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Ved Prakash vs Amrish Kumar Gupta on 23 December, 2022

                            $~5
                            *     IN THE HIGH COURT OF DELHI AT NEW DELHI
                            +     RFA 680/2022 & CM APPLs. 56292/2022, 56293/2022,
                                  56294/2022 & 56295/2022
                                  VED PRAKASH                              ..... Appellant
                                                  Through: Mr. Pradeep Sehrawat,
                                                            Advocate.
                                                  versus
                                  AMRISH KUMAR GUPTA                    ..... Respondent
                                                  Through: None.
                                  CORAM:
                                  HON'BLE MS. JUSTICE MINI PUSHKARNA
                                                     ORDER

% 23.12.2022 [Physical Hearing/ Hybrid Hearing] CM APPL. 56295/2022 (Application under Section 151 CPC on behalf of appellant for exemption from filing certified true copy of annexures)

1. This is an application under Section 151 CPC on behalf of appellant for exemption from filing certified true copy of annexures.

2. Recording the undertaking of appellant that defects shall be cured within four weeks, exemption is allowed.

3. Application is disposed of.

CM APPL. 56293/2022 (Application under Section 5 of Limitation Act on behalf of appellant for condonation of delay in filing appeal) & CM APPL. 56294/2022 (Application under Section 5 of Limitation Act on behalf of appellant for condonation of delay in re-filing the appeal)

4. The aforesaid are applications for condonation of delay in filing the appeal and re-filing the appeal respectively.

5. As per the aforesaid applications, there is a delay of 35 days in Signature Not Verified Digitally Signed By:PURAN SINGH TARIYAL Signing Date:24.12.2022 16:09:06 filing the appeal and 26 days in re-filing the appeal.

6. Issue notice to respondent.

7. Reply be filed within four weeks. Rejoinder thereto, if any, be filed within two weeks thereafter.

RFA 680/2022 & CM APPL. 56292/2022 (Application under Order XLI rule 5 read with Section 151 CPC for stay of impugned order dated 07.06.2022 in Civil Case no. CS DJ ADJ No. 16945/16 (CNR N0. DLSW0l-000748-2013).

8. The present appeal has been filed against the judgment and decree dated 07.06.2022 passed by the Court of learned ADJ, Dwarka Courts, New Delhi in CS DJ AJD No. 16945/16.

9. By way of the present appeal, it is contended that the appellant had purchased 90 sq. yds land of built up property no. E-22, Gali no. 11, Raja Puri, Uttam Nagar, total measuring 108 sq. yds out of khasra no. 104/21, situated in the area of Village Palam, Delhi vide sale/transfer documents. Subsequently, the wife of appellant Smt. Raj Kumari also purchased the remaining 19 sq. yds. of the aforesaid built up property. Thus, it is submitted that total property measuring 108 sq. yds out of khasra no. 104/21, situated in the area of Village Palam, Delhi was purchased by the appellant and his wife.

10. It is submitted that respondent had approached the appellant to purchase the said built up property. Thus, the respondent after fully satisfying and verifying the right, title and interest, and possession as well as full chain documents of the property of the appellant and his wife, entered into an agreement/bayana receipt dated 12.03.2013 with the appellant to purchase the property of appellant and his wife for an amount of Rs. 52,00,000/- (Rupees Fifty Two Lacs only.

11. It is submitted that as per the agreement/bayana receipt dated 12.03.2013 entered between respondent and appellant, the appellant had agreed to sell the property for a total consideration of Rs. 52,00,000/- (Rupees Fifty Two Lacs only). The respondent paid a sum of Rs. 7,00,000/- (Seven Lacs only) to the appellant towards the said bayana amount.

12. It is submitted that the balance amount of Rs. 45,00,000/- (Forty Five lacs only) was payable by the respondent to the appellant on or before 30.06.2013. Pursuant to that appellant was to execute the sale/transfer of documents in favour of respondent. However, the respondent did not make payment towards the full amount of the balance amount. Thus, it is submitted that since the respondent failed to make the payment of balance sale consideration to appellant within stipulated period, the same amounted to breach of contract. When the respondent failed to perform his part and miserably failed to make any payment of balance amount, the appellant forfeited the said amount of Rs. 7,00,000/- that had been paid by the respondent towards bayana to the appellant.

13. Subsequently, respondent herein filed civil suit for recovery, which has now been decreed in favour of the respondent herein by way of the impugned judgment and decree dated 07.6.2022. It is submitted that impugned judgment had been passed on the ground that the land in question was Gram Sabha land and therefore, the appellant could not have sold the said land. It is submitted that no such issue was framed with respect to fact that land in question was Gram Sabha land.

14. Attention of this Court has been drawn to para 6 of the impugned judgment, wherein, it is clear that only three issues were framed by the learned Trial Court vide order dated 20.02.2014. Para 6 of the impugned judgment is reproduced as below:-

"6. On the basis of material available on record and the pleadings of the parties, vide order dated 20.02.2014, Ld. Predceessor had framed following Issues:

(1) Whether the suit of the plaintiff is not maintainable against the defendant as the Bayana receipt dated 12.03.2013 being not duly stamped and executed on proper stamp papers as per provisions of law?OPD (2) Whether suit of the plaintiff against the defendant is without any cause of action and on account of this liable to be dismissed? OPD (3) Whether plaintiff is entitled for a decree for recovery in the sum of Rs. 14,00,000/- (fourteen lac) i.e. Rs.

7,00,000/- as earnest money paid by the plaintiff to the defendant and Rs. 7,00,000/- towards penalty as agreed between the plaintiff and the defendant, the total amounting to Rs. 14,00,000/- along with interest against the defendant? OPP (4) Relief"

15. Thus, it is submitted that the issue with respect to fact that whether or not the land in question was a Gram Sabha land was not even framed by the learned Trial Court. The appellant herein was not granted any opportunity to lead any evidence on that aspect.

16. Considering the aforesaid submissions, the matter needs consideration.

17. Issue notice to respondent by all modes.

18. Reply be filed within four weeks. Rejoinder, if any, be filed within two weeks thereafter.

19. In the facts and circumstances of the aforesaid case, the operation of impugned judgment and decree shall remain stayed till the next date of hearing.

20. List on 17.05.2023.

MINI PUSHKARNA, J DECEMBER 23, 2022 c Signature Not Verified Digitally Signed By:PURAN SINGH TARIYAL Signing Date:24.12.2022 16:09:06