Delhi District Court
Sh. Vikas Chaudhary ) vs Sh. Hakumat Singh Paul ) on 5 May, 2021
IN THE COURT OF SH HARGURVARINDER SINGH
JAGGI, ADDL. DISTRICT JUDGE - 02, SOUTH WEST
DISTRICT, DWARKA COURTS, DELHI
CS DJ ADJ No. 516435/2016
CNR No. DLSW010023972015
IN THE MATTER OF:
Sh. Vikas Chaudhary )
S/o Sh. Mohinder Chaudhary )
R/o A-1/239, Second Floor )
Janak Puri, New Delhi - 110058 ) ... Plaintiff/Defendant
v.
Sh. Hakumat Singh Paul )
S/o Late Sardar Jit Singh )
R/o 1001, Plot No. 40-A )
Baroda House Apartments )
Sector - 10, Dwarka )
New Delhi - 110075 ) ... Defendant/Counter-Claimant
Mr. R.D. Singh, Ms. Vanshika Kohli, Advocates for Mr. Vikas
Chaudhary (Plaintiff / Defendant).
Mr. Surendra Kumar, Advocate for Mr. Hakumat Singh Paul
(Defendant / Counter-Claimant).
Date of institution of suit: 02.12.2015
Date of judgment reserved: 27.02.2021
Date of pronouncement of judgment: 05.05.2021
CS DJ ADJ No. 516435/2016
Page No. 1/49
HARGURVARINDE Digitally signed by
HARGURVARINDER SINGH JAGGI
R SINGH JAGGI Date: 2021.05.05 16:43:35 +05'30'
JUDGMENT
1. The present dispute is a classic buyer-seller dispute where after entering into an agreement to sale-purchase of an immovable property and having paid 10% of the total sale amount, the deal went sour, and the seller forfeited the sum paid by the buyer. The seller in his defence has justified adjustment of the advance money paid by the buyer, coupled with a set-off, and a counter-claim against the buyer for causing loss to him by breach of the contract entered between them.
Pleadings
2. The facts traced from the plaint are that Vikas Chaudhary (hereinafter "Chaudhary") and Hakumat Singh Paul (hereinafter "Paul") after negotiation entered into a written sale-purchase agreement on 30.11.2012 (hereinafter "contract") regarding an immovable property i.e., A-1/239, ground floor, Janakpuri, New Delhi - 110058 (hereinafter "suit property") for a total sale consideration of ₹4.50 crores (Rupees Four crores and fifty lakhs only) (hereinafter "sale consideration"). Chaudhary paid Paul a sum of ₹45.00 lakhs (Rupees Forty five lakhs only) against the sale consideration.
3. After entering of the agreement, Chaudhary learnt that at the time of him entering contract with Paul, the market value of the suit property was ₹4.00 crores (Rupees Four crores only) and not ₹4.50 crores (Rupees Four crores and fifty lakhs only). Chaudhary has urged that Paul deliberately, knowingly, willingly, and intentionally concealed the material fact of the true market value of the suit property. Chaudhary has also urged in his plaint that Paul attempted CS DJ ADJ No. 516435/2016 Page No. 2/49 to gain undue, unjust benefit of ₹50.00 lakhs (Rupees Fifty lakhs only) by playing fraud upon him.
4. On being confronted by Chaudhary, Paul assured and promised to pay back the sum of ₹45.00 lakhs (Rupees Forty five lakhs only) to Chaudhary within a period of one year, by December 2013. After expiry of one year period, when Chaudhary approached Paul in January 2014 and claimed refund of ₹45.00 lakhs (Rupees Forty five lakhs only), Paul cited financial hardship and requested for another one year to refund the entire amount.
5. However, when Chaudhary approached Paul in February 2015 claiming refund of ₹45.00 lakhs (Rupees Forty five lakhs only), Paul avoided his request on one pretext or other. Chaudhary contacted Paul on 20.10.2015 and asked him to refund ₹45.00 lakhs (Rupees Forty five lakhs only), but Paul outrightly refused to return a single penny to Chaudhary. A demand notice dated 21.10.2015 was issued to Paul by Chaudhary demanding refund of ₹45.00 lakhs (Rupees Forty five lakhs only), however the same was not replied by Paul.
6. As per Chaudhary, Paul has unabashedly refused to refund his hard earned money and has made unjust enrichment at the cost of causing him financial loss, damages, mental torture. Chaudhary has also pleaded in his plaint that since February 2013 Paul has been deriving rental income of ₹55,000/- (Rupees Fifty five thousand only) from the suit property.
7. As per Chaudhary, Paul neither cancelled the contract nor undertook any steps for seeking enforcement, performance of the contract, which clearly proves that Paul lacked bona fide intention to comply with the terms and conditions of the contract. With the cause of action having arisen on 30.11.2012, the date when CS DJ ADJ No. 516435/2016 Page No. 3/49 Chaudhary and Paul entered in a contract, and thereafter on subsequent dates when demands made by Chaudhary seeking refund of ₹45.00 lakhs (Rupees Forty five lakhs only) went unanswered as late as 21.10.2015. Chaudhary has been constrained to prefer the present suit seeking a money decree of ₹45.00 lakhs (Rupees Forty five lakhs only) along with pendente lite and future interest @ 18% per annuum along with costs of the suit.
8. On the other hand, Paul has not only thwarted Chaudhary's money claim of ₹45.00 lakhs (Rupees Forty five lakhs only), but also set-off a sum of ₹45.00 lakhs (Rupees Forty five lakhs only) against his loss of ₹1.00 crore (Rupees One crore only) and lodged a counter- claim of ₹55.00 lakhs (Rupees Fifty five lakhs only) against Chaudhary.
9. The defence urged by Paul in his written statement is on the lines that it is Chaudhary, who failed to perform his share of the obligations as per the contract, and Paul rightfully forfeited the sum of ₹45.00 lakhs (Rupees Forty five lakhs only) as per the normal business practice in such sale-purchase contracts pertaining to immovable properties.
10. Though, Paul has admitted the contract between the parties, however he has urged in his defence that the parties entered a contract after thorough negotiation, deliberation, and discussions for the sale-purchase of the suit property at the total consideration of ₹4.50 crores (Rupees Four crores and fifty lakhs only). It is also urged by Paul that the plea of Chaudhary that the actual market value of the suit property was ₹50.00 lakhs (Rupees Fifty lakhs only) lower than the total sale consideration is an afterthought, because Chaudhary himself deals in the sale and purchase of properties in the CS DJ ADJ No. 516435/2016 Page No. 4/49 same locality and he was well-versed with the market price of the suit property. Paul has also urged in his written statement that Chaudhary's plea of the suit property being overvalued by Paul is an afterthought as the same surfaced for the first time in the legal notice dated 21.10.2015 issued at the cusp of three years period from the date of signing of the contract i.e., 30.11.2012.
11. Paul has also averred in his written statement that he has no issue, and cannot have any issue under law, with the terms and conditions of the contract i.e., sale agreement dated 30.11.2012.
12. Paul has urged in his written statement that after waiting for seven months from the date of signing of the contract between them, he issued a written communication dated 09.07.2013 to Chaudhary, wherein Chaudhary was reminded to pay the balance amount and finalise the deal within 10 days from the date of receipt of the said letter. It is averred by Paul that the said letter was sent through registered post A.D. and the same was duly received by Chaudhary's daughter. It is also urged by Paul that despite receipt of the letter dated 09.07.2013 by Chaudhary, Chaudhary failed to pay the balance amount as per the contract.
13. Pursuant to letter dated 09.07.2013, Paul issued another letter dated 31.07.2013 through registered post A.D. to Chaudhary titled as final reminder for payment, wherein Paul sought a written confirmation from Chaudhary on or before 15.08.2013 that Chaudhary would pay the balance sale consideration by 31.08.2013. On 07.08.2013, Paul received back the letter dated 31.07.2013 as undelivered to Chaudhary, despite having met Chaudhary on 02.08.2013 and requested him to receive the said letter. It is averred by Paul in the written statement that as a matter of abundant caution, CS DJ ADJ No. 516435/2016 Page No. 5/49 he once again on 10.08.2013 dispatched the letter dated 31.07.2013 to Chaudhary by a registered post A.D. and speed post and thereafter through email on 15.08.2013. It is also averred by Paul that it is not in issue that Chaudhary failed to pay the balance amount to him.
14. Paul has averred in his written statement that Chaudhary has conveniently concealed material facts from this Court by advancing an oral theory that it was Chaudhary who approached Paul within one week from the date of signing of the contract, and Paul assured Chaudhary that he would return ₹45.00 lakhs (Rupees Forty five lakhs only) within one year. Paul has also averred that the story urged by Chaudhary that it was Paul who promised to return ₹45.00 lakhs (Rupees Forty five lakhs only) to him within a period of one year is falsified from the letter dated 09.07.2013, letter dated 31.07.2013, and an email dated 15.08.2013.
15. Paul has urged in his defence that he has no legal obligation to return the sum of ₹45.00 lakhs (Rupees Forty five lakhs only) to Chaudhary, as it is Chaudhary who is in clear breach of the contract. About the receipt of legal notice dated 21.10.2015, Paul has urged that he was away from the suit property to attend his granddaughter's marriage ceremony from 18.10.2015 until 15.11.2015, by the time he could contact his counsel and instruct him to draft an adequate response based on documents, Chaudhary had already preferred the present suit.
