Sangeeta Dalmia vs Rajinder Kaur Bedi & Anr.
2011 Latest Caselaw 3463 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   RFA No.361/11 & RFA No.364/11

%                                                        21st July, 2011

1.       RFA No.361/11

SANGEETA DALMIA                                        ...... Appellant
                          Through:    Mr. Sunil Sabharwal, Adv.


                          VERSUS

RAJINDER KAUR BEDI & ANR.                                ...... Respondents

                     Through:          None

                          &

2.       RFA No.364/11

SANGEETA DALMIA                                        ...... Appellant
                          Through:    Mr. Sunil Sabharwal, Adv.


                          VERSUS

RAJINDER KAUR BEDI                                       ...... 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)

CM No.13113/11 in RFA No.361/2011

This is an application for extension of time for deposit of Court

fee. Court fee has already been deposited. The application is disposed of

as having become infructuous.

CM No.13114/11(exemption) in RFA No.361/2011

Allowed, subject to all just exceptions.

Application stands disposed of.

CM No.13253/2011(exemption) in RFA No.364/2011

Allowed, subject to all just exceptions.

Application stands disposed of.

+ RFA No.361/2011 & RFA No.364/2011 with CM No.13252/2011(stay) in RFA No.364/2011

1. Both these appeals can be heard and disposed of together as

they are between the same parties and they arise from more or less,

common facts. Whereas RFA No.364/11 challenges the judgment of the

Trial Court dated 19.3.2011 which decreed the respondents'/plaintiffs' suit

for possession and mesne profits against the appellant, RFA No.361/2011

is the appeal of the appellant/plaintiff in the other suit in which recovery

of money was claimed by the appellant, being double the amount of the

price paid, on account of the breach committed of the agreement to sell

by the defendants therein, (and who are the respondents in both the

appeals) and which has been only partly decreed only for refund of the

advance price paid with interest and not for double of the advance price. I

may note that reference to the respondents would include Mr.I.S.Bedi,

(who is the predecessor-in-interest of the respondents) and with whom the

subject agreement to sell was entered into.

2. The facts of the cases are that the appellant Smt. Sangita

Dalmia entered into an agreement to sell with late Sh. I.S.Bedi with

respect to the property admeasuring 1200 square yards having a

construction of a boundary wall and one room situated at khasra no. 134,

village Siraspur, Delhi. It is stated that an agreement was entered into

vide a receipt dated 14.3.1999 for a total consideration of Rs.10,21,000/-

and of which the appellant paid a sum of Rs.1,11,000/-. The appellant

also claimed that late Sh. I.S.Bedi handed over possession of the suit

property to the appellant on making of the payment of Rs.1,11,000/-. It

was the case of the appellant in her suit for recovery of money filed in the

Trial Court, being Civil Suit no.227/2010 (subject matter of RFA

No.361/2011) that she was misled by late Sh. I.S. Bedi that he was the

owner of the property whereas the suit property vested with the gram

sabha. The appellant therefore claimed to have rescinded the contract

and sought refund of double the amount of advance paid in the Civil Suit

no.227/2010, and which suit has been decreed by the Trial Court not to

the extent of double the amount of advance money paid of Rs.1,11,000/-,

but to the extent of Rs.1,11,000/- with interest thereon.

3. RFA No.364/2011 is the appeal filed by the appellant, who was

the defendant in the suit for recovery of possession and mesne profits

which was filed by the widow of late Sh. I.S. Bedi, Mrs. Rajinder Kaur Bedi,

and who is the respondent in RFA No.364/2011 and the respondent no.1 in

RFA No.361/2011. The suit for possession and damages has been decreed

against the appellant on the grounds that it was the admitted case of the

appellant that she received possession from late Sh. I.S. Bedi under the

subject agreement to sell and therefore, it could not be claimed that the

appellant was not liable to return back possession to the respondent who

is the successor-in-interest of late Sh.I.S.Bedi. It has also been held that

once appellant has been held entitled to recovery of the advance price

paid with interest, there was no reason to continue to hold on to the

possession of the suit property, and which had to be returned, more so

because no order of the SDM vesting the property in gram sabha had

been filed.

4. Two issues are therefore canvassed in the subject appeals

before me. In the appeal no. 364/2011, prayer is made for setting aside of

the decree for possession and mesne profits. In the RFA No. 361/2011,

prayer is made for increasing the amount of decree from Rs.1,11,000/- to

double the amount of this price.

5. Learned counsel for the appellant argued before me that the

Khatoni (revenue record) of the year 1990-91 with respect to the suit land,

which was filed before the Trial Court and proved as Ex.PW1/D2,

established that the property vested in gram sabha and therefore the

appellant was not liable to hand over the possession to the respondents.

On the aspect of the claim of seeking enhancement of the decree to

double the amount of price paid, it was argued that since the appellant

had validly rescinded the contract, and since, the respondents had misled

the appellant in entering into the agreement to sell, the appellant was

entitled to double the amount of advance amount paid. It is also argued

that the suit for possession ought not to have been decreed because the

suit was on the basis of title and was not a suit under Section 6 of the

Specific Relief Act, 1963 for claim of specific relief.

6. In my opinion, both the appeals are wholly without merit and

therefore are liable to be dismissed.

