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[Cites 17, Cited by 0]

Delhi District Court

Sh. Pradeep vs Sh. Bijender on 20 July, 2020

            IN THE COURT OF MS. SWARANA KANTA SHARMA
                 DISTRICT & SESSIONS JUDGE (NORTH)
                        ROHINI COURTS, DELHI

CS No. 58811/2016

Sh. Pradeep
s/o Sh. Dayal Singh
r/o Chaudhary Mohalla
Purana Kasba, Village Baghpat
District Baghpat, Uttar Pradesh                                 .........Plaintiff

                                    Versus

Sh. Bijender
s/o Sh. Sardare
r/o Village Tajpur Kalan
Delhi ­ 110036                                                ........Defendant

Date of institution                              : 30.10.2014
Date when reserved for Judgment                  : 08.07.2020 (Through video
                                                                conferencing)
Date of judgment                                 : 20.07.2020 (Through video
                                                               conferencing)

Appearance :         Sh. Sanjeev Chauhan, learned Counsel for the
                     plaintiff.
                     Sh. V.P. Rana, learned Counsel for the defendant.

JUDGMENT

1. By this judgment, the present suit shall be disposed of filed by the plaintiff against the defendant seeking recovery of Rs. 5,60,000/­ along with pendente lite and future interest averring threrein that in the month of January 2014, the defendant had approached the CS No. 58811/16 Pradeep vs. Bijender Page No. 1 of 29 plaintiff for sale of 1/12th share of his agricultural land measuring 11 bighas & 16 biswas, out of Khasra No. 38/9/2 (0­09), 12(4­01), 13(4­

16), 18/1/2(2­10), situated in the revenue estate of village Bakhtawarpur, Delhi­110036; that the plaintiff had agreed to purchase the same and after negotiation, the deal was finalized for a total sum of Rs. 55,29,375/­; that accordingly, on 31.01.2014, an agreement to sell (bayana) was executed between the parties whereby the plaintiff paid a sum of Rs. 5,60,000/­ as part­payment to the defendant against due receipt; that at the time of execution of the above said agreement to sell dated 31.01.2014, the defendant had assured the plaintiff that the said property was free from all sorts of legal impediments, however, later on the plaintiff came to know that the said property was governed by the provisions of Delhi Land Reforms Act, 1954 and as per Section 33 of the said Act, there is restriction on transfer of any agricultural land; that thereafter the plaintiff approached the defendant and apprised him about the legal scenario and asked him, in the month of February 2014, to refund his money with interest and the defendant sought some time; that thereafter the plaintiff again approached the defendant in the month of April 2014 along with one Sh. Anurag Sharma requesting the defendant to return the bayana amount and this time also, the defendant sought further time of one month; that thereafter somewhere in the month of June 2014, the plaintiff again requested the defendant to return the bayana amount, but this time, the defendant flatly refused to return the bayana amount; that thereafter on several occasions, the plaintiff had requested the defendant to return his money, but in vain;

CS No. 58811/16 Pradeep vs. Bijender Page No. 2 of 29 that instead of returning the bayana amount of Rs. 5,60,000/­ along with interest to the plaintiff, the defendant got served a legal notice dated 02.08.2014 to the plaintiff thereby forfeituring the bayana amount; that the said legal notice was nothing, but a legal guard/weapon used by the defendant with the sole intention to avoid his legal liability.

On these allegations, the plaintiff has filed the present suit against the defendant seeking recovery of the bayana amount along with interest.

2. The defendant filed his written statement denying the contents of the plaint and interalia stating the plaintiff has not approached this Court with clean hands; that as per the agreement dated 31.01.2014, the balance amount of sale consideration was agreed to be paid by the plaintiff on or before completion of sale bargain which was scheduled to be completed within three months and 25 days from the date of execution of the said agreement to sell dated 31.01.2014, which got expired on 26.05.2014.

It is further stated that the defendant had already told the plaintiff about his remaining land and even the plaintiff had enquired from the revenue record about the status of whole land of the defendant and thereafter, he had entered into an agreement to sell/bayana dated 31.01.2014.

CS No. 58811/16 Pradeep vs. Bijender Page No. 3 of 29 It is further stated that the defendant had approached the plaintiff on number of occasions to obtain the signature of the plaintiff on NOC form which was required to complete the formalities, but the plaintiff neither came forward to sign the NOC form nor made any effort to meet the defendant to complete the transaction or to pay the balance amount, which shows that he was not in a position to arrange the balance consideration amount for execution of the sale deed in respect of the above said property.

