Delhi District Court
Mukesh vs Smt. Dropti on 8 August, 2022
IN THE COURT OF SHIVALI SHARMA
ADDITIONAL DISTRICT JUDGE03 (WEST)
TIS HAZARI COURTS, DELHI
Suit No. 613402/2016
In the matter of :
Mukesh
S/o Sh. Rattan Lal
R/o 202, Block E 16,
Bapa Nagar, Karol Bagh
New Delhi - 110 005
.....Plaintiff
Versus
Smt. Dropti
W/o Late Sh. Ashok Kumar
R/o 99A, Lal Quarter
J. J. Colony, Madipur,
New Delhi - 110 063.
.....Defendant
Date of institution : 29.08.2016
Date of Decision : 08.08.2022.
SUIT FOR SPECIFIC PERFORMANCE, DAMAGES AND MANDATORY AND
PERMANENT INJUNCTION
JUDGMENT
Civ DJ No. 613402/16 Mukesh Vs Dropti 1/20
1. The plaintiff has filed this suit against the defendant for specific performance, damages, mandatory and permanent injunction.
Plaintiff's case:
2. The case of the plaintiff as per plaint is that he is in the business of red meat and is running his business from DDA Complex, Vikas Puri, New Delhi.
Defendant, as per the information available to the plaintiff, is a house wife. Plaintiff came in contact with the defendant sometime in the year 2014 when the defendant approached the plaintiff through a common friend. Defendant was in need of money to settle her loan account with one Shri Chawla to tune of Rs.7 lacs and requested the plaintiff to arrange the said amount and expressed her desire to sell her residential flat i.e. 99A, Ground Floor, Janta Flat, Lal Quarter, Situated at J J Colony,Madipur, New Delhi (hereinafter referred to as the suit property).
3. The plaintiff and defendant, after negotiations, mutually agreed to settle the transaction of the property for a total consideration of Rs. 9,50,000/, which was inclusive of Rs. 7 lacs that the defendant required to settle her loan account with Shri Chawla. Plaintiff and defendant had mutually agreed to enter into a written agreement to sell. Accordingly, a written argument to sell dated 11.12.2014 was got prepared duly signed by both the parties and was also notarized. The defendant also executed General Power of Attorney dated 11.12.2014 in favour of the plaintiff, duly signed and notarized.
4. The plaintiff paid total consideration of Rs. 9,50,000/ to the defendant which was duly received by the defendant and a receipt dated 11.12.2014 was also got prepared which was duly signed by the defendant and thumb Civ DJ No. 613402/16 Mukesh Vs Dropti 2/20 impression were also put by the defendant confirming the factum of receipt of the entire consideration which was also duly notarized. The defendant in accordance with the transaction, also prepared a possession letter dated 11.12.2014 regarding the property in question in favour of the plaintiff which was also duly signed/thumb impressed by the parties. The defendant also got prepared a WILL in favour of the plaintiff regarding the property which was also duly signed and thumb impressed by the defendant.
5. As per agreement to sell, GPA, receipt, possession letter and WILL and unsuspecting of the true intentions of the defendant, the plaintiff paid Rs.9,50,000/ to the defendant and got executed a receipt dated 11.12.2014 in his favour. Plaintiff has not only paid an amount of Rs. 9,50,000/ but had also paid excess amount of Rs. 4.80 lacs as demanded by the defendant on one pretext or the other. Plaintiff has been requesting the defendant time and again to get the property in question registered in his favour. The defendant has been avoiding to hand over the peaceful vacant possession of the property to the plaintiff. It appears that the intention of the defendant has turned dishonest and malafide after receiving the entire consideration amount from the plaintiff and she is avoiding to handover the property to the plaintiff.
6. The plaintiff got shocked when he received a legal notice dated 22.06.2016 from the defendant wherein false and frivolous allegations were made by the defendant. Plaintiff sent reply dated 11.07.2016 to the legal notice of the defendant dated 22.06.2016, not only denying the false and frivolous allegations but also calling upon the defendant to immediately transfer the property in his favour but the defendant did not pay any heed to the requests of the plaintiff. Hence, the present suit has been filed seeking following reliefs: Civ DJ No. 613402/16 Mukesh Vs Dropti 3/20
(i) Decree of specific performance and directing the defendant to handover peaceful and vacant physical possession of the property bearing no. 99A, Ground Floor, Janta Flat, Lal Quarter, Situated at J J Colony, Madipur, New Delhi.
