The court upheld the direction under Order XXXIX Rule 10 CPC for the appellants to deposit the disputed amount pending adjudication of the suit.

JUDGMENT

Sanjeev Sachdeva, J. - Cm APPL.1534/2021(early hearing)

1. The hearing was conducted through video conferencing.

2. This is an application for early hearing. For the reasons stated in the application, the application is allowed.

3. The appeal is taken up for hearing today.

FAO 159/2020

1. Appellant impugns order dated 15.07.2020 whereby the application filed by respondents under Order XXXIX Rule 10 CPC has been allowed and appellants have been directed to deposit a sum of Rs.58 lacs by way of a Fixed Deposit Receipt with the Trial Court.

2. Learned counsel for the appellants contends that the Trial Court has erred in directing deposit of the amount as the respondents themselves were in breach of the Agreement and the appellants have suffered a loss. It is contended that the flat of the appellants which was agreed to be purchased by the respondents was ready for delivery and since the prices had gone down, respondents were not interested in purchasing the same and defaulted in making further payments on account of which the appellants were constrained to sell the flat at a loss.

3. Learned counsel for the appellants submits that the respondents are liable to compensate the appellants for the loss and as such there is no question of appellants refunding any money.

4. On the other hand, learned counsel for the respondents contends that admittedly appellants had received advance from the respondents towards sale of their flat. Learned counsel submits that repeated acknowledgements were made by the appellants in various correspondences that appellants were liable to refund the amount and did not have the requisite finances for the same.

5. Learned counsel for respondents further contends that the flat was agreed to be sold to the respondents for Rs.2,47,00,000/- and subsequently is alleged to have been sold for only Rs.60 lakhs which is unbelievable.

6. The admitted position is that an Agreement to Sell in the form of a bayana receipt was executed between the parties on 13.06.2012. Respondents paid an amount of Rs.49,50,000/- and subsequently paid further amounts of Rs.9,75,000/- and Rs. 30 lakhs. Total amount paid by the respondents was Rs.1,05,50,000/-.

7. Respondents cancelled the Agreement and sought refund of their money. Appellants disputed that entire amount of Rs.1,05,50,000/- was received towards the sale consideration. It was contended that some of the money had been paid to the Interior Designer by the respondents themselves and some payments were on other heads. It was only admitted that Rs.88 lakhs was received under the Agreement towards sale consideration, out of which Rs.30 lakhs have been refunded and admittedly Rs.58 lakhs was in the hands of the appellants.

8. Respondents along with the plaint had filed copy of the legal notice dated 16.06.2014 whereby, respondents had sought refund of Rs.1,05,50,000/-. In response to the said notice, appellants sent a letter dated 25.06.2014, wherein they did not dispute any of the contentions in the legal notice but stated that they would like to meet personally and amicably resolve the issue and they reiterated their intention of settling the transaction at the earliest.

9. Along with the plaint further correspondence was also annexed, particularly, the response given by the Appellants through their Advocate, to a letter received from the respondents dated 23.10.2015, wherein also they stated that they had to make the balance payment of Rs.67 lakhs. This was again reiterated through their Advocate's letters dated 06.09.2016 and 09.09.2016.

10. Even in the Written Statement, the stand of the appellants is that they have received a sum of Rs.88 lakhs, out of which Rs. 30 lakhs has been refunded leaving a balance of Rs.58 lakhs. Though it is contended in the Written Statement that earnest money deposited of Rs.49,50,000/- is liable to be adjusted, however appellants have not shown any document whereby any amount was given as an earnest money. Be that as it may, this is a question whi