It is further stated that in view of the said agreement to sell dated 31.01.2014, the defendant had visited the Office of Sub Registrar VI­B, BDO Complex, Alipur, Delhi, for execution of the sale deed in favour of the plaintiff and got his attendance marked vide slip no. 11067 dated 26.05.2014, but the plaintiff did not reach the Office of Sub Registrar for completing the necessary formalities.

It is further stated that, hence, the defendant got issued a legal notice dated 02.08.2014 to the plaintiff whereby an opportunity was given to the plaintiff to sign the NOC within 15 days from the receipt of the said notice so that sale deed could be executed. It is further stated that it was clearly mentioned in the said legal notice "plaintiff will obtain the requisite stamp duties within 15 days for execution of the sale deed otherwise it will be presumed that the plaintiff has not sufficient amount to purchase the said property". However, the plaintiff neither replied to the said legal notice nor came forward to sign CS No. 58811/16 Pradeep vs. Bijender Page No. 4 of 29 the NOC or to obtain the requisite stamp duty.

It is further stated that the plaintiff is withdrawing from the contract due to lack of balance sale consideration and it was the duty of the plaintiff to enquire about the nature of title of the vendor under the provisions of Transfer of Property Act, 1882. It is further stated that there was no readiness and willingness on the part of the plaintiff to purchase the property, therefore, the plaintiff is not entitled to any relief as prayed by him.

It is further stated in the written statement that the advance money/bayana can be refunded to the plaintiff in case the plaintiff establishes that he had balance consideration amount with him and was willing to purchase the said property.

3. From the pleadings of the parties, following issues were settled on 04.02.2015 by learned predecessor of this Court :­

(i) Whether due to adamant behaviour and inaction on the part of the plaintiff, the formalities could not be completed? OPD

(ii) Whether plaintiff was ready and willing to conclude his part of contract or not? Onus of proof is on both the parties

(iii) Whether the plaintiff is entitled to decree in the sum of Rs.

         5,60,000/­? OPP
(iv)     Whether the plaintiff is entitled to interest, if so, at what rate and


CS No. 58811/16                      Pradeep vs. Bijender        Page No. 5 of 29
          for what period? OPP
(v)      Relief.

4. In order to prove his case, the plaintiff appeared in the witness box as PW1 and tendered his affidavit in evidence as Ex. PW1/A in evidence. The plaintiff proved copy of agreement to sell (bayana) dated 31.01.2014 as Ex. PW1/1 and copy of receipt dated 31.01.2014 as Ex. PW1/2.

5. During his cross examination, PW1 stated that he was an agriculturist and was having eight acres of land. He further stated that he used to save Rs. 10,00,000/­ to Rs. 12,00,000/­ per annum. He further stated that he always takes bills of sale of his vegetables and he can produce the said bills for the years 2013 and 2014.

PW1 further stated that in the year 2014 when the alleged agreement to sell/bayana dated 31.01.2014 had taken place, he had Rs. 10,00,000/­ to Rs. 12,00,000/­ in his account. He admitted that as per agreement Ex. PW1/1, he was to pay the balance amount of Rs. 49,69,375/­ to the defendant within a period of three months and 25 days from the date of execution of agreement Ex. PW1/1. He had offered the said amount of Rs. 49,69,375/­ to the defendant after two months. He had not informed his Counsel that he had approached the defendant for making balance payment. He admitted that he did not have an amount of Rs. 49,69,375/­ in his bank account during the CS No. 58811/16 Pradeep vs. Bijender Page No. 6 of 29 period of three months and 25 days from 31.01.2014. He had not written any letter to the defendant informing that he was ready to purchase the land and that he was having balance amount as per agreement dated 31.01.2014. He admitted that he had not purchased stamp papers for the purpose of getting the sale deed registered.

He further stated that he has not sold or purchased any land in Delhi apart from the said property. He further stated that as per his knowledge, NOC was to be obtained by the land owner i.e. defendant. He is not aware that signatures of buyers are also to be affixed on the NOC form. He had told defendant to obtain NOC two three times in June ­ July, 2014. He had not disclosed this fact to his counsel. He admitted that he had received legal notice dated 02.08.14 Ex. PW1/D­1 sent by the defendant. He further admitted that he had not replied to said notice Ex. PW1/D­1. After receipt of notice, he did not make any offer to the defendant to take money and to execute the sale deed. He admitted that after receipt of notice, he did not go to the Office of Sub Registrar for execution of sale deed. He denied that he did not have necessary funds or due to this reason he had not purchased the land. He further stated that the said property could not have been sold that is why he did not purchase it. He was informed by his Advocate that it was case of cheating and no sale deed could be registered. He had met his Counsel first time about two three months prior to receipt of notice Ex. PW1/D­1.

