Delhi High Court
Shri Mahender Singh vs Shri J.K. Dass on 28 March, 2011
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 28.03.2011
+ RSA No.37/2011 & CM Nos.2994-95/2011
SHRI MAHENDER SINGH ...........Appellant
Through: Mr.Sudesh Sharma, Advocate.
Versus
SHRI J.K. DASS ..........Respondent
Through: Nemo.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J. (Oral)
1. This appeal has impugned the judgment and decree dated
22.09.2010 which had endorsed the findings of the trial Judge
dated 11.03.2010 whereby the suit filed by the plaintiff Mr. J.K.
Dass Gupta seeking recovery of Rs.2,50,000/- had been decreed in
his favour along with interest @ 6% per annum.
2 The defendant before the trial Court is appellant before this
Court. He had admittedly not filed any written statement. No
defence had been led by him. The case of the plaintiff as is evident
from the record is that he had entered into an agreement to sell
dated 17.08.2005 with the defendant to purchase the ground floor
portion of property No. CS-91/425, Gali No. 8, East Azad Nagar in
the area of Village Ghondli, Illaqa Shahdara, Delhi comprising of
two rooms set. The total consideration amount was Rs.4,40,000/-. A
sum of Rs.1 lac had been paid by the plaintiff to the defendant;
balance of Rs.3,40,000/- was agreed to be paid on or before
17.11.2005 at which time vacant possession of the suit property
would be given to the plaintiff. A sum of Rs..50,000/- was paid by
the plaintiff to the defendant on 25.08.2005. Since the construction
of the building was on, the time for payment was extended up to
17.02.2006; thereafter time was again extended up to 30.07.2006.
On 27.07.2006, the plaintiff had approached the defendant for
taking possession of the suit property and to make balance
payment but the defendant refused. On 12.09.2006, the plaintiff
visited the proposed flat and saw that it was in occupation of a
third party. The plaintiff was cheated by the defendant. He lodged
criminal complaints. He issued notice for recovery of the
aforenoted amount which has been paid by him to the defendant
which had not been heeded. The entire documentary evidence had
been proved by the plaintiff; agreement to sell is Ex.PW-1/2; legal
notice is Ex. PW1/3; receipt is Ex. PW-1/4; criminal complaint is Ex.
PW-1/5; another legal notice dated 09.06.2009 along with postal
receipt had been proved as Ex. PW-1/10. Contention of the plaintiff
remained unchallenged. Written statement was not filed. Suit of
the plaintiff was decreed.
3. In appeal, this finding was endorsed. The impugned judgment
noted that the defendant had never contended that he had not
received any amount from the plaintiff or that he was not the
owner of the property for which he had entered into an agreement
to sell. The impugned judgment had also noted that inspite of
sufficient opportunities having been granted to the defendant to fie
his written statement he did not avail of this opportunity. Ex. PW-
1/2 had also been scrutinized by the first appellate court who had
drawn a conclusion that the time for payment had been extended
by the parties first up to 17.02.2006 and again up 30.07.2006. The
defence of the defendant had no merit. Suit was accordingly
decreed. The impugned judgment had endorsed this finding.
4. This is a second appeal court. It is not a third fact finding
court. It cannot delve into facts unless the fact findings are
perverse. No such perversity has been pointed out.
5. Substantial questions of law have been embodied at page 13
of the body of the appeal. No such substantial question of law has
arisen. Today before this Court it has been urged that the
agreement to sell dated 17.08.2005 had in fact been cancelled on
11.11.2006 and the documentary evidence to this effect be
permitted to be led by the defendant. This was never a bone of
contention before the trial court or even before the first appellate
court. It is clear that the appellant is setting forth a false plea. The
impugned judgment had also gone to the aspect of delay and had
returned a positive fact finding that the parties had agreed to
extend the period of limitation within which the payment could be
made by the plaintiff.
6. No substantial question of law has arisen. There is no merit
in this appeal. Appeal as also pending applications are dismissed in
limine.
INDERMEET KAUR, J.
MARCH 28, 2011
a