Set-off and Counter-Claim
16. Paul in his written statement has set up a claim of set-off and counter-claim against Chaudhary on the bedrock of pleadings that Paul and his wife who are in advanced age and having no son, CS DJ ADJ No. 516435/2016 Page No. 6/49 decided to move closer to his younger daughter, who was residing in Dwarka.
17. Paul has averred in the counter-claim that it was Chaudhary who approached and convinced Paul to sell the suit property to him rather than realising monthly rent by letting out the same to tenants. It is also averred by Paul that initially he demanded ₹4.75 crores (Rupees Four crores and seventy five lakhs only) from Chaudhary, however after thorough negotiation, deliberation, and discussions he agreed to sell the suit property for ₹4.50 crores (Rupees Four crores and fifty lakhs only) to Chaudhary and they entered in a written contract. Chaudhary paid a sum of ₹10.00 lakhs (Rupees Ten lakhs only) to Paul in the month of October 2012, and thereafter a further sum of ₹35.00 lakhs (Rupees Thirty five lakhs only) on 30.11.2012.
18. Paul has averred in the counter-claim that in the original draft agreement made in October 2012, the payment was to be completed by the month of February 2013, but Chaudhary in his own handwriting corrected and endorsed in November 2012 that a further sum of ₹3.05 crores (Rupees Three crores and five lakhs only) was to be paid before 28.02.2013 and thereafter the balance payment of ₹ 1.00 crore (Rupees One crore only) was to be paid in March/April 2013. It is urged by Paul that Chaudhary failed to make any further payment in terms of the contract after having paid a sum of ₹45.00 lakhs (Rupees Forty five lakhs only) to him.
19. Paul has averred in the counter-claim that Chaudhary kept on seeking extension of time to make the balance payment on the assurances that he would arrange money by selling some of his properties. It is also averred by Paul that after having waited patiently and on expiry of seven months, on 09.07.2013 he issued a CS DJ ADJ No. 516435/2016 Page No. 7/49 reminder for payment to Chaudhary through registered post A.D., whose delivery was accepted by Chaudhary's daughter.
20. Paul has further averred in the counter-claim that when he did not receive any response from Chaudhary after receipt of letter dated 09.07.2013, he issued another letter on 31.07.2013 wherein he categorically called upon Chaudhary to intimate him before 15.08.2013 that he would pay the balance sale consideration by 31.08.2013. It is averred by Paul that the letter dated 31.07.2013 dispatched through registered post A.D. was received back to him on 07.08.2013. It is further averred by Paul that on 10.08.2013 he once again sent the letter dated 31.07.2013 by registered post A.D. and speed post to Chaudhary. It is also averred by Paul that as a matter of abundant caution he did send a scanned copy of letter dated 31.07.2013 to Chaudhary through email and yet Chaudhary failed to make good the balance payment.
21. Paul in his counter-claim has pleaded having suffered damages on the following counts:
(a) With Chaudhary's inability to pay the balance amount as per the contract in a timely manner, the market value of the suit property in the latter part of 2013 crashed by 20 to 25%, which computes around ₹1.00 crore (Rupees One crore only) approximately.
(b) Paul had planned to spend the balance sale consideration to repay the loan of ₹30.00 lakhs taken by his younger daughter and his son-in-law, Kuljit Singh in early 2012 from Axis Bank for the purchase of a flat in Sector 85, Gurgaon. Because of Chaudhary's default to pay the balance sale consideration of ₹4.05 crores (Rupees Four crores and five lakhs only) as per CS DJ ADJ No. 516435/2016 Page No. 8/49 the contract, Paul could not honour his commitment of repaying the loan and his kin/successors suffered a loss of ₹7,05,497/- (Rupees Seven lakhs five thousand four hundred and ninety seven only) as interest on the aforesaid loan w.e.f. 01.05.2013 to 10.01.2016.
(c) Paul had also planned to pay ₹2.50 crores (Rupees Two crores and fifty lakhs only) to his younger son-in-law, Kuljit Singh for his purchase of 1/5th share in a banquet hall at Rama Road, Delhi along with four other partners. Because of Chaudhary's default to pay the balance sale consideration of ₹4.05 crores (Rupees Four crores and five lakhs only) as per the contract, the banquet hall could not be purchased and the same was taken on monthly rent of ₹8.00 lakhs (Rupees Eight lakhs only) w.e.f. July 2013 and the same was reduced to ₹6.00 lakhs (Rupees Six lakhs only) w.e.f. October 2014. Paul has urged that consequentially his son-in-law, had to pay a sum of ₹43.20 lakhs (Rupees Forty three lakhs and twenty thousand only) as monthly rent for a period of 31 months w.e.f. 01.07.2013 till January 2016.
(d) Paul had also planned to purchase a commercial property in the joint name of his two grandsons, which was booked by him in the month of October 2012. Regardless of the default on part of Chaudhary, Paul somehow managed to complete the purchase of the aforesaid commercial property, but to meet the shortfall of funds, Paul undertook a loan of ₹22.00 lakhs (Rupees Twenty two lakhs only) at the interest rate of 9.30% per annum from the State Bank of Hyderabad in December 2015. As per Paul, the loan of ₹22.00 lakhs (Rupees Twenty CS DJ ADJ No. 516435/2016 Page No. 9/49 two lakhs only) was completely avoidable, if Chaudhary made the balance payment as per the contract, however, he is not claiming the aforesaid loan amount at this stage.
22. Paul has categorically averred in paragraph No. 13 of the counter-claim that the total loss suffered by him on account of breach of contract by Chaudhary is of ₹1,50,25,497/- (Rupees One crore fifty lakhs twenty five thousand four hundred and ninety seven only), but he is confining his claim for damages to ₹1.00 crore (Rupees One crore only). It is also averred by Paul that against the damages of ₹1.00 crore (Rupees One crore only) he has set-off the sum of ₹45.00 lakhs (Rupees Forty five lakhs only) and presses for his counter- claim of ₹55.00 lakhs (Rupees Fifty five lakhs only) against Chaudhary.
23. Paul has prayed in his written statement for the dismissal of Chaudhary's suit with exemplary costs and decreeing his set-off and counter-claim with costs in his favour and against Chaudhary.
24. Chaudhary in his replication to Paul's written statement and reply/written statement to Paul's counter-claim has denied all the averments made by Paul therein. Chaudhary has refuted Paul's claim that it is Chaudhary, who has breached the contract. Chaudhary has urged that it is Paul, who dishonestly, fraudulently and maliciously retained the sum of ₹45.00 lakhs (Rupees Forty five lakhs only) and failed to return the same despite repeated requests made by him.
25. Chaudhary has urged that not only Paul erred by claiming set- off and counter-claim together, but also with the specific performance of contract being barred by limitation, no question for filing the counter-claim arises. It is also urged by Chaudhary that Paul never intended to seek a decree of specific performance of the CS DJ ADJ No. 516435/2016 Page No. 10/49 contract between them and thus the set-off and counter-claim by Paul is an afterthought and taking advantage of his own wrong. Chaudhary has also urged in his replication that the contract between the parties had no clause for forfeiture of money paid by him to Paul and thus the set-off and counter-claim preferred by Paul is false and frivolous.
26. Chaudhary has denied receiving any letter, correspondence from Paul except the letter dated 09.07.2013 through his daughter. Chaudhary has denied that the email does not pertain to him. Chaudhary has prayed that the relief sought by him in his plaint be decreed in his favour and against Paul and the counter-claim preferred by Paul be dismissed with cost.
27. On the other hand, Paul has preferred a replication to Chaudhary's written statement to his claim. Paul has refuted Chaudhary's claim that set-off and counter-claim are barred by limitation. Paul has also challenged the averments of Chaudhary that set-off and counter-claim cannot be pleaded together. It is urged by Paul that both the set-off and counter-claim are based on substantial cause of action against Chaudhary and the same has been pleaded in his written statement cum set-off and counter-claim.
28. Paul has denied the non-existence of forfeiture clause in the contract. Paul has urged that ₹45.00 lakhs (Rupees Forty five lakhs only) rightly stands forfeited by him as it was Chaudhary, who breached the contract by failing to pay the balance sale consideration within the stipulated time. Paul has also urged that the breach of contract by Chaudhary caused him huge loss of ₹1,50,25,497/- (Rupees One crore fifty lakhs twenty five thousand four hundred and ninety seven only) but has decided to confine the same to ₹1.00 crore CS DJ ADJ No. 516435/2016 Page No. 11/49 (Rupees One crore only), as averred by him in his written statement/set-off and counter-claim. Paul has prayed that Chaudhary's money claim be dismissed and his set-off and counter- claim against Chaudhary be allowed.
29. Before proceeding further, I find it relevant to observe herein that as per Order VIII, Rule 6A of the Code of Civil Procedure, 1908 (CPC) a counter-claim is required to be treated as an independent suit, and therefore the counter-claim preferred by Paul against Chaudhary ought to have been lodged and registered separately - See PSA Nitrogen Limited v. Maeda Corporation & Ors.1 Issues
30. On completion of pleadings, the following issues were framed on 15.02.2017:
(i) Whether the plaintiff was not willing to
perform agreement to sell dated 30.11.2012,
if so its effect? ... OPD
(ii) Whether the defendant is entitled to claim set
off as prayed in the counter-claim? ... OPD
(iii) Whether the defendant is entitled to counter
claim as prayed? ... OPD
(iv) Whether the plaintiff is entitled to recovery of
money as prayed? ... OPP
(v) Whether plaintiff is entitled to interest, if so
at what rate and for what period? ... OPP
Evidence led by parties
31. To prove his claim, Chaudhary (PW1) and his wife, namely, Winky Chaudhary (PW2) stepped in the witness box. On the other 1 CM(M) No. 4/2019 date of decision 17.09.2019 by Hon'ble High Court of Delhi CS DJ ADJ No. 516435/2016 Page No. 12/49 hand, to refute Chaudhary's claim and to prove his counter-claim, Paul (DW1) a solitary defence witness stepped in the witness box.