(ii) Decree of damages of Rs.3 lacs
(iii) Cost of the suit.
Defendant's Case:
7. In response to the summons of the suit, defendant filed her written statement inter alia denying the allegations/averments made in the plaint. The suit is preliminarily objected to on the ground that the plaintiff has not come to the court with clean hands. Plaintiff has not valued the suit properly for the purpose of court fees and jurisdiction. The suit of the plaintiff deserves to be dismissed as this Court has no pecuniary jurisdiction to try and entertain the present suit.
8. It is stated that the defendant is a widow and illiterate lady and in the year 20102011 she took a financial assistance of Rs. 7 lac from Mr Chawla and as a security she kept all her original documents with respect to the suit property with him. Since the defendant was finding it difficult to repay the loan amount of Rs. 7 lacs to Mr. Chawla, therefore, one Smt. Bhagwanti who was known to the plaintiff and defendant advised her to sell the suit property to the plaintiff and repay the loan. After due deliberation and negotiations, the deal was entered into between plaintiff and the defendant for sale of suit property for a total sale consideration of Rs. 16,50,000/. Though, at that time, the market value of the suit property was not less than Rs. 25 lacs but the plaintiff took benefit of urgent need of the defendant and got the deal finalized for a meager amount of Rs. 16,50,000/. It was agreed that out of Civ DJ No. 613402/16 Mukesh Vs Dropti 4/20 the total sale consideration of Rs. 16,50,000/, the plaintiff shall initially pay a sum of Rs. 7 lacs to Mr. Chawla for repayment of defendant's loan and thereafter, pay the balance sale consideration of Rs. 9,50,000/ to the defendant. Being lured in this manner, defendant agreed to sell her property to the plaintiff who prepared some documents like Agreement to Sell, GPA, Affidavit, Receipt, Possession Letter and Will. However, without disclosing the contents of the documents, plaintiff obtained the signatures of the defendant on the same. Even the copies of the documents were not supplied to the defendant. Signatures/ thumb impressions of the defendant were taken at the time of payment of Rs. 7 lac to Mr. Chawla and plaintiff undertook to pay the balance sale consideration of Rs. 9,50,000/ to the defendant within seven days. It was also agreed that in case of failure of the plaintiff to pay balance sale consideration within seven day, the initial payment of Rs. 7 lacs made to Mr. Chawla shall stand forfeited. However, despite repeated requests from the defendant, plaintiff failed to pay the balance sale consideration to her.
9. Defendant also served a legal notice dated 22.06.2016 upon the plaintiff calling upon her to hand over the original title document as well as the documents fraudulently obtained from her. However, instead of complying with the notice, plaintiff sent a false and frivolous reply dated 11.07.2016.
10. It is categorically denied that the total sale consideration agreed between the parties was merely Rs.9,50,000/. It is also specifically denied that any payment in addition to Rs. 7 lacs paid to Mr. Chawla was ever made by the plaintiff to the defendant. It is alleged that plaintiff is himself guilty of violating the Agreement to Sell by not making the payment of the balance sale consideration and accordingly, he is not entitled to file a suit for make specific performance.
Civ DJ No. 613402/16 Mukesh Vs Dropti 5/20 REPLICATION:
11. Plaintiff filed the replication to the WS reiterating the contents of his plaint and denying the averments made in the written statement except the admissions. Plaintiff categorically denied that the sale consideration fixed between the parties was Rs. 16,50,000/ and not Rs. 9,50,000/.
ISSUES:
12. After completion of pleadings, following issues were framed vide order dated 24.08.2017.
1. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction? OPD
2. Whether this court has no pecuniary jurisdiction to entertain this suit on the ground that the suit has been grossly under valued? OPD
3. Whether the plaint is liable to be dismissed under Order 7 rule 11 CPC for want of duly registered and stamped documents?