CS No. 58811/16 Pradeep vs. Bijender Page No. 7 of 29 During his further cross examination, PW1 stated that he is not willng to purchase the property as the value of the same has depreciated. He denied that he is not willing to purchase the property as he does not have sufficient funds. He stated that he had kahasuni with the defendant regarding refund of the bayana amount. He had demanded his money back in the month of June 2014. He had told this fact to his Counsel before filing the suit. He had not verified about the ownership and possession of the defendant before entering into agreement with him. He had signed agreement to sell at instance of his nephew Sumit Chauhan. He admitted that at the time of the agreement, he had intention to purchase the property and that is why he had given bayana amount to the defendant. He had never checked revenue records of land of defendant at any time. He denied that after entering into agreement, within next 3 months and 25 days, he had never met the defendant and never thereafter offered payment. He further denied that the defendant was having transferable rights. He further denied that he had no intention to purchase the land in question and that he had entered into agreement to find a buyer offering consideration amount over and above settled amount between him and the defendant.

6. The plaintiff has examined two more witness i.e. Sh. Sanjiv Kumar, Halka Patwari, Village Taajpur Kalan, Alipur Block, Delhi, and Sh. Ashwini Kumar, Patwari, Tehsil Alipur, DM (North), Delhi, who appeared in the witness box as PW2 and PW3 respectively.

CS No. 58811/16 Pradeep vs. Bijender Page No. 8 of 29

7. PW2 Sh. Sanjiv Kumar proved on record the original record of agricultural land which is in the name of the defendant at Village Taajpur Kalan and Bakhtawarpur. The photocopies of the khatonis of the said land were proved as Ex. PW2/1 and PW2/2.

PW2 deposed that there is no agricultural land in the name of the defendant except the above mentioned land.

8. During his cross examination, PW2 stated that he cannot tell without checking the record if there is any other land registered in the name of the defendant.

9. PW3 Sh. Ashwini Kumar proved on record the certified copy of Khewat No. 296/327, Khatuani No. 327 and Khewat No. 270/1210, Khatuani No. 210, Khata Khatuani No. 82/80, 98/96, 115/113 pertaining to village Tajpur Kalan as Exs. PW3/1 to PW3/5.

10. During his cross examination, PW3 stated that he does not have any knowledge with respect to the dispute between the parties and also with regard to the sale or purchase of any of the properties mentioned in the documents so exhibited.

11. No other witness was examined by the plaintiff and learned Counsel for the plaintiff accordingly closed evidence vide a CS No. 58811/16 Pradeep vs. Bijender Page No. 9 of 29 separate statement dated 17.05.2017.

12. On the other hand, defendant appeared in the witness box as DW1 and tendered his affidavit as Ex. DW1/A in evidence.

13. DW1 has proved on record cash receipt dated 26.05.2014 as Ex. DW1/1; legal notice as Ex. PW1/D­1 and postal receipt as Ex. DW1/2.

14. During his cross examination, DW1 stated that in the year 2014, 4½ bighas of land came to his share and since then, the situation is same. He had entered into an agreement of sale of around one bigha of land with the plaintiff. He has not placed on record NOC obtained from the office of Tehsildar. He did not remember as to why he had not placed on record the NOC. He denied that he had not brought the NOC from the concerned Department due to bar of Section 33 of DLR Act. He stated that he has not purchased any land since the year 2014. He stated that he has not entered into any other agreement to purchase any other land.

DW1 further stated that he has received Rs. 5,60,000/­ from the plaintiff as advance/bayana. He denied that the plaintiff had approached him for getting NOC from the concerned Department or the purchase of land in question. He denied that the plaintiff was in possession of sufficient amount for purchase of the land in question.

CS No. 58811/16 Pradeep vs. Bijender Page No. 10 of 29 He further denied that he was not ready to perform his part of contract as per the agreement. He further denied that he did not visit the office of Sub Registrar on 26.05.2014. He further denied that the plaintiff had asked him that without getting the NOC, sale deed cannot be executed. He further denied that there is a defect in the title documents of the property in question. He further denied that he had not requested the plaintiff to give some time for refund of the part payment of the sale consideration. He further denied that in the month of April 2014, the plaintiff along with Sh. Anurag Sharma had asked him to refund the part payment of the sale consideration. He further denied that in the month of June 2014, the plaintiff had again approached him for refund of the part payment. He further denied that he is liable to refund the amount received from the plaintiff as he has failed to perform his duty under the agreement. He further denied that the legal notice dated 02.08.2014 was sent to usurp the money of the plaintiff.

