Smt. Nirmal Khanna vs Jhuthar

Valmiki J Mehta, J.—The present suit was filed by the plaintiff for specific performance of the agreement to sell dated 19.2.1992 with respect to one acre of land situated in Khasra Nos. 34/24 and 34/25 in Village Kapashera, Tehsil Mehrauli, New Delhi. Alternative relief of recovery of damages was also prayed for in the suit. Learned Counsel for the plaintiff very fairly confines his relief in the suit for recovery of the amount of Rs. 13 lakhs already paid by the plaintiff to the erstwhile defendant and who is now represented by his legal heirs.

Counsel for the plaintiff has drawn my attention to paras 2, 3, 6, 7 and 11 of the plaint which makes reference to the plaintiff paying the defendant a sum of Rs. 12,20,000/- plus Rs. 80,000/- i.e. Rs. 13 lakhs. Counsel for the plaintiff has also drawn my attention to paras 2, 3 and 12 of the written statement (which is wrongly mentioned by the plaintiff as Para 11) which show that the defendant admitted that he received a sum of Rs. 12,20,000/- plus Rs. 80,000/-.

The defendant appeared in the suit, issues were framed, evidence was led by both the parties and whereafter the case was listed in the category of finals. Suit was dismissed in default on 7.7.2005, but, was restored vide order dated 16.3.2012 after notices were duly served upon the legal heirs of the defendant, who, however failed to appear.

The following issues were framed in the suit on 13.5.1996:-

Whether the plaintiff was ready and willing to perform his obligations under the agreement to sell dated 15.2.92.?

Whether it was the obligation of the plaintiff to obtain ''No Objection Certificate'' from the competent authority? If so, to what effect?

Whether time was the essence of the contract. If so to what effect?

Whether the plaintiff is entitled to specific performance of the aforesaid agreement to sell?

If issue No. 4 is proved against the plaintiff whether the plaintiff is entitled to damages? If so to what amount.

Relief.

Since the plaintiff confines his reliefs to recovery of the sum of Rs. 13,00,000/- along with interest, the aforesaid issues are decided to the extent of holding that the plaintiff is entitled to recovery for a sum of Rs. 13 lakhs along with the pendente lite and future interest at 12% per annum simple till payment from the legal heirs of the defendant, of course to the extent of any properties with these legal heirs from the deceased originally defendant Sh. Juthar. I may state that it is settled law that even if plaintiff is allegedly guilty of breach of contract, yet, defendant cannot forfeit the amount of Rs. 13 lacs unless defendant has pleaded and proved loss caused to him on account of fall in the value of the property. The defendant has failed to pleaded, much less prove any loss. The plaintiff is therefore entitled to recover the amounts paid vide Fateh Chand Vs. Balkishan Das, . The suit of the plaintiff is decreed against the defendants for a sum of Rs. 13 lacs. Plaintiff will be entitled to pendente lite and future interest @ 12% per annum simple. Plaintiff will also be entitled to costs in terms of the rules of this Court. Decree sheet be prepared.