Delhi High Court
Vinod Kumar Sharma vs Geeta Khurana on 9 August, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No. 647/2017
% 9th August, 2017
VINOD KUMAR SHARMA ..... Appellant
Through: Mr. Amit Jain, Adv.
Appellant in person.
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)
CM No. 28468/2017 (for restoration)
This application is allowed inasmuch as it is stated that the
appeal against the order dismissing the application under Order IX
Rule 13 CPC has been dismissed by this Court on 2.8.2017 in FAO
No. 328/2017. Accordingly, this application is allowed and appellant
is allowed to argue the first appeal on merits.
CM stands disposed of.
RFA No. 647/2017
1. This Regular First Appeal under Section 96 of the Code
of Civil Procedure, 1908 (CPC) is filed by the defendant in the suit
impugning the judgment of the trial court dated 3.12.2016 whereby the
trial court decreed the suit for recovery of Rs.25 lacs along with
interest pre-suit at 9% per annum simple and pendente lite and future
interest at 6% per annum simple.
2. The subject suit was filed by the respondent/plaintiff
against the appellant/defendant for recovery of Rs.34,56,250/-by
pleading that the appellant/defendant had approached the
respondent/plaintiff for selling the property of the appellant/defendant
bearing old Municipal No. 55 and new no. 53, on a plot of 200 sq. yds,
plot no.5, Village Sandhora Kalan, abadi known as Sri Nagar Colony,
Delhi. As per the plaint, the respondent/plaintiff pleaded that she
agreed to purchase the entire second floor of the property without roof
rights with one fourth share in the parking for a sale consideration of
Rs.1,05,00,000/-. An agreement to sell and purchase was entered into
on 6.2.2013 and the respondent/plaintiff paid the appellant/defendant a
sum of Rs.25,00,000/- of which Rs.17,00,000/- was paid in cash and
Rs.8,00,000/- lacs was paid by cheque bearing no. 367647 dated
10.2.2013 drawn on HDFC Bank, Roop Nagar, Delhi. The balance
sale consideration was payable on completion of the entire building
from ground floor to third floor with parking. It is pleaded in the
plaint that the respondent/plaintiff came to know that the suit property
was not built on the plot of 200 sq. yds. but constructed on 150 sq.
yds. only and that appellant/defendant had failed to execute the sale
deed of the suit property and had in fact not completed the
construction. Accordingly, the respondent/plaintiff claimed return of
the amount paid of Rs.25,00,000/- along with interest totaling to
Rs.34,56,250/-.
3. Appellant/defendant, after service, did not file the written
statement and ultimately he was proceeded ex-parte vide order dated
18.8.2015. Respondent/plaintiff thereafter led evidence and proved
her case by her affidavit by way of evidence as also by proving of
various documents. This is noted in para 4 of the impugned judgment
and which para reads as under:-
"4. In order to prove her case, the plaintiff has examined herself as
PW-1 and tendered her evidence by way of affidavit Ex.PW-1/A signed by
her at points A & B. She also proved certain documents on record, in
support of her case namely copy of cheque bearing no.367647, dt.
10.02.2013, for an amount of Rs.8 lakhs, marked as mark X-1, copy of the
agreement to sell and purchase dt.06.02.2013, exhibited as Ex.PW-1/2,
copies of title deeds of the suit property highlighting the area of the suit
property as 150 sq. yards, marked as mark X-2, copy of receipt
dt.06.02.2013, acknowledging the receipt of the sum of Rs.25 lakhs by the
defendant to the plaintiff, exhibited as Ex.PW-1/4, copy of extract of page
no.306 of the entry register dt.05.06.2013 of Himachali Co-operative Group
Housing Society Ltd., exhibited as Ex.PW-1/5. Original photographs of the
plot taken on 16.04.2015, exhibited as Ex.PW-1/6 to Ex.PW-1/14 (colly),
copy of legal notice dt.02.07.2013, exhibited as Ex.PW-1/15, copy of reply
dt.08.08.2013, sent by the plaintiff to the defendant's legal notice dt.
02.07.2013, exhibited as Ex.PW-1/16, copy of legal notice dt.13.08.2013
sent by the defendant to the plaintiff regarding termination of agreement to
sell and purchase dt.06.02.2013, marked as mark X-3, copy of complaint
made by defendant to SHO PS Sarai Rohilla dt. 30.09.2011, marked as mark
X-4, copy of duly notarized undertaking given by the defendant executed on
10.08.2012, marked as mark X-5, copy of sanction plan dt.04.07.2013
obtained by the defendant in respect of the suit property highlighting it to be
admeasuring 150 sq. yds, marked as mark X-6, copy of police complaint dt.
08.08.2013 made by the plaintiff to SHO PS Sarai Rohilla, New Delhi
exhibited as Ex.PW-1/21, copy of complaint dt. 12.08.2013 addressed to
DCP North District, Civil Lines, New Delhi exhibited as Ex.PW-1/22, copy
of letter dt. 29.06.2014 issued under RTI Act by the RTI Cell, North
District, Civil Lines, Delhi, exhibited as Ex.PW-1/23, copy of letter
dt.12.06.2014 issued under the RTI Act, 2005 by Deputy Commissioner of
Police and the Information Officer, Special Cell, Delhi, exhibited as Ex.PW-
1/24, copy of letter dt.12.06.2014, issued under the RTI Act, 2005 by the
Public Information Officer, Outer District, Delhi, exhibited as Ex.PW-1/25,
copy of FIR no.0187/2014 dt. 25.02.2014 made by the plaintiff against the
defendant, marked as mark X-7, copy of police complaint dt. 19.08.2015
filed by the defendant against the plaintiff addressed to the Dy.
Commissioner (North District), Civil Lines, Delhi, marked as mark X-8 and
copy of criminal complaint bearing CC No.196/2013 titled as Smt. Khurana
Vs. Sh. Vinod Kumar Sharma & Ors. filed at Tis Hazari Courts, Delhi,
marked as markX-9. Thereafter, remaining exparte evidence of plaintiff was
closed."
4. Since the case proved by the respondent/plaintiff stood
proved and it was unrebutted inasmuch as appellant/defendant filed no
written statement and nor led any evidence, and that the
appellant/defendant was ex-parte, accordingly, trial court found no
reason to disbelieve the case of the respondent/plaintiff and the
evidence led by her and accordingly decreed the suit, and to which
judgment I cannot thus find any error.
5. Learned counsel for the appellant/defendant sought to
argue various aspects on merits, however, aspects of merits in favour
of the appellant/defendant can only be examined if these aspects of
merits are first pleaded before the trial court in terms of the written
statement filed, and thereafter proved, but admittedly the
appellant/defendant was ex-parte, and therefore, there is no defence of
merits of the appellant/defendant. Therefore, this Court cannot
consider any issue of merits in the form of defence.
6. There is no merit in the appeal. Dismissed.
AUGUST 09, 2017/ib VALMIKI J. MEHTA, J