15. The defendant also examined one more witness i.e. Sh. Hukum Singh, LDC, Office of Sub Registrar - VI B, Narela Office, Alipur, Delhi, who appeared in the witness box as DW2 and proved on record the certified true copy of inspection application filed by the defendant bearing receipt no. 11067 dated 26.05.2014, as Ex. DW2/1.

16. During his cross examination, DW2 stated that he has no personal knowledge of the present case as the application was not moved before him.

CS No. 58811/16 Pradeep vs. Bijender Page No. 11 of 29

17. No other witness was examined by the defendant and learned Counsel for the plaintiff accordingly closed the evidece vide separate statement dated 21.02.2018.

18. I have heard arguments addressed by the learned Counsel for both the parties and have also gone through the entire record carefully.

19. During the Course of the arguments, learned Counsel for the defendant had drawn my attention towards Section 33 of Delhi Land Reforms Act and had stated that the transferee after transfer of land should not be left with less than 8 acres of land. He further argued that the plaintiff, in the present suit, primarily ought to have sought the relief of specific performance of the agreement to sell (bayana) dated 31.01.2014 Ex. PW1/1 seeking direction to the defendant to execute the sale deed in his favour, which the plaintiff has not sought, hence, the present suit is not maintainable because the relief of specific performance was available with the plaintiff which he has not sought.

20. Learned Counsel for the plaintiff has relied upon "Satish Batra vs. Sudhir Rawal (2013) 1 SCC 345" and the crux of the said Judgment is that "it is the earnest money which has to be forfeited, not the part­payment". Section 73 of the Indian Contract Act, reads as follows :

CS No. 58811/16 Pradeep vs. Bijender Page No. 12 of 29 "73.Compensation for loss or damage caused by breach of contract.--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 things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it. "Such compensation is not to be given for any remote and indirect loss or damage sustained by reason of the breach. Compensation for failure to discharge obligation resembling those created by contract.--When an obligation resembling those created by contract has been incurred and has not been discharged, any person injured by the failure to discharge it, is entitled to receive the same compensation from the party in default, as if such person had contracted to discharge it and had broken his contract." Explanation.--In estimating the loss or damage arising from a breach of contract, the means which existed of remedying the inconvenience caused by the non­performance of the contract must be taken into account".

21. Learned Counsel for the plaintiff argued that the amount which was given by the plaintiff to defendant, in view of the agreement to sell Ex. PW1/1 was an advance amount or part­ payment and not the earnest money and the defendant can only forfeit the earnest money not the advance money. He has further argued that until and unless any loss has been proved by the defendant, the defendant can not forfeit the amount and in the present case, no loss has been proved on record by the defendant. No loss has been suffered by the defendant as he CS No. 58811/16 Pradeep vs. Bijender Page No. 13 of 29 has not sold the said property on lower prices as compared to the price settled in the alleged agreement to sell Ex. PW1/1. There is a clear cut findings in the Judgments relied upon by the plaintiff after giving due weightage and bifurcation. Unless and untill it is proved by the defendant or by the seller that he suffered loss in this bargain, he has no right to forfeit the advance money. There is no evidence led by the defendant that he has used the said amount for his personal use. Learned Counsel for the plaintiff further argued that the defendant, in his cross examination, himself has admitted that he is owner of the other land also. Hence, as per the provisions of Section 33 of Delhi Land Reforms Act, no bhumidar shall have the right to transfer by sale of any land if as a result of such transfer, he shall be left with land less than 8 standard acres.

Learned Counsel for the plaintiff further argued that the law is clear and settled in the catena of judgments by Hon'ble Supreme Court and Hon'ble Delhi High Court. In "Vandana Jain vs. Rita Mathur & Ors., RFA No. 38/2018", the Hon'ble Delhi High Court has settled the law of forfeiture of the earnest money in a contract of sale of the property. Hon'ble Mr. Justice Valmiki J. Mehta had pened down the law about the forfeiture of the earnest money after discussing various Judgments.

22. After considering the pleadings, issues settled, evidence CS No. 58811/16 Pradeep vs. Bijender Page No. 14 of 29 led and arguments addressed, my issue­wise findings are as under :­ ISSUES No. (i) & (ii) :

(i) Whether due to adamant behaviour and inaction on the part of the plaintiff, the formalities could not be completed? OPD
(ii) Whether plaintiff was ready and willing to conclude his part of contract or not? Onus of proof is on both the parties.

23. Issues no. (i) & (ii) are being taken up first for determination and adjudication as outcome of these issues will have bearing on the adjudication and outcome of remaining issues.

24. The most vital document for the purpose of adjudication of the aforesaid issue involved in the present case is the agreement to sell (bayana) dated 31.01.2014 executed between the parties which has been proved by the plaintiff as Ex. PW1/1. I have carefully gone through the same.