7. So far as the RFA No. 361/2011 challenging the money decree

in favour of the appellant having been granted refund of only the price

paid of Rs.1,11,000/- along with interest and not double the amount, the

appeal is without merit because the Trial Court records the fact that in

the receipt, it is not mentioned that in case of breach, the appellant will

be entitled to double the amount of advance price paid. No fault can thus

be found with such a conclusion of the Trial Court. Also if the appellant

prayed for being awarded double the price paid, then he was bound to

plead and prove that after entering into the agreement to sell the prices

of the property had increased, and that when he went to purchase a

similar property in the market the same was available at a higher price

and therefore having been caused loss/damages, the appellant was

entitled to any addition to the original price paid of Rs.1,11,000/-, a

further amount of Rs.1,11,000/- for such loss or damages. However, as

admitted by the counsel for the appellant, there are absolutely no

pleadings and evidence, and consequently this issue is not discussed by

the Trial Court that the appellant was able to plead and prove that the

appellant had loss entitling the appellant to damages of Rs.1,11,000/- in

addition to refund of the price paid of Rs.1,11,000/-. Accordingly, on both

the counts that the receipt does not contain the fact with respect to

requirement to pay double the amount of earnest money and also

because of the fact that there is no pleadings and proof of any loss having

been caused to the appellant, the Trial Court has rightly decreed the suit

only for the refund of the advance of Rs.1,11,000/- with interest at 9% per

annum.

8. So far as the judgment and decree in the suit for possession

and the mesne profits being subject matter of RFA No. 364/2011, it was

the case of the appellant/defendant itself that she received possession of

the suit property from late Sh.I.S.Bedi under the agreement to sell. Once,

possession is received under an agreement to sell, and which is thereafter

sought to be rescinded on the ground that the contract is voidable

because the buyer/appellant was misled, then the consequences are

provided in Sections 64 & 65 of the Contract Act which read as under:-

"64. Consequences of rescission of a voidable contract.- When a person at whose option a contract is voidable rescinds it, the other party thereto need not perform any promise, therein contained in which he is the promisor. The party rescinding a voidable contract shall, if he had received any benefit thereudner from another party to such contract, restore such benefit, so far as may be, to the person from whom it was received.

65. Obligation of person who has received advantage under void agreement, or contract that becomes void.- When an agreement is discovered to be void, or when a contract becomes void, any person who has received any advantage under such agreement or contract is bound to restore it, or to make compensation for it to the person from who he received it."

9. A reference to aforesaid sections show that a party rescinding

a voidable contract shall, if he had received any benefit there under, from

the other party to such contract, then the party rescinding is liable to

restore such benefit to the person from whom it was received. The

appellant admits to receive possession under the said agreement to sell

which the appellant rescinded. Accordingly, Sections 64 & 65 will

immediately come into play inasmuch as the appellant had already been

granted a decree with respect to refund of the advance price paid along

with interest. Consequently, leaving apart the fact that there may not be

a title in favour of late Sh. I.S.Bedi who entered into an agreement to sell

with respect to the plot, the fact of the matter is that possession was

indeed received by the appellant from late Sh.I.S.Bedi. In law, possessory

title is as much recognized as an ownership in the property along with the

right to possession based on title. If possession is given by a person

under an agreement which is rescinded, then such possessory right, being

a valuable right, has to be returned to the person from whom possession

was received. I cannot subscribe to the arguments on behalf of the

appellant that the suit ought to have been filed under Section 6 of the

Specific Relief Act. A suit under Section 6 of the Specific Relief Act is filed

by a person who has a possessory right because another person with a

lesser possessory title illegally dispossess such previous person from

possession of the property and therefore summary proceedings are

provided for under Section 6 of the Specific Relief Act, 1963 for taking

back/recovery of possession.

10. In view of the facts with regard to the subject agreement to

sell, the fact that the agreement to sell was rescinded by the appellant,

allegedly on account of being mislead as title to the property, the fact that

the appellant has received back the price paid under the agreement along

with interest, and the fact that possession was in fact received from late

Sh. I.S.Bedi by the appellant- all the aforesaid being admitted facts, there

are no disputed questions of fact which require detailed examination of

the Trial Court record, and which therefore is not required to be

summoned.

11. Counsel for the appellant also argues that damages ought not

to have been awarded against the appellant. This argument is also

without merit because if a person forces a person to file a suit for

possession to recover property, then surely benefit of illegal possession

could not be granted to a person who is found to be in such a legal

possession who in law is bound to pay mesne profits for the period for

which the illegal possession continued. Mesne profits are therefore a

natural consequence to retaining of illegal possession and which is also so

specified in Section 2(12) CPC. The Trial Court had taken a fair rate of

Rs.6,000/- per month inasmuch as the Trial Court has recorded that the

rental value of the factory of the appellant which is just opposite to the

suit property must be Rs.5,000/- to Rs.7,000/-. A civil case is decided on

balance of probabilities. In the present case, we are dealing with the

physical possession of the property which is of a huge area of 1200 square

yards. Therefore, there is nothing illegal or perverse in the impugned

judgment which directs payment of mesne profits of Rs.6,000/- per month.

12. No other issue arises or is pressed for. The appeals and the

application for stay are dismissed.

JULY 21, 2011                                   VALMIKI J. MEHTA, J.
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