Rameshwar Gopal v. Anil Atrey

1. Exemption allowed subject to just exceptions. C.M. stands disposed of. C.M. No.23598/2018 (for condonation of delay)

2. For the reasons stated in the application, delay of 54 days in filing the appeal is condoned. C.M. stands disposed of. RFA No. 467/2018 and C.M. No.23587/2018(stay)

3. This Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is filed by the defendant in the suit 2018:DHC:3590 filed by the respondent/plaintiff for specific performance pertaining to property bearing nos.75 to 90 built on a plot no.WZ-296, Block ‘G’, forming part of Khasra No.835, situated at Hari Nagar, ‘G’ Block, Jail Road, New Delhi. Trial court while dismissing the suit for specific performance by the impugned judgment, has directed the appellant/defendant to refund the amount of Rs.28.50 lacs received under the Agreement to Sell by passing a money decree for this amount in favour of the respondent/plaintiff and against the appellant/defendant.

4. The facts of the case are that between the parties an Agreement to Sell was entered into on 1.1.2004 for the suit property for a total sale consideration of Rs.1.10 crores. Prior to Agreement to Sell on 27.12.2003, a sum of Rs.[1] lakh was received by the appellant/defendant. The Agreement to Sell talks of receipt of an amount of Rs.22.50 lacs. After entering into the Agreement to Sell, the respondent/plaintiff paid to the appellant/defendant two cheques totaling to Rs.[5] lacs and therefore the total amount of Rs.30.50 lacs stood paid by the respondent/plaintiff to the appellant/defendant. A sum of Rs.[2] lacs was paid under the subject Agreement to Sell with respect to two shop nos.77 and 88 and for which shops a registered sale deed was executed in favour of the respondent/plaintiff by the appellant/defendant. Therefore, out of a total sum of Rs.30.50 lacs paid by the respondent/plaintiff under the Agreement to Sell a sum of Rs. 28.50 lacs was refundable as the amount of Rs. 2 lacs was for a sale deed was already executed for two shops. Pleading that the appellant/defendant was guilty of breach of contract in not executing the sale documents in favour of the respondent/plaintiff the subject suit for specific performance was filed.

5. The appellant/defendant contested the suit for specific performance and I need not refer to the aspect of merits in detail inasmuch as by the impugned judgment trial court has declined the relief of specific performance by holding that respondent/plaintiff was not ready and willing to perform his part of the contract as required by Section 16(c) of the Specific Relief Act, 1963 because no documentary evidence was led to show how the respondent/plaintiff had with him the financial capacity to pay the balance sale consideration of Rs.79.50 lacs.

6. The only issue before this Court is as to whether the appellant/defendant is liable to refund the sum of Rs.28.50 lacs to the respondent/plaintiff on account of having received the same under the subject Agreement to Sell once no loss is pleaded to have been caused to the appellant/defendant/seller by the breach of contract by respondent/plaintiff/buyer.

7. The law in this regard is now well settled and which is that unless a seller under an Agreement to Sell pleads and proves the loss caused to him on account of breach of contract by the buyer, any amount received by the seller under an Agreement to Sell cannot be forfeited by the seller. I have discussed this aspect in detail in the recent judgment passed in the case of M.C. Luthra Vs. Ashok Kumar Khanna 2018 (248) DLT 161. An SLP filed against this judgment has been dismissed by the Supreme Court on 15.5.2018 in SLP(C) No.11702/2018. In my opinion therefore the appellant/defendant is liable to pay back the amount of Rs.28.50 lacs received under the subject Agreement to Sell once no loss is caused to the appellant/defendant. As stated above, out of the total amount paid by the respondent/plaintiff to the appellant/defendant of Rs.30.50 lacs, a sum of Rs. 2 lacs had to be adjusted towards the sale deed of shop nos.77 and 88 executed by the appellant/defendant in favour of the respondent/plaintiff and therefore the trial court has by giving this adjustment passed a money decree for a sum of Rs.28.50 lacs against the appellant/defendant.

8. Counsel for the appellant/defendant argued that the appellant/defendant did not receive a sum of Rs.30.50 lacs however I note that this stand and argument is misconceived because in para 8 of the plaint the respondent/plaintiff gave complete details of how the amount of Rs.30.50 lacs was paid to the appellant/defendant and the appellant/defendant in his written statement in para 8 did not deny receipt on different dates of the different amounts totaling to Rs.30.50 lacs, but in fact appellant/defendant took up a stand that he had not received any amount whatsoever under the subject Agreement to Sell. The said Agreement to Sell and the receipts, showing payment of Rs.

30.50 lacs have been proved and exhibited by the respondent/plaintiff as Ex. PW 3/2 to Ex. PW3/4 during the course of leading evidence in the suit. It is also further noted that the respondent/plaintiff in his replication reiterated payment of Rs.30.50 lacs to the appellant/defendant. 9.(i) Learned counsel for the appellant/defendant then argued that the amount of Rs.30.50 lacs included an amount of Rs.7.50 lacs paid under the Agreement to Sell by a cheque and which was taken back and therefore it cannot be held that a sum of Rs.7.50 lacs was received by the appellant/defendant under the subject Agreement to Sell.

(ii) In my opinion, this argument is also misconceived because nowhere does the said Agreement to Sell dated 1.1.2004 at all states that out of Rs.22.50 lacs received by the appellant/defendant a sum of Rs.7.50 lacs was received by means of a cheque. The Agreement to Sell talks of receipt of a total amount of Rs.22.50 lacs by the appellant/defendant without at all the Agreement to Sell stating that an amount of Rs.7.50 lacs out of the amount of Rs.22.50 lacs has been received by cheque. This argument of the appellant/defendant is also therefore rejected. It may be noted that the appellant/defendant in spite of sufficient opportunities did not lead evidence and ultimately the evidence of the appellant/defendant was closed as stated by the counsel for the appellant/defendant before this Court.

10. There is no merit in the appeal. Dismissed. MAY 30, 2018 VALMIKI J. MEHTA, J Ne