32. Chaudhary (PW1) along with his oral testimony has relied on the following documents:
S.No. Exhibit Mark put Description and Date, if any, of the on the Document Document
(i) Ex.PW1/A Evidence by way of affidavit.
(ii) Ex.PW1/1(OSR) Copy of sale agreement dated 30.11.2012.
(iii) Ex.PW1/2 (Colly.) Copy of legal notice along with postal receipt.
(iv) Ex.PW1/3 Copy of delivery report of speed post.
33. Paul (DW1) along with his oral testimony has relied on the following documents:
S.No. Exhibit Mark put Description and Date, if any, of the on the Document Document
(i) Ex.DW1/1 Evidence by way of affidavit.
(ii) Ex.DW1/A (Colly.) Letter dated 09.07.2013 with registered post A.D. and duly signed A.D. card.
(iii) Ex.DW1/B (Colly.) Letter dated 31.07.2013 with registered post receipt.
(iv) Ex.DW1/C Original envelope received back containing the letter dated 31.07.2013.
(v) Ex.DW1/D (Colly.) Letter dated 10.08.2013 along with registered post and speed post receipts.
(vi) Ex.DW1/E Copy of email dated 15.08.2013.
(vii) Ex.DW1/F Bank statement from Axis Bank regarding
interest.
(viii) Ex.DW1/G Copy of ledger account regarding the rent
paid.
CS DJ ADJ No. 516435/2016
Page No. 13/49
Submissions advanced by the Counsels for the parties
34. Mr. R.D. Singh learned counsel for Chaudhary and Mr. Surendra Kumar learned counsel for Paul advanced their oral arguments. Mr. R.D. Singh learned counsel for Chaudhary opened his arguments on the note that Paul showed his intention to sell the suit property to Chaudhary in the month of October 2012, and on 30.11.2012 the parties entered into an agreement to sale for ₹4.50 crores (Rupees Four crores and fifty lakhs only). The learned counsel further submitted that Chaudhary paid Paul a sum of ₹45.00 lakhs (Rupees Forty five lakhs only).
35. Mr. Singh learned counsel for Chaudhary submitted that after one week of having entered a contract, Chaudhary made an enquiry about actual market value of the suit property, and he gained knowledge that Paul had fixed a higher price of the suit property then the prevailing market rate. The learned counsel further submitted that the prevailing market rate of the suit property was ₹4.00 crores (Rupees Four crores only) and not ₹4.50 crores (Rupees Four crores and fifty lakhs only). The learned counsel submitted that Chaudhary within 15 days of the agreement to sale informed Paul that he is not willing to purchase the suit property and his ₹45.00 lakhs (Rupees Forty five lakhs only) be returned. The learned counsel for Chaudhary submitted that Chaudhary in his plaint has clearly averred that it was Paul, who induced and allured Chaudhary for the sale consideration of ₹4.50 crores (Rupees Four crores and fifty lakhs only).
36. The learned counsel for Chaudhary further submitted that when Chaudhary brought the fact of the sale consideration of the suit property been fixed between the parties ₹50.00 lakhs (Rupees Fifty CS DJ ADJ No. 516435/2016 Page No. 14/49 lakhs only) higher than the prevailing market rate of ₹4.00 crores (Rupees Four crores only), Paul assured Chaudhary that he would return his ₹45.00 lakhs (Rupees Forty five lakhs only) within a period of one year. The learned counsel further submitted that when in the month of January 2014 Chaudhary approached Paul seeking refund of his ₹45.00 lakhs (Rupees Forty five lakhs only), Paul informed Chaudhary that he is undergoing financial crunch and sought some more time, to return the amount.
37. Mr. Singh learned counsel for Chaudhary submitted that neither the contract between the parties provides for forfeiture of the earnest money paid by Chaudhary to Paul, nor Paul suffered any losses to claim a set-off and a counter-claim against Chaudhary. The learned further submitted that Paul's intention from the very beginning had been dishonest and the same is apparent nay evident from the fact that the sale consideration of the suit property was marked up by him than the prevailing market rate, and resiling from his promise to return the entire earnest money within one year.
38. The learned counsel for Chaudhary submitted that the contradictions from the cross-examination of Paul about letting out of the suit property in the month of April 2013 or May 2013 reveals that he had no intention either to sell the suit property or return the sum of ₹45.00 lakhs (Rupees Forty five lakhs only) to Chaudhary. The learned counsel for Chaudhary further submitted that the very fact of letting out the suit property by Paul to a tenant in the month of April 2013 without waiting for Chaudhary to pay the balance sale consideration, fortifies Chaudhary's claim that Paul was very much aware about the fact that Chaudhary does not intend to purchase the CS DJ ADJ No. 516435/2016 Page No. 15/49 suit property and it is for that reason Paul was looking for a tenant since January 2013.
39. The learned counsel for Chaudhary further submitted that the defence pleaded by Paul that on failure on the part of Chaudhary, Paul had to take loan from Axis bank is falsified from the fact that not only the said loan was taken prior to the date of agreement to sale entered between the parties, but also the said loan was in the name of Kuljit Singh, who is the son-in-law of Paul but certainly not his kin/successor.
40. The learned counsel for Chaudhary further submitted that similarly the plea urged by Paul that on failure on the part of Chaudhary to pay the balance sale consideration, Paul could not pay ₹2.50 crores (Rupees Two crores and fifty lakhs only) to his younger son-in-law for purchase of 1/5th share in the banquet hall at Rama Road Delhi is a self-serving, bottomless plea. The learned counsel further submitted that under no manner can Paul fasten such a preposterous liability of unwarranted and untenable claims upon Chaudhary. The learned counsel for Chaudhary further submitted that Paul is still the owner of the suit property and he has all the rights over the suit property to sell and dispose of the same and utilise, invest the sale proceeds as per his wishes.
41. The learned counsel for Chaudhary submitted that the potential investment of gifting an immovable property to his grandchildren by Paul and on failure of Chaudhary to pay the balance sale consideration, Paul undertook a loan of ₹20.00 lakhs (Rupees Twenty lakhs only) to ₹22.00 lakhs (Rupees Twenty two lakhs only) is also far-fetched. The learned counsel further submitted CS DJ ADJ No. 516435/2016 Page No. 16/49 that Paul has failed to lead any evidence to prove the fact of having availed a loan from State Bank of Hyderabad.
42. Mr. Singh learned counsel for Chaudhary submitted that the documentary evidence led by Paul hopelessly falls short of proving the fact that he had suffered any loss, damages, as the financial documents by Paul are in the name of his younger son-in-law, namely, Kuljit Singh. The learned counsel further submitted that Paul also miserably failed to prove any loss and damage suffered by him and authorising him to forfeit Chaudhary's hard earned ₹45.00 lakhs (Rupees Forty five lakhs only).
43. To buttress his arguments, Mr. Singh placed reliance upon the judgment of the Hon'ble High Court of Delhi in the case of Rajbir Singh & Anr. v. Jaswant Yadav2 and stressed that under no manner and circumstances can Paul justify the forfeiture of ₹45.00 lakhs (Rupees Forty five lakhs only) and Chaudhary's suit be decreed against Paul by directing him to return the sum of ₹45.00 lakhs (Rupees Forty five lakhs only) along with interest at the rate of 18% per annum.
44. Per contra, Mr. Surendra Kumar learned counsel for Paul valiantly contended the arguments advanced by the learned counsel for Chaudhary. The learned counsel submitted that as per the pleadings of Chaudhary, the cause of action urged is not bundle of facts, rather bundle of lies. The learned counsel for Paul further submitted that Chaudhary has alleged that Paul manipulated and fixed higher sale consideration of ₹4.50 crores (Rupees Four crores and fifty lakhs only), which was ₹50.00 lakhs (Rupees Fifty lakhs 2 RFA No. 404/2018 date of judgment 14.05.2018 CS DJ ADJ No. 516435/2016 Page No. 17/49 only) higher than the prevailing market value of the suit property. The learned counsel further submitted that Chaudhary has averred in his plaint that Paul assured him that he would return the earnest money of ₹45.00 lakhs (Rupees Forty five lakhs only) to him within one year. The learned counsel drew attention of the court to paragraph No. 5 of the plaint and submitted that it is Chaudhary's own case that the parties entered in a contract for sale-purchase of the suit property for a total sale consideration of ₹4.50 crores (Rupees Four crores and fifty lakhs only) after thorough negotiation, deliberation, and discussions on 30.11.2012.
45. Mr. Kumar learned counsel for Paul submitted that averments made by Chaudhary in his plaint that he discovered the fraud played by Paul upon him within one week from the date of signing of the agreement to sale is belied from the averments made by Paul in his set-off and counter-claim, as a sum of ₹10.00 lakhs (Rupees Ten lakhs only) was paid by Chaudhary to Paul in the month of October 2012 and further a sum of ₹35.00 lakhs (Rupees Thirty five lakhs only) was paid by him to Paul on 30.11.2012. The learned counsel further submitted that the averments made by Chaudhary in his plaint are self-contradictory and no fraud was played upon him by Paul. The learned counsel further added that the sale consideration of ₹4.50 crores (Rupees Four crores and fifty lakhs only) was agreed between the parties is consensus ad idem, out of their free will, consent, after thorough negotiation, deliberation, and discussions.
