Delhi High Court
Vinod Kumar Sharma vs Geeta Khurana on 2 August, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO No. 328/2017
% 2nd August, 2017
VINOD KUMAR SHARMA .... Appellant
Through: Mr. Amit Jain, Advocate.
versus
GEETA KHURANA ..... Respondent
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
C.M. Appl. No. 27366/2017 (for exemption)
Exemption allowed, subject to all just exceptions.
The application stands disposed of.
FAO No. 328/2017 and C.M. Appl. No. 27365/2017 (for stay)
1. This first appeal under Order XLIII (1)(d) of the Code of
Civil Procedure, 1908 (CPC) is filed by the defendant in the suit
impugning the judgment of the court below dated 5.7.2017 whereby
the application filed by the appellant/defendant under Order IX Rule
13 CPC has been dismissed.
2. The facts of the case are that respondent/plaintiff filed a
suit for recovery of Rs.34,56,250/- against the appellant/defendant on
the ground that a sum of Rs.25,00,000/- was paid by the
respondent/plaintiff to the appellant/defendant under an agreement to
sell dated 6.2.2013 with respect to second floor without roof rights
with 1/4th share in the parking and other amenities in the property
bearing old Municipal no. 55, new Municipal no. 53, land
admeasuring 200 sq. yards, built on plot no. 5, situated in the area of
Village Sandhor Kalan abadi, Sri Nagar Colony, Delhi.
Respondent/plaintiff claimed that out of the total sale consideration of
Rs.1,05,00,000/- an amount of Rs.25,00,000/- was paid to the
appellant/defendant. As per the plaint the respondent/plaintiff pleaded
breach on the part of the appellant/defendant, that the plot in question
was only 150 sq. yards and not 200 sq. yards, that the
appellant/defendant demanded further amounts before executing the
sale deed and which was not envisaged under the agreement to sell,
that the appellant/defendant committed breach of the contract by not
constructing the property and accordingly since the
appellant/defendant wrongly terminated the contract, the
respondent/plaintiff was entitled to return of the amount of
Rs.25,00,000/- paid along with interest.
3. It is not disputed by the appellant/defendant, through its
counsel before this Court, that the appellant/defendant was served in the
subject suit filed for recovery of Rs.34,56,250/- along with interest.
Appellant/defendant was served for 18.8.2015 in the suit and which suit
was instituted on 11.5.2015. Since the appellant/defendant failed to
appear on 18.8.2015 and was set ex-parte, after evidence was led by the
respondent/plaintiff, the suit was decreed after about one and a half years
on 3.12.2016. In the application under Order IX Rule 13 CPC the only
reason given by the appellant/defendant for not appearing in the suit was
that he was assured by the respondent/plaintiff that the
respondent/plaintiff will not proceed with the suit. This is stated in paras
19 and 20 of the application under Order IX Rule 13 CPC and these
paras read as under:-
"19. That thereafter the defendant received the summons of present suit
and immediately contacted the plaintiff. A meeting was again held and it
was agreed that the plaintiff shall not proceed with the suit and the
defendant shall stand with his say of selling second floor of the property in
question after adjustment of Rs.8 lacs.
20. That believing the say/assurance of the plaintiff, that defendant
didn't appear in court and now in the last week of March, when court
staff/bailiff visited the house of the defendant, he learned that the plaintiff
has got an ex-parte decree against him."
4. In my opinion, the reasons given in paras 19 and 20 of the
application under Order IX Rule 13 CPC are completely bereft of any
particulars and what is pleaded is a completely unbelievable stand
because it is not possible that a builder such as the appellant/defendant
would not appear in the suit, and that too for a long period from August
2015 till December 2016 when the suit was decreed, allegedly on the
ground that the respondent/plaintiff said that the suit would not be
pursued.
5. An application under Order IX Rule 13 can be allowed only
if the appellant/defendant shows sufficient cause for his non-appearance
after being served in the suit. In my opinion averments made in paras 19
and 20 of the application under Order IX Rule 13 CPC do not amount to
sufficient cause for setting aside the ex-parte judgment and decree dated
3.12.2016 and the earlier ex-parte order proceeding the
appellant/defendant ex-parte on 18.8.2015.
6. Dismissed.
AUGUST 02, 2017/ AK VALMIKI J. MEHTA, J