25. Apart from agreement to sell Ex. PW1/1, the plaintiff has proved on record one more document i.e. receipt dated 31.01.2014 as Ex. PW1/2 showing the payment of bayana amount of Rs. 5,60,000/­ by him to the defendant in presence of the witnesses i.e. Anurag Sharma and Deepak Janghu.

26. The admitted position between the parties is that both the CS No. 58811/16 Pradeep vs. Bijender Page No. 15 of 29 parties relied upon the documents Ex. PW1/1 and PW1/2 and have not challenged execution or contents of the same.

27. The plaintiff has taken an objection to the effect that after execution of the said agreement to sell Ex. PW1/1, he had come to know that the property in question is governed by the provisions of Delhi Land Reforms Act and that as per Section 33 of the said Act, there is a restriction on transfer of any such agricultural land if after selling the same, the seller will be left with less than 8 acres of land. For the purpose of adjudication of the objection raised by the plaintiff, it would be appropriate to discuss Section 33 of the said Act here which is as under :

33. Restrictions on the transfers by a Bhumidhar. ­ (1) No Bhumidhar shall have the right to transfer by sale or gift or otherwise any land to any person, other than a religious or charitable institution or any person in charge of any such Bhoodan movement, as the Chief Commissioner may, by notification in the Official Gazette, specify, where as a result of the transfer, the transferor shall be left with less than eight standard acres in the Union Territory of Delhi:
Provided that the Chief Commissioner may exempt from the operation of this section, the transfer of any land made before the 1st day of December, 1958, if the land covered by such transfer does not exceed on e acre in area and is used or intended to be used for purposes other than those mentioned in clause (13) of section 3] (2)Nothing contained in sub section (1) shall preclude the transfer of land by a Bhumidhar who holds less than eight standard acres of land, if such transfer is of the entire land CS No. 58811/16 Pradeep vs. Bijender Page No. 16 of 29 held by him;

Provided that such Bhumidhar may transfer a part of such land to any religious or charitable institution or other person referred to in sub section (1) Explanation. ­ For the purposes of this Section, a religious or charitable institution shall mean an institution established for a religious purpose or a charitable purpose, as the case may be.

28. The Hon'ble Delhi High Court in "Neelpadmaya Consumer Products Pvt. Ltd. vs. Satyabir, 2016 (227) DLT 654"

has held in para 18 that "It cannot be said that there is a bar to enter into an agreement to sell under Section 33 of the Act and what is a bar is only for a sale deed or a conveyance deed". It, therefore, seems that the objection was taken only for the sake of an objection and without any basis.

29. In case the defendant does not fulfill the above said requirement u/s 33 of Delhi Land Reforms Act, he shall definitely face the consequences as per law. Even otherwise, there is no such clause in the the alleged agreement to sell (bayana) Ex. PW1/1 that the balance payment shall be made after verification/inquiry of the property in question. No notice of cancelling the deal was ever served by the plaintiff to the defendant. Rather the defendant issued a legal notice dated 02.08.2014 Ex. PW1/D­1 to the plaintiff thereby giving an CS No. 58811/16 Pradeep vs. Bijender Page No. 17 of 29 opportunity to the plaintiff to sign the requisite NOC within 15 days for execution of the sale deed. The relevant clause of the legal notice dated 02.08.2014 Ex. PW1/D­1 is reproduced here as under:­ "you please come forward immediately and sign the NOC forms as a vendee so that NOC can be applied. You also need to supply necessary proofs of identity which are to be annexed with the NOC forms. You may also note that while executing the agreement, you did not supply your complete address. My client has taken your present complete address from the broker. You may further note that after obtaining the NOC, the sale deed would be required to be compleed within 30 days which is the validity period of the NOC. So you please arrange the entire balance consideration amount and also purchase necessary stamp papers. In order to show your readiness and willingness to purchase the land of my client, it is necessary for you to come forward immediately and to sign NOC forms and also purchase stamp duty to be used for execution of the sale deed.

In case you do not approach my client to sign NOC forms and fail to obtain the stamp duties for purchase of the land within 15 days from the date of receipt of this legal notice, it will be presumed that you do not have sufficient amount to purchase the land and the agreement dated 31.01.2014 shall stands terminated. You shall have no legal rights over the amount of Rs. 5,60,000/­ paid by you to my client and the said amount shall stand forfeited by my client. You shall have no lien or charge or any legal right in respect of the property of my client in terms of the agreement dated 31.01.2014 and my client would be free to deal with the property as he wish which includes sale of the land to some other person, which you please note".