4. Whether this plaint has not been filed in compliance of provisions of Order 7 Rule 14 CPC, if so, its effect? OPP
5. Whether the suit of the plaintiff is based on forged and fabricated documents, if so, its effect? OPD
6. Whether the plaintiff is entitled to the decree of specific performance of contract, as prayed? OPP
7. Whether the plaintiff is entitled to recover damages from the defendant, if so, at what rate? OPP.
8. Relief.
Civ DJ No. 613402/16 Mukesh Vs Dropti 6/20 PLAINTIFF'S EVIDENCE:
13. Plaintiff examined himself as PW1 and stated and reiterated on oath the contents of his plaint vide his affidavit (Ex.PW1/A). He relied upon the following documents:
(i) Ex.PW1/1: Original GPA dated 11.12.2014 executed by defendant in his favour.
(ii)Ex.PW1/2:Original Agreement to Sale dated 11.12.2014 executed by defendant in his favour.
(iii)Ex.PW1/3:Original Affidavit dated 11.12.2014 executed by defendant in his favour.
(iv)Ex.PW1/4:Original Receipt dated 11.12.2014 executed by defendant in his favour.
(v) Ex.PW1/5: Original Possession Letter dated 11.12.2014 executed by defendant in his favour.
(vi)Ex.PW1/6: Original Will dated 11.12.2014 executed by defendant in his favour.
(vii) Mark A Photocopy of receipts dated 05.02.2013, 21.02.2014, 24.10.2012, 18.11.2012 and 20.12.2012 (colly.) for extra amount out of sale consideration regarding the suit property.
14. PW1 was not subjected to cross examination as defendant did not come forward to cross examine PW1 despite repeated opportunities. No other witness has been examined on behalf of the plaintiff.
Civ DJ No. 613402/16 Mukesh Vs Dropti 7/20 DEFENDANT's EVIDENCE:
15. Defendant did not examine any witness despite opportunity.
16. Final arguments have been heard on behalf of the plaintiff. Defendant did not come forward to address oral arguments despite opportunity. Written arguments filed by the plaintiff are also perused. Defendant failed to file any written arguments despite opportunity. Record has been carefully perused.
17. Now, I shall proceed to give my issuewise findings:
ISSUE NO: 1 "Whether the suit has not been properly valued for the purpose of court fee and jurisdiction? OPD"
18. The onus to prove this issue was on the defendant. It is alleged by the defendant in preliminary objection No.2 of her WS that the suit is not properly valued for the purposes of court fees and jurisdiction. The plaintiff ought to have valued the suit on the basis of market value of the suit property as admittedly, he is not in possession of the same. The market value of the suit property is not less than Rs.25 lacs. Hence, the suit is liable to be dismissed on the ground of improper valuation.
19. Defendant did not lead any evidence to prove her contention in this regard. There is nothing on record to show that the market value of the suit property is Rs. 25 lacs as alleged by the defendant.
Civ DJ No. 613402/16 Mukesh Vs Dropti 8/20
20. Plaintiff on the other hand, filed the present suit for specific performance on the basis of Agreement to Sell dated 11.12.2014 (EX.PW1/2) wherein the suit property was agreed to be sold to plaintiff by defendant for a sum of Rs. 9,50,000/. However, the plaintiff has valued the present suit for the purposes of pecuniary jurisdiction and court fees at Rs. 12,50,000/ and has paid the advolerm court fees on the said amount. I find no defect in the valuation done by the plaintiff which is even otherwise not challenged by defendant by leading any evidence.
21. In view of the reasons given above and on account of failure of the defendant to produce any evidence to support her contention in this regard, this issue is decided in favour of the plaintiff and against the defendant.
ISSUE No: 2
2. Whether this court has no pecuniary jurisdiction to entertain this suit on the ground that the suit has been grossly under valued? OPD
22. The onus to prove this issue was on the defendant. It is alleged by the defendant in preliminary objection no. 3 of her WS that this court has no pecuniary jurisdiction to try the present suit as the market value of the suit property is not less than Rs. 25 lacs. This objection of the defendant is not maintainable as the pecuniary jurisdiction of this court as on date is upto Rs.2 crores and even if, the contention of the defendant that the market value of the suit property is not less than Rs.25 lacs is accepted, the suit will still fall within the pecuniary jurisdiction of this court.
23. In view of the reasons given above, this issue is decided in favour of the plaintiff and against the defendant.
Civ DJ No. 613402/16 Mukesh Vs Dropti 9/20 ISSUE NO : 3
3. Whether the plaint is liable to be dismissed under Order 7 rule 11 CPC for want of duly registered and stamped documents?
