M/S Apple Mines & Minerals Pvt. ... vs Baba Buildwell Pvt. Ltd.
2018 Latest Caselaw 402 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No. 44/2018

%                                                   16th January, 2018

M/S APPLE MINES & MINERALS PVT. LTD. & ANR.
                                           ..... Appellants
                   Through: Mr. Manohar Malik and Mr.
                            Amit Dhaka, Advocates.

                          versus

BABA BUILDWELL PVT. LTD.                                 ..... 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. 1722/2018 (for exemption)

Exemption allowed, subject to all just exceptions.

C.M. stands disposed of.

RFA No. 44/2018 and C.M. Appl. Nos. 1720/2018 (for delay) and 1721/2018 (for stay)

1. This Regular First Appeal is filed under Section 96 of the

Civil Procedure Code, 1908 (CPC) by the defendant in the suit

impugning the judgment of the trial court dated 31.8.2017 by which

the trial court has decreed the suit filed by the respondent/plaintiff for

recover of a sum of Rs.25,00,000/- along with interest at the rate of

8% per annum. The suit has been decreed on account of the sum of

Rs.25,00,000/- having been paid by the respondent/plaintiff to the

appellant no. 1 as loan.

2. The facts of the case are that the subject suit was filed by

the respondent/plaintiff pleading that on the request of appellant no. 1

the respondent/plaintiff granted a loan of Rs.25,00,000/- to the

appellant no. 1. A sum of Rs.10,00,000/- was given through an

account payee cheque which was debited to the

respondent's/plaintiff's account on 12.8.2008, whereas a sum of

Rs.15,00,000/- was given by means of demand draft dated 25.8.2008

and which was encashed by the appellant no. 1. Since appellant no. 1

failed to re-pay the loan amount therefore after serving the legal notice

dated 27.1.2010 the present suit was filed, the present suit was filed.

3. There were a total of five defendants in the suit with

appellant no. 1 being the main defendant inasmuch as loan was

granted to appellant no. 1 by the respondent/plaintiff. Suit against

defendant nos. 2 to 5 has been dismissed inasmuch as they were only

shareholders/directors in the appellant no. 1/company. The defence of

the appellant no. 1 was that amount of Rs.25,00,000/- was received by

the appellant no. 1 from the respondent/plaintiff under an agreement to

sell a property. It was pleaded that the agreement to sell was for

selling of a property admeasuring 10,000 sq. metres bearing number

A-4/3, South Site, G.T. Road, Gaziabad for a sum of Rs.10 crores and

in furtherance of this agreement to sell Rs.25 lakhs was received by

the appellant no. 1 from the respondent/plaintiff. It is further pleaded

in the written statement of the appellant no.1 that the

respondent/plaintiff thereafter expressed his inability to purchase the

property of 10,000 sq. metres and requested to give a smaller plot and

therefore appellant no. 1 transferred two plots to the

respondent/plaintiff bearing nos. A-4/3/27 and A-4/3/28, South Site

G.T. Road, Ghaziabad admeasuring 256.86 sq. metres and 256.82 sq.

metres. The suit was therefore prayed to be dismissed.

4. After pleadings were complete, the following issues were

framed:-

"(i) Whether the plaintiff is entitled to recover the amount of Rs.25,00,000/- admittedly received by the defendants from the plaintiff? OPP

(ii) Whether the defendants had sold the property bearing no. A-4/3/27 and A-4/3/28, South Site G.T. Road, Ghaziabad measuring 256.86 sq. metres and 256.86 sq. metres respectively to the plaintiff as claimed by the defendants? If so, to what effect? OPD

(iii) Whether the plaintiff is entitled to interest at the rate of 14% per annum pendent lite and future on the amount claimed in the suit? OPP

(iv) Relief."

5. At the outset it is required to be noted that appellant no.1

was given numerous opportunities to lead evidence but appellant no.1

failed to lead any evidence and therefore the right of the appellant no.1

to lead evidence was closed. The respondent/plaintiff has proved its

case by filing the bank certificate as Ex.PW1/3 showing receipt of the

amount of Rs.25,00,000/- by the appellant no. 1. In any case appellant

no. 1 admits to receiving of this amount of Rs.25,00,000/-. Once

appellant no. 1 has lead no evidence of transfer of two plots, in such a

fact situation the suit of the respondent/plaintiff for recovery of

Rs.25,00,000/- had to be decreed. Also, even assuming that there was

an agreement to sell with respect to a plot of 10,000 sq. meters, and

with respect to which there is no evidence led on behalf of the

appellant no. 1 (with the fact that there is no written agreement to sell)

yet, once amounts are received under an alleged agreement to sell,

then such amounts cannot be forfeited by the seller unless loss is

pleaded and proved as held by the Supreme Court in the judgments in

the cases of Fateh Chand Vs. Balkishan Dass AIR 1963 SC 1405 and

Kailash Nath Associates Vs. Delhi Development Authority and

Another (2015) 4 SCC 136. No loss is pleaded and proved by the

appellant no. 1 to justify adjustment of the amount of Rs.25,00,000/-

received from the respondent/plaintiff.

6. In view of the aforesaid discussion I do not find any merit

in the appeal and the same is hereby dismissed.

JANUARY 16, 2018                           VALMIKI J. MEHTA, J
AK