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TMI Blog2020 (1) TMI 1514X X X X Extracts X X X X X X X X Extracts X X X X ..... abad Court or before any other forum and shall, in furtherance thereto, do all other things, as the defendants may be required to do and if the property has been mutated from the name of the plaintiff to the name of the defendants, shall also have the mutation reversed. The suit filed by the plaintiff for recovery of ₹ 8 crores from the defendants, is found to be misconceived and is dismissed. - CS(OS) 229/2016 & IA No.4931/2019 (of D-1 u/O XII R-6 CPC) & CC No.52/2017 - - - Dated:- 22-1-2020 - Hon'ble Mr. Justice Rajiv Sahai Endlaw For the Appellant : Mr. M.S. Rahman, Adv. For the Respondent : Mr. Abhishek Paruthi and Mr. Sachin Kumar, Advs. 1. The plaintiff instituted this suit under Order XXXVII of the Code ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts filed IA No.4931/2019 under Order XII Rule 6 of the CPC on which also the pleadings were completed. 6. The aforesaid application being IA No.4931/2019 was listed yesterday for hearing. Mr. M.S. Rahman, Advocate for the plaintiff appeared on first call; passover at that time was sought on behalf of the defendants. 7. Finding that it was the plea of the defendants in IA No.4931/2019 under Order XII Rule 6 of the CPC that, (i) it was expressly mentioned in the Sale Deed, that if the post-dated cheques for balance sale consideration were not honoured on presentation, the Sale Deed shall be treated as cancelled; (ii) the plaintiff has concealed the factum of having filed Civil Suit No.770/2016 in the Court of Civil Judge, Ghaziabad, fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st the plaintiff were deferred yesterday and the matter posted for today. 14. Today, Mr. M.S. Rahman, Advocate has again appeared for the plaintiff and states that he did not know about the Ghaziabad suit and has learnt of it only from the application under Order XII Rule 6 of CPC filed by the defendants and has called the plaintiff to the Court and identifies one person present in the Court as plaintiff. 15. The plaintiff present in Court, on enquiry in vernacular states that on delivery of possession, he is willing to refund ₹ 2 crores to the defendants. 16. I have perused the english translation of the Sale Deed in Hindi language, filed by the plaintiff himself. The same inter alia provides as under: The actual, compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uyer, not merely by registering of sale deed, but by encashment of cheque given by defendants to plaintiff for sale consideration and which contingency, admittedly has not occurred. The plaintiff, on such contingency, had option to either sue for specific performance of agreement to sell evidenced by sale deed or for recovery of damages if any suffered by breach on part of defendants. The plaintiff, by instituting the suit at Ghaziabad, for declaration as null and void, of the sale deed, has opted to treat the sale deed as non-existent and cannot at the same time maintain this suit, in exercise of rights under Section 55(4)(b) supra, treating the sale deed as existent and having conveyed/transferred ownership of the property to the defendan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll agree to the declaration as null and void of the Sale Deed before the Ghaziabad Court or before any other forum and shall, in furtherance thereto, do all other things, as the defendants may be required to do and if the property has been mutated from the name of the plaintiff to the name of the defendants, shall also have the mutation reversed. 22. Resultantly, the suit filed by the plaintiff, being CS(OS) No.229/2016, for recovery of ₹ 8 crores from the defendants, is found to be misconceived and is dismissed. 23. Decree sheet be prepared. 24. The counsel for the defendants further states that the original Sale Deed shall be handed over by the defendants to the plaintiff. 25. The Counter-Claim of the defendants is entit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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