Shri Mahender Singh vs Shri J.K. Dass

Indermeet Kaur, J.—This appeal has impugned the judgment and decree dated 22.09.2010 which had endorsed the findings of the trial Judge dated 11.03.2010 whereby the suit filed by the Plaintiff Mr. J.K. Dass Gupta seeking recovery of Rs. 2,50,000/- had been decreed in his favour along with interest @ 6% per annum.

The Defendant before the trial Court is Appellant before this Court. He had admittedly not filed any written statement. No defence had been led by him. The case of the Plaintiff as is evident from the record is that he had entered into an agreement to sell dated 17.08.2005 with the Defendant to purchase the ground floor portion of property No. CS-91/425, Gali No. 8, East Azad Nagar in the area of Village Ghondli, Illaqa Shahdara, Delhi comprising of two rooms set. The total consideration amount was Rs. 4,40,000/-. A sum of Rs. 1 lac had been paid by the Plaintiff to the Defendant; balance of Rs. 3,40,000/- was agreed to be paid on or before 17.11.2005 at which time vacant possession of the suit property would be given to the Plaintiff. A sum of Rs. .50,000/- was paid by the Plaintiff to the Defendant on 25.08.2005. Since the construction of the building was on, the time for payment was extended up to 17.02.2006; thereafter time was again extended up to 30.07.2006. On 27.07.2006, the Plaintiff had approached the Defendant for taking possession of the suit property and to make balance payment but the Defendant refused. On 12.09.2006, the Plaintiff visited the proposed flat and saw that it was in occupation of a third party. The Plaintiff was cheated by the Defendant. He lodged criminal complaints. He issued notice for recovery of the aforenoted amount which has been paid by him to the Defendant which had not been heeded. The entire documentary evidence had been proved by the Plaintiff; agreement to sell is Ex.PW-1/2; legal notice is Ex. PW1/3; receipt is Ex. PW-1/4; criminal complaint is Ex. PW-1/5; another legal notice dated 09.06.2009 along with postal receipt had been proved as Ex. PW-1/10. Contention of the Plaintiff remained unchallenged. Written statement was not filed. Suit of the Plaintiff was decreed.

In appeal, this finding was endorsed. The impugned judgment noted that the Defendant had never contended that he had not received any amount from the Plaintiff or that he was not the owner of the property for which he had entered into an agreement to sell. The impugned judgment had also noted that inspite of sufficient opportunities having been granted to the Defendant to fie his written statement he did not avail of this opportunity. Ex. PW-1/2 had also been scrutinized by the first appellate court who had drawn a conclusion that the time for payment had been extended by the parties first up to 17.02.2006 and again up 30.07.2006. The defence of the Defendant had no merit. Suit was accordingly decreed. The impugned judgment had endorsed this finding.

This is a second appeal court. It is not a third fact finding court. It cannot delve into facts unless the fact findings are perverse. No such perversity has been pointed out.

Substantial questions of law have been embodied at page 13 of the body of the appeal. No such substantial question of law has arisen. Today before this Court it has been urged that the agreement to sell dated 17.08.2005 had in fact been cancelled on 11.11.2006 and the documentary evidence to this effect be permitted to be led by the Defendant. This was never a bone of contention before the trial court or even before the first appellate court. It is clear that the Appellant is setting forth a false plea. The impugned judgment had also gone to the aspect of delay and had returned a positive fact finding that the parties had agreed to extend the period of limitation within which the payment could be made by the Plaintiff.

No substantial question of law has arisen. There is no merit in this appeal. Appeal as also pending applications are dismissed in limine.