Delhi High Court
Rajesh Kumar Dabas & Anr vs Rajpati on 18 February, 2019
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No. 912/2018 and C.M. No. 46241/2018 (stay)
% 18th February, 2019
RAJESH KUMAR DABAS & ANR ..... Appellants
Through: Mr. N.S. Dalal, Advocate
versus
RAJPATI ..... Respondent
Through
CORAM:
HON'BLE MR. JUSTICE VALMIKI J. MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. No one appears for the respondent, although the
respondent is served. The matter was passed over for the presence of
the respondent but even after a pass-over no one appears for the
respondent. It is noted that in fact respondent did not appear in the suit
in the trial court, and was proceeded ex parte.
2. When notice was issued in this appeal on 02.11.2018, a
limited notice was issued, and this order dated 02.11.2018 reads as
under:-
"C.M. No.46240/2018(exemption)
1. Exemption allowed subject to just exceptions.
C.M. stands disposed of.
C.M. Nos.46242/2018(for condonation of delay in filing) &
46243/2018(for condonation of delay in re-filing)
2. For the reasons stated in the applications, delay of 82 days in
filing and 3 days in re-filing the appeal is condoned subject to just
exceptions.
C.M.s stand disposed of.
+RFA No.912/2018 and C.M. No.46241/2018(stay)
3. Learned counsel for the appellants sought a pass over for taking
instructions, and after taking instructions it is stated that appeal is not
pressed for seeking the decree for specific performance but is only pressed
for return of the amount paid of Rs. 4,50,000/- by the appellants/plaintiffs
to the respondent/defendant under the subject Agreement to Sell dated
19.5.2011 alongwith reasonable rate of interest.
4. On the limited aspect as stated above, let notice in this appeal be
issued to the respondent, on filing of process fee, both in the ordinary
method as well as by registered post AD, returnable on 18th February, 2019.
Additional set dasti."
3. It is seen that the appellants/plaintiffs had proved the
Agreement to Sell dated 19.05.2011 as Ex.PW1/1 and Receipt as
Ex.PW1/2, and these documents showed that the
respondent/defendant had received a sum of Rs. 3,00,000/-. The
appellants/plaintiffs have thereafter paid a sum of Rs. 1,00,000/-
on 24.06.2011, and which has been proved in terms of the
Receipt/Ex.PW1/3. The appellants/plaintiffs thereafter paid an
amount of Rs. 25,000/- by cheque, and Rs. 25,000/- by cash, thus
totalling to an amount of Rs. 4,50,000/- paid by the
appellants/plaintiffs/buyer to the respondent/defendant/seller.
4. In law, any amount received by a seller under an
agreement to sell cannot be forfeited unless the defendant/seller
pleads and proves that any loss has been caused to him on account
of the breach of contract of the plaintiff/buyer vide M.C. Luthra
v. Ashok Kumar Khanna in RFA No. 780/2017 decided on
27.02.2018, 248 (2018) DLT 161: 2018 (169) DRJ 4. In the
present case, since the respondent/defendant was ex parte in the
trial court, there does not arise any issue of any loss being pleaded
and proved by the respondent/defendant. An SLP filed against the
judgment in M.C. Luthra's case (supra) has been dismissed by the
Hon'ble Supreme Court vide Order dated 15.05.2018 in SLP(C)
No. 11702/2018.
5. In view of the aforesaid discussion, this appeal is
allowed to the extent that a money decree is passed in favour of the
appellants/plaintiffs and against the respondent/defendant for a
sum of Rs. 4,50,000/- along with interest at 12% per annum simple
from 01.07.2011 till the date of filing of the suit, and thereafter
pendente lite and future till payment at the same rate. The
appellants/plaintiffs will also be entitled to costs of this appeal.
Decree sheet be prepared.
6. The appeal is allowed to the extent as stated above,
and disposed of. All pending applications are also disposed of.
FEBRUARY 18, 2019 VALMIKI J. MEHTA, J
ib
