Delhi District Court
Sh. Divyanshu Aggarwal vs Sh. Amrit Chopra on 26 March, 2011
IN THE COURT OF MS. HEMANI MALHOTRA
ADDITIONAL DISTRICT JUDGE04 (WEST)
TIS HAZARI : DELHI
C.S.: 54/09
UNIQUE ID NO. :4003/09
SH. DIVYANSHU AGGARWAL
S/O SH. RAJENDERA KUMAR AGGARWAL
R/O M456, GURU HARKISHAN NAGAR
DELHI110087.
.... PLAINTIFF
VS.
SH. AMRIT CHOPRA
S/O SH. SARDARI LAL CHOPRA
R/O 1507/2, SECTOR43 B.
CHANDIGARH.
.... DEFENDANT
Date of institution of the Suit : 30.1.2009
Date on which order was reserved : 18.3.2011
Date of decision : 26.3.2011
J U D G M E N T
1. By this Judgment, I shall dispose off aforesaid suit filed by plaintiff against the defendant for recovery of Rs.20,00,000/ alongwith interest @ 24 % p.a.
2. The brief facts pertaining to the present case as detailed in the plaint are that defendant agreed to sell and the plaintiff agreed to purchase 20000 equity shares of DLF Limited @ Rs.660/ per share and an agreement to this effect was executed at Delhi on 01.02.2007. At the time of execution of agreement, the defendant represented that he was not in possession of all the 20000 equity shares and he shall deliver the same when the equity shares would be available with the defendant in dematerialized form. However, he agreed to transfer some of the shares which were available with him immediately. On the said representation of the defendant that some shares were available with him for transfer, the plaintiff paid an amount of Rs.20,00,000/ by way of four demand drafts all dated 01.02.2007 as advance consideration towards the price of the available shares with the defendant. The remaining payment was to be made by the plaintiff when the defendant was able to arrange the remaining equity shares and make the delivery of the same to the plaintiff. It is the case of the plaintiff that the defendant represented to the plaintiff that he has not brought with him the equity shares of the company to Delhi but in part performance of the agreement, shares worth Rs.20,00,000/ shall be sent immediately without any delay. Despite repeated requests, the defendant did not transfer the equity shares for the value of Rs.20,00,000/ in part performance of the agreement. When the market prices of the equity shares fell down considerably, the defendant insisted the plaintiff for making payment of the whole of the sale price of 20000 equity shares @ Rs.660/ per share in advance. It was further intimated by the defendant that only after receiving the entire sale price, the defendant shall transfer whole lot of shares in the name of the plaintiff.
3. Since the defendant took sufficiently long time to arrange the equity shares, the prices of shares came down drastically. At that juncture, the plaintiff refused to buy the 20000 equity shares and demanded refund of Rs.20,00,000/ paid as advance sale price. Thereafter, despite the non performance of agreement by the defendant, the defendant forfeited the amount of Rs.20,00,000/. The said act of the defendant was unwarranted as there was no stipulation in the agreement providing forfeiture of the advanced amount by the defendant. It was further the case of the plaintiff that the said amount was lying with the defendant in trust and without any expressed provision in the contract, the same could not have been forfeited. Since the defendant illegally forfeited the said amount, the present suit for recovery of Rs.20,00,000/ alongwith interest @ 24 % p.a. from the date of giving advance of Rs.20,00,000/ i.e. 01.02.2007 till the date of realization was filed.
