Delhi District Court
Sandeep Vohra vs Sh. Chunky Valecha on 15 October, 2022
IN THE COURT OF SH. AJAY GULATI-II,
ADDITIONAL DISTRICT JUDGE-01 (CENTRAL), THC, DELHI.
CS No. 200/2020
CNR No. DLCT01-002610-2020
Sandeep Vohra
S/o Sh. L.K. Vohra
R/o 11/14, Old Rajinder Nagar,
New Delhi-110060 ....PLAINTIFF
Vs.
1. Sh. Chunky Valecha
S/o Late Sh. Suresh Kumar Valecha,
2. Nimmi Valecha
W/o Late Sh. Suresh Kumar Valecha,
3. Neha Valecha
D/o Late Suresh Kumar Valecha
All R/o 27/17, Second Floor, East Patel Nagar,
New Delhi-110008 ....DEFENDANTS
Date of Institution: 24.02.2020
Date of reserving Judgment: 19.09.2022
Date of Judgment: 15.10.2022
EX-PARTE JUDGMENT
1. The present suit has been filed by the plaintiff seeking relief of specific
performance, permanent injunction or in the alternative recovery of Rs.
70,00,000/- against the defendants pleading inter-alia as follows:-
i. That the plaintiff and the husband of the defendant no. 2 as well
CS No. 200/20 Sandeep Vohra vs. Chunky Valecha & Ors. Page No. 1/20
as the father of the defendant no. 1 and 3 namely Late Sh. Suresh
Kumar Valecha, hereinafter referred to as the predecessor-in-
interest of the defendants, had been known to the plaintiff since
long having cordial and friendly relationships.
ii. The predecessor-in-interest of the defendants had entered into an
Agreement to Sell dated 02.07.2019 with the plaintiff in respect
of the sale of the property bearing no. G-5 & G-6, measuring
about 180 sq. ft. on the ground floor (without terrace/roof rights)
part of property bearing Municipal No. 2749, built on
Khasra/Plot No. 37, Gali No. 22-23, situated at Beadon Pura,
Karol Bagh, New Delhi-110005, measuring about 167 sq. yards
hereinafter referred to as the Suit Property for a sum of Rs.
50,00,000/- out of which an amount of Rs. 35,00,000/- have been
received by the predecessor-in-interest of the defendants from
the plaintiff as advance/earnest money in presence of the
defendant no. 2 and 3.
iii. That at the time of the execution of the agreement to sell, the
predecessor-in-interest of the defendants had also handed over
the photocopy of the title documents of the suit property
registered in the name of the predecessor-in-interest of the
defendants so as to show his bonafide qua the registered
ownership of the suit property.
iv. That since the suit property was an HUF property therefore the
predecessor-in-interest of the defendants have shown the NOC of
the other HUF members for selling of the suit property.
v. That at the time of entering into the agreement to sell dated
CS No. 200/20 Sandeep Vohra vs. Chunky Valecha & Ors. Page No. 2/20
02.07.2019 and receiving an amount of Rs. 35,00,000/- from the
plaintiff, the predecessor-in-interest of the defendants had also
handed over two Cheques for a sum of Rs. 35,00,000/- each i.e.
Cheque No. 175327 and 175328 both dated 05.02.2020 drawn on
Syndicate Bank, Ajmal Khan Road, Karol Bagh, New Delhi
towards double the amount of Bayana/Consideration on the
premise in presence of defendant no. 2 and 3 that in case the
predecessor-in-interest of the defendants was unable to transfer
the suit property in favour of the plaintiff and/or his nominee for
any reason whatsoever then the plaintiff would recover double
amount of the Bayana/Earnest money paid by the plaintiff.
vi. That as per the agreement to sell the balance payment was to be
made on or before 05.01.2020 but after the execution of the
agreement to sell the plaintiff got to know about the death of the
predecessor-in-interest of the defendants.
vii. That the plaintiff, having come to know about the death of the
predecessor-in-interest of the defendants, got sent a legal notice
dated 29.11.2019 to the defendant no. 1 (one of the LRs of Late
Sh. Suresh Kumar Valecha) calling upon the defendant no. 1 to
receive the balance consideration of Rs. 15,00,000/- on or before
05.01.2020 and execute the sale deed in respect of the suit
property in favour of the plaintiff and/or his nominee. The said
legal notice was followed by the Corrigendum notice dated
08.01.2020 vide which the plaintiff informed the defendant no. 1
about the typographical error having occurred in the legal notice
dated 29.11.2019.
