Rajesh v. Ram Babu Sharma

1. Exemption allowed subject to just exceptions. C.M. stands disposed of.

2. This Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is filed by the defendant in the suit impugning the judgment of the Trial Court dated 27.10.2017 by which trial court has decreed the suit for a sum of Rs.[4] lacs alongwith 2018:DHC:848 interest @ 9% per annum being the advance price paid by the respondent/plaintiff to the appellant/defendant under the agreement to sell dated 4.5.2012 and which agreement to sell could not go through.

3. The facts of the case are that the respondent/plaintiff filed the subject suit pleading that he and the appellant/defendant entered into the agreement to sell on 4.5.2012 whereby the appellant/defendant had agreed to sell to the respondent/plaintiff property bearing no.303, admeasuring 99 sq yds out of khasra no.303, situated at Village Kondli in the aabadi of Lal Dora Delhi-110096 for a sum of Rs.53.50 lacs and the respondent/plaintiff had paid to the appellant/defendant a sum of Rs.[4] lacs as advance. The respondent/plaintiff pleaded that the balance due was to be paid to the appellant/defendant by end of 30.6.2012 at the time of execution of the sale deed and that it subsequently transpired that the appellant/defendant was not the owner by a sale deed but only had with him the copy of General Power of Attorney with the fact that certain disputes were pending between the appellant/defendant and the relatives of previous seller as regards the suit property. After serving the legal notice dated 12.12.2012, the subject suit for recovery of Rs.[4] lacs with interest came to be filed.

4. The appellant/defendant contested the suit. It was pleaded by the appellant/defendant that the agreement to sell was signed in good faith because the agreement to sell was prepared in english by the respondent/plaintiff and neither the appellant/defendant nor her husband were well versant with the english language. The appellant/defendant pleaded that she was the owner of the suit property having purchased it from the earlier owner Sh. Ved Prakash for a sum at Rs.11,80,000/- vide registered power of attorney dated 3.9.2008 registered before the concerned sub-registrar. It was pleaded that nothing was concealed by the appellant/defendant from the respondent/plaintiff and that it was the respondent/plaintiff who was responsible for not going ahead with the transaction.

5. After pleading were complete the following issues were framed:- “1. Whether the plaintiff is entitled to recover an amount of Rs.4,00,000/- from the defendant? OPP

2. Whether the plaintiff is also entitled to recover any interest from the defendant? OPP

3. Whether the defendant has legally forfeited the amount? OPD

4. Relief.”

6. Parties led evidence and which aspect are recorded in paras 5 and 6 of the impugned judgment and which paras read as under:- “5. The plaintiff examined himself as PW[1] and deposed the entire set of facts as contained in the plaint by way of his affidavit Ex.PW1/A and also relied upon two documents Ex.PW1/1 and PW1/2.

6. The defendant examined himself as DW[1] and tendered her evidence by way of affidavit Ex.DW1/A and also registered upon registered power of attorney coupled with consideration and proved it as Ex.DW1/1. She also examined her husband as DW[2] and the erstwhile owner Shri Ved Prakash Gaur as DW[3]. All the above witnesses were duly cross-examined by the opposite Counsels.”

7. All the issues have been discussed by the trial court together and it has been held that there is no dispute that the appellant/defendant had received a sum of Rs.[4] lacs from the respondent/plaintiff under the agreement to sell. Trial court has relied upon the ratios of the judgment of the Supreme Court in the case of Kailash Nath Associates Vs. Delhi Development Authority (2015) 4 SCC 136 and that of a Single Bench judgment of this Court in C.M(M) No.961/2017 titled as Dr. VB Roy & Anr. Vs. Ravindra Kishore Sinha decided on 5.9.2017, and which ratios are to the effect that there cannot be forfeiture of an earnest money or an advance price paid unless pursuant to the breach of contract loss is caused by the guilty party to the aggrieved person. This relevant discussion is found in paras 15 and 16 of the impugned judgment and these paras read as under:- “15. The Hon'ble Supreme Court in Kailash Nath Associates Vs. Delhi Development Authority (2015) 4 SCC 136 held in para No. 21 as under:

It was further held in para 29 as under:

16. The observations of Hon'ble Justice Rajiv Sahai Endlaw of the Hon'ble High Court of Delhi in CM (M) No. 961/2017 titled Dr. VB Roy & anr. Vs. Ravindra Kishore Sinha dt. 05.9.2017 are also relevant to the facts of this case which are as under: