IN THE COURT OF ADDITIONAL DISTRICT JUDGE, DISTRICT COURT,
KULGAM, JAMMU
Civil Suit No. 234 of 2019
IN THE MATTER OF:
SH. PAWAN CHANDER.………………...…..………………………..………..PLAINTIFF
VERSUS
SH. JHUMROO SINGH…………….……………………………..………….. DEFENDANT
INDEX
S. No. PARTICULARS COURT PAGE NO.
FEE
1. MEMO OF PARTIES 02
2. SUIT FOR SPECIAL DAMAGES FOR 03-12
BREACH OF CONTRACT TO DO WORK
WITHIN TIME
3. AFFIDAVIT BY DEFENDANTS 13
4. LIST OF DOCUMENTS ALONG WITH
DOCUMENTS
5. VAKALATNAMA 14-15
DATE: 20.09.1995 DEFENDANT
JAMMU
THROUGH
(COUNSEL)
SPANTH BHAGAT
SPANTH & ASSOCIATES
CH. NO. 22, CIVIL WING,
SAKET COURT, DELHI - 110017
PHONE NO. 8133598763
1
IN THE COURT OF ADDITIONAL DISTRICT JUDGE, DISTRICT COURT,
SAKET, DELHI
Civil Suit No. 234 of 2019
IN THE MATTER OF:
SMT. KAMALA DAS………………………...…..………………………..………..PLAINTIFF
VERSUS
SH. DHARAMPAL SHARMA……….……………………………..………….. DEFENDANT
MEMO OF PARTIES
IN THE MATTER OF:
SMT. KAMALA DAS
W/o Sh. Mohan Das
R/o 20, Malviya Nagar,
New Delhi - 110017………………………………….……………..………………PLAINTIFF
VERSUS
SH. DHARAMPAL SHARMA
S/o Sh. Ram Sharma
R/o 39, Malviya Nagar,
New Delhi - 110017……..………………………………..……………………...DEFENDANT
DATE: 20.09.2019 PLAINTIFF
DELHI
THROUGH
(COUNSEL)
SPANTH BHAGAT
SPANTH & ASSOCIATES
CH. NO. 22, CIVIL WING,
SAKET COURT, DELHI - 110017
PHONE NO. 8133598763
2
IN THE COURT OF ADDITIONAL DISTRICT JUDGE, DISTRICT COURT,
SAKET, DELHI
Civil Suit No. 234 of 2019
IN THE MATTER OF:
SMT. KAMALA DAS
W/o Sh. Mohan Das
R/o 20, Malviya Nagar,
New Delhi - 110017………………………………….………………………PLAINTIFF
VERSUS
SH. DHARAMPAL SHARMA
S/o Sh. Ram Sharma
R/o 39, Malviya Nagar,
New Delhi - 110017……..………………………………….……………...DEFENDANT
WRITTEN STATEMENT ON BEHALF OF DEFENDANT
MOST RESPECTFULLY SHOWETH:
PRELIMIANRY OBJECTIONS:
1. That the present suit filed by plaintiffs is abuse of law and is liable to be
dismissed.
2. That this Hon’ble Court has no jurisdiction to entertain and try this suit because
the defendant has neither a principal nor a subordinate office in Kulgam and
therefore no cause of action arises in this court as per Section 20 of CPC.
3. That the suit has not been properly valued for the purpose of court fees and
jurisdiction and is therefore liable to rejected outrightly.
4. That there is absolutely no cause of action in favour of the Plaintiff and against
the Defendant. The suit is therefore liable to be rejected on this ground also.
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5. That the suit has not been properly verified in accordance with law.
6. That the Plaintiff’s suit for declaration is barred by Section 34 of the Special
Relief Act as the plaintiff has omitted to claim further consequential relief
available to him.
7. That the suit is barred by Section 14 of the Specific Relief Act as the contract of
personal service cannot be enforced.
8. That the suit is liable to be dismissed outrightly as the Plaintiff has not given the
mandatory notice under Section 80 of the Code of Civil Procedure/Section 14 (1)
(a).
9. That the suit is liable to be dismissed as the Plaintiff firm is not registered under
Section 69 of the Indian Partnership Act and as such is not competent to institute
this suit.
ON MERITS:
Without prejudice to the preliminary objections stated above, the reply on merits,
which is without prejudice to one another, is as under-
1. That para 1 of the plaint is correct and is admitted.
2. That the contents of para 2 of the plaint are denied for want of
knowledge. The Plaintiff is put to the strict proof of each and every
allegation made in the para under reply.