CS No. 200/20 Sandeep Vohra vs. Chunky Valecha & Ors. Page No. 3/20
viii. The defendant no. 1 sent his reply dated 29.01.2020 to the legal
notice sent by the plaintiff and the plaintiff thereafter issued the
rejoinder dated 10.02.2020 to the said reply.
ix. That the plaintiff continued to contact the acquaintances of the
defendants in order to know about the whereabouts of the
defendants but in vain since every acquaintance of the
defendants expressed his ignorance about the whereabouts of the
defendants.
x. It is further pleaded that the plaintiff has always been ready and
willing to perform his part of obligation under the agreement to
sell dated 02.07.2019 and the defendants are under an obligation
to honor the aforesaid agreement to sell so as to perform the
obligation casted upon the predecessor-in-interest of the
defendants since the defendants are LRs of Late Sh. Suresh
Kumar Valecha and are duty bound to complete the contract
entered into by their predecessor-in-interest.
2. On the basis of the aforesaid pleadings the present suit has been filed
by the plaintiff on 24.02.2020 claiming following reliefs:-
i. Pass a decree for specific performance of contract in favour of
the plaintiff and against the defendants thereby directing the
defendants to receive the balance sale consideration of Rs.
15,00,000/- from the plaintiff and execute the transfer
documents/sale deed and other necessary documents of the suit
property i.e. G-5 & G-6, measuring about 180 sq. ft. on the
ground floor (without terrace/roof rights) part of property
CS No. 200/20 Sandeep Vohra vs. Chunky Valecha & Ors. Page No. 4/20
bearing Municipal No. 2749, built on Khasra/Plot no. 37, Gali
no. 22-23, situated at Beadon Pura, Karol Bagh, New Delhi-
110005, measuring about 167 sq. yards favour of the plaintiff
and/or his nominee in terms of the transfer of the suit property.
ii. If the defendants refuses to receive the balance sale
consideration of Rs. 15,00,000/- from the plaintiff and execute
the transfer documents/sale deed and other necessary
documents of the suit property i.e. G-5 & G-6, measuring about
180 sq. ft. on the ground floor (without terrace/roof rights) part
of property bearing Municipal No. 2749, built on khasra/plot
no. 37, Gali no. 22-23, situated at beadon pura, Karol Bagh,
New Delhi-110005, measuring about 167 sq. yards in favour of
the plaintiff,
iii. Direct the defendants to pay double of the Bayana amount i.e.
Rs. 70,00,000/- (Rupees Seventy Lakh only) to the plaintiff
being one of the conditions of the agreement dated 02.07.2019
entered by the Late father of the defendant no. 1 and 3 and
husband of the defendant no. 2 with the plaintiff.
iv. Pass a decree of permanent injunction thereby restraining the
defendants, his agents, assigns, representatives, attorneys, legal
heirs, successors and transferees etc from selling, transferring
or entering into any sort of sale/transfer agreement with any
other person in respect of the suit property or creating any third
part interest in the suit property;
v. allow cost of the suit and litigation charges in favour of the
CS No. 200/20 Sandeep Vohra vs. Chunky Valecha & Ors. Page No. 5/20
plaintiff and against the defendants; and
vi. pass any other or further order which this Hon'ble Court may
deem fit and proper under the facts and circumstances of the
case and in the interest of the justice.
SERVICE OF THE DEFENDANTS
3. The summons of the suit were issued to the defendants and on
25.01.2021 one Ms. Renu Singh, Advocate had appeared on behalf of
the defendants and filed her Memo of Appearance and the matter was
adjourned for filing of the written statement by the defendants for
15.03.2021. However on 15.03.2021, though the plaintiff was
represented through his Counsel but no-one appeared on behalf of the
defendants nor any written statement was filed by the defendants and as
such the matter was adjourned for 18.05.2021. After 15.03.2021, the
present matter was taken up on 29.09.2021 (due to the pervasiveness of
the COVID-19 since the matters were adjourned en-bloc) and on the
said date since none appeared on behalf of the defendants therefore the
defendants were proceeded Ex-Parte.