4. The suit was contested by the defendant by filing written statement wherein it was claimed by the defendant that this court lacks territorial as well as pecuniary jurisdiction and therefore, the present suit was not maintainable. Execution of agreement dated 01.02.2007 was not denied by the defendant. However it was claimed that payment of Rs.20,00,000/ was advance payment in lieu of which no shares were to be transferred immediately but transfer of shares was to be affected only when the shares were available in dematerialized form. The defendant had already been allotted 20000 equity shares on the date of execution of the agreement, which were to be electronically transferred in the dematerialized form. The defendant was never to perform his obligation in part and the same was to be fulfilled " As and when shares are made available in dematerialized transferable form." It was claimed by the defendant that vide letter dated 14.02.2007, the defendant informed the plaintiff about dematerialization of the shares and he called upon the plaintiff to pay the balance sale consideration in full latest by 25.02.2007. Vide another letter dated 15/16.03.2007 addressed to the plaintiff, the defendant had reminded the plaintiff of the contract between the parties urging the plaintiff to fulfill his part of contract by paying the balance sale consideration in respect of 20000 shares. In the said letter, the defendant also expressed the financial loss being incurred by the defendant with the passage of time as time was of essence of the contract. The defendant also intimated his right to forfeit the advance amount of Rs.20,00,000/ towards the loss and damages caused to him in case the terms of the agreement were not complied with. It was also averred by the defendant that vide letter dated 14.05.2007 addressed by the plaintiff to the defendant, the plaintiff had promised to pay the balance sale consideration without challenging the right of forfeiture of Rs.20,00,000/ by the defendant thereby accepting the terms of the agreement as intimated vide letter dated 15.03.2007. Since no follow up action was taken by the plaintiff, vide letter dated 06.06.2007, the defendant forfeited the advance sum of Rs.20,00,000/ and adjusted the same towards the loss and damages suffered by him. It was also claimed by the defendant that due to breach of contract by the plaintiff he suffered a loss of Rs.39,20,000/ and therefore, sum of Rs.20,00,000/ was adjusted towards his loss. Since the defendant suffered losses to the tune of Rs.39,20,000/, the suit of plaintiff deserves to be dismissed.
5. Replication was filed on behalf of plaintiff wherein the averments made in the plaint were reiterated and those made in the written statement were denied.
6. On the basis of pleadings, following issues were framed vide order dated 21.01.2010 :
1. Whether suit is not maintainable on account of lack of territorial jurisdiction as alleged ? OPD.
2. Whether this court has no pecuniary jurisdiction to try and entertain the suit as alleged ? OPD.
3. Whether the defendant is entitled to forfeit advance amount of Rs.20,00,000/ as alleged ? OPD.
4. Whether the plaintiff had paid an amount of Rs.20,00,000/ to the defendant in advance towards the price of equity shares in part execution of the contract as alleged ? OPP.
5. Whether the plaintiff is entitled to recover Rs.20,00,000/ from the defendant ? OPP.
6. Relief.
7. On behalf of plaintiff, plaintiff examined himself as PW1; whereas defendant examined himself as DW1 and Ms. Veena Thakur posted as Personal Assistant in the office of Punjab Agro Industries Corporation, Chandigarh as DW2.
8. I have heard arguments advanced by learned counsels for the parties and have perused the entire record of the case with utmost care.
9. My issuewise findings are as under :
10. ISSUE No.1 Whether suit is not maintainable on account of lack of territorial jurisdiction as alleged ? OPD.
Burden to prove this issue was placed on the defendant. Agreement dated 01.2.2007 executed between the parties was an admitted document, thus proved as Ex. PW 1/1. It was averred by the plaintiff that cause of action had arisen at Delhi as firstly, the agreement dated 01.02.2007 was executed at Delhi. Secondly, the four drafts amounting to Rs.20,00,000/ all dated 01.02.2007 were handed over to the defendant in Delhi and thirdly, the shares in question were to be delivered in Delhi. For the said reasons, the court at Delhi has territorial jurisdiction to try the present suit. To prove the said assertion, the plaintiff reiterated the aforesaid pleas in his evidence by way of affidavit which was exhibited as Ex.PW.1/A. A contrary plea was taken by the defendant in his written statement which was again asserted in his evidence by way of affidavit (Ex.DW1/A) that the agreement Ex.PW 1/1 was actually executed in Chandigarh and not in Delhi and drafts were also handed over by the plaintiff at Chandigarh. It was further contended that since the defendant lives and works for gain in Chandigarh, therefore the suit could not have been filed by the plaintiff at Delhi.
