Indira Seth & Anr vs Vikas Madan & Anr
2011 Latest Caselaw 3746 Del

6
*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                    +     RFA No.225/2010

%                            Date of decision: 4th August, 2011

      INDIRA SETH & ANR                    ..... Appellants
                     Through : Mr. Alok Kumar and
                               Ms. Manisha Agarwal Narain,
                               Advs.
                versus

      VIKAS MADAN & ANR                    ..... Respondents
                    Through : Mr. Rajat Aneja, Adv.

CORAM :-
THE HON'BLE MR. JUSTICE J.R. MIDHA

1.      Whether Reporters of Local papers may             NO
        be allowed to see the Judgment?

2.      To be referred to the Reporter or not?            NO

3.      Whether the judgment should be                    NO
        reported in the Digest?

                        JUDGMENT (ORAL)

1. The appellant has challenged the judgment of the

learned Trial Court whereby his suit for damages has been

dismissed on the ground that the suit was not maintainable.

2. The appellant purchased a residential flat at J15/G3,

Ground Floor, Dilshad Extension-I, Delhi-110095 from the

respondents for a total consideration of Rs.6,50,000/- by a

registered sale deed dated 2nd May, 2002. According to the

appellant, the suit property was not habitable and there were

defects and deficiencies therein. The appellant was aggrieved

by the representations made by the respondents. The

appellant, therefore, filed a suit for recovery of damages of

Rs.10,00,000/- against the respondents.

3. The respondents contested the suit on various grounds

inter alia that the suit was not maintainable as the appellant

had not claimed any relief with respect to the sale deed dated

2nd May, 2002.

4. The learned Trial Court framed issue No.1 with respect to

the preliminary objection raised by the respondent. The

learned Trial Court decided issue No.1 in favour of the

respondents and held the suit to be not maintainable. The

learned Trial Court held that the appellant cannot seek return

of the sale consideration and the damages without claiming

the cancellation of the sale deed.

5. This Court is of the view that the findings of the learned

Trial Court with respect to issue No.1 are perverse and,

therefore, liable to be set aside. There is no principle of law

that the purchaser cannot claim damages from the seller

without seeking cancellation of the sale deed.

6. The learned counsel for the respondents submit that the

appellant could not have sought refund of the sale

consideration as well as the damages. The learned counsel for

the appellant, in response, submits that the appellant is

claiming refund of the sale consideration as damages.

7. This Court is not expressing any opinion on the merits of

the claim of the appellant as the learned Trial Court has not

given any finding in that regard.

8. For the reasons stated aforesaid, the findings of the

learned Trial Court on issue No.1 are liable to be set aside and

the case needs to be remanded back to the learned Trial Court

for decision on the merits of the case with respect to issue

Nos.2 to 5.

9. In the facts and circumstances of this case, the appeal is

allowed and the impugned judgment and decree is set aside.

Issue No.1 is decided in favour of the appellant. The case is

remanded back to the learned Trial Court for fresh decision on

issue Nos.2 to 5.

10. The parties shall appear before the learned District Judge

on 5th September, 2011 for listing it before the learned Trial

Court.

11. Since the parties have already led evidence on all the

issues, the learned Trial Court shall hear both the parties and

decide the suit on the basis of the pleadings and evidence

already on record.

12. This Court has not expressed any opinion on the merits of

the case and nothing stated hereinabove shall be construed as

expression on the merits of the case.

J.R. MIDHA, J AUGUST 04, 2011 mk