ISSUES
4. Though no written statement was filed by the defendants however the
Ld. Predecessor, while proceeding the defendants Ex-Parte, had framed
the issues for adjudication which are follows:.
1. Whether the plaintiff is entitled for a decree of specific
performance, as prayed for? In alternate
Whether the plaintiff is entitled for recovery along with interest, as
prayed for? OPP
CS No. 200/20 Sandeep Vohra vs. Chunky Valecha & Ors. Page No. 6/20
2. Whether the plaintiff is entitled for a decree of permanent
injunction restraining defendants, their agents etc from selling,
transferring or creating any 3rd party interest with regard to the suit
property in question? OPP
3. Relief.
EVIDENCE
5. After framing of the issues, the matter was listed for ex-parte evidence
of the plaintiff.
6. The plaintiff entered into the witness box as PW-1 and tendered his
evidence by way of affidavit as PW-1/1. The affidavit by way of
evidence was verbatim of the plaint which is not reproduced here for
the sake of brevity.
7. The plaintiff relied upon and proved the following documents i.e:-
S. No. Exhibit Documents
1. Ex. PW1/1 OSR Agreement to sell dated 02.07.2019.
2. Ex. PW1/2 OSR Cheques bearing no. 175327 dated
05.02.2020.
3. PW1/3 OSR Cheques bearing no. 175328 dated
05.02.2020.
3. Ex. PW1/4 Legal notice dated 29.11.2019.
4. Ex. PW1/5 Copy of the Corrigendum Notice dated
08.01.2020.
5. Ex. PW1/6 Reply dated 29.01.2020
6. Ex. PW1/7 Copy of Rejoinder dated 10.02.2020
8. Thereafter, the ex-parte PE was closed vide order dated 30.04.2022
CS No. 200/20 Sandeep Vohra vs. Chunky Valecha & Ors. Page No. 7/20
consequent upon the statement of the plaintiff.
ARGUMENTS AND CONCLUSION
9. Final arguments were duly advanced by Ld. Counsel for the plaintiff.
10. I have duly considered the arguments advanced by the Ld. Counsel for
the plaintiff and have perused the pleading, documents and the
evidence on record carefully.
11. My issue wise findings are as under:
ISSUE No. 1
Whether the plaintiff is entitled for a decree of specific performance,
as prayed for? In alternate
Whether the plaintiff is entitled for recovery along with interest, as
prayed for? OPP
12. The onus to prove the said issue was on the plaintiff. The plaintiff in
order to prove this issue had proved on record the agreement to sell
dated 02.07.2019 (Ex. PW-1/1 OSR) and as per the said agreement to
sell, the predecessor-in-interest of the defendants had agreed to sell the
suit property to the defendants and it is also mentioned in the said
Agreement to Sell that the predecessor-in-interest of the defendants has
received an amount of Rs. 35,00,000/- as advance/earnest money from
the plaintiff and the balance amount of Rs. 15,00,000/- was to be paid
by the plaintiff on or before the 05.01.2020 after which the sale deed
was to be executed. The plaintiff has also proved on record two
Cheques bearing no. 175327 and 175328 both dated 05.02.2020 drawn
on Syndicate Bank, Ajmal Khan Road, Karol Bagh, New Delhi (Ex.
CS No. 200/20 Sandeep Vohra vs. Chunky Valecha & Ors. Page No. 8/20
PW1/2 OSR and PW-1/3 OSR respectively) for an amount of Rs.
35,00,000/- each signed by the predecessor-in-interest of the
defendants. The plaintiff has also proved on record the legal notice
dated 29.11.2019 (Ex. PW1/4) along with Corrigendum Notice dated
08.01.2020 (Ex. PW1/5) and the reply dated 29.01.2020 sent by the
defendants (Ex. PW1/6). The plaintiff has also proved on record the
rejoinder dated 10.02.2020 (Ex. PW1/7) sent to the reply dated
29.01.2020. Though the defendants despite being served and having
appeared through their Counsel on 25.01.2021 however they failed to
file any written statement.
13. It is settled law that the plaintiff has to stand on his own legs and prove
his case affirmatively irrespective of the defence of the defendant and
since the present suit is a suit for specific performance therefore it has
to be seen whether the plaintiff has been able to make out a case for
grant of specific performance in his favour.
