Delhi High Court
P.K.Bhatia vs Simarjeet Singh & Ors. on 1 February, 2011
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No.345/1999
% 1st February, 2011
P.K.BHATIA ...... Appellant
Through: Mr. V.B.Andley, Sr. Advocate with
Mr. Rajinder Mathur, Advocate.
VERSUS
SIMARJEET SINGH & ORS. ...... Respondents
Through: None
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
1. Whether the Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the Digest?
VALMIKI J. MEHTA, J (ORAL)
1. The challenge by means of the present Regular First Appeal
under Section 96 of the Code of Civil Procedure, 1908 is to the impugned
judgement and decree dated 10.12.98 whereby the suit of the
respondents/plaintiff was decreed against the appellant/defendant no.1
for Rs.2,60,000/- with simple interest @ 6% per annum simple from the
date of decree till realization. The original suit filed was for specific
performance and which relief was declined to the respondent/plaintiff on
account of the fact that the appellant/defendant no.1 was not the owner
of the property, and the owners were his brothers namely the defendants
RFA No.345/1999 Page 1 of 5
no. 2 and 3 in the suit and who are the respondents no. 2 and 3 in the
present appeal.
2. The facts of the case are that the appellant entered into an
agreement to sell dated 10.10.94 with the respondent no.1/plaintiff for
selling of the first floor of the property bearing no. B-35/7, Industrial Area,
G.T. Karnal Road, Delhi for the total sale consideration of Rs.3,60,000/-
and received an amount of Rs.60,000/- as an advance. The
appellant/defendant no.1 represented that he was fully entitled to sell the
property, which in fact belongs to his brothers the
defendants/respondents no. 2 and 3 in the suit.
3. It has been found as a matter of fact by the Trial Court that
the appellant was not authorized on behalf of respondents no. 2 and 3 to
sell the property, which belonged to respondents no. 2 and 3. The suit for
specific performance was therefore dismissed, however, the respondent
no.1 was granted a money decree of Rs.60,000/-, being the original
amount paid as advance, and a sum of Rs. 2,00,000/- as damages, on
account of breach of contract as per Section 73 of the Contract Act, 1872.
The suit has been therefore decreed for Rs.2,60,000/- with interest at 6%
per annum simple from the date of decree till realization.
4. Learned senior counsel for the appellant argued that there is
no evidence which was led by the respondent no.1/plaintiff to show that
the prices of the property had increased in the meanwhile and that if the
respondent no. 1/plaintiff had gone to the market, he would have suffered
RFA No.345/1999 Page 2 of 5
loss by purchasing a similar property at a higher cost. Learned counsel
for the appellant has taken me through the deposition of the respondent
no.1/plaintiff and also the cross examination of the appellant/respondent
no. 1's witnesses to show that no such case was put up. It has therefore
been argued that even assuming the appellant/respondent no.1 was guilty
of breach of contract, unless damages are properly quantified and proved
an amount of Rs.2,00,000/- could not be awarded against the
appellant/respondent no.1.
5. I agree with the counsel for the appellant. No doubt the
appellant was held guilty of breach of contract by falsely representing that
he was duly authorized by the owners of the property to sell the property,
however, mere breach of contract does not entitle an aggrieved party to
sue for damages unless the aggrieved party proves that an actual loss has
been caused by rise in the value of the properties and which increase in
the prices of the properties have to be proved for a specific amount so
that a decree for that specific amount in terms of money can be awarded
to the aggrieved person. As already stated, there is no evidence led
whatsoever with respect to the increase in the price of the property which
would have caused loss to the respondent no.1/plaintiff for purchase of a
similar property at higher prices.
6. I however cannot overlook the fact that the appellant is
indeed the guilty party, having completely misrepresented the respondent
no.1 and having made him part with a sum of Rs.60,000/- on the ground
that he was authorized by two brothers/respondents no. 2 and 3 to sell the
RFA No.345/1999 Page 3 of 5
property. The appellant has therefore quite clearly illegally caused the
respondent no.1/plaintiff to part with monies. These monies have been
illegally retained by the appellant. The appellant was therefore in any
case bound to refund the principal amount of Rs.60,000/- received as
advance towards selling of the property. The issue is that once the
damages are disallowed, how should respondent no.1/plaintiff be
compensated because he was defrauded by an illegal act of the appellant.
7. The Trial Court has granted interest from the date of decree at
6% simple i.e. the Trial Court has not granted any interest at all from the
date when the amount of Rs.60,000/- was received by the appellant on
10.10.94 till 10.12.98. I may note that the appellant has not deposited
the decretal amount in this Court and the operation of the impugned
judgment and decree was stayed subject to furnishing security to the
satisfaction of the Registrar General of this Court. There is no reason why
in the opinion of this Court, the appellant should not be burdened with
payment of interest from the date he received the advance on 10.10.94
till the amount is actually recovered back by the respondent no.1. This
Court has ample powers under Order 41 Rule 33 CPC to do complete
justice between the parties and mould the relief as required by the facts
and circumstances of each case. I also take judicial notice under Section
57 of the Indian Evidence Act 1872 that in commercial transactions rate of
interest is 18% per annum vide Section 80 of the Negotiable Instruments
Act,1881. Accordingly, while accepting the appeal and setting aside the
judgment and decree of the Trial Court that awarded a sum of 2,60,000/-
RFA No.345/1999 Page 4 of 5
with costs and interest at 6% interest per annum from the date of decree
till realization I decree that the respondent no.1 will be entitled to a
money decree of Rs.60,000/- with interest @ 18% per annum simple from
10.10.94, pendente lite and future till realization of the decretal amount
The appeal is accordingly disposed of. Trial Court Record be sent back.
Decree sheet be prepared accordingly.
February 01, 2011 VALMIKI J. MEHTA, J.
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