In his cross examination, it was testified by PW1 Shri Divyanshu Aggarwal that agreement Ex.PW 1/1 was duly executed by both the parties on 01.02.2007 at Delhi. The stamp paper on which the agreement Ex.PW.1/1 was reduced into writing was also purchased at Delhi. It was further testified by him that the drafts of Rs.20,00,000/ were also prepared at Delhi. When a suggestion was given to the plaintiff that he had visited Chandigarh on 01.02.2007 i.e. the place where the agreement Ex.PW.1/1 was alleged to have been executed, same was categorically denied by the plaintiff. Whereas to prove that the agreement Ex.PW.1/1 was executed at Chandigarh, the defendant examined Ms. Veena Thakur as DW2. DW2 Ms. Veena Thakur placed on record certified copy of the attendance register of the office of Punjab Agro Industries Corporation, Chandigarh, the place of employment of defendant. She proved the signatures of the defendant at point A on the attendance register date 01.02.2007 to show that the defenadant was present at Chandigarh on the date of execution of agreement dated 01.2.2007. It is relevant to note that although the certified copy of the attendance register Ex.DW 1/ 4 marks the attendance of the defendant on 01.2.2007 it does not mention the time when the attendance of the defendant was marked. Therefore, it is not improbable that the defendant may have marked his attendance in the morning hours and then travelled to Delhi to execute the said agreement. On the other hand, the perusal of the agreement Ex.PW.1/1 shows that Ex PW 1/1 was executed at Delhi and not at Chandigarh. Ex. PW 1/1 categorically states that " This agreement is made at Delhi on this 1st day of February 2007 between Shri Divyanshu Agarwal And Shri Amit Chopra," and the said agreement has been signed by both the parties at point A and B. The agreement nowhere mentions that it was executed at Chandigarh. Even the part of Ex. PW 1/1 where the signatures are appended does not indicate the place where the said document was signed. Except verbal contentions, no other document was placed by the defendant to prove that drafts were handed over at Chandigarh. No suggestion also to this effect was put to PW 1 in his crossexamination. There is no denying that the four drafts handed over to the defendant were prepared in Delhi. Thus, even assuming for the sake of argument that Ex. PW 1/1 was executed at Chandigarh, it is well settled law that where two courts have jurisdiction, the plaintiff can choose the place where he wishes to file the suit. In view of the aforesaid discussion, issue No.1 is decided in favour of plaintiff and against the defendant.
11. ISSUE No.2 Whether this court has no pecuniary jurisdiction to try and entertain the suit as alleged ? OPD.
The onus to prove this issue was also placed on the defendant. It was claimed by the defendant that since the subjectmatter of the agreement was purchase of 20000 equity shares @ Rs.660/ per share, the agreement was valued at Rs.1,32,00,000/ and therefore this court has no pecuniary jurisdiction to try the present suit. However, in the crossexamination of PW1 Sh. Divyanshu Aggarwal, no suggestion regarding this court not having pecuniary jurisdiction was put nor any evidence was led by the defendant to prove that the suit was required to be valued by the plaintiff at Rs.1,32,00,000/ for the purposes of court fees and jurisdiction.
12. The present suit has been filed for recovery of Rs.20,00,000/ by the plaintiff which was admittedly paid at the time of execution of agreement Ex. PW 1/1. Although the plaintiff has also sought interest @ 24 % p.a no court fees on the interest component was paid by him. The subject matter of suit was valued at Rs. 20,00,000/ by the plaintiff and appropriate court fees was also affixed. In view of the aforesaid, it cannot be said that the plaintiff had undervalued the suit. Since this court has the pecuniary jurisdiction to try suits upto the value of Rs.20,00,000/,this court certainly has the pecuniary jurisdiction to try the present suit. This issue is too therefore decided in favour of plaintiff and against the defendant.
13. ISSUE NOS. 3, 4 & 5Whether the defendant is entitled to forfeit the advance amount of Rs.20,00,000/ as alleged ?
OPD.
Whether the plaintiff had paid an amount of Rs.20,00,000/ to the defendant in advance towards the price of equity shares in part execution of the contract as alleged ? OPP.
All these issues are interconnected and the evidence is also common, so they are being decided together.
It was the case of the plaintiff that at the time of the execution of the agreement Ex. PW 1/1 the defendant had represented that he was not in possession of all 20000/ equity shares and that he shall deliver all the shares as soon as he obtains the same. It was also alleged that the defendant had agreed and committed to transfer some of the shares which were available with him at the time of execution. It was on this false representation of the defendant that the amount of Rs. 20,00,000/ by way of four demand drafts was given as advance consideration towards price of the available shares with the defendant. It was also averred that the said available shares were to be transferred immediately by the defendant in part execution of Ex.PW1/1 and the remaining payment was to be made by the plaintiff when the defendant would be able to arrange and deliver the remaining equity shares. The defendant on the other hand had contended that the amount of Rs. 20,00,000/ was given as advance and not as part payment for the shares of value of Rs.20,00,000/ to be transferred to the plaintiff immediately. It was also claimed that albeit defendant had already been allotted the subject 20000 equity shares of DLF Ltd on the date of execution of agreement dated 01.2.2007 but the transfer was to be effected only when the said shares would be available in dematerialized form.