14. The Ld. Counsel for the plaintiff has argued that since the defendants
have not contested the claim of the plaintiff therefore the plaintiff is
entitled to specific performance of the agreement to sell dated
02.07.2019 and thus the defendants be directed to execute the sale deed
in favour of the plaintiff in respect of the suit property in view of the
unrebutted and unchallenged testimony of the plaintiff.
15. It is alternatively argued on behalf of the plaintiff that even if the
plaintiff is held not to be entitled to the relief of specific performance
then the plaintiff is entitled to an amount of Rs. 70,00,000/- alongwith
pendente-lite and future interest from the defendants since the
CS No. 200/20 Sandeep Vohra vs. Chunky Valecha & Ors. Page No. 9/20
predecessor-in-interest of the defendants have issued two Cheques of
Rs. 35,00,000/- each towards payment of double the amount of the
earnest money which was received by the predecessor-in-interest of the
defendants in view of Clause 9 of the Agreement to Sell dated
02.07.2019.
16. During the court of arguments, the Ld. Counsel for the Plaintiff was
enquired as to how the Court can grant interest when no specific prayer
for grant of interest has been made by the plaintiff. The Ld. Counsel for
the plaintiff has submitted that though no specific prayer for interest
has been made however the Court can grant such relief under Prayer
Clause (v) in which the plaintiff has prayed for any other relief which
this Court deem it appropriate to grant under the facts and
circumstances of the present case. The Ld. Counsel for the Plaintiff has
also referred to Order 7 Rule 7 to contend that the Court can grant relief
of interest if the Court may think it just without there being any specific
prayer for the same.
17. The law relating to suit for specific performance is very well settled and
in a suit for specific performance, it is obligatory on the part of the
plaintiff to prove that the plaintiff was ready and willing to perform his
part of the obligation under the contract and if the plaintiff fails to
prove his readiness and willingness to perform his part of the contract
then the plaintiff is not entitled to the relief of the specific performance
of the agreement to sell.
18. The word "readiness" and "willingness" has been explained in catena
of judgments by the Hon'ble Supreme Court of India and Hon'ble High
CS No. 200/20 Sandeep Vohra vs. Chunky Valecha & Ors. Page No. 10/20
Court of Delhi and it is held that the word "readiness" means that the
plaintiff has the capacity to perform his part of the obligation under the
subject agreement to sell i.e. to say that the plaintiff has sufficient
finance/amount in hand to pay the sale consideration as required under
the contract and the word "willingness" means the plaintiff is willing
to perform his part of the obligation under the contract i.e. he has the
requisite intention to complete the transaction under the contract by
paying the balance sale consideration for getting the sale deed
executed.
19. Having gone through the complete record as well as the testimony of
the plaintiff, this Court is of the considered opinion that although the
plaintiff has proved on record the agreement to sale executed between
the plaintiff and the predecessor-in-interest of the defendants under
which the predecessor-in-interest of the defendants had received the
amount of Rs. 35,00,000/- as advance/earnest money towards the sale
of the suit property (though the said amount is denied by the defendant
no. 1 in his reply dated 29.01.2020-Ex. PW1/6 sent to the legal notice
sent by the plaintiff on 29.11.2019-Ex. Pw1/4) and the sending of
notice to the defendants calling upon them to receive the balance sale
consideration and to execute the sale deed shows that the plaintiff was
willing to perform his part of the obligation under the agreement to sell
dated 02.07.2019 however the plaintiff has failed to prove his readiness
to perform his part of the obligation under the said agreement to sell.
20. The plaintiff has not placed on record any document to show that the
plaintiff had possessed the amount of Rs. 15,00,000/- on or before
CS No. 200/20 Sandeep Vohra vs. Chunky Valecha & Ors. Page No. 11/20
05.01.2020 so as to prove that he was ready with the balance sale
consideration of Rs. 15,00,000/- to be paid to the predecessor-in-
interest of the defendants or to the defendants so as to enable the
defendants to execute the sale deed in favour of the plaintiff. The
plaintiff has only made self-serving statements and had merely relied
on the averments made in the legal notice that the plaintiff was having
the balance sale consideration however the same in itself does not
prove that the plaintiff was possessing the said amount for performing
his part of the obligation under the agreement to sell and as therefore
the plaintiff is not entitled to the specific performance of the Agreement
to Sell dated 02.07.2019.