3. That the contents of para 3 of the plaint are absolutely incorrect and are
denied. It is specifically denied that the Plaintiff is the owner of the suit
properly. As a matter of fact, Mr. N is the owner of the suit properly.
4. That with respect to para 4 of the plaint, it is correct that the Defendant
is in possession of the suit properly. However, the remaining contents of
para under reply are absolutely incorrect and are denied. It is specifically
denied that ___________ 5-10. (Each and every allegation must be replied
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specifically depending upon the facts of each case. The above reply on
merits is therefore only illustrative in nature.)
11. That para 11 of the plaint is incorrect and is denied. There is no cause
of action in favour of the Plaintiff and against the Defendant because
____________ The plaintiff is therefore liable to be rejected outrightly.
12. That para 21 is not admitted. This Hon’ble Court has no jurisdiction to
entertain this suit because the subject matter of this suit exceed the
pecuniary jurisdiction of this Hon’ble Court.
13. The para 13 is not admitted. The suit has not been properly valued for
the purpose of court fee and jurisdiction. According to the Defendant the
correct valuation of the suit is Rs ____________
10.
11. That the Plaintiff is a thirty-three year old fashion designer residing at 20, Malviya
Nagar, New Delhi -110017. She is a humble and polite law-abiding citizen
belonging to a family of good repute and is known for her good standing and
honesty in her business community.
12. That the Defendant is a carpet manufacturer residing at 39, Malviya Nagar, New
Delhi -110017 and is consequently also the Plaintiff’s neighbour.
13. That on Friday, 12.10.2018 the Defendant met the Plaintiff at a party where he
told the Plaintiff that he wanted to sell his 320 sq. ft. 3 BHK apartment located in
Sun Rise Society situated at South Extension, New Delhi.
14. That the Plaintiff then expressed her interest in buying the said property as she
currently resides in a 2BHK apartment and needs a larger home for her growing
family. After she enquired about the cost of the property, the Defendant informed
her that it was valued at Rs. 30,00,000/- (Thirty Lakhs only).
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15. That the Plaintiff, after consulting with her family, emailed the Defendant the very
next day i.e., on Saturday, 13.10.2018 at 12:00 PM requesting him to schedule a
meeting to discuss the sale of the concerned property. A copy of the said email is
enclosed herewith and marked as Annexure A.
16. That the Defendant replied to Plaintiff’s email on Saturday, 13.10.2018 at 2:00PM
stating that he is available on Monday, 15.10.2018 at 3:00PM for a meeting. The
copy of said email is enclosed herewith and marked as Annexure B.
17. That after several rounds of meetings that took place on Monday, 15.10.2018,
Wednesday, 24.10.2018 and Monday, 29.10.2018 at 3:00 PM, 1:00PM and
5:00PM respectively, the Agreement to Sell [hereafter ‘ATS’] was finalised in a
written format on Thursday, 01.11.2018. A copy of said agreement is enclosed
herewith and marked as Annexure C.
18. That Clause 12 and 13 of the ATS stipulated that the Plaintiff would pay Rs.
3,50,000/- (Three Lakh Fifty Thousand only) in instalments as earnest money
and that the remaining balance of Rs. 26, 50,000/- (Twenty-Six Lakhs Fifty
Thousand only) will be paid upon registration of sale deed.
19. That the Plaintiff paid the due earnest money in three instalments over the
course of three weeks. On Monday, 05.11.2018 she paid Rs. 1,00,000/- (One
Lakh only) through a cheque bearing no. HDFC25007 and a week later, on
Monday, 12.11.2018, she paid the same amount via a cheque bearing no.
HDFC29006. Finally, on Monday, 19.11.2018, she paid the final instalment due
towards the earnest money via cheque bearing no. HDFC30008 for Rs.
1,50,000/- (One Lakh Fifty Thousand only). Copies of the said cheques are
enclosed herewith and marked as Annexures D1, D2, and D3 in the respective
order of their mention. A copy of the Plaintiff’s bank statement disclosing the
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amount deducted from her account is also enclosed herewith and marked as
Annexure D4.
20. That the Plaintiff by emails dated Monday, 05.11.2018, Monday, 12.11.2018 and
Monday, 19.11.2018 informed the Defendant that she has sent the money.
Copies of said emails are enclosed herewith and marked as Annexures E1, E2
and E3.
21. That the defendant acknowledged the receipt of the amount by emails dated
Tuesday, 06.11.2018, Tuesday, 13.11.2018 and Tuesday, 20.11.2018. Copies of
said emails are enclosed herewith and marked as Annexures F1, F2 and F3.
