Prem Khera vs Prem Khera
2011 Latest Caselaw 4887 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                       +       RFA No.75/2010

                            Date of Reserve : 1st September, 2011
%                           Date of decision : 30th September, 2011

      PREM KHERA                             ..... Appellant
                           Through : Mr.Ashish Upadhayay, Adv.

                  versus

      SUBHASH GOYAL                    ..... Respondent
                  Through : Mr.Gurbaksh Singh and
                            Ms.Meenakshi Sharma,
                            Advocates.

CORAM :-
THE HON'BLE MR. JUSTICE J.R. MIDHA

1.      Whether Reporters of Local papers may                NO
        be allowed to see the Judgment?

2.      To be referred to the Reporter or not?               NO

3.      Whether the judgment should be                       NO
        reported in the Digest?

                               JUDGMENT

1. The appellant has challenged the judgment and decree

for `2,00,000/- along with interest @ 10% per annum passed

by the learned Trial Court in favour of the respondent.

2. The respondent, hereinafter referred to as "the plaintiff",

instituted a suit for recovery of `4.00 lakh under Order XXXVII

of the Code of Civil Procedure against the appellant,

hereinafter referred to as "the defendant".

3. Vide Agreement to sell dated 28th February, 2007, the

plaintiff agreed to purchase property bearing No.462, Pocket

D-16, Sector 7, Rohini, Delhi-110085 from the defendant for a

total consideration of `18.37 lakh, out of which the plaintiff

paid a sum of `2.00 lakh at the time of the agreement and the

remaining amount was agreed to be paid on 29th April, 2007

and the sale deed was agreed to be executed on 30th April,

2007. According to the plaintiff, the defendant did not show

the original documents of title and the documents relating to

clearance of house tax, electricity and water bills to the

plaintiff. The plaintiff claimed to have visited the office of the

Sub-Registrar on 30th April, 2007 along with the balance sale

consideration of `16.37 lacs, but the defendant did not turn up.

The plaintiff issued a legal notice dated 30th April, 2007 and

reminder notice dated 10th August, 2007 to the defendant

demanding double of the earnest money, i.e., `4.00 lacs from

the defendant and thereafter, instituted a suit before the

learned Trial Court on 2nd November, 2007.

4. The defendant contested the suit on the ground that the

balance sale consideration of `16.37 lacs was to be paid by the

plaintiff on 29th April, 2007 and the sale deed was to be

executed thereafter on 30th April, 2007. The defendant

claimed to have visited the plaintiff on 30 th April, 2007 for the

balance payment. The defendant also visited the office of the

Sub-Registrar and thereafter sent a telegram to the plaintiff on

30th April, 2007. The defendant claimed that original

documents of title were seen by the plaintiff at the time of

execution of the sale agreement and there were no dues

against the property.

5. The plaintiff appeared in the witness box as PW1 and

proved the sale agreement, Ex.PW1/A, the legal notice,

Ex.PW1/C and reminder notice, Ex.PW1/D. In cross-

examination, PW1 admitted that the balance sale

consideration was payable by 29th April, 2007. PW1 also

admitted that no notice of his intention to purchase the suit

property was issued by him. He did not make any written

request to the defendant for inspection of the original

documents and the documents relating to the dues of house

tax, electricity and water bills. The plaintiff did not produce

any proof with respect to the availability of `16.37 lacs as on

29th April, 2007 before the Trial Court.

6. The defendant appeared in the witness box as DW1 and

proved the receipt of appearance before the Sub-Registrar on

30th April, 2007 as Ex.DW1, telegram receipt as Ex.DW2 and

the receipts of house tax, electricity and water bills as Ex.DW3

to Ex.DW5. DW1 admitted having sold the suit property prior

to the filing of the suit in July 2007.

7. The learned Trial Court held that both the parties failed to

fulfill their respective obligations as the plaintiff did not prove

the availability of `16.37 lacs with him as on 29th/30th April,

2007 and did not issue any notice to the defendant show his

intention to purchase the suit property after 30th April, 2007

whereas the defendant sold the suit property without notice to

the plaintiff and forfeited the earnest money without informing

the plaintiff. The learned Trial Court held both the parties to

be in default. The learned Trial Court held that the plaintiff

was entitled to the refund of `2.00 lacs along with interest at

the rate of 10% per annum from the defendant.

8. The learned Trial Court has not taken into consideration

two vital aspects: first that the payment of the balance sale

consideration was to be made by the plaintiff to the defendant

on 29th April, 2007 and the sale deed had to be executed one

day thereafter on 30th April, 2007. In that view of the matter,

there was no occasion for the plaintiff to have visited the office

of the Sub-Registrar on 30th April, 2007. The plaintiff has also

not shown the availability of `16.37 lacs with him. The second

material aspect is that the defendant issued a telegram to the

plaintiff on 30th April, 2007 at 5.43 PM in which he notified that

the plaintiff has neither made the payment on 29th April, 2007

nor shown any interest to get the sale documents executed on

30th April, 2007 and, therefore, the earnest money stand

forfeited. The finding of the learned Trial Court that the

defendant sold the suit property without notice to the plaintiff

is, therefore, erroneous.

9. This Court is of the view that the plaintiff has committed

the breach of the agreement dated 28th February, 2007 by

failing to make payment of the balance sale consideration of

`16.37 lakh to the defendant on 29th April, 2007. The plaintiff

has failed to prove the availability of `16.37 lakh with him

before the learned Trial Court. The plaintiff's plea that the

defendant did not show the original documents of title and the

documents relating to clearance of house tax, electricity and

water bills to him is self-contradictory to his plea that he

visited the office of the Sub-Registrar on 30th April, 2007 along

with the balance sale consideration of `16.37 lakh. If the

plaintiff was not satisfied with the inspection of original

documents of title and clearance of house tax, electricity and

water bills, there was no occasion for him to have visited the

office of the Sub-Registrar on 30th April, 2007. On the other

hand, if the plaintiff visited the office of the Sub-Registrar on

30th April, 2007 along with the balance sale consideration of

`16.37 lakh, the plaintiff must have satisfied himself with

respect to the title of the suit property and the clearance of the

dues. Be that as it may, the plaintiff has committed the breach

of the agreement dated 28th February, 2007 by failing to make

the payment of balance sale consideration of `16.37 lakh to

the defendant on 29th April, 2007 and, therefore, the forfeiture

of the earnest money of `2.00 lakh by the defendant vide

telegram dated 30th April, 2007 is valid in terms of clause 2 of

the sale agreement dated 28th February, 2007. The plaintiff is

thus not entitled to the refund of any amount from the

defendant.

10. In the facts and circumstances of this case, the appeal is

allowed and the impugned judgment and decree of the learned

Trial Court is set aside and the respondent's suit is dismissed.

The appellant has deposited a sum of `2.22 lakh with the

Registrar General of this Court in terms of order dated 10th

March, 2010 of this Court. The Registrar General is directed to

refund the said amount to the appellant along with interest

accrued thereon. CM No.2461/2010 is also dismissed.

J.R. MIDHA, J SEPTEMBER 30, 2011 Dev