24. The onus to prove this issue was on the defendant. It is alleged by the defendant in preliminary objection no. 6 of her WS that the present suit is liable to be rejected under Order 7 Rule 11 CPC as the alleged documents of transfer are neither registered nor properly stamped and are thus, hit by section 17 of Registration Act and Section 33 and Section 35 of Indian Stamp Act.
25. I have seen the documents being relied upon by the plaintiff. These documents relied upon by the plaintiff are Agreement to Sell, GPA, Possession Letter, Receipt and Will all dated 11.12.2014. As per proviso to Section 49 of the Registration Act, 1908, in a suit for Specific Performance an unregistered Agreement to Sell is admissible. As regards stamping of the Agreement to Sell (Ex.PW1/2), same is prepared on stamp paper of Rs. 50/. The Agreement to Sell Ex.PW1/2 is not a sale document nor the suit of the plaintiff is based on doctrine of part performance under Section 53A of Transfer of Property Act. Accordingly, the Agreement to Sell (Ex.PW1/2) is not required to be stamped as required under Article 23 of The Indian Stamp Act. In fact, there is no specific article in Schedule I of Indian Stamp Act providing for duty to be paid on an Agreement to Sell an immovable property. Hence, it would come within the ambit of the residuary clause C of Article V of Schedule I of Indian Stamp Act as per which the stamp duty is only Rs. 50/. Accordingly, the Agreement to Sell cannot be said to insufficiently stamped.
Civ DJ No. 613402/16 Mukesh Vs Dropti 10/20
26. As regards the other documents that are GPA, Will, Possession Letter and Receipt, none of these documents are required to be registered or specifically stamped by any law.
27. The defendant has miserably failed to show any law to support her objection in this regard.
28. In view of above discussion and the failure of the defendant to support her objection with any evidence, argument or law, this issue is decided in favour of the plaintiff and against the defendant.
ISSUE No: 4
4. Whether this plaint has not been filed in compliance of provisions of Order 7 Rule 14 CPC, if so, its effect? OPP
29. The onus to prove this issue was on the defendant. It is alleged by the defendant in preliminary objection no. 7 of her WS that the suit of the plaintiff is liable to be dismissed as no cause of action had ever arisen in favour of the plaintiff and against the defendant for filing the present suit. Accordingly the suit is liable to be dismissed under Order VII Rule 14 CPC.
30. Order VII Rule 14 CPC provides for production of documents on which the plaintiff sues or relies. In the present case, the plaintiff has already filed on record, the original GPA, Agreement to Sell, Will, Affidavit, Possession Letter and Receipt on court record prior to framing of issues in the present matter. The same were taken on record vide order dated 29.05.2017. No objection was raised on behalf of the defendant for filing of the said documents at that stage. The entire case Civ DJ No. 613402/16 Mukesh Vs Dropti 11/20 of the plaintiff is based upon these documents which are already on record and relied upon by the plaintiff in his evidence as Ex.PW1/1 to Ex.PW1/6. The cause of action for filing the present suit is also clearly reflected from the plaint wherein the plaintiff had alleged the failure of the defendant to honor the Agreement to Sell (Ex.PW1/2) despite receiving the complete sale consideration.
31. In these circumstances, no merit is found in this objection of the defendant. This issue is accordingly, decided in favour of the plaintiff and against the defendant.
ISSUE No: 5
5. Whether the suit of the plaintiff is based on forged and fabricated documents, if so, its effect? OPD
32. The onus to prove this issue was on the defendant who had alleged in preliminarily objection No.12 of the WS that the suit of the plaintiff is based on forged and fabricated documents. However, the defendant has miserably failed to lead any evidence to discharge the onus upon her in this regard. Even otherwise, she has never disputed her signatures/thumb impressions on documents dated 11.12.2014 i.e. (Ex.PW1/1 to Ex.PW1/6) in her written statement. It is also not her case that she had never agreed to sell the suit property to the defendant vide documents Ex.PW1/1 to Ex.PW1/6. The mere dispute that has been raised by the defendant is regarding the sale consideration which she alleges to be fixed at Rs.16,50,000/ in place of Rs.9,50,000/ as reflected in documents Ex.PW1/1 to Ex.PW1/6. However, she has not led any evidence to prove her contentions in this regard. Thus, defendant has miserably failed to prove on record that the documents relied upon by the plaintiff i.e. Ex. PW1/1 to Ex. PW1/6 are forged and fabricated.