CS No. 58811/16 Pradeep vs. Bijender Page No. 18 of 29

30. The receipt of the said legal notice Ex. PW1/D­1 is admitted by the plaintiff and it is further admitted by the plaintiff (PW1) in his cross examination that he had not replied to the said legal notice. It was an opportunity with the plaintiff to raise his objections over the said agreement to sell Ex. PW1/1. An adverse presumption, therefore, is required to be drawn against the plaintiff that the contents of the notice were correct, hence, not replied. It is a well settled law that if a party before filing a petition makes serious assertions in a notice, then the other party must not remain silent by ignoring to reply and, if he does so, then an adverse inference may be drawn against him. Hence, in the present case, in the light of pleadings and evidence on the record, it is very clearly proved that the legal notice Ex. PW1/D­1 has been received by the plaintiff. The plaintiff should not have remained silent by ignoring to send reply to the legal notice. Since the plaintiff has failed to do so and remained silent, an adverse presumption is drawn against him.

31. PW2 Sh. Sanjiv Kumar, Halka Patwari, has stated in his cross examination that without checking the record, he cannot tell as to whether the defendant had any other land in Delhi or not. The plaintiff has not led any evidence to prove that after selling the land in question, the defendant would not have left with 8 acres of land, therefore, the plaintiff could not prove that the defendant was CS No. 58811/16 Pradeep vs. Bijender Page No. 19 of 29 not competent to sell the land in question.

32. As I have already discussed above, in case the defendant is barred by Section 33 of the said Act for selling the land, he would face legal consequences. Therefore, this contention of learned Counsel for the plaintiff that the defendant could not have sold the land and due to this reason, the plaintiff did not buy it, has no merit and is rejected.

33. In his cross examination, PW1 admitted that as per agreement Ex. PW1/1, he was to pay the balance amount of Rs. 49,69,375/­ to the defendant within a period of three months and 25 days from the date of execution of agreement Ex. PW1/1. Though he has stated that he had offered the said amount of Rs. 49,69,375/­ to the defendant after two months, however, in the same cross examination, he has stated that he had not informed his Counsel that he had approached the defendant for making balance payment. He has further admitted that he was not having the amount of Rs. 49,69,375/­ in his bank account during the period of three months and 25 days from 31.01.2014. He has also admitted that he had not written any letter to the defendant informing that he was ready to purchase the land and that he was having balance amount as per agreement dated 31.01.2014. He admitted that he had not purchased stamps papers for the purpose of getting the sale deed registered.

CS No. 58811/16 Pradeep vs. Bijender Page No. 20 of 29

34. Documents Exs. PW 1/1 and PW1/2 i.e. the agreement to sell (bayana) dated 31.01.2014 and bayana receipt dated 31.01.2014 respectively are the admitted documents of both the parties and are important to decide the case. A perusal of Ex. PW1/1 shows that one of the payment condition was that the balance payment was to be made by the plaintiff to the defendant on or before three months and 25 days from the date of execution of Ex. PW1/1 dated 31.01.2014. The plaintiff has even not placed on record any details to show that he had sufficient amount with him to pay to the defendant during the relevant period, rather in his cross examination, the plaintiff has admitted that he was not having the balance amount of Rs. 49,69,375/­ in his bank account during the period of those three months and 25 days from 31.01.2014, which proves that the plaintiff was not in a position to comply with the terms of the said agreement to sell (bayana) Ex. PW1/1 and in order to avoid his liability he came up with the excuse of ineligibility of the defendant in selling the said property.

35. The plaintiff has further admitted that he had received legal notice dated 02.08.2014 Ex. PW1/D­1 sent by the defendant but did not send any reply to the same. After receipt of notice, he did not make any offer to the defendant to take money and to execute the sale deed. He admitted that after receipt of notice, he did not go to the Office of Sub Registrar for execution of sale deed. He denied that he did not have necessary funds or due to this reason he did not purchase the land. He further stated that the said property could not have been sold CS No. 58811/16 Pradeep vs. Bijender Page No. 21 of 29 that is why he did not purchase it. He was informed by his Advocate that it was case of cheating and no sale deed could be registered. He had met his Counsel first time about two three months prior to receipt of notice Ex. PW1/D­1.

36. Further, the plaintiff (PW1) during his cross examination has stated that he is not willing to purchase the said property as the value of the same has depreciated. He has, however, denied that he is not willing to purchase the property as he does not have sufficient funds.

