Delhi High Court
Subhash Chand vs M/S Versatile Commotrade Pvt Ltd on 18 August, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA (OS)(COMM) 12/2017
Date of decision: 18th August, 2017
SUBHASH CHAND ..... Appellant
Through: Mr.Sunil Dalal, Mr.Ashish Sharma
and Mr.Deepak K. Sharma, Advs.
versus
M/S VERSATILE COMMOTRADE PVT LTD. ..... Respondent
Through: Mr.Nikhilesh Krishanan, Adv.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE NAVIN CHAWLA
SANJIV KHANNA, J. (Oral)
CM No.29146/2017 (exemption)
Exemption allowed, subject to all just exceptions.
The application stands disposed of.
CM No.29147/2017 (delay)
For the reasons stated in the application, delay of 50 days in re-
filing appeal is condoned.
The application stands disposed of.
RFA(OS) (COMM) 12/2017 Page 1
RFA (OS)(COMM) 12/2017 & CM No.29145/2017 (stay)
This intra-court appeal impugns the order dated 17.03.2017, by
which application for leave to defend I.A. No.23676/2015 moved by the
appellant Subhash Chand, who is defendant No.2, has been rejected.
2. The respondent to the present appeal namely Versatile Commotrade
Private Limited, filed the suit under Order XXXVII of Code of Civil
Procedure, 1908 for recovery of Rs.1,03,54,000/- with interest @ 18% p.a.
with effect from 15th November, 2013, till the date of payment.
3. The impugned order would show and indeed the parties are not at
lis that the appellant and his brother Chiranji Lal, who statedly expired on
3rd March, 2017, had received payment of Rs.1,03,54,000/- from the
respondent. The aforesaid payment was made for purchase of agricultural
land owned by the appellant and late Chiranji Lal. The details of land are
as under:
" (a) 1/3th share in total agricultural land measuring area 35
Bigha 9 Biswa, in Khata No. 101/100, in Khasra Nos/ 18//14
(4-16),17 (6-12), 24/2 (2-03), 25/2 (4-10), 45//6/2, (3-04),
15(4-16),16(4-16), 25(4-12), situated in the revenue estate of
Village Surhera, Tehsil Najafgarh, New Delhi;
RFA(OS) (COMM) 12/2017 Page 2
(b) 1/12 share in total agricultural land measuring area 6
Biswa, in Khata No. 102/101, in Khasra Nos. 18//25/1 (0-
06), situated in the revenue estate of Village Surhera, Tehsil
Najafgarh, New Delhi.
(c) 1/6 share in total agricultural land measuring area 6
Bigha 18 Biswa, in Khata No. 103/102, in Khasra Nos. 159
(3-18), 203 (3-0), situated in the revenue estate of Village
Surhera, Tehsil Najafgarh, New Delhi."
4. The respondent has placed on record the original agreement to sell
dated 18th July, 2013 which bears the signatures of the appellant and late
Chiranji Lal and their thumb impressions. The appellant does not deny his
signature and thumb impression as well as the signature and thumb
impression of late Chiranji Lal.
5. The contention of the appellant is that the agreement to sell was in
fact executed on 18th April, 2013. However, no such agreement has been
placed on record.
6. Appellant's contention that the date 18th July, 2013 as recorded is a
mere typographical error or mistake has to be rejected. The original
agreement to sell relied upon by the respondent would indicate that the
electronic stamp paper was purchased on 23 rd April, 2013. The respondent
RFA(OS) (COMM) 12/2017 Page 3
had also given two cheques of Rs.40,27,000/- to the appellant and Chiranji
Lal, both dated 23rd April, 2013. It is, therefore, difficult to accept the
contention of the appellant that the agreement to sell was executed on 18 th
April, 2013.
7. Learned counsel for the appellant submits that the appellant and late
Chiranji Lal were always ready and willing to sell the land to the
respondent. He submits that the appellant had obtained No Objection
Certificate from the authorities dated 7th November, 2013. Further, as per
the finding recorded in the impugned judgment, time was not essence of
the contract.
8. We have considered the said contention. In the facts of the present
case, we do not find any reason and justification to reverse the impugned
order.
