Delhi High Court
Leela Ram vs Raj Kumar on 28 August, 2012
Author: Sudershan Kumar Misra
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 28.08.2012
+ RFA No.367/2012
LEELA RAM ... Appellant
versus
RAJ KUMAR ... Respondent
Advocates who appeared in this case:
For the Appellant : Mr.Rahul Pandey, Mr.Ranjan Roy & Mr.Neeraj
Khijwani.
For Respondent :
CORAM:
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA
SUDERSHAN KUMAR MISRA, J. (Oral)
CM APPL.No.14759/2012
1. Exemption, as prayed for, is allowed subject to all just exceptions.
2. The application stands disposed of.
RFA No.367/2012 & CM APPL.No.14758/2012
3. This appeal by the defendant under section 96 of the code of civil procedure
impugns the judgement and decree passed by the court below decreeing the suit of
the plaintiff granting recovery of Rs. 16 lakhs along with interest rate of 9% per
annum from the date of institution the suit till its realisation along with costs.
4. In substance, the suit of the plaintiff was based on the non-performance of an
agreement to sell by the defendant, appellant herein, in respect of a property
measuring 67 sq yards bearing No. 11880 at Gali No. 10, Sat Nagar, Karol Bagh,
New Delhi. It was the plaintiff's case that by an agreement to sell dated 14.6.2008
the defendant agreed to sell the entire second floor (without terrace rights) in the
aforesaid property to the plaintiff for Rs. 24,50,000/- and the plaintiff paid the
defendant Rs. 8,00,000/- as earnest money. It was agreed between the parties that
the balance would be paid within 8 months, i.e. on or before 13.2.2009. The
defendant was also obliged to simultaneously execute necessary documents to
complete the sale. An important feature of the agreement was the obligation of the
defendant to pay double the earnest money in case he failed to come forward to
receive payment and execute all necessary documents. According to the plaintiff,
the defendant failed to honour his commitments despite service of legal notice on
him calling upon him to perform. Consequently, the plaintiff sued for recovery of
Rs. 16,00,000/- being double the earnest money paid to the defendant along with
interest at the rate of 12% per annum. The suit of the plaintiff was decreed along
with interest at the rate of 9% per annum plus costs. The defendant has appealed to
this court.
5. The only ground urged by counsel for the appellant at the bar is that the
court below failed to consider two letters dated 5.2.2009 and 16.2.2009 calling
upon the respondent/plaintiff, to pay the balance consideration, in support of his
plea that he was in fact always ready and willing to perform his part of the contract;
and therefore, the conclusion of the court below to the contrary is erroneous and
deserves to be set aside.
6. The appellant has attached a copy of his written statement. There, the
appellant has stated that he, "wanted to perform his duties", and that he, "sent the
two letters on 9.2.09 and 16.02.09." In addition, I notice that a plea is also taken to
the effect that the respondent himself failed to come forward to complete the
transaction because of rumors that properties, such as the suit property, are likely to
be sealed by the Municipality. On the pleadings, the court below also framed an
issue as to whether the plaintiff was entitled to a decree for the recovery of the
amount as prayed for.
7. The respondent duly proved the Agreement to Sell executed between the
parties on 14.6.2008 as well as the payment of Rs 8,00,000/- towards earnest
money. Even before this court no attempt has been made to dispute these facts. Nor
has any dispute been raised with regard to the obligation of the seller under that
agreement to pay the buyer double the earnest money in case he failed to perform
his part of the agreement within the stipulated time.
8. Admittedly, the appellant failed to lead any evidence whatsoever to support
his plea that he was in fact ready and willing to perform his part of the agreement
and that it was actually the respondent plaintiff who failed to perform. Even the
aforesaid letters dated 5.2.2009 and 16.2.2009 allegedly sent by the appellant to the
respondent plaintiff calling upon him to perform, have not been proved by him. At
the bar counsel for the appellant candidly admits that, "that is the missing part". In
fact the appellant/defendant led no evidence at all to prove his case despite repeated
opportunities; and his right to lead evidence was ultimately closed by the court
below on 19.3.2012.
9. On being asked, he also admits that although an opportunity was granted for
this purpose, the appellant failed to even put this aspect of the matter to the
respondent in cross examination.
10. No precedent or cogent line of reasoning has been urged by counsel for the
appellant in support of his case, and indeed I think there can be none under the
circumstances.
11. The appeal along with CM No.14758/20012 is, therefore, dismissed in
limine.
SUDERSHAN KUMAR MISRA, J.
AUGUST 28, 2012
rd