22. That Clause 13.1 of the ATS further stipulated that the Defendant would get the
property registered in Plaintiff’s name and would execute the sale deed on or
before Wednesday, 16.01.2019 upon receipt of the balance consideration, and
would thereupon hand over physical possession of property once the defendant
had cleared all the dues and had provided an Encumbrance Certificate (EC)
attesting to the same.
23. That in order to pay the balance consideration the Plaintiff acquired a housing
loan for Rs. 26,50,000 /- (Twenty Six Lakhs Fifty Thousand only) along with
interest @8.10 % per annum from HDFC Bank, Malviya Nagar and the same was
approved by the bank on Monday, 10.12.2018. An authorized copy of the
sanction letter provided by the bank is enclosed herewith and marked as
Annexure G.
24. That the Plaintiff and Defendant decided to meet at the office of Sub-registrar,
Mehrauli at 1:00PM on Thursday, 20.12.2018 and register the sale deed. The
correspondence between the Plaintiff and the Defendant for the same is
enclosed herewith and marked as Annexure H.
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25. That the Defendant neither showed up till 5:00pm nor did he inform the Plaintiff
about his absenteeism. The Plaintiff made an attempt to contact the defendant
who did not pick up his call. The call log of Plaintiff is enclosed herewith and
marked as Annexure I.
26. That the Defendant then called the Plaintiff on Tuesday, 01.01.2019 and
informed her that he had a family medical emergency and he was occupied with
the same. He assured the Plaintiff that he would register the sale deed by
Wednesday, 16.01.2019.
27. That the Plaintiff and the Defendant once again decided to meet at the office of
Sub-registrar, Mehrauli at 1:00PM on Friday, 11.01.2019 to register the sale
deed. The correspondence between the Plaintiff and Defendant regarding the
same is enclosed herewith and marked as Annexure J.
28. That the Defendant again did not show up and avoided the Plaintiff’s calls for the
next week. Finally, after becoming considerably vexed and frustrated, the Plaintiff
decided to visit Defendant's home on Sunday, 20.01.2019. To her surprise, the
Plaintiff was informed by the Defendant’s wife that he was out of station.
29. That after repeated failed attempts by Plaintiff to reach the Defendant in the
following days, she finally decided to give a public notice in the Times of India on
Saturday, 02.02.2019 to assert her intention to buy the property and to invite any
contentions to the same. A reasonable time of 15 days was given for contesting
her claim. A copy of the public notice is enclosed herewith and marked as
Annexure K.
30. That on Saturday, 16.02.2019, having exhausted all means of attempting to
communicate with the Defendant and having received no intimation of the
Defendant’s intention to follow through with the ATS, the Plaintiff finally served
upon the Defendant a legal notice asking him to execute the sale deed within the
8
next 30 days. The same was received by the Defendant on Monday, 18.02.2019.
Copies of said legal notice and the receipt of the same by the Defendant are
enclosed herewith and marked as Annexure L1 and L2 respectively.
31. That on Monday, 04.03.2019 the Defendant sent a false reply to Plaintiff’s legal
notice whereunder he stated that he will execute the sale deed by Friday,
29.03.2019. A copy of Defendant’s reply to Plaintiff’s legal notice is enclosed
herewith and marked as Annexure M.
32. That the Defendant failed to act upon his promise and execute the sale deed by
Friday, 29.03.2019. Further, the Plaintiff figured out through a broker that the
Defendant was trying to sell the concerned property to another party.
33. That the Plaintiff tried to amicably confront the Defendant regarding his attempt
to sell the concerned property to another party, however, her efforts were in vain
as the Defendant ignored her completely.
34. That the Defendant has thus caused unnecessary financial loss and mental
anguish to the Plaintiff — who has already secured a housing loan for the
purposes of paying the balance consideration — and he has acted maliciously
throughout the course of this transaction in committing cheating, fraud and
breach of trust by giving false promises.
35. That in light of the aforementioned facts, the Defendant is in strict breach of his
contractual obligation to sell the suit property to the Plaintiff as per the ATS in
spite of the Plaintiff performing all her obligations under the agreement thus far in
a timely and lawful manner.
