JUDGMENT
Sanjay Kishan Kaul, J.
1. The plaintiff has filed the suit for specific performance and for recovery of damages and/or recovery of compensation of Rs.20 lakhs. The plaintiff is a company incorporated and registered under the Companies Act, 1956 and the suit has been instituted through Shri Satyajit Singh Majithia, Chairman- cum-Managing Director who is also stated to be the Principal Officer. The certified copy of the resolution passed in his favor in the Board of Directors meeting held on 09.11.2001 is exhibited as Exhibit PW – 1/1.
2. Defendant No. 1 is stated to be the owner of a freehold plot of land measuring approximately 300 sq. yds. and numbered as House No. 47, Khasra No. 289/249, falling in the Revenue Estate of Village Kalu Sarai, Tehsil Mehrauli, New Delhi. Defendant No. 1 is stated to have entered into an Agreement for Collaboration with the builder, defendant No. 2, who is the sole proprietor of M/s. Thapar Associates. The commercial building was agreed to be constructed to be called a Thapar – Arcade and the constructed area had to be shared between the owner and the builder in the ratio of 45:55. The Collaboration Agreement dated 17.02.1992 is exhibited as Exhibit PW – 1/2. Defendant No. 1 is also stated to have simultaneously executed a General Power of Attorney dated 17.02.1992 in favor of defendant No. 2 in respect of 55% of the area falling to his share, which is exhibited as Exhibit PW – 1/3.
3. Defendant No. 2 is stated to have in turn entered into an Agreement to Sell dated 13.12.1996 with the plaintiff agreeing to sell space No. 302 on the Third Floor of the proposed building. The said Agreement is exhibited as Exhibit PW – 1/4. In terms of the Agreement, defendant No. 2 was liable to convey the title in favor of the plaintiff on payment of the full consideration and the stamp duty and registration charges had to be borne by defendant No. 2 as per clause 32 of the Agreement, which is as under:
32. That it has been mutually agreed between the Vendor and the Vendee that on receipt of the full and final consideration as stipulated and agreed herein, the Vendor shall execute the Sale Deed in favor of the Vendee and that the Stamp Duty and registration fee shall be paid by the Vendor.
4. The plaintiff claims to have made full payment and obtained possession of the flat, but the Sale Deed was not executed in favor of the plaintiff. The plaintiff called upon the defendant through numerous letters exhibited as Exhibit PW – 1/5 to Exhibit PW – 1/9. The plaintiff also wanted to sell the property as per the letter dated 17.05.1999 exhibited as Exhibit PW – 1/7, but despite this, nothing happened. The postal receipts in respect of the said letters have also been placed on record.
5. The defendants entered appearance, but defendant No. 1 did not file any written statement. Defendant No. 1 was proceeded ex-parte vide Order dated 18.09.2003. Defendant No. 2 was permitted to file the written statement subject to payment of Rs.5,000/- as costs by the same Order. The costs have not been paid and defendant No. 2 stopped appearing. The said defendant No. 2 was also, thus, proceeded ex-parte vide Order dated 24.08.2004
6. The plaintiff has filed the affidavit of evidence of Shri Satyajit Singh Majithia, who is the only witness. The documents have been proved by the said witness. In the affidavit, it has been stated that value of the property as on the date of the affidavit has come down. The plaintiff also claims that it could have sold the property. However, other than an averment made in the affidavit, no material has been placed on record in this behalf.
7. The aforesaid averments made in the pleadings and the documents placed on record show that in pursuance to the Agreement to Sell dated 13.12.1996 the plaintiff made all the payments and even took possession. However the title of the plaintiff has not been perfected in view of failure of defendant No.2 to execute a sale deed in favor of the plaintiff. The plaintiff has expressed its readiness and willingness to join in the execution of the sale deed. The formalities have to be completed by defendant No.2 and even the cost of stamp duty and registration charges are to be borne by defendant No. 2 in terms of Clause 32 of the Agreement to Sell. Defendant No. 2 has failed to do the needful. Defendant No. 1 has been imp leaded as the owner of the property who had entered into an agreement for collaboration with defendant No. 2 as the builder. Thus, if any, formalities are to be completed or documents to be executed to perfect the title of the plaintiff, defendant No. 1 would also be liable to do so.
8. In view of the aforesaid facts and circumstances, I am of the considered view that the plaintiff is entitled to the decree of specific performance, but no decree of damages can be passed in favor of the plaintiff.
9. A decree of specific performance is, thus, passed in favor of the plaintiff and against the defendants jointly and severally in respect of the Agreement to Sell dated 13.12.1996 for space No. 302 having built up area of approximately 2016 sq. ft. on the Third Floor in Thapar – Arcade, 47, Kalu Sarai, Hauz Khas, New Delhi and the defendants are directed to execute the Sale Deeds and obtained necessary permissions in respect thereof within two months from today. Plaintiff shall also be entitled to costs. Registration and stamp duty charges shall be borne by defendant No. 2 in terms of clause 32 of the Agreement entered into between the parties.
10. Decree-sheet be drawn up accordingly.