Failure to disclose material facts and prove allegations can lead to the dismissal of a suit. Interest may not be awarded if the party fails to request the outstanding amount.

VALMIKI J. MEHTA, J.

1. This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) is filed by the appellant/plaintiff against the two concurrent Judgments of the courts below; of the Trial Court dated 27.3.2012 and the First Appellate Court dated 11.2.2016; by which the suit of the plaintiff for recovery of Rs.1,50,000/- alongwith interest has been dismissed.

2. The facts of the case are that the appellant/plaintiff as a buyer entered into an Agreement with the respondent/defendant on 8.7.2005 to purchase a flat bearing no. 12, 3rd Floor, in property no.271, Masjid Moth, New Delhi-49. Appellant/plaintiff paid a sum of Rs.3 lacs out of agreed sale consideration of Rs. 19.50 lacs. The agreement however could not go through and therefore the respondent/defendant returned a sum of Rs.1.50 lacs with balance of Rs.1.50 lacs remaining. It is for this amount the suit was filed with the claim of interest.

3. Respondent/defendant has filed the written statement and taken up a stand that the appellant/plaintiff had concealed the factum of execution of a Receipt dated 30.10.2006 whereby it was agreed between the parties that the appellant/plaintiff will only receive a sum of Rs.1 lac out of the sum of Rs.1.50 lacs and the amount of Rs.50,000/- was waived by the appellant/plaintiff. This receipt was proved and exhibited by the respondent/ defendant before the trial court as Ex.PW1/D1. The case of the respondent/defendant was that the appellant/plaintiff failed to receive the amount of Rs.1 lac in spite of tendering of the same and which amount was paid before the trial court during the pendency of the suit.

4. The appellant/plaintiff claimed that the signatures on the receipt were forcibly taken but this aspect has been disbelieved by both the courts below. The first appellate court in this regard has given the following relevant observations:-

“Perusal of the cross examination of the appellant/plaintiff who examined himself as PW1 before the Ld. Trial Court reveals that on the said receipt Ex.PW1/D1, the appellant/ plaintiff admitted his signatures below the averment “balance Rs.1 lac only”. By way of volunteer, PW1 stated that his signatures were obtained by force. PW1 also admitted that the said receipt was bearing the signatures of Sh. P.D. Upadhaya as a witness. PW1 further asserted in his cross examination that he knew Sh. P.D. Upadhaya, who was his friend. PW1 further admitted that he failed to lodge any complaint against the defendant for obtaining his signatures forcibly on the said receipt. PW1 further admitted it to be correct that he had not mentioned any fact regarding the alleged forcible signatures by the defendant on Ex.PW1/D1 in the plaint. PW1 further admitted it to be correct that in the legal notice dated 18.06.2007 which is Ex.PW1/2 on record, there was no averment regarding the alleged forcible signatures on the receipt Ex.PW1/D1. In the next cross examination, PW1 further admitted that he had not stated the fact regarding the receipt Ex.PW1/D1 in the plaint or in his evidence by way of affidavit or in the legal notice.

In the light of the above said cross examination of PW1, I am of the opinion that the Ld. Trial Court has rightly observed in the judgment and decree dated 27.03.2012 that the factum of execution of the said receipt Ex.PW1/D1 was neither disclosed by the plaintiff in the plaint nor in the legal notice. I am of the opinion that it has been rightly observed by the Ld. Trial Court in the judgment dated 27.03.2012 that the plaintiff also failed to disclosed that his signatures were obtained forcibly. The said fact was also not mentioned in the legal notice dated 18.6.2007. I am also of the opinion that it has been rightly observed by the Ld. Trial Court in the judgment and decree dated 27.03.2012 that no complaint in writing was ever lodged by the appellant/plaintiff in this regard. I am also of the opinion that it has been rightly observed that the appellant/plaintiff als