Rajinder Singh v. Naresh Kumar

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

2. This Regular First Appeal under Section 96 of Code of Civil Procedure, 1908 (CPC) is filed by the appellant/defendant impugning the judgment of the Trial Court dated 3.3.2017 decreeing the suit for recovery of Rs. 2.[5] lacs with interest @ 6% per annum filed for an amount of Rs. 5 lacs along with interest. 2017:DHC:3419

3. The facts of the case are that the respondent/plaintiff pleaded that he entered into an agreement to sell dated 24.6.2012 with the appellant/defendant for purchasing appellant’s property bearing no. F-26, Vishwas Park, Uttam Nagar, New Delhi for a sum of Rs.22 lacs of which a sum of Rs.2.[5] lacs was paid as advance/earnest money. The respondent/plaintiff pleaded that the appellant/defendant failed to perform his part of the contract, and therefore, the agreement to sell was cancelled and resultantly the respondent/plaintiff became entitled to the double the amount of earnest money in terms of relevant clause of the agreement to sell i.e an amount of Rs.[5] lacs. The subject suit was therefore filed for recovery of Rs.[5] lacs along with interest.

4. The appellant/defendant though appeared and contested the suit, it is seen that the right of the appellant/defendant to crossexamine PW-1 was closed after repeated opportunities were not utilized. The appellant/defendant also failed to lead evidence despite repeated opportunities and ultimately the right of the appellant/defendant to lead evidence was also closed. The impugned judgment in para 12 refers to the detailed order passed by the trial court on 7.2.2017 as to how the appellant/defendant repeatedly failed to utilize the opportunities for cross-examination of PW-1 and leading his own evidence and thereby resulting in closing of his right. Therefore it is seen that whereas the respondent/plaintiff proved his case and showed that he paid a sum of Rs.2.[5] lacs to the appellant/defendant in terms of the subject agreement to sell dated 24.6.2012 Ex.PW1/1, the appellant/defendant led no evidence and did not cross-examine the witness of the respondent/plaintiff. Accordingly the trial court was entitled to decree the suit because the respondent/plaintiff had proved his case and the appellant/defendant failed to do so.

5. A civil case is decided on balance of probabilities. Respondent/plaintiff discharged his onus of proof and therefore the suit was decreed for a sum of Rs.2.[5] lacs being the amount received by the appellant/defendant under the subject agreement to sell. Even the rate of interest granted by the trial court is extremely reasonable @ 6% per annum.

6. There is no reason to interfere with the impugned judgment. Dismissed. JULY 11, 2017 VALMIKI J. MEHTA, J Ne