21. There is one more reason for declining the relief of specific
performance to the plaintiff in as much as the plaintiff, in his plaint, has
stated that the suit property was an HUF property and the predecessor-
in-interest of the defendants had also shown the NOC of the other HUF
members for the sale of the suit property and the predecessor-in-interest
of the defendants had also handed over the photocopy of the title deeds
to the plaintiff at the time of the execution of the Agreement to Sell
dated 02.07.2019 however this Court is unable to fathom the said plea
since neither the copy of the said title deeds have been filed on record
nor the plaintiff has explained as to why the plaintiff has not insisted on
the delivery of the said NOCs or its copy thereof to the plaintiff when
the plaintiff was already aware of the fact that the suit property was an
HUF property and as such it cannot be held with certainty that the
predecessor-in-interest was competent to sell the suit property to the
plaintiff or that he had obtained the NOCs from other HUF members to
CS No. 200/20 Sandeep Vohra vs. Chunky Valecha & Ors. Page No. 12/20
sell the suit property.
22. Since the plaintiff is held not to be entitled to relief of specific
performance therefore this Court now proceeds to deal with the
alternative prayer of the plaintiff which is for recovery of Rs. 70 Lacs
i.e. double the amount of the earnest money. The plaintiff, in order to
claim this amount has relied upon the two Cheques i.e. PW-1/2 and
PW-1/3 given by the predecessor-in-interest of the defendant namely
Late Sh. Suresh Kumar Valecha for Rs. 35 Lacs each.
23. The Ld. Counsel for the plaintiff has submitted that the said Cheques
were given by the predecessor-in-interest of the defendants on the
premise that if the predecessor-in-interest fails to execute the sale deed
in favor of the plaintiff then the plaintiff would be entitled to receive
double the amount of the advance/earnest money and since the LRs of
Late Sh. Suresh Kumar Valecha have failed to execute the said deed
despite being served with the legal notice sent by the plaintiff therefore
the plaintiff is entitled to recover an amount of Rs. 70 Lacs from the
defendants in view of Clause 9 of the Agreement to Sell dated
02.07.2019.
24. In civil proceedings the evidence has to be judged by the
preponderance of probabilities. In the present case since the execution
of the agreement to sell and payment of Rs. 35 Lacs has been duly
proved by the plaintiff therefore the plaintiff has discharged the onus
which was put upon him. However the plaintiff has sought double the
amount of the earnest money on the basis of the two Cheques given by
Late Sh. Suresh Kumar Valecha while contending the amount of Rs. 35
CS No. 200/20 Sandeep Vohra vs. Chunky Valecha & Ors. Page No. 13/20
Lacs was given as an earnest money to the predecessor-in-interest of
the defendants but it has to be seen whether the amount of Rs. 35 Lacs
can actually be taken as the amount paid towards earnest money.
25. Before dealing with this, it is appropriate to take note of the judgment
passed by the Hon'ble High Court of Delhi passed in the case of Sunil
Sehgal vs Chander Batra, CS(OS) No. 1250/2006, D.O.D. 23.09.2015
and in Para 9 it has been observed as under:-
"9. In the present case, defendants have led no evidence of
any loss caused to them, and therefore, assuming that
plaintiff is guilty of breach of contract, yet, the defendants
cannot forfeit the amount of Rs.15 lacs lying with them. A
huge amount of Rs.15 lacs out of the total sale
consideration of Rs.79,50,000/- cannot in law be called
earnest money. By giving a stamp of 'earnest money' to
advance price, the latter cannot become the former. What
is to be seen is the substance and not the label. Only a
nominal amount can be said to be earnest money and not
an amount of Rs.15 lacs out of Rs.79.50 lacs, by noting
that if suppose an amount of Rs. 30 lacs or 40 lacs would
be called as earnest money by the parties, that would not
take away the fact that such amount cannot be earnest
money but would in fact be part of the price to be paid for
sale"
"emphasis supplied by me"
26. A scrupulous perusal of the Agreement to Sell dated 02.07.2019 clearly
shows that the payment of Rs. 35 Lacs was made towards
advance/earnest money whereas the total sale consideration was Rs. 50
Lacs and as such by no stretch of imagination the amount of Rs. 35
Lacs, which is 70% of total sale consideration, can be said to be earnest
money since the amount of earnest money could only be a nominal
amount as also held by the Hon'ble High Court in the case of Sunil
CS No. 200/20 Sandeep Vohra vs. Chunky Valecha & Ors. Page No. 14/20
Sehgal (supra).
