the Defendant/judgment debtor, which will execute the sale deed and hand over possession to the plaintiff/decree holder within two weeks thereafter.
List these matters on 8th March, 2011 to record compliance.