Neelam Misra vs R.K. Sharma
2019 Latest Caselaw 1005 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No.277/2017

%                                                  14th February, 2019

NEELAM MISRA                                             ..... Appellant
                          Through:       Mr.     Rishi      Manchanda,
                                         Advocate with Mr. Arun
                                         Kumar,      Advocate        (M.
                                         No.9911681178).
                          versus

R.K. SHARMA                                             ..... Respondent

Through:

CORAM:

HON'BLE MR. JUSTICE VALMIKI J. MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. This Regular First Appeal under Section 96 of the Code

of Civil Procedure, 1908 (CPC) is filed by the plaintiff in the suit

impugning the Judgment of the trial court dated 19.08.2016 by which

the trial court has dismissed the suit for recovery of Rs. 19,50,000/-

filed by the appellant/plaintiff/buyer and this amount was claimed on

account of the appellant/plaintiff/buyer having paid a sum of Rs.

13,0,000/- to the respondent/defendant/seller under the Agreement to

Sell dated 28.08.2009.

2. I may note that the respondent/defendant despite service

did not appear in the trial court and was proceeded ex parte. Even in

this Court, the respondent/defendant has been served by publication

but the respondent/defendant does not appear and therefore the

respondent/defendant is proceeded ex parte.

3. The trial court has committed a clear illegality in

dismissing the suit on the ground that the affidavit by way of evidence

filed on behalf of the appellant/plaintiff had to be proved by the

appellant/plaintiff by personally coming and deposing in the court. It

is now settled law by virtue of the judgment of the Hon'ble Supreme

Court in the case of Rasiklal Manikchand Dhariwal and Another. v.

M.S.S. Food Products, (2012) 2 SCC 196 that there is no need of

tendering an affidavit by way of evidence and affidavit of evidence

filed need not be exhibited as a document. It is noted that the

appellant/plaintiff had filed her affidavit by way of evidence and

proved the documents being the agreement to sell and the receipt

which showed that a total sum of Rs. 13,00,000/- stood paid by the

appellant/plaintiff to the respondent/defendant.

4. In view of the aforesaid discussion, the impugned

Judgment of the trial court dated 19.08.2016 is set aside. The suit of

the appellant/plaintiff will be decreed for a sum of Rs. 13,00,000/-

alongwith interest @ 12% per annum simple payable from 13.10.2009

till the date of filing of the suit and at the same rate of 12% per annum

simple pendente lite and future till payment. The appellant/plaintiff

will also be entitled to costs of the suit as also the appeal.

FEBRUARY 14, 2019                              VALMIKI J. MEHTA, J
Ne