Civ DJ No. 613402/16 Mukesh Vs Dropti 12/20
33. In view of the reasons given above and on account of failure of defendant to support her case by leading any evidence, this issue is decided in favour of the plaintiff and against the defendant.
ISSUE No: 6
6. Whether the plaintiff is entitled to the decree of specific performance of contract, as prayed? OPP
34. The onus to prove this issue was on the plaintiff. It is the case of the plaintiff that he had agreed to purchase the suit property from the defendant vide Agreement to Sell (Ex.PW1/2) for a total sale consideration of Rs.9,50,000/. It is also the case of the plaintiff that he had made the payment of the entire sale consideration to the defendant on 11.12.2014 vide receipt (Ex.PW1/4). However, the defendant failed to execute the Sale Deed in his favour. Hence, the present suit has been filed seeking the relief of specific performance.
35. The entire testimony of the plaintiff /PW1 in this regard has remained unrebutted and unchallenged as defendant has not come forward to crossexamine PW1. Defendant has also not examined any witness to support her case that the sale consideration agreed upon between the parties was not Rs.9,50,000/ as mentioned in the Agreement to Sell (Ex.PW1/2) but was Rs.16,50,000/. No evidence is also led by the defendant to support her case that she has merely received part sale consideration of Rs.7,00,000/ and not the entire sale consideration of Rs.9,50,000/.
36. There is no reason to doubt the unrebutted and unchallenged testimony of PW1. However, law is well settled that in a suit for specific performance, it is not mandatory for the court to grant the relief of specific performance even when it is Civ DJ No. 613402/16 Mukesh Vs Dropti 13/20 lawful to do so. The grant of specific performance is a discretionary relief and discretion of granting the same has to be exercised with great caution. Court is not bound to grant such relief merely because it is lawful to do so. But the discretion of the court is not arbitrary rather it should be guided by judicial principles and based on sound and reasonable grounds.
37. These aspects have been discussed in detail by Hon' ble High Court of Delhi in HOTZ Industries Pvt. Ltd. Vs. Dr. Ravi Singh CS (OS) No. 1261/1995 order dated 28.02.2018 2018 SCC Online (Del). Relevant paragraphs of the judgment are reproduced herein under:
" 22.(i) A reading of the ratio of the aforesaid judgment of this court in the case of Jinesh Kumar Jain (Supra) shows that a proposed buyer as a plaintiff when only has paid a very limited amount of consideration, then such a plaintiff may not ordinarily be entitled to the discretionary relief of specific performance when the grant of specific performance is being decided after a long period of time having elapsed after entering into the agreement to sell and the suit for specific performance coming up for final disposal. The logic is very simple that from the balance sale consideration which has to be paid by the plaintiff/proposed buyer under an agreement to sell to the defendant/proposed seller, even by adding thereto interest, surely the defendant/proposed seller from the balance sale consideration plus interest can not purchase a property of an equivalent type as would have been purchased by receipt of the sale consideration at the time when the agreement to sell was entered into many many years earlier.
(ii) As a result of rise in the prices of the property, that in the facts of the present case this Court can taken judicial notice that prices of properties in Delhi, and that prices in the year 1995 would be far far lesser than the prices of the property today in the year 2018, and that too more so with the fact of the suit property being situated in one of the prime colonies of the Delhi being Maharani Bagh, grant of Civ DJ No. 613402/16 Mukesh Vs Dropti 14/20 specific performance will severely and gravely prejudice the defendants. On a conservative estimate the value of the suit property as on today would be at least around 20 times more than what was the price of the suit property in the year 1995 and that therefore, with the balance sale consideration payable to the defendants as on today even with interest, the defendants will not be able to purchase the property as the defendants could have purchased with the value of the balance sale consideration in the year 1995. "
38. In the present case, I do not deem it appropriate to grant the discretionary relief of specific performance in favour of the plaintiff not only because 7 years have elapsed since the parties entered into the agreement to sell (Ex. PW1/2) because the documents being relied upon by the plaintiff i.e. Ex.PW1/1 to Ex.PW1/6 including the Agreement to Sell (Ex.PW1/2) but also do not specify the chain of documents on the basis of which the defendant had become the owner of the suit property. None of the parties to the suit has placed on record any such chain of documents. There is no citation in the Agreement to Sell (Ex.PW1/2) or the GPA (Ex.PW1/1) clarifying as to in what manner defendant had acquired the ownership of the suit property. Admittedly, the suit property is a DDA Flat. Still the plaintiff has not made any effort to bring on record the ownership documents of the suit property in the name of the defendant. In the absence of such ownership documents and merely relying upon the testimony of PW1, I am not inclined to grant the relief of specific performance in favour of the plaintiff as the authority of the defendant to sell the suit property to the plaintiff is not duly proved on record.