14. During the crossexamination of DW1 Sh. Amrit Chopra, (defendant himself) the plaintiff had suggested that the defendant had represented to the plaintiff on 01.2.2007 that he had shares worth Rs.20,00,000/ in dematerialized form which would be transferred to the plaintiff after the encashment of demand drafts of Rs.20,00,000/. The said suggestion which was contrary to the case set up by plaintiff, was completely denied by the defendant. Rather, it was deposed by DW1 that he never had in his possession the subject 20000 shares as they had been given to his bank for dematerialization and that he had applied for dematerialization on 29.1.2007 itself. To answer the question as to whether the defendant had made any representation to the plaintiff of the kind discussed above, it is necessary to quote the relevant portion of the agreement dated 01.2.2007 Ex.PW 1/1 which is reproduced herein as below :
" Now the second party ( defendant ) is also willing to sell further 20000/equity shares of DLF Ltd. which are allotted to him from the company and the first party ( plaintiff ) has agreed to purchase the same @ Rs.660/ per share and an advance of Rs. 20,00,000/ is being sent vide draft nos.556212, 556213, 556214 and 556215 dated 01.2.2007, drawn on State Bank of Mysore, payable in Chandigarh in token of part execution of this deed and the balance payment will be made as and when shares are made available in dematerialized transferable form. "
The bare reading of the aforesaid shows that no mention of immediate transfer of shares of equivalent amount of Rs.20,00,000/has been made in the said agreement. Except for this bald plea, neither any evidence was adduced nor any documentary proof was placed on record by the plaintiff in support of his aforesaid contention. In fact, from the correspondence of the parties placed on record by the defendant, it was obvious that in letter dated 22.3.2007 written by the plaintiff to the defendant, the plaintiff admitted that he had paid Rs.20,00,000/ as advance payment for the purchase of 20000 equity shares and that the remaining payment was to be made after dematerialization of these shares. Thus, in view of the plaintiff's own admission claim of the plaintiff is not tenable. To prove that the advance money of Rs.20,00,000/ could be forfeited, the defendant had along with his written statement placed on record communication which had taken place between the parties pertaining to the agreement Ex. PW 1/1 which were marked as Ex.DW 1/5 to Ex.DW 1/10. Although objection to the mode of proof of these documents was taken by the plaintiff at the time of tendering of evidence by the defendant, DW1, the same is not sustainable as the photo copies of these letters Ex.DW 1/5 to Ex.DW 1/10 were filed by the defendant along with his written statement. In para nos. 7, 8 and 9 of the written statement also reference to these letters which were very relevant communications between the parties was made. The perusal of the replication filed by the plaintiff to the written statement of the defendant shows that, no specific denial of the said letters was made. In fact no reference at all was made in regard to these letters. Also, in answer to the para 8 of the written statement which is the most material paragraph of the written statement as far as communication post execution of the agreement is concerned, it was stated by the plaintiff that :
'' para no. 8 of the reply, parawise of the written statement does not require any reply. "
Learned counsel for the plaintiff had cited various precedents which instead of supporting the case of the plaintiff militates against him. The learned counsel for the plaintiff had relied on an Apex Court judgment cited as LOHIA PROPERTIES (P) LTD. VS. ATMARAM KUMAR reported as 1994 (1) CIVIL COURT CASES 4(SUPREME COURT) wherein it was held that :
" Allegation of fact must either be denied specifically or by a necessary implication or there should be at least a statement that the fact is not admitted. Plea in that manner if not taken, then the allegation shall be taken to be admitted."
The plaintiff further relied upon a case cited as NARBADA DEVI GUPTA VS. BIRENDER KUMAR JAISWAL reported as 2004(1) APEX COURT JUDGMENTS 171 (SUPREME COURT) in which it was observed that :
The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence i. e by the evidence of those persons who can vouchsafe for the truth of the facts in issue. The situation is, however, different where the documents are produced, they are admitted by the opposite party, signatures on them are also admitted and they are marked thereafter as exhibits by the court." (emphasis supplied ) As stated above, no specific denial was made by the plaintiff in the replication or in his deposition that the letters Ex.DW1/5 to Ex.DW1/10 are not admitted. Therefore, the allegation of the defendant made in the written statement shall be taken to be admitted. In view of the aforesaid,it can be safely said that Ex.DW1/5 - DW1/10 were admitted documents and were thus duly proved by the defendant.
