Dinesh Kumar Dabas & Anr. v. Tilak Raj

8. Submissions heard.

9. Admittedly, the Respondent/Defendant was the owner/bhumidar and in possession of land bearing Khasra No. 96/14/5 (0-2), 96/14/6 (0-8) and 96/17 (4-16) total measuring 5 bigha and 6 biswa (hereinafter referred to as the Suit Property) in the Revenue Estate of Village Dichaun Kalan, Delhi. The Respondent/Defendant agreed to sell the land to the Plaintiffs/Revisionists and the parties entered into an Agreement to Sell dated 15.10.2018 for a Sale Consideration of Rs.2,11,00,000/-. Rs.20,00,000/- as advance sum were admittedly received by the Respondent/Defendant for which Money Receipt dated 15.10.2018, was also executed.

10. The Plaintiffs claimed that as per the Agreement to Sell, the Contract was to be concluded within five months, from the date of execution of Agreement to Sell. Clause 6 of the Agreement to Sell, provided that the Respondent/Defendant was bound to obtain all permissions such as NOC, Income-Tax, Clearance Certificate etc. and after obtaining the same, he was to inform the Plaintiffs, for execution of the Sale Deed. The Plaintiffs/Petitioners consequently as per the requirements, signed the Application Form and handed over the documents to the Respondent/Defendant on 15.10.2018 itself. It was asserted that from the terms of the Agreement to Sell, it was evident that time was the essence of the Agreement.

11. The Petitioners/Plaintiffs further asserted that in January, 2019, he approached the Respondent, to verify the status of NOC since the final date of execution of the Sale Deed i.e. 15.03.2019, was fast approaching. The Respondent/Defendant assured him that all the requisite permissions shall be soon obtained. On 03.03.2019, the Plaintiffs conveyed his willingness to execute the Sale Deed and to pay the balance sale consideration, but the Respondent again reiterated that he is in the process of obtaining the requisite permissions.

12. The Plaintiffs asserted that the Respondent failed to perform his part of the Agreement in obtaining the necessary permissions and failed to execute the Sale Deed on 15.03.2019, despite the request of the Plaintiffs. Consequently, the Plaintiffs sought refund of the advance sum of Rs.20,00,000/- under the Agreement to Sell for which he visited the Respondent/Defendant on 24.03.2019, 07.04.2019 and 15.05.2019 but the Respondent did not return the money on one pretext or the other. Hence, the Plaintiffs filed a Civil Suit bearing CS DJ 713/2019, titled Dinesh Kumar Dabas & Anr. Vs. Tilak Raj, for recovery of Rs.20,00,000/- along with the interest.

13. The Respondent/Defendant on service, appeared before the learned District Judge and submitted his Written Statement wherein he admitted all the facts. However, he took the defence that on the request of the Plaintiffs, he had extended the date of performance of the Agreement to Sell by another 4 months, i.e., till 15 July 2019. The Plaintiff had filed the present Suit, even though the Respondent/Defendant is still ready and willing to perform his part of the Agreement and execute the Sale Deed on payment of the balance consideration.

14. In view of the admission of the Respondent/Defendant, the Plaintiffs had sought a decree under Order XII Rule 6 CPC but the Application has been dismissed by the impugned order.

15. From the aforesaid pleadings of the parties, it is admitted that an Agreement to Sell dated 15.10.2018 was executed for sale of Suit Property on payment of Sale Consideration of Rs. Rs.2,11,00,000/- and advance of Rs.20,00,000/- was received by the Respondent/Defendant. Though, the Respondent/Defendant has stated that he is still willing to perform his part of the Contract, but in terms of the Clause 6 of the Agreement to Sell, he was required to obtain the requisite permissions/NOCs but there is not an iota of averment to show that he has taken any step for the needful. The only averment made is that the Respondent/Defendant was the assurance that he was doing the needful.

16. Pertinently, the Plaintiffs have placed on record NOC, which is undated and had been applied by the Respondent/Defendant for Sale of the Suit Property, to one Mr. Chetan Mann, for a Sale consideration of Rs.2,30,000/-. The intention of the Respondent/Defendant to not honour the Agreement to Sell, is very well evident from this NOC. No explanation whatsoever in respect of this NOC has been given by the Respondent/Defendant in his Reply to the Application under Order XII Rule 6 CPC.

17. Another pertinent fact is that admittedly, the Suit Property has been acquired vide Award No. 7/2020. An Affidavit dated 26.12.2020 had been filed on behalf of the Respondent/Defendant for the receiving the compensation amount. Pertinently, the Defendant mentions in this Affidavit that “the land of the deponent is free from all encumbrances such as sale, mortgage, gift, transfer, lien, charge, any court Injunction, dispute, stay or any Agreement to Sell etc. or any taccavi loan etc. and there is no defect in the title of the deponent and shall be fully responsible. The deponent is receiving the compensation under protest.”

18. The Respondent/Defendant has also admitted that the land stands acquired and the compensation has been received by the Respondent/Defendant.

19. It is quite evident that the subject of the Agreement to Sell itself has ceased to exist as whether the Respondent/Defendant is willing or not, the entire contract stands frustrated because of the acquisition of the Suit Property by the Government. Once the Contract itself has become impossible to perform, the next question arises as to what are the rights and liabilities of the parties under the Agreement to Sell. When the entire transaction itself stands vitiated, the Plaintiff is entitled to recovery of the amount of Rs.20,00,000/- paid by him for purchase of the Suit land.

20. Further, the observations of the Ld. ADJ that whether he is entitled or not to the recovery of this amount, may have been relevant, had Rs.20,00,000/- been paid as an earnest money. It was not paid as an earnest money, but as an advance part-consideration as stated in the ATS. Furthermore, there is no Clause whatsoever in the Agreement to Sell providing for forfeiture of the advance amount, which also reflects that this amount was an advance and not in the nature of earnest money and was not intended by either party to be forfeited in case the Agreement to Sell, did not end in the execution of the Sale Deed.

21. Admitted facts, therefore, are that the Plaintiffs/Revisionists had paid Rs.2000,000/- as part sale consideration to the Respondent/Defendant under an Agreement to Sell for the Suit Property, which stands acquired. The Agreement to Sell has become impossible of performance and therefore, the Defendant/Respondent is liable to refund the benefit taken by him under the Agreement to Sell. There are categorical admissions of the Respondent/Defendant in the Written Statement and no defence whatsoever is made out either in the Written Statement or in the Application; rather the subsequent events of acquisition of land all the more, entitles the Plaintiffs, to refund of Rs.20,00,000/- paid by him to the Respondent/Defendant. There are clear unequivocal admissions of receipt of money which the Respondent/Defendant is liable to refund.

22. In the circumstances, the impugned Order of the learned District Judge is set-aside and the Application under Order XII Rule 6 CPC is allowed. The Suit of the Plaintiffs, is decreed for the sum of Rs.20,00,000/along with the interest @9% p.a. from the date of institution of the Suit till the date of the payment.

23. The Revision Petition is accordingly allowed and disposed of accordingly. The pending Application, if any also stands disposed of.

JUDGE DECEMBER 06, 2024