39. This issue is accordingly decided against the plaintiff and in favour of the defendant holding that the plaintiff is not entitled to the decree of specific performance, as prayed.
Civ DJ No. 613402/16 Mukesh Vs Dropti 15/20 ISSUE No: 7
7. Whether the plaintiff is entitled to recover damages from the defendant, if so, at what rate? OPP.
40. The onus to prove this issue was on the plaintiff. Plaintiff has sought recovery of damages to the tune of Rs. 3 Lacs from the defendant, however, the entire plaint is silent as to for what loss the said damages have been prayed.
41. Before giving my findings on the issue in hand, it is necessary to discuss the relevant provisions of law and their interpretations as given by the Superior Courts in respect of claims of parties to damages in such like agreements for sale of immovable properties.
42. The relevant provision is contained in Section 74 of The Indian Contract Act 1872 which is reproduced herein under for the sake of clarity: 74: ''Compensation for breach of contract where penalty stipulated for when a contract has been broken, if a sum is named in the contract as the amount to be paid in case of such breach, or if the contract contains any other stipulation by way of penalty, the party complaining of breach is entitled, whether or not actual damage or loss is proved to have been caused thereby, to receive from the party who has broken the contract reasonable compensation not exceeding the amount so named or, as the case may be, the penalty stipulated for''.
43. Even at the cost of repetition it is stated that as per Section 74 of the Indian Contract Act 1872, the party complaining the breach is entitled to receive from the party who has broken the contract a reasonable compensation.
Civ DJ No. 613402/16 Mukesh Vs Dropti 16/20
44. Section 74 of the Indian Contract Act,1872 has been interpreted by our Superior Courts in respect of the property transactions as is the case in hand in various decisions.
45. The Constitution Bench Judgment of the Apex Court reported as ''Fateh Chand vs Balkishan Dass,(1964) 1 SCR 515'' has dealt with Section 74 of the Indian Contract Act, 1872, at length. Para 10 of the judgment is relevant and read as under: ''10. Section 74 of the Indian Contract Act deals with the measure of damages in two classes of cases (i) where the contract names a sum to be paid in case of breach and (ii) where the contract contains any other stipulation by way of penalty. We are in the present case not concerned to decide whether a contract containing a convenant of forfeiture of deposit for due performance of a contract falls within the first class. The measure of damages in the case of breach of a stipulation by way of penalty is by Section 74 reasonable compensation not exceeding the penalty stipulated for. In assessing damages the court has, subject to the limit of the penalty stipulated, jurisdiction to award such compensation as it deems reasonable having regard to all the circumstances of the case. Jurisdiction of the court to award compensation in case of breach of contract is unqualified except as to the maximum stipulated; but compensation has to be reasonable, and that imposes upon the court duty to award compensation according to the settled principles. The Section undoubtedly says that the aggrieved is entitled to receive compensation from the party who has broken the contract, whether or not actual damages or loss is proved to have been caused by the breach. Thereby it merely dispenses with the proof of "actual loss or damage", it does not justify the award of compensation when in consequence of the breach of contract no legal injury at all has resulted, because compensation for breach can be awarded to make good loss or damages which naturally arose in the usual course of things, or which the parties knew Civ DJ No. 613402/16 Mukesh Vs Dropti 17/20 when they made the contact, to be likely to result from the breach".