46. Mr. Kumar the learned counsel for Paul shifted the entire weight of his arguments, on the admissions made by Chaudhary (PW1) during his cross-examination that the balance consideration remains unpaid by him. The learned counsel further submitted that CS DJ ADJ No. 516435/2016 Page No. 18/49 it has come out in the cross-examination of PW1 and PW2 that there was paucity of funds at their end and the property at Bahadurgarh was sold on a much later date, particularly beyond the cut-off date of the contract between the parties.
47. The learned counsel further submitted that Chaudhary (PW1) and his wife (PW2) have admitted that the handwritten notes on the agreement to sale (Ex.PW1/1) were in the handwriting of Chaudhary. The learned counsel once again stressed that it was never the case of the suit property being valued higher than the prevailing market value, but it was the nonavailability of the funds on part of Chaudhary that he could not pay the balance sale consideration to Paul in a timely manner and the breach of contract resulted in a huge loss to Paul.
48. Mr. Kumar learned counsel for Paul further submitted that Chaudhary and his wife have admitted the receipt of letter dated 09.07.2013, wherein Paul had categorically stated that despite repeated extensions granted by him to Chaudhary, Chaudhary has failed to pay the balance 90% of the sale consideration. The learned counsel further submitted that Paul by the said reminder letter, put Chaudhary to notice and called upon him to pay the balance sale consideration along with interest at the rate of 18% per annum on delay payment with effect from 01.03.2013 within 10 days from the date of the letter and finalize the transaction. The learned counsel further submitted that the pleadings and evidence before this court clearly proves that the breach of contract is on the part of Chaudhary and not Paul, therefore Chaudhary's claim seeking refund of ₹45.00 lakhs (Rupees Forty five lakhs only) be dismissed with exemplary costs.
CS DJ ADJ No. 516435/2016 Page No. 19/4949. About the justification of a forfeiture of earnest money, Mr. Kumar the learned counsel for Paul submitted that the reliance placed by Chaudhary on the judgment of Hon'ble High Court of Delhi in Rajbir Singh & Anr. v. Jaswant Yadav3 does not come to his rescue as the same is not applicable to the facts of the case at hand. The learned counsel further submitted that not only Paul has pleaded that he suffered loss, but also proved that loss was suffered by him because of breach of contract by Chaudhary. Mr. Kumar learned counsel for Paul added that forfeiture of earnest money becomes insignificant if loss is pleaded and proved.
50. The learned counsel submitted that Paul has suffered loss of over ₹1.50 crores (Rupees One crore and fifty lakhs only) as breach of contract by Chaudhary but has confined the same to ₹1.00 crore (Rupees One crore only). The learned counsel further submitted that against the loss of ₹1.00 crore (Rupees One crore only) claimed by Paul from Chaudhary, Paul has set-off the sum of ₹45.00 lakhs (Rupees Forty five lakhs only) and further as a counter-claim, Paul has sought the balance sum of ₹55.00 lakhs (Rupees Fifty five lakhs only) from Chaudhary.
51. The learned counsel further submitted that Paul does not have any male descendants and he had commitments towards his daughters and sons-in-law, whose fulfilment were hinged to the payment of balance sale consideration by Chaudhary. The learned counsel further submitted that as Chaudhary failed to discharge his contractual obligations, Paul had to avail certain loans and pay interest on the same. The learned counsel for Paul further added that 3 RFA No. 404/2018 date of judgment 14.05.2018 CS DJ ADJ No. 516435/2016 Page No. 20/49 because of the breach of contract by Chaudhary, Paul's succession plan has been derailed and caused grave hardship to him and his family members.
52. Mr. Surendra Kumar learned counsel for Paul submitted that about the loss caused to Paul on account of fall in the prices of the suit property, this Court must take judicial notice of the slump in market prices of the suit property. The learned counsel further submitted that the testimony of Paul (DW1) makes it abundantly clear that he has filed documentary evidence as proof of loss and damages and the same has gone unchallenged by Chaudhary. To add sinew to the above submission, the learned counsel placed reliance upon the judgment of the Hon'ble High Court of Calcutta reported as A.E.G. Carapiet v. A.Y. Derderian,4 Sarwan Singh v. State of Punjab 5 and Laxmibai (Dead) Thr. L.Rs. and Ors. v.
Bhagwantbuva (Dead) Thr. L.Rs. and Ors.6
53. The learned counsel for Paul concluded his arguments on the note that the suit preferred by Chaudhary be dismissed with costs and Paul' set-off and counter-claim be allowed with costs. The learned counsel added that the entire costs be awarded to Paul.
54. Mr. R.D. Singh rejoined his arguments and contended the fact that Paul has suffered any losses. The learned counsel for Chaudhary submitted that the counter-claim filed by Paul is an afterthought and with no loss suffered by Paul the set-off and counter-claim be dismissed. The learned counsel further submitted that no letters and email as alleged were received by Chaudhary. The learned counsel 4 1960 SCC OnLine Cal 44 :: AIR 1961 Cal 359, p. 362 pp. 9 5 AIR 2002 SC 3652 :: (2003) 1 SCC 240, p. 247 pp.9 6 AIR 2013 SC 1204 :: (2013) 4 SCC 97 pp. 31 CS DJ ADJ No. 516435/2016 Page No. 21/49 added that the reliance placed upon the judgments by Paul are misplaced. The learned counsel further added that the position is well settled in law that the earnest money cannot be forfeited as a matter of right and the same be returned by the seller to the buyer. The learned counsel concluded his arguments on the note that forfeiture of earnest money is not provided in the terms and conditions of the agreement to sale and thus Paul is duty bound in law and factually to return the entire sum of ₹45.00 lakhs (Rupees Forty five lakhs only) to Chaudhary with the costs of the suit. Reasoning & Findings
55. I, have perused the complete case record, considered, and deliberated over the submissions advanced by the learned counsels for the parties. The issue-wise findings ensue in the following paragraphs of this judgment.
Issue No.1 Whether the plaintiff was not willing to perform agreement to sell dated 30.11.2012, if so its effect?
56. The onus to prove the issue No. 1 has been casted upon Paul. On bare perusal of the contract entered between the parties, it is observed that the total sale consideration agreed between the parties was ₹4.50 crores (Rupees Four crores and fifty lakhs only) against which Chaudhary paid Paul a sum of ₹45.00 lakhs (Rupees Forty five lakhs only). The entire payment was to be paid by Chaudhary to Paul before March/April 2013, the actual physical possession of the property to be handed over and the sale deed was to be executed on receipt of full payment. It is observed from the written contract dated 30.11.2012 7 entered between the parties that it does have duly countersigned handwritten endorsements by both of them.
7Ex.PW1/1 (OSR) CS DJ ADJ No. 516435/2016 Page No. 22/49
57. The defence urged by Paul against Chaudhary's claim of refund of earnest money in his written statement and as a set-off and counter-claim is that it was Chaudhary, who failed to perform his part of the obligation of the contract by paying the balance sale consideration of ₹4.05 crores (Rupees Four crores and five lakhs only) by the end of April 2013. It is urged by Paul that initially agreement between the parties was made in October 2012 and a sum of ₹10.00 lakhs (Rupees Ten lakhs only) was paid by Chaudhary to Paul and the entire transaction was to be completed by February 2013. Paul has acknowledged receipt of further ₹35.00 lakhs (Rupees Thirty five lakhs only) and in total ₹45.00 lakhs (Rupees Forty five lakhs only) from Chaudhary as on 30.11.2012 at the time of signing of the written agreement between the parties.
58. However, Paul has also urged in his written statement that the timelines for payment of total sale consideration were recast at behest of Chaudhary on 30.11.2012. It is pleaded by Paul that the same can be corroborated from the relevant endorsements made in the sale agreement (Ex.PW1/1(OSR)) by Chaudhary in his own handwriting.
59. Paul has also pleaded that when Chaudhary failed to make payment of the balance sale consideration by the month of April 2013, he on 09.07.2013 issued a written letter Chaudhary reminding him about the unpaid amount despite repeated extensions granted to him upto 15.04.2013 and thereafter till 30.06.2013. Through his letter dated 09.07.2013 called upon Chaudhary to pay the balance sale consideration along with interest at the rate of 18% per annum within 10 days from the date of the said letter.
CS DJ ADJ No. 516435/2016 Page No. 23/4960. Paul has also urged that after 09.07.20138, he issued letters dated 31.07.2013 9 , 10.08.201310 and an email dated 15.08.2013 11 whereby a scanned copy of letter dated 31.07.2013 was sent and called upon Chaudhary to pay the balance amount. Paul in his letter dated 31.07.2013 sought written confirmation from Chaudhary before 15.08.2013 that he would pay the balance sale consideration by 31.08.2013. Paul has also averred that despite receipt of his letter dated 09.07.2013 an email dated 10.08.2013, Chaudhary not only refrained from replying to the aforesaid letter and email, but also miserably failed to pay the balance sale consideration of ₹4.05 crores (Rupees Four crores and five lakhs only).
61. On the other hand, the case pleaded by Chaudhary is that Paul dishonestly, and fraudulently allured him to enter a contract for purchase of the suit property at a much higher price of ₹4.50 crores (Rupees Four crores and fifty lakhs) than the prevailing market rate. As per Chaudhary, the true value of the suit property was ₹4.00 crores (Rupees Four crores only) and not ₹4.50 crores (Rupees Four crores and fifty lakhs only) and thus when he approached Paul asking for a refund of his ₹45.00 lakhs (Rupees Forty five lakhs only), Paul initially sought a period of one year to refund the entire amount to Chaudhary. It is urged by Chaudhary that when he approached Paul in January 2014, Paul once again sought further period of one year to refund the sum of ₹45.00 lakhs (Rupees Forty five lakhs only). It is also urged by Chaudhary that Paul had repeatedly cited his financial hardship to return the entire sum, when he approached him 8 Ex.DW1/A Colly.
