Shri H.S.Gambhir And Anr. vs Ms. Tripta Madan on 21 January, 2011

 *             IN THE HIGH COURT OF DELHI AT NEW DELHI

 +                      RFA No. 351/2000

 %                                               21st January, 2011

SHRI H.S.GAMBHIR AND ANR.                              ...... Appellants
                                   Through:    None.
                        VERSUS


MS. TRIPTA MADAN                                       ...... Respondent
                                   Through:    None.

 CORAM:
 HON'BLE MR. JUSTICE VALMIKI J.MEHTA

 1.   Whether the Reporters of local papers may be
      allowed to see the judgment?


 2.   To be referred to the Reporter or not?

 3.   Whether the judgment should be reported in the Digest?


VALMIKI J. MEHTA, J (ORAL)

1.    This case is effective item no. 7 on the „regular board‟ and no one

appears for the appellant although it is 11.50 am. No one appeared for

any of the parties even on 16.11.2009 when in the interest of justice

adverse orders were deferred.

2.    The challenge of this first appeal under Section 96 of the Code of

Civil Procedure, 1908 is the impugned judgment and decree dated

13.5.2000 whereby the suit of the respondent/plaintiff for recovery of the

amount paid under an agreement to sell has been decreed.

3.    The facts of the case are that an agreement to sell and purchase

was entered into between the appellant as seller and the respondent as


RFA 351/2000                                                         Page 1 of 5
 buyer with respect to the flat at the first floor of the property bearing no.

323, Rajouri Garden, New Delhi.

4.    The receipt cum agreement to sell is dated 10.5.1997 and the

appellants received a sum of 3,50,000/- lacs out of total consideration of

Rs.34 lacs. The case of the respondent/plaintiff was that the appellants

committed a breach of contract in failing to get the necessary permission

to sell the property and therefore the suit for recovery was filed.            The

defence of the appellants/defendant was that they had approached the

respondent for further sums of money and that the respondent failed to

pay and hence committed breach of contract. It was also contended by

the appellant that there was an oral agreement along with the written

agreement for the respondent to pay a sum of Rs.7.5 lacs within a period

of 15 days of the entering into of the agreement to sell and which amount

was not paid.

5.    On completion of pleadings the trial court framed the following

issues.

      "Issues:

      1.       Is the plaintiff responsible for the breach of contract? OPD.

      2.       To what relief, if any, is the plaintiff entitled?"

6.    While dealing with the issue no.1, the trial court has held that the

appellants were guilty of breach of contract because the appellants failed

to obtain necessary permissions from the Income Tax authorities for

selling of the property. It has also been held that there is no agreement

proved of payment of a sum of Rs.7.5 lacs within a period of 15 days of


RFA 351/2000                                                           Page 2 of 5
 the date of agreement to sell dated 10.5.1997. I may note at this stage

that in fact this plea of an oral agreement would be barred by virtue of

Sections 91 and 92 of the Indian Evidence Act, 1872. The trial court has

therefore   directed    the   refund   of   the   advance   amount   paid   i.e.,

Rs.3,50,000/- along with the interest at the rate of 18% per annum

pendente lite and 6% per annum from the date of judgment.

7.    The relevant discussion of the trial court is contained in paras 4 to 6

of the impugned judgment, and with which I fully agree and the same

reads as under:-

      "4.      Issue No.1

            The agreement between the parties is proved as
      PW1/1. This shows the total consideration as Rs.3,40,000/-.
      It also shows that a sum of Rs.3,00,000/- was paid at the
      time of execution of the receipt i.e. on 10.5.97, as earnest
      money and part payment. Regarding the payment of the
      balance sale consideration the agreement stipulates the
      following:-


              The balance sale consideration still be paid to
            me/us by the said purchaser(s) or his/their
            nominee (s) within a period of 40(Forty) days after
            the sale permission from the competent
            authority/Income Tax clearance certificate from
            the concerned Income Tax Officer, is obtained by
            me/us. The balance is to paid by the purchaser(s)
            before Sub-Registrar, concerned Delhi at the time
            of registration of the deal in the name of the said
            purchaser(s) or his/their nominee (s).         I/We
            therefore to permission and income tax clearance
            from the concerned authorities.


      5.   In the written statement the defendants plead that the
      plaintiff is responsible for committing a breach of the
      agreement because the plaintiff did not pay a sum of Rs.7.5
      lac within 15 days of 10.5.97 as per oral agreement between
      the parties and further as she failed despite various requests

RFA 351/2000                                                          Page 3 of 5
       and demands to give a draft copy of the proposed sale deed
      to be but to the Income tax Department for getting the
      N.O.C. Objection certificate u/s 230A of the Income Tax Act.
      The onus is on the defendants to prove that the plaintiff
      committed breach of the agreement. The defendant
      defendant No.1 appears in the witness box as D.W.1.says
      that he went to the plaintiff for part payment made no part
      payment. Further he says that on 19.6.97 the plaintiff
      informed that she had no arrangement of payment . He
      further says that he asked the plaintiff to give the proposed
      sale deed to be submitted with Income Tax Department, but
      she did not do it. DW2 who is the defendant No.2 in the
      case does not make any mention of the plaintiff‟s
      responsibility to give the draft sale deed. The plaintiff
      herself appears in the witness box as PW1. No question is
      put to her regarding the draft sale deed.

      6.   The agreement between the parties is Ext. PW1/1. All
      the terms and conditions of the agreement have to be found
      in Ex.PW1/1. The agreement only says that the balance sale
      consideration was to be paid within 40 days from the
      permission to sell and income tax clearance certificate.
      There is no provision in the agreement requiring the plaintiff
      to make any further part payment nor is there any
      requirement for the plaintiff to give the draft sale deed. The
      evidence does not prove that the plaintiff was required to
      give the draft sale deed or that the defendant made any
      such demand. I do not understand why the defendants
      themselves could not file a sale deed for obtaining
      clearance. Further, if there was any such requirement on
      the part of the plaintiff, the defendants could have required
      the plaintiff to do so by a notice in writing."


8.    I do not find any illegality or perversity in the impugned judgment

and decree. Not only were the appellants guilty of breach of contract, the

appellants are bound to refund the advance monies once the        contract

falls through. In fact, even if, the contract is terminated on account of

the fault of the respondent/plaintiff, still, the appellants are bound to

refund the advance monies and which can only be forfeited, if the

appellants/plaintiff had proved that they had suffered a loss on account of


RFA 351/2000                                                      Page 4 of 5
 the value of the property falling in the meanwhile. There is no discussion

in the impugned judgment of the counsel for the appellants having

pressed this argument of the value of the property having fallen because

apparently no evidence has been led on this aspect. I have also gone

through the grounds of appeal and there is no ground urged by the

appellant that the appellants suffered loss on account fall in the value of

the property. In view of the above, I do not find any error in the impugned

judgment and decree. The appeal is therefore dismissed leaving behind

the parties to bear their own costs. Trial court record be sent back.




JANUARY 21, 2011                                VALMIKI J. MEHTA, J.

ib

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