The appellant could not retain or forfeit the amount paid by the respondent without pleading and proving loss caused by the breach of contract.

VALMIKI J. MEHTA, J

CM No. 20574/2018(Exemption)

Exemption allowed subject to just exceptions.

CM stands disposed of.

CM No. 20576/2018 (delay in re-filing)

For the reasons stated in the application, delay in re-filing is condoned, subject to just exceptions.

CM stands disposed of.

RFA No. 424/2018 and CM No. 20575/2018 (stay)

1. This Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is filed by the defendant in the suit impugning the judgment of the trial court dated 28.11.2017 by which the trial court though has dismissed the suit for specific performance filed by the respondent/plaintiff, however the trial court has passed a money decree in favour of the respondent/plaintiff and against the appellant/defendant on account of appellant/defendant having received a sum of Rs.3 lacs under the subject Agreement to Sell dated 31.12.2010 entered into for a total consideration of Rs.4 ½ lacs pertaining to property bearing no. 70, land measuring 50 sq. yds. part of Khasra No. 274/365, situated at Gali No. 39, Zakir Nagar, Jamia Nagar, Okhla, New Delhi-110025.

2. The facts of the case are that the respondent/plaintiff pleaded that under the subject agreement to sell, out of the total sale consideration of Rs.4 ½ lacs, a sum of Rs.3 lacs was paid to the appellant/defendant, and since the appellant/defendant did not execute the sale documents in favour of the respondent/plaintiff, hence the subject suit for specific performance was filed.

3. Appellant/defendant contested the suit and denied execution of the agreement to sell. Appellant/defendant pleaded that actually the transaction in question was not an agreement to sell but the appellant/defendant needed a loan of Rs.3 lacs for the marriage of his daughter, and therefore, he had given the original documents of his property to the respondent/plaintiff. It was pleaded that the subject agreement to sell is forged and fabricated document. Suit was therefore prayed to be dismissed.

4. In this case no issues were framed because original defendant was proceeded ex parte, however, trial court has framed the points of determination and which are really the issues which were called for decision in the subject suit for specific performance.

5. We are not concerned that part of the impugned judgment by which the trial court has dismissed the suit for specific performance by observing that the respondent/plaintiff has failed to prove the readiness and willingness, and we are only concerned as to whether appellant/defendant had received, whether under the agreement to sell or otherwise, a sum of Rs.3 lacs from the respondent/plaintiff.

6. In this regard, it is to be noted that though the appellant/defendant denied having signed any agreement to sell and he pleaded the he had taken a loan of Rs 3 lacs of which an amount of Rs. 1.5 lacs was repaid to respondent/plaintiff, however, the respondent/plaintiff filed and proved on record the Ikrarnama dated 19.2.2011/Ex.PW1/J entered into between the parties in the police station in the presence of as many as three witness with one witness being Sh. Azhar the son of the appellant/plaintiff. Ex.PW1/J clearly reflected that appellant/defendant had received a sum of Rs.3 lacs from the respondent/plaintiff for sale of the property and that in case the amount is not returned by 20.4.2011, then the appellant/defendant would sell the property to the respondent/plaintiff. Trial court accordingly by relying on Ex.PW1/J has held that there was entered into an agreement to sell between the parties under which the appellant/defendant had received a sum of Rs.3 lacs as reflected from Ex.PW1/J. It may be noted that the appellant/defendant did not deny that his signatures did in fact appear on the Ikrarnama Ex.PW1/J. The relevant observations of the trial court in this regard are contained in paras 13 and 14 of the impugned judgment and which paras read as under:-

13. These documents have not been disputed by the defendant either. However, tho