* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO No. 328/2017
% 2nd August, 2017
VINOD KUMAR SHARMA .... Appellant
Through: Mr. Amit Jain, Advocate.
versus
GEETA KHURANA ..... Respondent
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL) C.M. Appl. No. 27366/2017 (for exemption) Exemption allowed, subject to all just exceptions. The application stands disposed of.
FAO No. 328/2017 and C.M. Appl. No. 27365/2017 (for stay)
1. This first appeal under Order XLIII (1)(d) of the Code of Civil Procedure, 1908 (CPC) is filed by the defendant in the suit impugning the judgment of the court below dated 5.7.2017 whereby FAO No. 328/2017 Page 1 of 4 the application filed by the appellant/defendant under Order IX Rule 13 CPC has been dismissed.
2. The facts of the case are that respondent/plaintiff filed a suit for recovery of Rs.34,56,250/- against the appellant/defendant on the ground that a sum of Rs.25,00,000/- was paid by the respondent/plaintiff to the appellant/defendant under an agreement to sell dated 6.2.2013 with respect to second floor without roof rights with 1/4th share in the parking and other amenities in the property bearing old Municipal no. 55, new Municipal no. 53, land admeasuring 200 sq. yards, built on plot no. 5, situated in the area of Village Sandhor Kalan abadi, Sri Nagar Colony, Delhi. Respondent/plaintiff claimed that out of the total sale consideration of Rs.1,05,00,000/- an amount of Rs.25,00,000/- was paid to the appellant/defendant. As per the plaint the respondent/plaintiff pleaded breach on the part of the appellant/defendant, that the plot in question was only 150 sq. yards and not 200 sq. yards, that the appellant/defendant demanded further amounts before executing the sale deed and which was not envisaged under the agreement to sell, that the appellant/defendant committed breach of the contract by not FAO No. 328/2017 Page 2 of 4 constructing the property and accordingly since the appellant/defendant wrongly terminated the contract, the respondent/plaintiff was entitled to return of the amount of Rs.25,00,000/- paid along with interest.
3. It is not disputed by the appellant/defendant, through its counsel before this Court, that the appellant/defendant was served in the subject suit filed for recovery of Rs.34,56,250/- along with interest. Appellant/defendant was served for 18.8.2015 in the suit and which suit was instituted on 11.5.2015. Since the appellant/defendant failed to appear on 18.8.2015 and was set ex-parte, after evidence was led by the respondent/plaintiff, the suit was decreed after about one and a half years on 3.12.2016. In the application under Order IX Rule 13 CPC the only reason given by the appellant/defendant for not appearing in the suit was that he was assured by the respondent/plaintiff that the respondent/plaintiff will not proceed with the suit. This is stated in paras 19 and 20 of the application under Order IX Rule 13 CPC and these paras read as under:-
"19. That thereafter the defendant received the summons of present suit and immediately contacted the plaintiff. A meeting was again held and it was agreed that the plaintiff shall not proceed with the suit and the defendant shall stand with his say of selling second floor of the property in question after adjustment of Rs.8 lacs.FAO No. 328/2017 Page 3 of 4
20. That believing the say/assurance of the plaintiff, that defendant didn't appear in court and now in the last week of March, when court staff/bailiff visited the house of the defendant, he learned that the plaintiff has got an ex-parte decree against him."
4. In my opinion, the reasons given in paras 19 and 20 of the application under Order IX Rule 13 CPC are completely bereft of any particulars and what is pleaded is a completely unbelievable stand because it is not possible that a builder such as the appellant/defendant would not appear in the suit, and that too for a long period from August 2015 till December 2016 when the suit was decreed, allegedly on the ground that the respondent/plaintiff said that the suit would not be pursued.
5. An application under Order IX Rule 13 can be allowed only if the appellant/defendant shows sufficient cause for his non-appearance after being served in the suit. In my opinion averments made in paras 19 and 20 of the application under Order IX Rule 13 CPC do not amount to sufficient cause for setting aside the ex-parte judgment and decree dated 3.12.2016 and the earlier ex-parte order proceeding the appellant/defendant ex-parte on 18.8.2015.
6. Dismissed.
AUGUST 02, 2017/ AK VALMIKI J. MEHTA, J
FAO No. 328/2017 Page 4 of 4