9. The appellant and late Chiranji Lal had admittedly issued legal
notice dated 20th July, 2013 to the respondent, asserting that the agreement
to sell was entered on 18th April, 2013, but the date of execution was
erroneously written and recorded as 18th July, 2013. This notice accepts
that the appellant and late Chiranji Lal had received Rs.1,03,54,000/- as
advance for which they had issued separate receipts. The claim was that
RFA(OS) (COMM) 12/2017 Page 4
the balance amount was to be paid within 90 days from 18 th April, 2013
i.e. on or before 18th July, 2013. In paragraphs 4 to 9 of the notice, it was
stated as under:-
"4. That my clients have come to SR office for execution
of sale deed on which agreement to sell executed between
my client & you after obtaining NOC from competent
authority as agreed both.
5. That my clients have waited for you for the execution
of Sale Deed between you & my client & have tried to
contact you many times.
6. That on 18/07/2013, my clients have even filed an
application by SR-IX & mark his presence after waited for
you on 18/07/2013. When you didn't come till 1. P.M for
execution of Sale Deed on 18/07/2013. Telephonically to
inform you that you have to come to SR office for
registration of Sale Deed as per agreement to sell on
dt.18/07/2013 between you my clients.
7. That I hereby again reminding you to pay the balance
consideration amount & to execute a Sale Deed as my
client is still willing to execute a Sale Deed with you as
per agreement to sell executed between you & my client.
8. That I would like to intimate you that my clients have
also obtained 'NOC' for transfer the above said land from
RFA(OS) (COMM) 12/2017 Page 5
competent revenue authorities; this, requesting you to take
an immediate step to execute the Sale Deed.
9. I call upon you to have the deed of conveyance
executed by my clients against the payment of balance
consideration amount within a stipulated period of 15
days from the receipt of this legal notice failing which the
said agreement or any other document executed in contest
of above stated property will stand cancelled & the
advance/earnest money paid by you to my clients will
stand forfeited & my client will take necessary action by
the competent authorities. However, this is without pre-
judice to the rights of my clients to recover all costs,
damages, losses & expenses incurred by him by reason of
yours default in performing the said agreement."
As per paragraph 8 of the notice, the appellant and Late Chiranji
Lal had obtained NOC for transfer of the land from the competent revenue
authority. Further, the appellant and his brother had visited the office of
Sub-Registrar for registration of the sale deed on 18 th July, 2013 as was
agreed in the agreement to sell but the respondent was not present and had
not bothered to pay the balance sale consideration. The last paragraph had
required the respondent to make balance payment within 15 days failing
which the earnest money paid would be forfeited and the agreement
would be treated as cancelled.
RFA(OS) (COMM) 12/2017 Page 6
10. Thus, on failure of the respondent to make payment of the balance
amount within 15 days, the appellant had declared that the agreement
would be treated as cancelled. The appellant and his brother late Chiranji
Lal did not at any time initiate proceedings seeking specific performance.
They had treated the agreement as cancelled, and the money paid as
forfeited. This being the position, the respondent was justified in treating
the agreement as cancelled as stated by the appellant and his brother Late
Chiranji Lal. The respondent was right in asking for refund of money
paid.
11. The facts on record would, also, reveal that the aforesaid factual
assertions made by the appellant were absolutely false and incorrect. The
appellant and Late Chiranji Lal had applied for No Objection Certificate
on 19th July, 2013 i.e. one day after the agreement to sell was executed.
This factum is now accepted and admitted by the appellant. The
application which is placed on record at page 96 of the appeal paper book
would show that the respondent was described as the purchaser/vendee.
This application for Non Objection certificate was verified/attested by the
notary public on 19th July, 2013 and filed with the authorities on 19th July,
2013. Application for No objection certificate was rejected by the
RFA(OS) (COMM) 12/2017 Page 7
authorities on 23rd August, 2013. The fact that the appellant applied for
NOC on 19th July, 2013 itself indicates that the appellant could not have
gone to the Sub-Registrar's office on 18th July, 2013.
12. In view of the aforesaid position, we find that the assertions made
in the notice dated 20th July, 2013, quoted above, are absolutely bogus and
wrong.
13. Even in the application for leave to defend, the appellant did not
disclose that the NOC was applied on 19th July, 2013 and this application
was rejected on 23th August, 2013.
14. The appellant must bear the consequences of the dishonest and
baseless assertions in the notice and pleading which were per se factually
incorrect.
15. This being the factual position, we do not find any reason to
interfere with the impugned order. The appeal as well as pending
applications are dismissed with no order as to cost.
SANJIV KHANNA, J.
NAVIN CHAWLA, J.
AUGUST 18, 2017/vp
RFA(OS) (COMM) 12/2017 Page 8