9Ex.DW1/B Colly.
10Ex.DW1/D Colly.
11Ex.DW1/E CS DJ ADJ No. 516435/2016 Page No. 24/49 once again in February 2015, Paul refused the refund of ₹45.00 lakhs (Rupees Forty five lakhs only) on one pretext or other. Penultimately, Chaudhary issued a notice dated 21.10.2015 calling upon Paul to return the entire sum of ₹45.00 lakhs (Rupees Forty five lakhs only).
62. The admitted facts are that the parties entered in a written contract for sale-purchase of a suit property for a sum of ₹4.50 crores (Rupees Four crores and fifty lakhs only) against which Chaudhary only paid a sum of ₹45.00 lakhs (Rupees Forty five lakhs only) to Paul. It is also admitted that as per the written contract the balance sale consideration was to be paid by March/April 2013. It is an admitted fact that a sum of ₹4.05 crores (Rupees Four crores and five lakhs only) remains unpaid by Chaudhary to Paul. It is admitted by parties in their respective pleadings and by both the plaintiff' witnesses that the endorsements made in the written contract12 were in the handwriting of Chaudhary, as per which the entire sale consideration was to be paid by March/April 2013.
63. Chaudhary in his plaint has not averred a single word about having received a notice dated 09.07.2013 and an email dated 10.08.2013, however in his replication cum written statement to Paul's written statement cum set-off and counter-claim, he has admitted the receipt of letter dated 09.07.2013 by his daughter. Chaudhary has also averred in paragraph No. 8 of his replication13 that his daughter never intimated him about the letter dated 09.07.2013.
64. In his cross examination Chaudhary (PW1) testified that he does not know whether Paul had issued a letter dated 09.07.2013 12 Ex.PW1/1(OSR) 13 Replication, pp 8 under the heading Replication on Merits CS DJ ADJ No. 516435/2016 Page No. 25/49 reminding him about the balance payment. Chaudhary did admit that letter dated 09.07.2013 was received by his daughter. Chaudhary admitted that his email address is [email protected]. Chaudhary denied the suggestion that he also received letters dated 31.07.2013, 10.08.2013 and an email dated 15.08.2013. Chaudhary admitted that there has been no written communication on his part prior to the issuance of legal notice dated 21.10.2015.14 At this stage, it is observed that the email dated 15.08.201315 stated to be sent by Paul to Chaudhary is marked with the recipient's email address as [email protected], however, Chaudhary during his cross-
examination has admitted his email address as [email protected]. It is found that no evidence has been led by Paul that the correct email address of Chaudhary is [email protected] and not [email protected], thus this court concludes that the email dated 15.08.2013 by Paul was not delivered to Chaudhary.
65. During her cross examination, Winky Chaudhary (PW2), wife of Chaudhary admitted that the endorsements made on the first page of the written contract16 are in her husband in writing, however she feigned ignorance about any extension date about the payment schedule sought by her husband. She also denied the suggestion that her husband ever sought an extension of payment schedule upto April 2013. PW2 stated that she has no knowledge whether her daughter received any reminder letter dated 09.07.2013 calling for the payment of balance sale consideration. DW2 denied the 14 Ex.PW1/2 Colly.
15Ex.PW1/E 16 Ex.PW1/1 (OSR) CS DJ ADJ No. 516435/2016 Page No. 26/49 suggestion that her husband received any letter dated 31.07.2013, 10.08.2013 and email dated 15.08.2013.
66. Section 37 of the Indian Contract Act, 1872 (hereinafter "the Contract Act") provides that the parties to a contract must either perform or offer to perform their respective promises unless the performance is dispensed with or excused under the provisions of the Contract Act or any other law. Section 39 of the Contract Act provides that when a party to a contract has refused to perform, or disabled himself from performing, his promise in its entirety, the promisee may put an end to the contract, unless he has signified, by words or conduct, his acquiescence in its continuance.
67. In the case at hand, the admitted fact is that Chaudhary did not make any payment to Paul other than ₹45.00 lakhs (Rupees Forty five lakhs only) against the total sale consideration of ₹4.50 crores (Rupees Four crores and fifty lakhs only). It is Chaudhary's case that after one week from the date of payment of ₹45.00 lakhs (Rupees Forty five lakhs only) he gained knowledge that Paul had fixed the total sale consideration of the suit property ₹50.00 lakhs (Rupees Fifty lakhs only) higher than the prevailing market value of ₹4.00 crores (Rupees Four crores only). It is also the case of Chaudhary that Paul deliberately, knowingly, intentionally, and willingly concealed the material fact that the market value of the suit property at that point in time was ₹4.00 crores (Rupees Four crores only) and not ₹4.50 crores (Rupees Four crores and fifty lakhs only). Thereafter, Chaudhary instantly sought refund of ₹45.00 lakhs (Rupees Forty five lakhs only) from Paul, who failed to do the needful despite repeated requests and extension of time.
CS DJ ADJ No. 516435/2016 Page No. 27/4968. This Court finds that Chaudhary himself has averred in the paragraph No. 5 of the plaint that the sale consideration of ₹4.50 crores (Rupees Four crores and fifty lakhs only) for the suit property was agreed between the parties after thorough negotiation, deliberation, and discussion and thereafter they entered a written contract on 30.11.2012. It is also observed that neither Chaudhary averred in his plaint how and through whom, he gained knowledge about the fact of the true valuation of the suit property being ₹50.00 lakhs (Rupees Fifty lakhs only) lesser than the total sale consideration of ₹4.50 crores (Rupees Four crores and fifty lakhs only). It is observed that in the plaint, Chaudhary has averred that he gained knowledge after one week of the sale agreement dated 30.11.2012 about the actual market value of the suit property, but during the cross examination, Chaudhary stated that he came to know about the true market value of the suit property after about 12 to 15 days of the execution of the agreement. The statement of Chaudhary in his cross-examination that he got to know about the true market value of the suit property through various property dealer in the locality is found to be beyond pleadings.
69. Similarly, the testimony of Winky Chaudhary (PW2) cannot come to Chaudhary's and take his case any further, as when she was asked how she gained knowledge about the market value of the suit property was ₹50.00 lakhs (Rupees Fifty lakhs only) lesser than ₹4.50 crores (Rupees Four crores and fifty lakhs only), she riposted that she does not know, her husband knows.
70. This Court finds that Paul indeed has shifted the onus casted upon him, by proving that he did put Chaudhary to notice by a letter dated 09.07.2013 whose delivery is admitted, and wherein Paul CS DJ ADJ No. 516435/2016 Page No. 28/49 called upon him to perform his part of the contractual obligations. It is found that Paul has "proved"17 that it was Chaudhary, who was not willing to perform the sale agreement dated 30.11.2012, as not only it is admitted by Chaudhary in his pleadings that against the total sale consideration of ₹4.50 crores (Rupees Four crores and fifty lakhs only), he only paid ₹45.00 lakhs (Rupees Forty five lakhs only), but also admitted by him in his cross examination that he only paid ₹45.00 lakhs (Rupees Forty five lakhs only) to Paul against the total sale consideration. This Court also finds that Chaudhary has failed to lead any evidence to prove his contention that Paul defrauded him by concealing the true and correct market value of the suit property. It is held that no evidence has been led by Chaudhary that the market value of the suit property as on 30.11.2021 was ₹4.00 crores (Rupees Four crores only) and not ₹4.50 crores (Rupees Four crores and fifty lakhs only). Further, no evidence has been led by Chaudhary to prove that Paul acted dishonestly and played fraud upon him.
71. A relevant fact, which has been elicited by Paul during Chaudhary's cross-examination is that Chaudhary had planned to sell his property at Bahadurgarh and pay that sale consideration to Paul towards the discharge of his obligations, however, Chaudhary only managed to sell the Bahadurgarh property after about two and half years from the date of the execution of the sale agreement dated 30.11.2012. Therefore, an inference and a logical conclusion which can be drawn from the above is that it seems to be more of a case of 17 "Proved".-- A fact is said to be proved when, after considering the matters before it, the Court either believes to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists - See Section 3, Interpretation Clause, the Indian Evidence Act, 1872.
CS DJ ADJ No. 516435/2016 Page No. 29/49nonavailability of funds on part of Chaudhary and consequential failure to perform the contract.
72. This Court also finds that Paul successfully elicited from Chaudhary during his cross-examination that he is in the business of construction of residential and commercial properties. I do find it improbable that a person, who is engaged in the business of realty would enquire about the going market rate of an immovable property not only after entering in a contract, but also after having paid a sum of ₹45.00 lakhs (Rupees Forty five lakhs only). Thus, it is highly improbable that a person, who himself is stated to be engaged in the business of the construction of residential and commercial properties would not be well versed with going market prices of properties in his own neighbourhood, particularly, the same building where he resided, and him being defrauded by Paul, by selling the suit property at a higher price is found to be "disproved".18
73. In view of the above discussions, observations and findings, this Court rules that it was Chaudhary, who was not willing to perform the agreement to sell dated 30.11.2012. The failure to perform and discharge the obligations as enshrined in the written contract between the parties tantamount to breach of contract. As per the Contract Act, the remedy for breach of contract is either seeking its performance by a decree of specific performance and/or compensation for the loss caused by such breach. In the case at hand, Paul has already lodged his claim for loss against Chaudhary by set-
18"Disproved".-- A fact is said to be disproved when, after considering the matter before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist - See Section 3, Interpretation Clause, the Indian Evidence Act, 1872.CS DJ ADJ No. 516435/2016 Page No. 30/49
off and a counter-claim qua which issue Nos. 2 and 3 have been adequately framed and the same shall been taken up in the ensuing paragraphs of this judgment.