15. Now coming to the correspondence between the parties, vide letter dated 14.2.2007 proved as Ex. DW 1/5 the defendant informed the plaintiff that the entire lot of shares had been dematerialized w.e.f. 12.2.2007 and that full payment of sale consideration as per agreement be made immediately. A copy of this letter was also sent to Sh. Ripunjay Aggarwal of Growfast Securities and one Mr. Nitin Gupta of Gupta Investments as both Mr. Ripunjay Aggarwal and Mr. Nitin Gupta were witnesses to the agreement dated 01.2.2007. Thereafter vide another letter dated 15.3.2007 (Ex.DW1/6) the defendant again reminded the plaintiff that he was bound to make full payment of remaining 20000 equity shares immediately on their dematerialization but the same has not been done. It was also informed that on the request of Sh. Nitin Gupta it was agreed that purchase of shares may be staggered into lots of 5,000 shares to be purchased each week after 26.2.2007 and this request had been agreed subject to the condition that the entire transaction shall be completed by 24.3.2007 and the payments will be made through bank drafts. Vide the said letter it was also informed that if the transaction is not completed by 24.3.2007, the defendant shall reserve his right to forfeit the entire advance amount and dispose off the 20000 shares. On receipt of this letter dated 15.3.2007,vide letter dated 22.3.2007 (Ex.DW1/7) the plaintiff demanded statement of Demat account of the defendant confirming the balance of dematerialized shares in his account. It was also stated that since there was no forfeiture clause in the agreement, the amount of Rs.20,00,000/ lying deposited with the defendant in nature of trust cannot be forfeited. As discussed above, it was in this very letter the plaintiff had categorically admitted that he had paid Rs.20,00,000/ as advance payment against the purchase of 20000 equity shares in part execution of the deed and that he shall make the remaining part payment for the aforementioned shares after coming to know about the dematerialization of equity shares meaning thereby that as claimed by the plaintiff no shares of equivalent amount of Rs. 20,00,000/ were to be transferred by the defendant to the plaintiff immediately on execution of agreement Ex .PW 1/1.
16. In reply to the letter dated 22.3.2007 of the plaintiff, to prove that 20000 equity shares were already dematerialized, the defendant enclosed a copy of his Demat account (dated 28.2.2007) with UTI Bank evidencing the credit of 20000 shares in his account on 10.2.2007 itself along with letter dated 26.3.2007 (Ex.DW1/9). The defendant also insisted on payment of remaining sale consideration immediately. The perusal of the Transactions Statement of UTI Bank with respect to Demat account of the defendant shows that 22000 equity shares were credited to the account of defendant on 10.2.2007. After receipt of the said Transaction Statement and letter dated 26.3.2007 the plaintiff vide letter dated 14.5.2007 (Ex.DW1/8) acknowledged the Demat account details of the defendant and further communicated him the following :
" This is to inform you that as per our agreement we would be completing the deal of 20000 equity shares of DLF Ltd.in the near future and the payment schedule will be intimated to you shortly ."
The aforesaid intimation of the plaintiff to the defendant reveals that only a vague statement was given by the plaintiff qua honouring the commitment of making payments in time. It is relevant to note that time was of essence in the present case and considering the volatile nature of share market the price of the shares were very prone to fluctuation. From the aforesaid correspondence between the parties, it was also apparent that the plaintiff was only buying time on one pretext or the other. When no payment schedule was communicated to the defendant within fifteen days of the letter dated 14.5.2007, the defendant again communicated to the plaintiff expressing displeasure with respect to past conduct of the plaintiff to the turn of the events in his letter dated 06.6.2007 (Ex.DW 1/10). In the said letter the defendant accused the plaintiff for breach and nonperformance of the contract/agreement dated 01.2.2007 and decided to end the contract w.e.f 29.5.2007 (fifteen days from letter dated 14.5.2007) after simultaneously forfeiting the entire amount of advance of Rs. 20,00,000/. The defendant also reserved his right to recover the loss sustained by him in the said deal from the plaintiff.