37. On the other hand, the defendant has proved on record the receipt dated 26.05.2014 as Ex. DW1/1 which proves that the defendant had visited the office of Sub Registrar - VI B with regard to execution of the sale deed in favour of the plaintiff, but the plaintiff did not turn up there. In this regard, the defendant has also examined Sh. Hukum Singh, LDC from office of Sub Registrar VI­B who has proved on record certified true copy of inspection application filed by the defendant bearing receipt no. 11067 dated 26.05.2014, as Ex. DW2/1. It is, therefore, clear that the plaintiff could not prove that he had sufficient amount available with him or he had ever approached the defendant with the balance amount to purchase the land in question. It shows the inability and unwillingness of the plaintiff to purchase the land in question and there is merit in the contention of learned Counsel for CS No. 58811/16 Pradeep vs. Bijender Page No. 22 of 29 the defendant that it was the plaintiff who did not have sufficient amount to purchase the land in question.

38. I am of the opinion that the contention of learned Counsel for the defendant that it was the plaintiff who was not interested in buying the land in question and neither had sufficient amount to buy the same nor had bought the land despite the defendant offering the same to him repeatedly, has merit.

39. Further, for the reasons best known to the plaintiff, the plaintiff has also not brought Anurag Sharma i.e. one of the witnesses to execution of Ex. PW1/1 and who had accompanied the plaintiff to the defendant in the month of April 2014 requesting the defendant to return the bayana amount, to the witness box. In the plaint, it is averred that the plaintiff wanted to cancel the deal in question whereas during his cross examination, the plaintiff has stated that he had approached the defendant to make the balance payment, which means that the plaintiff himself was not clear about complying with terms & conditions of Ex. PW1/1.

40. During his cross examination, PW1 stated that he had not verified about ownership and possession of the said property before entering into the agreement to sell Ex. PW1/1 and had signed the same at the instance of his nephew Sumit Chauhan. He further stated that he had never checked the revenue records of CS No. 58811/16 Pradeep vs. Bijender Page No. 23 of 29 land at any time. A perusal of the said agreement to sell Ex. PW1/1 clearly shows that there is no clause therein to the effect that "in case, during the inquiry, the property is not found to be transferrable/sold, the deal shall be cancelled".

41. If the documents/property as per the plaintiff were not genuine, then the plaintiff should have immediately sent notice to the defendant thereby cancelling the deal.

42. I am of the view that the record of the case as well as the evidence shows that the plaintiff was not serious to purchase the land in question and that it was the defendant who had even sent legal notice to the plaintiff to purchase the land. There is nothing to reveal that the plaintiff had pointed out to the defendant that he could not have sold the property in question. I am, therefore, of the opinion that the conduct of the plaintiff reveals that he is not willing to purchase the land even at present.

43. Summoned witnesses PW2 and PW3 are of no help to the case of the plaintiff.

44. In support of his contentions, learned Counsel for the plaintiff has relied upon following Judgments :­

(a) Satish Batra vs. Sudhir Rawal, (2013) 1 SCC 345, decided by Hon'ble Supreme court;

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(b) M.C. Luthra vs. Ashok Kumar Khanna in RFA No. 780/2017, decided by Hon'ble Supreme Court;

(c) Fateh Chand vs. Balkishan Dass, AIR 1963 SC 1405, decided by Hon'ble Supreme Court;

(d) Kailash Nath Associates vs. Delhi Development Authority & Anr., (2015) 4 SCC 136, decided by Hon'ble Supreme Court;

(e) Shree Hanuman Cotton Mills & Ors. vs. TATA Air Craft Limited (1969) 3 SCC 522, decided by Hon'ble Supreme Court;

(f) Videocon Properties Limited vs. Dr. Bhalchandra Laboratories & Ors., (2004) 3 SCC 711, decided by Hon'ble Supreme Court;

(g) Shri Sunil Sehgal vs. Shri Chander Batra & Ors., CS(OS) No. 1250/2006, decided by Hon'ble Supreme Court on 23.09.2015;

(h) Bhuley Singh vs. Khazan Singh & Ors, in RFA No. 422/2011, decided by Hon'ble Delhi High Court on 09.11.2011;

(i) V.K. Ashokan vs. CCE, 2009 (14) SCC 85, decided by Hon'ble Supreme Court;

(j) Maula Bux vs. Union of India (UOI), 1970(1)SCR 928, decided by Hon'ble Supreme Court and

(k) ONGC vs. Saw Pipes Ltd., (2003) 5SCC 705, decided by Hon'ble Supreme Court.

45. At the outset, the Judgments relied upon by the plaintiff are not applicable to the facts and circumstances of the present case.

