Smt.Nirmal Khanna vs Jhuthar
2012 Latest Caselaw 6206 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              CS(OS) No.254/1993

%                                                 15th October, 2012

SMT.NIRMAL KHANNA                             ..... Plaintiff
                Through:                  Mr.P.S. Bindra, Advocate.
                      versus


JHUTHAR                                           ..... Defendant
                               Through:   None.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

    To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1.

The present suit was filed by the plaintiff for specific

performance of the agreement to sell dated 19.2.1992 with respect to one

acre of land situated in Khasra Nos.34/24 and 34/25 in Village

Kapashera, Tehsil Mehrauli, New Delhi. Alternative relief of recovery of

damages was also prayed for in the suit.

2. Learned counsel for the plaintiff very fairly confines his

relief in the suit for recovery of the amount of Rs.13 lakhs already paid

by the plaintiff to the erstwhile defendant and who is now represented by

his legal heirs.

3. Counsel for the plaintiff has drawn my attention to paras 2,

3, 6, 7 and 11 of the plaint which makes reference to the plaintiff paying

the defendant a sum of Rs.12,20,000/- plus Rs.80,000/- i.e. Rs.13 lakhs.

Counsel for the plaintiff has also drawn my attention to paras 2, 3 and 12

of the written statement (which is wrongly mentioned by the plaintiff as

Para 11) which show that the defendant admitted that he received a sum

of Rs.12,20,000/- plus Rs.80,000/-.

4. The defendant appeared in the suit, issues were framed,

evidence was led by both the parties and whereafter the case was listed in

the category of finals. Suit was dismissed in default on 7.7.2005, but,

was restored vide order dated 16.3.2012 after notices were duly served

upon the legal heirs of the defendant, who, however failed to appear.

5. The following issues were framed in the suit on 13.5.1996:-

"1. Whether the plaintiff was ready and willing to perform his obligations under the agreement to sell dated 15.2.92.?

2. Whether it was the obligation of the plaintiff to obtain „No Objection Certificate‟ from the competent authority? If so, to what effect?

3. Whether time was the essence of the contract. If so to what effect?

4. Whether the plaintiff is entitled to specific performance of the aforesaid agreement to sell?

5. If issue No.4 is proved against the plaintiff whether the plaintiff is entitled to damages? If so to what amount.

6. Relief."

6. Since the plaintiff confines his reliefs to recovery of the sum

of Rs.13,00,000/- along with interest, the aforesaid issues are decided to

the extent of holding that the plaintiff is entitled to recovery for a sum of

Rs.13 lakhs along with the pendente lite and future interest at 12% per

annum simple till payment from the legal heirs of the defendant, of

course to the extent of any properties with these legal heirs from the

deceased originally defendant Sh. Juthar. I may state that it is settled law

that even if plaintiff is allegedly guilty of breach of contract, yet,

defendant cannot forfeit the amount of Rs. 13 lacs unless defendant has

pleaded and proved loss caused to him on account of fall in the value of

the property. The defendant has failed to pleaded, much less prove any

loss. The plaintiff is therefore entitled to recover the amounts paid vide

Fateh Chand Vs. Balkishan Das AIR 1963 SC 1405.

7. The suit of the plaintiff is decreed against the defendants for

a sum of Rs. 13 lacs. Plaintiff will be entitled to pendente lite and future

interest @ 12% per annum simple. Plaintiff will also be entitled to costs

in terms of the rules of this Court. Decree sheet be prepared.

VALMIKI J. MEHTA, J OCTOBER 15, 2012 gm