36. That the Plaintiff’s conduct has been without blemish throughout and goes to
show that she was — and is still — ready and willing to perform her contractual
obligations as under Section 16 Specific Relief Act, 1963, as she not only
advanced earnest money but has also secured the monies to pay the balance
9
consideration for the purchase of the suit property. She has repeatedly reminded
the Defendant of her intention to purchase the property. In keeping with the
Hon’ble Supreme Court’s decision in J.P. Builders vs. A. Ramadas Rao (2011) 1
SCC 429 and a catena of judgements, it can thus be seen that the Plaintiff has
prima facie discharged her burden to prove her readiness to fulfil her contractual
duties under the said agreement, and as per the decision in Aniglase Yohannan
vs Ramlatha 2005 (7) SCC 534 “The Court is to grant relief on the basis of the
conduct of the person seeking relief. If the pleadings manifest that the conduct of
the plaintiff entitles him to get the relief on perusal of the plaint he should not be
denied the relief.” Accordingly, the Plaintiff is entitled to a decree for specific
performance in her favour.
37. That the Plaintiff acted upon the promise to sell made by the defendant by
securing a housing loan to pay the balance consideration. In the interest of
equity, the Defendant is thus obligated to meet his promise to sell, having raised
a reasonable expectation on part of the Plaintiff to receive possession of the suit
property.
38. That the Defendant had accepted the earnest money without any objection, and
in the entire course of the transaction did not make any intimation to the Plaintiff
regarding his intention to repudiate or modify the agreement to sell. His sudden
departure from his original position with regard to his commitment towards ATS
indicates that he has acted with mala fides.
39. That, as under the said ATS alongside section 55 of the Transfer of Property Act,
1882, the Defendant is obligated to execute the sale deed for the suit property in
favour of the Plaintiff upon receipt of the due payment. The plaintiff is ready and
willing to send the balance consideration of Rs. 26,50,000/- (Twenty Six Lakhs
and Fifty Thousand Only) to the Defendant by cheque, or to deposit the amount
with the Court.
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40. That, as under Section 22 of the Specific Relief Act, 1973, the Plaintiff is entitled
to sue for a decree of possession of the suit property in her favour, and in the
alternate, is entitled to receive a refund of her earnest money with interest and
with compensation for losses caused to her as under section 21 SPA.
41. That the cause of action first accrued in favour of the Plaintiff and against the
Defendant on Monday, 05.11.2018 when the Plaintiff made her first instalment
towards the earnest money and demonstrated her readiness to follow through
with the ATS. That the cause of action arose again on Wednesday, 16.01.2019
when the defendant failed to execute the sale deed as per the Agreement to Sell.
The cause of action also arose when the Legal Notice dated Saturday,
16.02.2019 was sent to the Defendant, which was duly received by the
defendants on Monday, 18.02.2019 but was met with a false reply. The cause of
action arose on Friday, 29.03.2019 when the Defendant did not execute the sale
deed even after promising to do so in his reply to the legal notice.
42. That the Court is competent to entertain this present suit and to deliver the
appropriate remedies as the suit property is located within its territorial
jurisdiction as per Section 20 of Code of Civil Procedure, 1908. The ATS was
signed thereat and all the concerned transactions were also conducted thereat,
and as such, the causes of action arise within the Court’s jurisdiction. The suit
value also falls within its pecuniary jurisdiction as per Section 15 of Code of Civil
Procedure, 1908 and Section 25 of the Delhi High Courts Act,1966.
43. That the value of the suit for the purposes of jurisdiction has been fixed for Rs.
30,00,000/- (Thirty Lakhs Only) and for the purposes of recovery the proper ad-
valorem court fee of Rs. 31,624 (Thirty-one Thousand Six-hundred and Twenty-
four) has already been affixed to the plaint.
44. That the suit is not barred by limitation.
11
45. That no other suit is pending before any other Court with regard to the same
subject matter.
PRAYER
Wherefore, in the light of the facts stated, issues raised and arguments advanced, the
Counsel for Plaintiff most humbly and respectfully prays that this Hon’ble Court be
pleased to adjudge:
12
A. That a decree for specific performance of the agreement to sell dated Thursday,
1.11.2018 be passed in favour of the Plaintiff, and the Defendant thereby get the
same registered in favour of the Plaintiff.
B. That any other agreements to sell that the Defendant may have with other third
parties be declared null and void.
C. That during the pendency of this suit an order restraining the Defendant from
selling the suit property be passed.
D. That if this Hon'ble court finds that the Plaintiff is not entitled to the relief of
specific performance, then the suit be decreed for alternative relief by way of
decree for recovery of the deposited earnest money valued Rs. 3,50,000/- (Three
Lakhs Fifty Thousand only). In that event, the Defendant should be held liable to
pay damages in the form of compensation for the loss caused to the Plaintiff in
taking a hefty housing loan for which interest is accruing.