74. Accordingly, issue No. 1 is decided in favour of Paul and against Chaudhary.
Issue No.2 Whether the defendant is entitled to claim set-off as prayed in the counter-claim?
& Issue No.3 Whether the defendant is entitled to counter-claim as prayed?
75. The issue Nos. 2 and 3 are being taken up together by me as the same are correlated and intertwined. The onus to prove both the issues has been casted upon Paul.
76. The relevant provisions about set-off and counter-claim are enshrined in Order VIII of the Code of Civil Procedure, 1908 (hereinafter "CPC"). In all cases where the defendant does not merely defend the claim preferred by the plaintiff against him but also advances his claim to recover money or other relief against the plaintiff, the provisions of set-off and counter-claim would be applicable in such circumstances. In Black's Law Dictionary, 'setoff' has been defined as a defendant's counterdemand against the plaintiff, arising out of a transaction independent of the plaintiff's claim; A debtor's right to reduce the amount of debt by any sum the creditor owes the debtor; the counterbalancing sum owed by the creditor. 19
77. Set-off means a claim set against another. It is a reciprocal acquittal of debts between two persons. Where a written statement 19 Black's Law Dictionary, p. 640, Second Pocket Edn.
CS DJ ADJ No. 516435/2016 Page No. 31/49contains a claim for set-off, it has the same effect as plaint in a cross- suit, and the rules relating to written statement by defendant apply to written statement in answer to claim of set-off - See Order VIII, Rule 6(3), CPC.
78. The following conditions must be satisfied before the defendant can plead set-off against the plaintiff:
(a) The suit of the plaintiff must be for recovery of money.
(b) The claim of the defendant against the plaintiff must be for an ascertained sum of money.
(c) Such some must be legally recoverable.
(d) Such some must not exceed pecuniary limits of jurisdiction of
the Court.
(e) Both the parties must fill in the same character in set-off as
well as suit claim.
(f) Claim of set-off must be recoverable by the defendant or by
all the defendants, if more than one.
(g) It must be recoverable from the plaintiff or from all the
plaintiffs, if more than one.
79. Therefore, no set-off can be pleaded where the suit is not for recovery of money. If the claim of set-off is time-barred, it is not legally recoverable and hence set off cannot be allowed. If the set-
off exceed pecuniary limits, the proper course is to file a separate suit. However, it is open to the defendant to abandon or relinquish a portion of the claim more than pecuniary limits and continue set-off within certain limits to avoid bringing a separate suit.
80. In case of set-off claimed by the defendant, the plaintiff is entitled to file a written statement. The court can pass a decree in favour of the defendants and against the plaintiff. The effect of set-
CS DJ ADJ No. 516435/2016 Page No. 32/49off, if allowed, is either to negative or to reduce the claim of the plaintiff against the defendant. The court fees are payable in respect of set-off.
81. 'Counter-claim' has been defined as a claim for relief asserted against an opposing party after an original claim has been made; esp., a defendant's claim in opposition to or as a setoff against the plaintiff's claim. 20 A counter-claim is a claim made by the defendant in a suit against the plaintiff. It is a claim, independent of an inseparable from the plaintiff's claim, in foreseeable by cross- section. A counter-claim is treated as a cross-suit which must contain all the features of a regular suit and must be filed within the limitation period.
82. Order VIII, Rule 6A, CPC was added to the Code by way of an amendment in the year 1976. The relief of a counter-claim is discretionary remedy, but such discretion is to be exercised in a judicious manner. The object of the said amendment was to ensure trial of all issues between the parties at one time as far as possible. It makes a complete departure from provisions for set-off and makes it easier for the defendant to make a counter-claim. The restrictions attached to set-off are not applicable to the counter-claim. The right to make a counter-claim is in addition to the right to claim set-off and both are not inconsistent or mutually exclusive.
83. As a matter of fact, when the claim against the plaintiff exceeds the claim against the defendant, it is a combination of both, set-off, to the extent of plaintiff's claim, and counter-claim for the excess over and above such claim. As observed in the preceding 20 Black's Law Dictionary, p. 153, Second Pocket Edn.
CS DJ ADJ No. 516435/2016 Page No. 33/49paragraphs of this judgement, a counter-claim is required to be treated as an independent suit in view of the provisions enshrined under Order VIII, Rule 6A, CPC.
84. The defendant can set up any right accruing against the plaintiff. However, there is one important condition, which is that such cause of action must have arisen before the written statement was filed or before the time to submit written statement has expired. It is immaterial whether it has accrued before or after the institution of the suit, but no counter-claim can be made to set up any right or claim which has accrued after the time for filing the written statement or delivering the defence has lapsed. Similarly, the counter-claim must not exceed the pecuniary limits of the jurisdiction of the court. It has the same effect as that of a cross-suit, and the rules relating to a written statement by defendant apply to a written statement filed in answer to a counter-claim. In short, a set- off or counterclaim cannot travel beyond the scope and limit of the suit with which it is concerned. Set-off and counter-claim are valuable provisions to avoid multiplicity of legal proceedings. They enable parties to lodge and address their grievances against each other before one forum. They seek to ensure consistent and coherent trial of the suit.
85. Now coming to the case at hand, the question which is to be answered is whether Paul has rightly and justifiably forfeited the earnest money to the tune of ₹45.00 lakhs (Rupees Forty five lakhs only) paid by Chaudhary, as a set-off, and further his counter-claim of ₹55.00 lakhs (Rupees Fifty five lakhs only) as compensation for damages, loss on account of breach of contract is also tenable.
CS DJ ADJ No. 516435/2016 Page No. 34/4986. The relevant legal provisions to answer the above question are enshrined under Chapter VI, Section 73 - 75 of the Contract Act. However, with no clause in the written contract between the parties where the penalty for breach of contract by either party is stipulated it is observed that Section 74 of the Contract Act would have no applicability, and rather Section 73 of the Contract Act would be relevant and applicable to the facts of the present case.
87. Section 73 of the Contract Act reads as under:
"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 non-performance of the contract must be taken into account."
88. Section 73 has eighteen illustrations appended to it, however the relevant illustrations for the present case are illustration (k) and
(l), which reads as under:
CS DJ ADJ No. 516435/2016 Page No. 35/49(k) A contracts with B to make and deliver to B, by a fixed day, for a specified price, a certain piece of machinery. A does not deliver the piece of machinery at the time specified, and in consequence of this, B is obliged to procure another at a higher price than that which he was to have paid to A, and is prevented from performing a contract which B had made with a third person at the time of his contract with A (but which had not been then communicated to A), and is compelled to make compensation for breach of that contract. A must pay to B, by way of compensation, the difference between the contract price of the price of machinery and the sum paid by B for another, but not the sum paid by B to the third person by way of compensation.
(l) A, a builder, contracts to erect and finish a house by the first of January, in order that B may give possession of it at that time to C, to whom B has contracted to let it. A is informed of the contract between B and C. A builds the house so badly that, before the first of January, it falls down and has to be re-built by B, who, in consequence, loses the rent which he was to have received from C, and is obliged to make compensation to C for the breach of his contract. A must make compensation to B for the cost of rebuilding the house, for the rent lost, and for the compensation made to C."
[Emphasis added by underlining, and highlighting of text]
89. Breach does not give a direct right to claim the loss suffered. The claim for compensation must be adjudicated by the Court and not a party to the contract - See State of Karnataka v. Shree Rameshwara Rice Mills.21 Breach by one party merely gives to the other party a right to sue and have compensation assessed. The claim does not give rise to a debt until the liability is adjudicated upon, and the compensation assessed.
21AIR 1987 SC 1359 CS DJ ADJ No. 516435/2016 Page No. 36/49
90. In relation to liability, general damages are those which arise naturally and in the normal course of events, whereas special damages are those which do not arise naturally out of the defendants' breach and are recoverable only where they were in the reasonable contemplation of the parties at the time, they made the contract. Losses that naturally arise from breach of contract are awarded as a matter of course. These will be presumed to be the natural or probable consequence of the wrong complained of, with the result that the plaintiff is required only to assert that such damage has been suffered.
91. In some instances, loss or damage does not arise naturally from the breach, but compensation is awarded because both parties knew when the contract was entered into that it was the likely result of the breach. This includes reasonably foreseeable losses, those that are normally prudent person, standing in his place possessing his information when contracting would have reason to foresee as probable consequences of future breach. It is necessary to prove that not only the plaintiff but also the defendant knew when the contract was made about the special law is likely to result from the breach -- see illustration (k) and (l), Section 73 of the Contract Act.
92. A loss which is not a normal consequence of a breach is regarded as remote, and unless the parties knew when they enter the contract that the loss was a likely result of the breach, damages are not awarded. Although the normal measure of damages is based on a quantification of the loss suffered because of the breach, the Court may award more than the normal measure of damages, by taking into account the defendant's motives for conduct. Such damages are exemplary or punitive damages and can be awarded.
CS DJ ADJ No. 516435/2016 Page No. 37/4993. The nominal damages are awarded when there is a violation of a legal right and it gives no right to any real damages yet give the right to a judgement because the right has been violated. Nominal damages are awarded when the breach has not caused any loss to the plaintiff, or where the plaintiff failed to prove the loss or where there is no basis for asserting the amount.
94. A famous law report of Hadley v. Baxendale22 on the facts of breakage of crank shaft of a steam engine of a mill, communication of special circumstances and remoteness of damage still holds the water and has withstood the test of times, although the same was pronounced prior to the enactment of the Contract Act.
95. The Apex Court in Karsandas H. Thacker v. Saran Engineering Co. Ltd.23 upheld the legal principle as culled out in Hadley v. Baxendale24 that when a party commits breach of contract, the other party is entitled to receive compensation for any loss by the damage caused to him which naturally arose in the usual course of business from such breach or which the parties knew when they made the contract to be likely to result from the breach of it. Remote and indirect loss or damage sustained by reason of the breach will not entitle the party complaining breach, to any compensation.
96. In a contract, pertaining to sale-purchase of immovable property if either party to an agreement to transfer the immovable property refuses to perform his promise, the other party can seek specific performance and compensation in the alternative, or in addition to specific performance compensation to be assessed 22 Court of Exchequer (1854) 156 ER 145 23 AIR 1965 SC 1981 24 Court of Exchequer (1854) 156 ER 145 CS DJ ADJ No. 516435/2016 Page No. 38/49 according to principles of Section 73 of the Contract Act. 25 The admitted position in the case at hand is that Paul has not sought a decree of specific performance, rather he has sought compensation for damages and loss caused to him by breach of contract by set-off and counter-claim against Chaudhary.
97. The Apex Court in Jagdish Singh v. Natthu Singh26 held that the measure of the compensation in sale-purchase contracts of immovable property is by the standards of Section 73 of the Contract Act. It was observed therein that the legislature has not prescribed a different measure of damages in the case of contracts dealing with land from that laid down in the case of contracts relating to commodities.
98. The position is well settled in law that mere breach of contract does not entitle award of damages and it in necessary that unless by breach of contract losses are caused, a person who is guilty of breach cannot claim damages and such alleged damages forfeit an amount received from the other party.
99. Section 73 of the Contract Act clearly provides that an aggrieved person cannot claim damages unless losses are proved to be caused to him on account of breach of contract by the other side. This aspect has been so held in the Constitution Bench judgment of the Hon'ble Supreme Court in the case of Fateh Chand v. Balkishan Dass27 and which judgment has been followed by the Apex Court in the landmark judgment on law of damages under the Contract Act in 25 See Section 21 of the Specific Relief Act, 1963 26 (1992) 1 SCC 647, pp 27-28 at p. 657 27 AIR 1963 SC 1405 CS DJ ADJ No. 516435/2016 Page No. 39/49 the case of Kailash Nath Associates v. Delhi Development Authority & Anr. 28
100. At this stage, I would like to observe that the reliance placed by the learned counsel for Paul on the law reports of A.E.G. Carapiet v. A.Y. Derderian, 29 Sarwan Singh v. State of Punjab 30 and Laxmibai (Dead) Thr. L.Rs. and Ors. v. Bhagwantbuva (Dead) Thr. L.Rs. and Ors.31 does not come to the rescue of Paul, as it is Paul who has to prove his own case i.e., losses suffered by him on the breach caused by Chaudhary and the same is based on the dictum as old as the hills, one who avers must prove.
101. Keeping the above legal provisions, legal principle and ratio of judicial pronouncements foisted, in the case at hand against Chaudhary's money claim of ₹45.00 lakhs (Rupees Forty five lakhs only), Paul has preferred a counterclaim of ₹1.00 crore (Rupees One crore only) as damages for the loss suffered by him due to the breach of contract by Chaudhary. Paul has set-off a sum of ₹45.00 lakhs (Rupees Forty five lakhs only) paid by Chaudhary to him as earnest money against his counter-claim of ₹1.00 crore (Rupees One crore only) as damages and has further sought the balance sum of ₹55.00 lakhs (Rupees Fifty five lakhs only) as a money decree along with costs.
102. Paul has pleaded in his written statement and counter-claim that on account of breach of contract by Chaudhary's failure to pay the balance sale consideration of ₹4.05 crores (Rupees Four crores and five lakhs only) as per the agreed terms and conditions, though 28 (2015) 4 SCC 136 29 1960 SCC OnLine Cal 44 :: AIR 1961 Cal 359, p. 362 pp. 9 30 AIR 2002 SC 3652 :: (2003) 1 SCC 240, p. 247 pp.9 31 AIR 2013 SC 1204 :: (2013) 4 SCC 97 pp. 31 CS DJ ADJ No. 516435/2016 Page No. 40/49 he suffered losses on four counts, but he is asserting only three of them and confining his losses to ₹1.00 crore (Rupees One crore only).
103. Firstly, a loss of ₹1.00 crore (Rupees One crore only) on account of fall in the market price of the suit property. Secondly, Paul could not honour his commitment of repaying the loan availed by his son-in-law, who was burdened with an interest of ₹7,05,497/- (Rupees Seven lakhs five thousand four hundred and ninety seven only). Thirdly, a loss of ₹43.20 lakhs (Rupees Forty three lakhs and twenty thousand only) suffered by his son-in-law, to whom Paul had committed to pay a sum of ₹2.50 crores (Rupees Two crores and fifty lakhs only) out of the sale proceeds of the suit property for purchase of 1/5th share in the banquet hall, but who had to settle with letting out of the banquet hall and not purchase of the same. Paul has withheld and not pressed his claim of ₹22.00 lakhs (Rupees Twenty two lakhs only) availed as a loan for purchase of an immovable property for his grandsons. Though, the counter-claim of losses suffered by Paul on the above-stated three counts adds upto a figure of ₹1,50,25,497/- (Rupees One crore fifty lakhs twenty five thousand four hundred and ninety seven only), however, Paul has confined his losses to a counter-claim of ₹1.00 crore (Rupees One crore only).
104. To prove the losses suffered, Paul has relied upon his oral testimony along with a bank statement from Axis Bank32 to show payment of ₹7,05,497/- (Rupees Seven lakhs five thousand four hundred and ninety seven only) as interest, and a copy of ledger account33 regarding the rent of ₹43.20 lakh paid by his son-in-law, 32 Ex.DW1/F 33 Ex.DW1/G CS DJ ADJ No. 516435/2016 Page No. 41/49 Kuljit Singh. It is observed from the bank statement34 that the date of statement is 18.04.2019 and the loan was sanctioned to Kuljit Singh, son-in-law of Paul as a mortgage loan. It is also observed that disbursed loan amount is ₹34,91,448/- for a term of 91 months w.e.f. 10.01.2012 till 10.04.2021. It is further observed that the said loan was availed almost 11 months prior to the date of sale agreement in question i.e., 30.11.2012 and yet there is no mention of the same in the written contract (Ex.PW1/1) between the parties.
105. Regarding, the statement of ledger account,35 it is observed that the same pertains to the rent account of Masala Magic Hospitality Pvt. Ltd., 36 Rama Road, Industrial Area, New Delhi - 110015. It is observed that the said ledger account pertains to the period 01.04.2013 to 31.01.2016, which is after the date of signing of the contract between the parties i.e., 30.11.2012. It is found that though the ledger accounts are stated to be of a private limited company, neither the same are audited accounts accompanied by an auditor's certificate nor Paul has led any evidence to prove the constitution, directors, shareholding pattern of Masala Magic Hospitality Pvt. Ltd. A purported ledger account merely bearing an endorsement stamp of blue colour, For Masala Magic Hospitality Pvt. Ltd., Authorised Signatory fails to satisfy the standard mode of proof and its relevancy for the fact in issue. It is also found that neither Kuljit Singh and Masala Magic Hospitality are signatories to the written agreement in question nor parties to the present suit.
106. Paul during his cross-examination did answer a specific question put to him about the existence of a forfeiture clause in 34 Ex.DW1/F 35 Ex.DW1/G CS DJ ADJ No. 516435/2016 Page No. 42/49 affirmative, by responding that Clause 8 of the contract provides for forfeiture of the earnest money. Mr. Kumar learned counsel for Paul during his arguments had vociferously argued that forfeiture of earnest money becomes insignificant if loss is pleaded and proved by a party. The relevant clause 8 of the contract36 reads as under:
"... ....
8) That any violation of the conditions of this Agreement shall be dealt with strictly as per law and as per normal practices in such Sale Purchase deals."
107. On bare perusal of clause 8 of the contract and reading the whole contract holistically, I fail to agree with Paul's contention that clause 8 of the contract empowers him to forfeit the entire earnest money paid by Chaudhary. The relevant clause unequivocally beams out that in case of violation of the conditions of the agreement, the same shall be dealt strictly as per law and the normal practice in such transactions. This Court finds that there exists no clause in the written contract between the parties, empowering Paul to forfeit the sum of ₹45.00 lakhs (Rupees Forty five lakhs only) paid as earnest money by Chaudhary to Paul against the total sale consideration of ₹4.50 crores (Rupees Four crores and fifty lakhs only).
108. Mr. Kumar the learned counsel for Paul had argued that it is a standard trade practice that where a buyer resiles from his commitment not only the earnest money is forfeited, but also the buyer is liable to pay double the amount of earnest money. I am not impressed by the contentions of Paul and the arguments advanced by his counsel, merely because, not only one must plead, but also prove the loss suffered on account of alleged breach of contract.
36Ex.PW1/1 (OSR) CS DJ ADJ No. 516435/2016 Page No. 43/49
109. Though, Paul has pleaded in his written statement cum set-off and counter-claim that he suffered losses to the tune of ₹1.00 crore (Rupees One crore only), but this Court based on the pleadings, evidence and submissions of the parties arrive at the following findings, and conclude that Paul has failed to prove the losses suffered by him on account of breach of contract by Chaudhary:
(a) There exists no clause, recital in the written contract entered between the parties, which states that it has been communicated to Chaudhary about the special purpose for which the contract is intended and the sale proceeds generated from the contract were to be deployed, utilised in a certain manner by Paul, and further in case of breach of contract by Chaudhary, he could be made liable for such losses.
(b) Paul has also failed to prove that Chaudhary had knowledge about existence of any special purpose, intent, and circumstances at the time of entering the contract with Paul.
(c) Keeping the nature of contract in mind, losses could have been proved by Paul by proving the falling of prices of the suit property, and only if the prices of the property had fallen and breach was committed by Chaudhary, Paul could have been held entitled to forfeit the sum of ₹45.00 lakhs (Rupees Forty five lakhs only) as damages on account of loss caused. No shred of evidence has been led by Paul to prove that the market price of the suit property and/or similar placed immovable properties have fallen and consequentially he has suffered a loss of ₹1.00 crore (Rupees One crore only) as price fall.CS DJ ADJ No. 516435/2016 Page No. 44/49
(d) Paul's claim that Chaudhary's lapse to pay the balance sale consideration resulted in his failure to honour the commitment to clear the outstanding loan availed by his son-in-law from Axis Bank, who had to service the loan by paying an interest of ₹7,05,497/- (Rupees Seven lakhs five thousand four hundred and ninety seven only) flies in the face of Section 73 of the Contract Act, as the same lacks remoteness of damage and is an indirect loss.
(e) Similarly, Paul has also failed to prove the loss of ₹43.20 lakhs (Rupees Forty three lakhs and twenty thousand only) as the documentary evidence of ledger account as payment of rent37 is a self-serving document. It is observed that Paul's claim of loss of ₹43.20 lakhs (Rupees Forty three lakhs and twenty thousand only) as 1/5th share of rent paid by his son-in-law, on Paul's failure to pay him ₹2.50 crores (Rupees Two crores and fifty lakhs only) out of the sale proceeds of the suit property is not only hit by Section 73 of the Contract Act, but also is disproved. It is not out of place to observe herein that there exists no privity of contract amongst Chaudhary, Paul's son-
in-law, Kuljit Singh and Masala Magic Hospitality Pvt. Ltd.
110. In view of the above findings and observations, this Court rules that Paul has failed to prove that he suffered any loss to the tune of ₹1.00 crore (Rupees One crore only) as damages. Accordingly, this Court holds that Paul's claim of ₹45.00 lakhs (Rupees Forty five lakhs only) as set-off and ₹55.00 lakhs (Rupees 37 Ex.DW1/G CS DJ ADJ No. 516435/2016 Page No. 45/49 Fifty five lakhs only) as counter-claim shall fail, and the issue Nos. 2 and 3 are answered against Paul and in favour of Chaudhary. Issue No.4 Whether the plaintiff is entitled to recovery of money as prayed?
111. The onus to prove issue No. 4 is casted upon Chaudhary. This Court has already found and concluded that not only Paul has failed to prove the existence of special circumstances being mentioned in the written contract and/or the same were within the knowledge of Chaudhary, but also Paul failed to prove that he suffered actual losses to the tune of ₹1.00 crore (Rupees One crore only) on account of breach of contract by Chaudhary.
112. In the present case with Paul's claim of damages has been held to be disproved, and even if Chaudhary is held to be guilty of breach of contract, yet Paul cannot forfeit as an entitled right, the substantial amount of ₹45.00 lakhs (Rupees Forty five lakhs only) paid by Chaudhary to him under the contract. It is observed that a sum of ₹45.00 lakhs (Rupees Forty five lakhs only) is 10% of the total sale consideration of ₹4.50 crores (Rupees Four crores and fifty lakhs only), and therefore, in my humble opinion, the entire sum of ₹45.00 lakhs (Rupees Forty five lakhs only) cannot be taken as earnest money, as the earnest money is only a nominal amount of the total sale consideration - See Shri Sunil Sehgal v. Shri Chander Batra and Ors.38
113. To further strengthen my opinion that Paul would be on the wrong side of law to forfeit the entire sum of ₹45.00 lakhs (Rupees Forty five lakhs only), I place fruitful reliance upon the law reports CS(OS) No. 1250/2006 date of decision 23.09.2015, High Court of Delhi :: 2015 SCC 38 OnLine Del 12831 CS DJ ADJ No. 516435/2016 Page No. 46/49 of the Hon'ble High Court of Delhi in Ranbir Singh & Anr. v. Shri Bhup Singh & Ors.39 ; Rajbir Singh v. Jaswant Yadav40; Praveen Talwar v. Naresh Kumar Mittal & Ors.41; Vandana Jain v. Rita Mathur & Ors. 42 The reliance placed by the learned counsel for Chaudhary on the law report of the Hon'ble High Court of Delhi in Rajbir Singh v. Jaswant Yadav43 does come to Chaudhary's rescue and solidifies his claim for return of money.
114. In view of the findings arrived in the preceding paragraphs of this judgment and the above-mentioned judicial pronouncements, this Court finds that Paul, the seller of the suit property has no lawful right to forfeit the entire sum of ₹45.00 lakhs (Rupees Forty five lakhs only) paid as earnest money by Chaudhary, the buyer of the suit property. However, the sum Chaudhary is entitled to recover from Paul shall be ordered in the following paragraphs of this judgment under the heading 'relief'. Accordingly, the issue No. 4 is answered in favour of Chaudhary and against Paul. Issue No.5 Whether plaintiff is entitled to interest, if so at what rate and for what period?
115. The onus to prove issue No. 5 is also casted upon Chaudhary. Chaudhary has sought return of ₹45.00 lakhs along with pendente lite and future interest at the rate of 18% per annum.
116. Interestingly, on perusal of the plaint, particularly, paragraph No. 5 of the plaint it is observed that Chaudhary has averred that the parties mutually agreed that if Chaudhary failed to purchase the suit 39 CS (OS) NO. 2049/2011 date of decision 18.08.2015, High Court of Delhi :: 2015 SCC OnLine Del 11247 40 RFA No. 404/2018 date of decision 14.05.2018, High Court of Delhi 41 RFA No. 678/2006 date of decision 26.11.2018, High Court of Delhi 42 RFA No. 38/2018 date of decision 20.04.2018, High Court of Delhi 43 RFA No. 404/2018 date of decision 14.05.2018, High Court of Delhi CS DJ ADJ No. 516435/2016 Page No. 47/49 property, Paul shall return the amount taken from him without interest. Though, in such transactions the courts do allow the money claims of return of earnest money, advance money with interest as high as 18% p.a. to 21% p.a. - See Nehru Place Hotels Ltd. v. Smt. Kanta Aggarwal44 and Kanta Aggarwal v. M/s Nehru Place Hotels Ltd.,45 however, I am not inclined to award 18% p.a. to Chaudhary, as this Court has found that Chaudhary did fail to make payment to Paul as per the terms of the contract and has already ruled issue No. 1 against Chaudhary and in favour of Paul.
117. In the facts of the present case, pendente lite and future interest at the rate of 6% per annum will meet the ends of justice. Accordingly, the issue No. 5 is answered in favour of Chaudhary and against Paul.
Relief
118. In view of the above discussions, observations, findings, and particularly with issue No. 1 being ruled against Chaudhary, in my opinion Paul at best is entitled to forfeit only a nominal amount of the advance amount paid by Chaudhary. Accordingly, this Court orders, Paul to forfeit 10% of ₹45.00 lakhs (Rupees Forty five lakhs only) which computes to be a sum of ₹4,50,000/- (Rupees Four lakhs and fifty thousand only), which is 1% of the total sale consideration of ₹4.50 crores (Rupees Four crores and fifty lakhs only).
119. Accordingly, Chaudhary's suit is decreed against Paul for a sum of ₹40,50,000/- (Rupees Forty lakhs and fifty thousand only) along with simple interest at the rate of 6% p.a. from the date of filing of suit i.e., 01.12.2015 until the date of its actual realisation.
442011 (123) DRJ 45 SLP (Civil) Nos. 22065/2011 and 22130/2011 date of order 19.03.2012 CS DJ ADJ No. 516435/2016 Page No. 48/49 Paul's claim of damages of ₹1.00 crore (Rupees One crore only) which constituted of a set-off of ₹45.00 lakhs (Rupees Forty five lakhs only) and counter-claim of ₹55.00 lakhs (Rupees Fifty five lakhs only) is dismissed. I deem appropriate to direct the parties to bear their own costs.
120. Decree sheet be prepared in above terms. All primary documents, if any, filed by the parties only be returned on filing of certified copies and as per applicable Rules. File be consigned to record room only after due compliance and necessary action, as per Rules.
HARGURVARI Digitally signed by
HARGURVARINDER
NDER SINGH SINGH JAGGI
Date: 2021.05.05
JAGGI 16:43:58 +05'30'
Pronounced in the open Court (Hargurvarinder Singh Jaggi) through Virtual Proceedings Addl. District Judge-02 on May 05, 2021 South West District Dwarka Courts Complex, Delhi CS DJ ADJ No. 516435/2016 Page No. 49/49