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46. As far as the contention of learned Counsel for the plaintiff that the amount given by the plaintiff to the defendant was part­payment and not the earnest money is concerned, I do not agree with the same as a bare perusal of the alleged agreement to sell (bayana) Ex. PW1/1 shows that plaintiff had advanced a sum of Rs. 5,60,000/­ to the defendant as bayana amount/earnest money and not as a part­ payment. Moreso, the title i.e. "Agreement to Sell (Bayana)" of the alleged agreement Ex. PW1/1 itself demonstrates that it is a bayana agreement.

47. In "Shree Hanuman Cotton Mills & Anr. vs. Tata Air Craft Ltd., AIR 1970 SC page 1986", the Hon'ble Supreme Court has explained the principles regarding earnest money as follows:­ "(1) It must be given at the moment at which the contract is concluded.

(2) It represents a guarantee that the contract will be fulfilled or, in other words, "earnest" is given to bind the contract.

(3) It is part of the purchase price when the transaction is carried out.

(4)It is forfeited when the transaction falls through by reason of the default or failure of the purchaser.

(5) Unless there is anything to the contrary in the terms of the contract, on default committed by the buyer, the seller is entitled to forfeit the earnest"

After discussing Fateh Chand's case (supra) and other case law in the CS No. 58811/16 Pradeep vs. Bijender Page No. 26 of 29 matter, Hon'ble Supreme Court has made the following observations:­ "........35. We are not inclined to accept this contention of the learned counsel. This Court had to consider, in the said decision, two questions; (i) whether the plaintiff therein was entitled to forfeit a sum of Rs.1,000/­ paid as earnest money on M.K. Gupta Vs Ashok Kumar Banga default committed by the buyer; and (ii) whether the plaintiff was further entitled to forfeit the entire sum of Rs.24,000/­ paid by the buyer under the contract which recognized such right. This Court held that the plaintiff was entitled to forfeit the sum of Rs. 1,000/­ paid as earnest money, when default was committed by the buyer. But, regarding the second item of Rs.24,000/­ this Court held that the same cannot be treated as earnest and therefore the rights of the parties would have to be adjudged under Section 74 of the Contract Act........."

It was also observed as follows:­ ".....36. Mr. Maheshwari placed considerable reliance on the above extracts in support of his contention and urged that the recitals regarding forfeiture of the amount of Rs.2,50,000/­ shows that the contract contains a stipulation by way of penalty and, therefore, Section 74 is attracted. It is not possible to accept this contention. As we have already pointed out, this Court, in the above decision, recognised the principle that earnest money can be forfeited, but in dealing with the rest of the amount which was not, admittedly, earnest money, S. 74 was applied. In the case before us the entire amount, as evidenced by the contract and as held by us earlier, is earnest money and therefore the above decision does not apply...."

48. In the light of interpretation of Fateh Chand's case (supra) in Shree Hanuman Cotton's case (supra) that earnest money is liable to be forfeited by the vendor in transaction of the immovable property on CS No. 58811/16 Pradeep vs. Bijender Page No. 27 of 29 account of vendee's default, therefore, Fateh Chand's case (supra) and Bhuley Singh's case (supra) do not help the plaintiff.

49. In view of the above discussion, I hold that defendant is entitled to forfeit the earnest money on account of non payment of the balance amount by the plaintiff within stipulated period. It was the plaintiff who failed to comply with the terms of agreement to sell (bayana) Ex. PW1/1 and came up with excuses of default in property and nature of payment. Issues no. (i) & (ii) are according decided in favour of the defendant and against the plaintiff.

ISSUE No. (iii) :

Whether the plaintiff is entitled to decree in the sum of Rs. 5,60,000/­? OPP.

50. The onus to prove this issue was upon the plaintiff. However, in view of the discussions mentioned above, I am of the considered opinion that the plaintiff is not entitled for recovery of the bayana amount of Rs. 5,60,000/­, as prayed in the plaint. This issue is accordingly decided against the plaintiff and in favour of the defendant ISSUE No (iv) :

Whether the plaintiff is entitled to interest, if so, at what rate and for what period? OPP.

51. Since while deciding Issue No. (iii), I have already held that the plaintiff is not entitled to the recovery of Rs. 5,60,000/­, as prayed in CS No. 58811/16 Pradeep vs. Bijender Page No. 28 of 29 the plaint, so definitely, he is not entitled to any interest. This issue is accordingly decided against the plaintiff and in favour of the defendant.

RELIEF :

52. In the light of above discussions, the plaintiff is not entitled to any relief. Suit is accordingly dismissed. However, parties are left to bear their own costs. Decree sheet be drawn accordingly and file be consigned to Record Room.

Announced through video conferencing on 20.07.2020 (Swarana Kanta Sharma) District & Sessions Judge (North) Rohini Courts, Delhi CS No. 58811/16 Pradeep vs. Bijender Page No. 29 of 29