E. The Plaintiff be paid her costs from the Defendant.
Or take any decision, decree or order in the interest of justice, equity and good
conscience.
All of which is most humbly and respectfully submitted
DATE: 20.09.2019 PLAINTIFF
DELHI (KAMALA DAS)
THROUGH
(COUNSEL)
SPANTH BHAGAT
SPANTH & ASSOCIATES
13
CH. NO. 22, CIVIL WING,
SAKET COURT, DELHI - 110017
PHONE NO. 8133598763
VERIFICATION:-
I hereby verify that the contents of the above stated paras 1 to 35 are true to my
knowledge and are correct on the basis of information received and believed to be true
and the last para is our prayer to this Hon’ble Court.
PLAINTIFF
IN THE COURT OF ADDITIONAL DISTRICT JUDGE, DISTRICT COURT,
SAKET, DELHI
Civil Suit No. 234 of 2019
14
IN THE MATTER OF:
SMT. KAMALA DAS …………………………………………………………..PLAINTIFF
VERSUS
SH. DHARAMPAL SHARMA ………………………………………….. DEFENDANT
AFFIDAVIT
I, Kamala Das, W/o Sh. Mohan Das, New Delhi – 110017, do hereby solemnly affirm
and state here as under:
1. That I am the plaintiff herein the present suit and am fully conversant
with the facts and circumstances of the suit and am competent to
affirm and swear the present affidavit.
2. That the plaint has been drafted by my counsel under my instruction
and the contents therein are true and correct to the best of my
knowledge and belief and nothing material has been concealed there
from.
DEPONENT
VERIFICATION:
Verified at Delhi on this day of 20.09.2019 I say that the contents present affidavit are
true and correct to the best of my knowledge and belief and nothing material has been
concealed therefrom.
DEPONENT
IN THE COURT OF ADDITIONAL DISTRICT JUDGE, DISTRICT COURT,
SAKET, DELHI
Civil Suit No. 234 of 2019
VAKALATNAMA
15
IN THE MATTER OF:
KAMALA DAS
VERSUS
DHARAMPAL SHARMA
Know all to whom these presents shall come that I Kamala Das, W/o Sh. Mohan Das, r/o 20,
Malviya Nagar, New Delhi – 110017. The above-named Plaintiff do hereby appoint:
(Advocates & Solicitors)
Spanth Bhagat
SPANTH & Associates
En. No. D/6634/2017)
Phone no. 8133598763
Chamber No. 22, Civil Wing, Saket Court, Delhi - 110017___________
Advocate(s), to be my/ our true and lawful attorney (s), in the matter noted above, to do all the
following acts, deeds and things, or any of them, (jointly and severally) and also ratify anything
already done on our behalf that is to say:
To sign, verify and present and send notices, replies rejoinders, pleadings, appeals, cross-
objections or petitions for execution, review, revision, other petitions or affidavit or other
documents as shall be deemed necessary or advisable for the prosecution of the case or in
relation thereto in all its stages.
To appear, act, and plead in the above-mentioned case in any court or tribunal etc, in which the
same be heard or tried in the 1 st instance or in appeal or review or revision or execution or in
any other stage of its progress until its final decision.
To withdraw or compromise the said case or submit to arbitration any differences or disputes
that may arise to or in any manner relating to the said case.
To receive documents, papers, records, orders etc. and to do all other acts all things, which may
be necessary or proper to be done for the progress and in all course of the prosecution of the
said case.
To employ any other legal practitioner, advocate or consultant authorizing him to exercise the
power and authority hereby conferred on the Advocate (s) whenever he/they may think fit to do
so.
And I hereby agree that whatever the Advocate (s) or his substitute shall do in the premises
shall be binding on me in all intents and purposes just as if it would have been done by me.
And I hereby agree not to hold the Advocate (s) or his substitute responsible for the said case in
consequence of his absence from the court when the said case is called up for hearing.
And I hereby agree that in the event of the whole or any part of the free agreed by me to be paid
to the Advocate (s) remaining unpaid he shall be entitled to withdraw from the prosecution of the
said case, or not to appear until the same is paid.
In witness whereof I hereunto set my hand to these presents the contents of which have been
explained to and understood by me.
Date: 15 September 2019
Advocate (s) Client (s)
Spanth Bhagat
SPANTH & Associates Kamal Das
En. No. D/6634/2017)
16
Phone no. 8133598763
Submitted By:
1. Himani Yadav
17
2. Treya Gupta
3. Sasha Kumar
4. Arudra Ravindran
5. Parth Goyal
6. Nikhil Goel
LL.B.’20
Section- D
18