27. In so far the claim of the plaintiff seeking double the amount of Rs. 35
Lacs is concerned, it is appropriate to take note of Section 73 and 74 of
the Indian Contract Act, 1872 which deals with the grant of damages
for breach of a contract.
28. The law relating to damages on account of breach of contract is
contained in Section 73 and 74 of the India Contract Act, 1872 and in
the contract of the sale and purchase of an immovable property
normally such agreements contained a clause of forfeiture of the
earnest money or the payment of double the amount of the earnest
money as the case may be. However the payment towards damages for
the breach of contract requires that a party who has suffered losses due
to the breach of the contract must prove such losses which would have
entitled to the aggrieved party to claim special damages otherwise the
Court is only required to pay reasonable compensation/damages for the
breach of the contract.
29. In Union of India v. Raman Iron Foundry, (1974) 2 SCC 231, the
Hon'ble Supreme Court of India has observed as under:-
"11. Having discussed the proper interpretation of Clause
18, we may now turn to consider what is the real nature of
the claim for recovery of which the appellant is seeking to
appropriate the sums due to the respondent under other
contracts. The claim is admittedly one for damages for breach of the contract between the parties. Now, it is true that the damages which are claimed are liquidated damages under Clause 14, but so far as the law in India is concerned, there is no qualitative difference in the nature CS No. 200/20 Sandeep Vohra vs. Chunky Valecha & Ors. Page No. 15/20 of the claim whether it be for liquidated damages or for unliquidated damages. Section 74 of the Indian Contract Act eliminates the somewhat elaborate refinements made under the English common law in distinguishing between stipulations providing for payment of liquidated damages and stipulations in the nature of penalty. Under the common law a genuine pre-estimate of damages by mutual agreement is regarded as a stipulation naming liquidated damages and binding between the parties: a stipulation in a contract in terrorem is a penalty and the Court refuses to enforce it, awarding to aggrieved party only reasonable compensation. The Indian Legislature has sought to cut across the web of rules and presumptions under the English common law, by enacting a uniform principle applicable to all stipulations naming amounts to be paid in case of breach, and stipulations by way of penalty, and according to this principle, even if there is a stipulation by way of liquidated damages, a party complaining of breach of contract can recover only reasonable compensation for the injury sustained by him, the stipulated amount being merely the outside limit. It, therefore makes no difference in the present case that the claim of the appellant is for liquidated damages. It stands on the same footing as a claim for unliquidated damages. Now the law is well settled that a claim for unliquidated damages does not give rise to a debt until the liability is adjudicated and damages assessed by a decree or order of a Court or other adjudicatory authority. When there is a breach of contract, the party who commits the breach does not eo-instanti incur any pecuniary obligation, nor does the party complaining of the breach becomes entitled to a debt due from the other party. The only right which the party aggrieved by the breach of the contract has is the right to sue for damages.................The Court in the first place must decide that the defendant is liable and then it proceeds to assess what that liability is. But till that determination there is no liability at all upon the defendant"
"emphasis added by me"CS No. 200/20 Sandeep Vohra vs. Chunky Valecha & Ors. Page No. 16/20
30. The Hon'ble Supreme Court of India in Kailash Nath Associates vs DDA, (2015) 4 SCC 136 has held that the clauses of an agreement which stipulates a payment of fixed amount in case of a breach and are by way of penalty then only reasonable compensation has to be paid unless the party pleads and proves actual loss or damage.