17 As far as forfeiture is concerned, from the perusal of the agreement dated 01.2.2007 (Ex.PW1/1) it is evident that there was no express condition for forfeiture. However, the correspondence between the parties show that since the plaintiff was dillydallying and giving noncommittal statements, the defendant vide his letter dated 15.3.2007 Ex.DW1/6 communicated to the plaintiff that in case the remaining sale consideration amount is not paid immediately the defendant shall be constrained to forfeit the entire advance amount to the plaintiff. The plaintiff then also had repeatedly expressed that he will honour his part of agreement but in due course of time i.e without giving any specific time period.
18 In my considered view, by not adhering to the terms and conditions mentioned in the agreement dated 01.2.2007, the plaintiff had by his subsequent conduct necessitated if not forfeiture, adjustment of Rs.20,00,000/ towards losses occasioned due to volatile nature of share market. Here at this juncture it is necessary to determine if the defendant could have forfeited the advance amount or whether he was entitled to adjust the advance amount of Rs.20,00,000/towards the losses incurred by him due to the act of the plaintiff. It was claimed by the defendant in his written statement that due to breach of agreement by the plaintiff, he suffered a total loss of Rs. 39,20,000/. Although no evidence was produced by the defendant to prove that he had suffered the aforestated loss, this court had directed the parties to place on record the quotation of the price of equity shares of DLF Ltd. prevailing in the National Stock Exchange as on 29.5.2007 i.e the date when the advance amount was claimed to have been forfeited. The defendant in compliance of the directions of this court placed on record the price of equity shares of DLF Ltd. as on 11.6.2007 i.e the date when the issue was opened to the public. It was averred that prior to 11.6.2007 the price of the said shares could not be determined as public issue was announced only on 11.6.2007. The prevalent price as on 11.6.2007 was quoted with a price band of Rs.500/ to Rs. 550/ per share. Therefore, even if the defendant sold the subject shares at a price of Rs. 550/ per share, the estimated loss caused to the defendant would be Rs.110/per share. Since the plaintiff had agreed to purchase 20000 equity shares of DLF Ltd at a price of Rs.660/per share, the total estimated loss sustained by the defendant would be at least Rs.22,00,000/(110x20000)The fact that damages are difficult to estimate or could not be assessed with certainity or precision cannot relieve the wrong doer of necessity of paying the damages for the breach of his part of agreement. It is well settled law that when faced with such a situation that a precise quantum of damages cannot be calculated because of insufficiency of material placed on record, the court may form its own conclusion on matters in respect of which there is no evidence, on a reasonable basis. Courts have to adjudge the reasonable compensation to which a party may be entitled in the circumstances of the case, though the determination of such reasonable compensation can be made either in a suit by the purchaser or even the vendor/seller.
19. In the present case, the plaintiff did not discharge the burden that because of the breach of contract by him, the defendant did not suffer any losses. There is no doubt in my mind that due to the inaction and nonperformance of the agreement by the plaintiff, the defendant did sustain substantial losses. In such circumstances it is imperative that the courts apply Doctrine of Restitution. Section 73 of The Contract Act provides for grant of compensation for loss or damage caused by breach of contract. It states that when a contract has been broken, the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of thing from such breach, or which the party knew, when they made the contract, to be likely to result from the breach of it. Thus, the very material question which needs to be answered in such a case is as to whether despite the knowledge that the defendant has suffered losses in the said transaction, was the defendant inspite of his performing his part of agreement was expected first to refund the advance amount to the plaintiff and then to recover again through litigation. In my considered opinion the very obvious answer to the aforesaid question has to be in the negative. After applying the Principles of Equity and Justice to the instant case, I am of the considered view that though the defendant cannot be permitted to forfeit the advance amount but he is entitled to adjust the same towards the losses suffered by him which is the difference between the contract price and the market price. The estimated loss suffered by the defendant being more than Rs. 20 lacs paid by the plaintiff as advance at the time of execution of Agreement Ex. PW1/1 on 01.2.2007. The plaintiff is not entitled to recover anything from the defendant. The issue nos.3 to 5 are decided accordingly.
20. ISSUE No. 6Relief.
21. In view of my findings on Issue Nos.3 to 5, the suit of the plaintiff is dismissed. In the special circumstances of this case, parties are however left to bear their own costs.
22. File be consigned to Record Room.
Announced in the open court ( HEMANI MALHOTRA) today on 26.03.2011 ADJ04(West)/Delhi