Delhi High Court
Ali Sher vs Naseem Ahmad on 11 January, 2019
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No. 20/2019
% 11th January, 2019
ALI SHER ..... Appellant
Through: Mr. Alok Kumar, Advocate
with Mr. Abhishek Pruthi,
Advocate (M. No.9810127735).
Versus
NASEEM AHMAD ..... Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE VALMIKI J. MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
C.M. No. 882/2019(exemption)
1. Exemption allowed subject to just exceptions.
C.M.s stand disposed of.
C.M. No. 883/2019(for condonation of delay)
2. For the reasons stated in the application, delay of 47 days
in re-filing the appeal is condoned.
C.M. stands disposed of.
RFA No. 20/2019 and C.M. No. 881/2019(stay)
3. 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 21.07.2018 by which
the trial court has decreed the suit filed by the respondent/plaintiff for
the recovery of Rs. 15,00,000/- paid by the respondent/plaintiff to the
appellant/defendant under the Agreement to Sell dated 12.01.2013
with respect to the property bearing no. F-453/16, Gali No. 16, ad
measuring 175 sq. yds. situated at Khajoori Khas, Delhi-110094
(hereinafter 'suit property').
4. The respondent/plaintiff has admitted to entering into the
agreement to sell and also the receipt of Rs. 15,00,000/- with the
appellant/defendant. The only issue is as to whether the trial court has
rightly held that it was the appellant/plaintiff who was guilty of breach
of contract because though the Agreement to Sell was with respect to
175 sq. yds., however, an area of 50 sq. yds. was also sold by the
appellant to his wife on 29.04.2000, and that a part of the property of
approximately 35 sq. yds. was not in possession of the
appellant/defendant but was in possession of St. Thomas Indian
National Church. There is also an additional issue which this Court is
examining in exercise of powers under Order XLI Rule 24 CPC that
even if the respondent/plaintiff is guilty of breach of contract in not
going ahead with the Agreement to Sell, whether at all the
appellant/defendant/seller could have forfeited the amount of Rs.
15,00,000/- in the absence of any pleading and proof that the appellant
had suffered any loss on account of the respondent/plaintiff having not
gone ahead with the agreement to sell.
5. On the aspect as to whether 50 sq. yds. of the suit
property was sold to the wife of the appellant/defendant on
29.04.2000, it is a fact that the appellant/defendant in his cross-
examination did admit that he had sold 50 sq. yds. of the suit property
to his wife. This aspect is recorded by the trial court in para 15 of the
impugned judgment. Admittedly, there is no agreement to sell in
favour of the wife of the appellant/defendant qua the 50 sq. yds.
owned by her. Merely because the wife in the legal proceedings may
choose to file an affidavit contending that she is ready to sell her 50
sq. yds. of the suit property to the appellant/defendant, the same
cannot mean that the appellant/defendant was the owner of 175 sq.
yds. of the property which was agreed to be sold to the
respondent/plaintiff under the agreement to sell dated 12.01.2013.
Also, the trial court has rightly held that 35 sq. yds. of the suit
property was in possession of the Church and this was proved by
statement of PW-2, Section Officer of the local electricity company,
BSES Yamuna Power Limited, which showed that the electricity
connection bearing CA No. 101478193 (domestic) was installed in the
suit property in the name of Ms. Pansy Samuel Robeat, National
Church, Khajoori Khas Extension, Karawal Nagar, Delhi-110094.
Therefore, the trial court has committed no error in holding that the
appellant/defendant was not the owner of 175 sq. yds. of the suit
property and he could not go ahead with the Agreement to Sell with
respect to 175 sq. yds. and in any case the appellant/defendant was not
in a position to hand over the area of approximately 35 sq. yds. which
was in possession of the church.
6. The second aspect is that the law is now well-settled right
from the Constitution Bench judgment of the Hon'ble Supreme Court
in the case of Fateh Chand v. Bal Kishan Das, AIR 1963 SC 1405
that even if there is a breach of an agreement to sell by a buyer, then,
in such a case the seller cannot forfeit any amount paid as price of the
property unless the seller pleads and proves that he has been caused
loss on account of the breach of contract in not going ahead with the
agreement to sell. The ratio laid down by the Constitution Bench
judgment of the Hon'ble Supreme Court in the case of Fateh Chand
(supra) was recently followed by the Supreme Court in the case of
Kailash Nath Associates v. Delhi Development Authority & Another,
(2015) 4 SCC 136 and I have considered all these judgments including
the contrary judgment of the Supreme Court in the case of Satish
Batra v. Sudhir Rawal, (2013) 1 SCC 345, in the case of M.C. Luthra
v. Ashok Kumar Khanna in RFA No. 780/2017 decided on
27.02.2018, 248 (2018) DLT 161, wherein I have by reference to the
judgments of the Hon'ble Supreme Court held that it is the ratio of the
Constitution Bench judgment of the Supreme Court in the case of
Fateh Chand (supra) which will prevail and as interpreted by the
Supreme Court in its recent judgment in the case of Kailash Nath
Associates (supra). An SLP filed against the judgment in the case of
M.C. Luthra (supra) being SLP(C) No. 11702/2018 was dismissed by
the Supreme Court on 15.05.2018. Therefore, once no loss has been
caused to the appellant/defendant/seller on account of alleged breach
by the respondent/plaintiff/buyer, the appellant/defendant was
completely unjustified in forfeiting the amount of Rs. 15,00,000/-
received under the Agreement to Sell dated 12.01.2013.
7. In view of the aforesaid discussion, there is no merit in
the appeal. Dismissed.
JANUARY 11, 2019 VALMIKI J. MEHTA, J
Ne