31. In the present case, the plaintiff was required to prove the losses suffered by him on account of the breach of the contract by the predecessor-in-interest of the defendants or the defendants which would have already been under the knowledge of the parties that on the breach of the contract such amount of damages would be considered as liquidated damages and merely because the predecessor-in-interest of the defendants had given two Cheques to the plaintiff does not entitle the plaintiff to claim double the amount of the earnest money since the plaintiff has not led any evidence to this effect therefore the plaintiff is only entitled to reasonable compensation. It is also important to note that though the plaintiff has pleaded in the plaint that the said Cheques were given at the time of the execution of the agreement to sell however a careful perusal of the agreement to sell dated 02.07.2019 nowhere records that the predecessor-in-interest of the defendants had given any Cheques to the plaintiff at the time of execution of the Agreement to Sell. It shall also not be out of place to mention here that since the plaintiff has failed to prove anything on record that the plaintiff had requisite funds i.e. Rs. 15 Lakhs as on 05.01.2020 when the sale deed was required to be executed therefore the plaintiff is not entitled to Rs. 70 Lacs i.e. double the amount of the earnest money.
CS No. 200/20 Sandeep Vohra vs. Chunky Valecha & Ors. Page No. 17/20However since the plaintiff has paid an amount of Rs. 35 Lacs under the agreement to sell dated 02.07.2019 to the predecessor-in-interest of defendants as recorded in the said agreement to sell more particularly when the defendants have not appeared before the Court to contest the claim of the plaintiff therefore this Court has no reason to disbelieve the unchallenged and unrebutted testimony of the plaintiff that the said amount was not paid by the plaintiff to the predecessor-in-interest of the defendants and as such the plaintiff is held entitled to have the refund of Rs. 35 Lacs from the defendants which the plaintiff had given to the predecessor-in-interest of the defendants and as such the plaintiff is held entitled to the decree of payment of Rs. 35 Lacs in his favor and against the defendants.
32. Since the decree of Rs. 35 Lacs is being passed against the defendants but it is seen that the defendants have been sued in the capacity of the legal heirs of Late Sh. Suresh Kumar Valecha therefore the plaintiff is held entitled to recover the decreetal amount from the defendants only in respect of the estate left behind by Late Sh. Suresh Kumar Valecha which the defendants have inherited.
33. Though the issue of recovery alongwith interest was framed but it is seen from the prayer clause that the plaintiff has not prayed for grant of any interest however the Hon'ble High Court of Delhi in Tahaljeet vs Jagdish Kumar, 2020 (2) AD (Delhi) 72 while decreeing the suit for recovery of money has granted simple interest to the plaintiff though no specific prayer for interest was made by the plaintiff and the transaction in the said suit was also in respect of the agreement to sell and purchase an immovable property.
CS No. 200/20 Sandeep Vohra vs. Chunky Valecha & Ors. Page No. 18/2034. In view of the above, though no specific prayer is made by the plaintiff seeking pendente-lite and future interest however in order to meet the ends of the justice, the plaintiff is awarded simple interest of 6% per annum on the decreetal amount from the date of the decree till its actual realization. This issue is decided accordingly.
ISSUE No. 2Whether the plaintiff is entitled for a decree of permanent injunction restraining defendants, their agents etc from selling, transferring or creating any 3rd party interest with regard to the suit property in question? OPP
35. In view of detailed discussion above, the plaintiff is held not entitled to the relief of permanent injunction. This issue is accordingly decided against the plaintiff.
36. RELIEF:-
In view of the discussion herein above, this Court passes the following Final Relief:-
i. A decree of Rs. 35,00,000/ (Rupees Thirty Five Lacs) is passed in favor of the plaintiff and against the defendants which shall be recoverable by the plaintiff from the defendants only against the estate of Late Sh. Suresh Kumar Valecha which the defendants have inherited.
ii. The plaintiff is also entitled to decree of simple interest @ 6% per annum from the defendants from the date of the decree till its CS No. 200/20 Sandeep Vohra vs. Chunky Valecha & Ors. Page No. 19/20 realization which shall also be recoverable by the plaintiff from the defendants only against the estate of Late Sh. Suresh Kumar Valecha which the defendants have inherited.
iii. The plaintiff is also entitled to the costs of the suit.
37. Decree sheet be prepared accordingly.
38. File be consigned to record room after due compliance.
Announced in Open Court 15.10.2022. (Ajay Gulati II) ADJ01/(Central) THC, Delhi.
CS No. 200/20 Sandeep Vohra vs. Chunky Valecha & Ors. Page No. 20/20