Delhi High Court
Smt. Ashma Niyazi vs Smt. Nazma Zubair & Ors. on 11 January, 2011
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No.16/2011
% 11th January, 2011
SMT. ASHMA NIYAZI ...... Appellant
Through: Mr. G.D. Chopra,
Advocate.
VERSUS
SMT. NAZMA ZUBAIR & 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)
C.M. No.346/2011 (Exemption) in RFA No.16/2011
Exemption allowed subject to just exceptions.
Application stands disposed of.
RFA No.16/2011
1. By means of the present first appeal under Section 96 of
Code of Civil Procedure, 1908 (CPC) the appellant/seller impugns the
judgment and decree dated 6.10.2010 whereby the trial Court decreed
the suit of the respondents/plaintiffs, not for specific performance, but
for refund of the advance amounts paid to the
appellant/seller/defendant totaling to a sum of Rs.5,20,000/-. This sum
of Rs.5,20,000/- was paid to the appellant/defendant in June, 2005 and
May 2006. The agreement to sell is dated 31.3.2006.
2. The trial Court has decreed the suit for a sum of
Rs.6,20,000/- alongwith interest @ 9% per annum from 10.5.2006 till
its realization. Effectively, what has therefore been ordered is the
refund of the amount paid of Rs.5,20,000/- mostly in June, 2005 and
one payment of Rs.2,80,000/- on 9.5.2006 with interest.
3. Right from the Constitution Bench judgment of the
Supreme Court in the case of Fateh Chand Vs. Balkishan Das
AIR 1963 SC 1485 it is settled law that a mere breach of contract on
behalf of the buyer under an agreement to sell in respect of an
immovable property is not actionable unless by the breach, the seller
is caused a loss on account of fall in the price of property. Admittedly,
and it is not disputed by the learned counsel for the appellant, that, it
is not the case of the appellant that the appellant has suffered loss on
account of the fall in the price of the property. In fact, this is not even
the pleading of the appellant/seller in the trial Court. Accordingly,
there does not arise any question of forfeiture of any amount. The
learned counsel, however, then states that he is not challenging grant
of sum of Rs.5,20,000/- but is only challenging the grant of
compensation of Rs.1 lakh which he says ought not to have been
granted because the appellant/seller was not guilty of the breach. I
have already stated above that the sum of Rs.1 lakh is basically
towards interest from the dates of payment in June, 2005 and March,
2006 till 10.5.2006-the latter being the date from which further
interest has been ordered to be paid. The additional payment of Rs.1
lakh towards compensation is therefore in sum and substance towards
interest payable on the amounts paid to the appellant in June
2005/March, 2006 till 10.5.2006. I thus do not find any error
committed by the trial Court in awarding compensation which really is
interest on the amount which was admittedly received by the appellant
as an advance.
4. In view of the above, I do not find any error in the
impugned judgment and decree. The appeal is therefore dismissed,
leaving the parties to bear their own costs.
C.M. No.345/2011 in RFA No.16/2011
Since the main appeal is dismissed, no orders are required
to be passed in this application which is accordingly disposed of.
JANUARY 11, 2011 VALMIKI J. MEHTA, J
Ne