46. Relying upon the judgment of Fateh Chand (Supra), our own High Court in ''Anand Singh Vs. Anurag Bareja RFA No. 480/2011 dated 28.11.2011 held as under: ''3. It is therefore, clear that a seller under an agreement to sell, when he has received monies under the agreement to sell, can not forfeit such amount, unless loss is pleaded and proved by him. It is the respondents/defendants who have to plead and prove entitlement to forfeiture on account of loss having been caused on account of breach of contract by the appellant/proposed buyer. Thus even assuming the appellant/plaintiff/proposed buyer is guilty of breach of contract, yet, the respondents/defendants will have to raise appropriate pleadings with respect to loss, get an issue framed, and thereafter lead evidence on such issue to show that losses have been caused to them on account of breach of agreement to sell by the appellant/plaintiff/proposed buyer, entitling the forfeiture of the amount.
47. In Anand Singh's case (Supra) the buyer was held guilty of breach of contract, still the seller was not permitted to forfeit the entire advance amount paid to him and suit of the plaintiff/ buyer for refund of advance money of Rs.10,00,000/ was decreed for a sum of Rs. 9,50,000/ alongwith interest @ 12% per annum simple.
48. Similarly, in Vandana Jain Vs. Rita Mathur & Ors. RFA No. 38/2018 decided on 20.04.2018; it has been held that forfeiture of the advance amount paid to the seller is allowed only to the extent of loss caused to the seller on account of the breach of contract by the buyer.
Civ DJ No. 613402/16 Mukesh Vs Dropti 18/20
49. In the present case, from the uncontroveted testimony of the plaintiff/ PW1 and non leading of evidence by the defendant, it can safely be held that the defendant was responsible for breach of the agreement to sell (Ex.Pw1/2). However, in the absence of any pleadings of the plaintiff detailing the loss suffered by him due to breach of the agreement, he cannot be held entitled to recover any compensation/damages from the defendant as prayed.
50. Having denied the relief of damages to the tune of Rs.3 Lacs as prayed by the plaintiff, it is relevant to consider that in view of the unrebutted testimony of PW1, sale consideration of Rs. 9,50,000/ has flowed from the plaintiff to the defendant qua agreement to sell Ex.PW1/2. The defendant has specifically admitted having received Rs.7 Lacs from the plaintiff but has failed to lead any evidence to dispute the case of the plaintiff that he had paid Rs.9,50,000/ and not merely Rs.7 Lacs as admitted by the defendant. Since the relief of specific performance has been declined to the plaintiff, it is bounden duty of this Court to balance the interests of both the parties by directing the defendant to refund the amount of sale consideration i.e. Rs.9,50,000/ which has been paid by the plaintiff to her as per the evidence produced on record. These directions are required to balance the interests of the parties, although the plaintiff has not sought the relief of refund of the sale consideration paid in alternative to the relief of specific performance.
51. In view of the reasons given above, the plaintiff is held entitled to recover Rs.9,50,000/ along with pendentelite and future interest @ 10 % p.a. (simple interest) from the date of filing of the suit i.e. 29.08.2016 till realisation.
52. With these directions, this issue is decided in favour of the plaintiff and against the defendant holding that the plaintiff is entitled to recover Rs.9,50,000/ Civ DJ No. 613402/16 Mukesh Vs Dropti 19/20 along with pendentelite and future interest @ 10 % p.a. (SI) from the date of filing of the suit i.e. 29.08.2016 till its realisation.
RELIEF.
53. In view of the reasons and my issues findings given above, the suit of the plaintiff qua the relief of specific performance and damages is dismissed. However, plaintiff is held entitled to recover Rs.9,50,000/(Rupees Nine lakhs fifty thousand only) along with pendentelite and future interest @ 10 p.a. (simple interest) from the date of filing of the suit i.e. 29.08.2016 till its realisation. Costs of the suit are also awarded in favour of the plaintiff.
54. Decree sheet be prepared.
55. File be consigned to the record room after compliance.
Digitally signed by SHIVALI SHIVALI SHARMA
SHARMA Date: 2022.08.08
16:04:43 +0530
Announced in the open court (SHIVALI SHARMA)
on: 08.08.2022 ADJ03/WEST/THC/DELHI
08.08.2022
Civ DJ No. 613402/16 Mukesh Vs Dropti 20/20