Mr. John H.P. Singh vs Mrs. M.S. Franklin
2011 Latest Caselaw 2089 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Date of Judgment: 19.04.2011


+                 RSA No.162/2010 & CM Nos.15889-90/2010



MR. JOHN H.P. SINGH                            ...........Appellant
                        Through:    Mr. Mukti Bodh &
                                    Mr. Tarun Kumar, Advocates

                  Versus

MRS. M.S. FRANKLIN                           ..........Respondent.
                        Through: Mr. G.B. Sewak, Advocate.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

    1. Whether the Reporters of local papers may be allowed to
       see the judgment?

    2. To be referred to the Reporter or not?              Yes

    3. Whether the judgment should be reported in the Digest?
                                                         Yes


INDERMEET KAUR, J. (Oral)

1 This appeal has impugned the judgment and decree dated

26.02.2010 which had endorsed the findings of the trial Judge

dated 16.05.2009 whereby the suit filed by the plaintiff Mrs. M.S.

Franklin had been decreed in the sum of Rs.1 lac along with

interest @ 6% per annum.

2 The plaintiff had agreed to purchase the house bearing

No.59, Khasra No. 131, village Khajoori Khas, Extension Delhi from

defendant No. 1 for a sum of Rs.13,10,000/- A sum of Rs. 50,000/-

was paid in cash as 'bayana' (earnest money) by the plaintiff to the

defendant. 'Bayana' receipt dated 28.08.2005 had been executed.

The defendant had undertaken to execute the sale documents in

favour of the plaintiff by 15.09.2005. On 09.09.2005, defendant No.

1 had approached the plaintiff; he was in dire need of money. The

plaintiff paid a sum of Rs.1 lac as part payment of the sale

consideration which was vide receipt dated 09.09.2005 (Ex. PW-

1/2). Thereafter, inspite of efforts by the plaintiff to pay the balance

sum, the defendant with malafide and ulterior motive refused to

execute the sale agreement. The plaintiff had accordingly filed the

present suit seeking recovery of Rs.1,50,000/- which she had paid

vide two receipts dated 28.08.2005 & 09.09.2005; Rs.60,000/- was

the commission which had been paid by the plaintiff to defendant

No. 2; interest had also been claimed. Suit amount was

Rs.2,23,650/-.

3 The defendant had contested the suit. It was stated that no

amount was due to the plaintiff; the defendant was liable to forfeit

the aforenoted amount as it was only an earnest money and the

plaintiff had in fact not honoured the sale transaction.

4 On the pleadings of the parties, four issues were framed.

Oral and documentary evidence was led. 'Bayana' receipt dated

09.09.2005 which is the subject matter of dispute before this Court

has been proved as Ex. PW-1/2. It is an admitted document. The

legal notice Ex. PW-1/3 is dated 23.01.2005. On the basis of oral

and documentary evidence, the suit of the plaintiff had been

decreed for Rs.1 lac plus interest @ 6% per annum. The sum of

Rs.60,000/- purported to have been paid by the plaintiff to

defendant No. 2 had not been pressed for. The sum of Rs.50,000/-

paid in terms of the first Bayana i.e. vide receipt dated 28.08.2005

being earnest money had been forfeited by the defendant and was

held to be a rightful forfeiture. However, the sum of Rs.1 lac which

had been paid in terms of Ex. PW-1/2 was liable to be returned by

defendant No. 1 to the plaintiff as it was a payment which had been

made by the plaintiff to the defendant as part of the sale

consideration agreed upon between the parties.

5 This judgment of the trial court was affirmed in first appeal.

6 This is a second appeal. It is still at its admission stage. On

behalf of the appellant, it has been urged that 'bayana' receipt

(Ex. PW-1/2) has not been rightly construed; attention has been

drawn to legal notice Ex. PW-1/3 wherein in para 4, the plaintiff

had demanded a sum of Rs.1,50,000/- as 'bayana' amount which

had been paid by her to defendant No. 1. It is pointed out that this

sum of Rs. 1 lac also comprised of 'bayana' (earnest money) which

was held liable to be returned; the judgment suffers a from

perversity.

7     Arguments have been refuted.

8     The legal notice relied upon by learned counsel for the

appellant has been read only in part; the second para of the legal

notice clearly states that defendant No. 1 had approached the

plaintiff as he was in dire need of money and on 09.09.2005, a sum

of Rs.1 lac was paid as part payment of the sale consideration

agreed upon between the parties. This is clearly so stated in Ex.

PW-1/3. Ex. PW-1/2 also states that Rs.50,000/- has already been

paid as bayana and this sum of Rs.1 lac had been paid today i.e. on

09.09.2005, the balance sum of Rs.11,60,000/- is now left out of

sale consideration of Rs. 13,10,000/- which was the agreed amount.

Both the courts below had rightly drawn a conclusion that the

payment made in terms of Ex. PW-1/2 was not an earnest money; it

could not be forfeited by defendant No. 1; it was liable to be

refunded back to the plaintiff. These two concurrent findings of

fact of the two courts below call for no interference. No perversity

has been pointed.

9 Substantial questions of law have been embodied on page 2

of the body of the appeal. No such substantial question of law has

arisen. Appeal as also pending applications are dismissed in limine.

INDERMEET KAUR, J.

APRIL 19, 2011 a