Pawan Kumar Jain vs Rajinder Kumar
2011 Latest Caselaw 885 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                RFA 259/2001
%                                                     14th February, 2011

PAWAN KUMAR JAIN                                   ...... Appellant
                                       Through:    Mr.Sunil Malhotra, Mr. Amit
                                                   Sanduja, Advocates.

               VERSUS

RAJINDER KUMAR                                     ...... Respondent
                                       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. This case is on the Regular Board of this Court since 3.1.2011. Today it

is effective Item No. 6 on the Regular Board. It is 2.40 P.M. and no-one

appears for the respondent. I have therefore heard learned counsel for the

appellant and after having perused the record I am proceeding to dispose of

the case.

2. The challenge by means of this Regular First Appeal under Section 96

of the Code of Civil Procedure, 1908 is to the impugned judgment and decree

dated 04.01.2001 whereby the suit of the appellant/proposed buyer for

refund of the advance price paid of Rs. 2 lakhs along with an additional

amount towards double the amount payable on account of the alleged

breach of contract by the respondent/defendant of the Agreement to Sell

dated 01.04.1995 was dismissed. Before I proceed, I note that the learned

counsel for the appellant has very fairly stated that he only presses for

recovery of advance price paid and does not press the issue with respect to

double the advance price on account of default in performance of the

contract by the respondent/defendant.

3. The facts of the case are that there is an Agreement to Sell dated

01.04.1995 was entered into between the parties with respect to the

property bearing No. 700/43, Shambhu Nagar, Tri Nagar, Delhi for a total

consideration of Rs. 14,50,000/-. A sum of Rs. 2 lakhs was paid at the time

of entering into the Agreement to Sell to the respondent by the appellant. It

was not disputed by the respondent/defendant before the trial court that an

Agreement to Sell was entered into and that an amount of Rs. 2 lakhs was

received. This aspect is noted by the trial court while dealing with the Issue

Nos. 1 and 2 in the impugned judgment and decree. The trial court has held

that the appellant/plaintiff was guilty of breach of contract by not paying the

balance and was therefore held not being ready to perform his part of the

contract. The suit of the plaintiff for recovery was accordingly dismissed.

4. The present appeal, in my opinion, is liable to be allowed with respect

to recovery of the advance price which was paid by the appellant/ plaintiff to

the respondent/defendant. This is because of the consistent view of the

Supreme Court right from the Constitution Bench decision in the case of

Fateh Chand vs. Balkishan Das, AIR 1963 SC 1485 that even if a buyer

is guilty of breach of performance of the contract of sale/purchase of

immovable property, yet, a seller cannot forfeit the advance amount paid

unless and until it is pleaded and proved by the seller that he has been

caused loss on account of fall in the value of the property. In the present

case, I do not find that the respondent/defendant at all put up such a case of

his suffering a loss on account of the fall in the value of the property. It is

for this reason that no discussion on this aspect is found in the impugned

judgment and the decree. The appellant is therefore entitled to recovery of

the advance price paid along with interest @ of Rs. 9% per annum pendente

lite and future till realization of the decretal amount.

5. I may note that the trial court has also dismissed the suit on the

ground that the same is time bared. Once again the finding of the trial court

is clearly illegal and perverse. The admitted facts are that the Agreement to

Sell was dated 01.04.1995 and as per which sale deed was to be executed

by 03.07.1995. Ordinarily, in contracts for sale/purchase of immovable

property, time of performance is not the essence unless and until the facts

which emerge on record show that the time of performance was very much

the essence of contract for example where the seller either wanted to

purchase another immovable property or that he was in an urgent need of

funds or other such exigency and so on. In the present case, there are no

pleadings or proof that the time of performance was the essence of the

contract. The facts and circumstances on record do not show that there was

any grave urgency or exigency or justifiable reasons for holding that the date

of performance could not have been extended. Thus, it was necessary for

the respondent/defendant to make time of performance of the essence by

issue of a specific notice and which was not done. Since the present case has

been filed on 09.09.1998 (instead of three years from 3.7.1995), I therefore

do not find that there is such great delay that it should be held that suit was

barred by time, more so because there is no reason for the respondent to

illegally withhold the advance amount paid in view of the ratio of the

decision of the Supreme Court in the case of Fateh Chand (supra).

6. In view of the above, I allow the appeal and pass a decree of the sum

of Rs. 2 lakhs in favour of the appellant and against the respondent with

pendente lite interest @ 9% per annum till the realization with costs of the

appeal, the costs of the appeal being the court fee paid by the appellant.

Decree sheet be prepared. Trial court record be sent back.

February 14, 2011                                     VALMIKI J. MEHTA, J.
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