Delhi High Court
Nabeel Ahmad @ Nabeed Ahmad vs Iqbal on 21 October, 2019
$~20
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 21st OCTOBER, 2019
+ RSA 119/2019 & CM No. 27753/2019 (stay)
NABEEL AHMAD @ NABEED AHMAD ..... Appellant
Through: Mr. Zakir Raza, Adv.
versus
IQBAL ..... Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
ORDER (ORAL)
1. The appellant had concededly entered into an agreement of sale
dated 17.01.2018 with the respondent respecting built up property
described as measuring 31 square yards bearing khasra no. 1/33,
property no. 368, Gali no. 22, Chand Bagh, Brijpuri, Delhi -110094,
the consideration having been settled at Rs. 20,20,000/-. Concededly
again, at the time of execution of the said agreement of sale, the
appellant had received from the respondent, an amount of Rs.
3,00,000/- as earnest money. Indisputably, no formal document
transferring the right, title and interest in the said property came to be
executed in the wake of the said transaction.
2. The respondent had instituted civil suit (no. 196/2018) on
21.04.2018 seeking recovery of the amount of Rs. 3,00,000/- paid as
earnest money along with interest @ 18 per cent per annum, pendente
lite and future, w.e.f. 17.01.2018. The appellant (the defendant)
suffered the said case ex-parte as he did not appear nor filed any
written statement. The suit of the respondent (plaintiff), however, was
dismissed by the civil judge, by judgment dated 01.09.2018 primarily
for the reason the trial judge was of the view that the agreement of sale
(Ex.PW-1/A) had stipulated execution of transfer documents in the
nature of "IGPA, Sale Deed, Agreement to Sell, Receipt etc." whereas
the plaintiff was insisting that the understanding was for "sale deed" to
be executed.
3. The judgment of the civil judge dismissing the suit was
challenged before the Additional District Judge by first appeal (RCA
DJ no. 88/2018) which proceedings were again suffered by the
appellant, despite notice, ex-parte. The appellate court set aside the
judgment of the trial court, by judgment dated 28.11.2018 and decreed
the suit, as prayed for holding such reliefs liable to be granted because
it had been proved that the earnest money had not been returned,
failure to execute the transferred documents being in breach of the
agreement of sale, no case being made out for its forfeiture.
4. The judgment of the first appellate court is sought to be
challenged by the appeal at hand, it being the grievance of the
appellant that the first appellate court had failed to go by the decision
of the trial court, the issue of breach of terms and conditions of the
agreement not having been decided upon, the document in question
being not registered or notarized.
5. Having heard the learned counsel for the appellant, this court
finds no merit in the appeal at hand. As noted earlier, the proceedings
before the trial court and the first appellate court were suffered ex-
parte. The appellant did not join issue with the case set out by the
respondent (decree holder) in the plaint, and in the memorandum of
appeal before the first appellate court, about the agreement of sale,
payment of earnest money and the obligation on the part of the
respondent to execute appropriate document transferring the right,
title, interest in the subject property by a specified date. It may be
further added that the appellant did not also join issue with averment
that having received the earnest money and having failed to execute
any transfer documents, he had failed to refund the earnest money. No
case was set up about the right to forfeit the earnest money on account
of the defaults on the part of the opposite party. In these
circumstances, the issue of breach of terms and conditions which the
appellant states has not been decided upon was not even raised.
6. The impugned judgment of the first appellate court is not found
to be suffering from any error or infirmity. The appeal and the
applications filed therewith are dismissed in limine.
R.K.GAUBA, J.
OCTOBER 21, 2019
nk
