Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(HP) 825

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
VIRENDER SINGH, J.
Pradeep Sen and Another – Appellants
Versus
Desh Raj Verma – Respondent
RFA No. 110 of 2017
Decided On : 23-12-2022

Advocates:
Advocate Appeared:
For the Appellant : Lalit Kumar Sehgal.
For the Respondent: Surinder Saklani.

Point of Law: Agreement between parties was agreement for sale of immovable property and this amount was not given by plaintiff as loan - It is not also pleaded by plaintiff that he had lent this amount to defendants, for which, he has a right to recover the amount, with interest.

Headnote:
Code of Civil Procedure , 1908 - Section 96 - Bombay Rents, Hotel and Lodging House Rates Control Ac, 1947 - Sections 5(10)(B), 7, 9(2)(b) and 12(3) – Land - Decreed – Recovery - Permanent prohibitory injunction – Plaintiff has filed the suit for recovery as well as, for permanent prohibitory injunction against defendants, on ground that defendant No. 2-Karan Vir Singh Pathania had posed himself as General Power of Attorney of defendant No. 1-Pradeep Sen and as such, he had entered into an agreement to sell with plaintiff , regarding land comprised in Khata Khatauni No. 83/79, Khasra Nos. measuring 01-34-39 hectare (17.17 bighas), situated in Muhal Dhamechi, Patwar Circle Beolia, Shimla Gramin, Tehsil and District for a consideration, in favour of plaintiff - Plaintiff has further asserted that when bargain was stuck between parties, it has been assured by defendants that suit land is free from all encumbrances, charges, claim, mortgage, litigation etc. and it has also been agreed that if there will be any defect in title of seller, then, they shall make all losses, suffered by plaintiff, good - Whether plaintiff is entitled to relief of recovery, as claimed by him, in plaint - Court has also to take judicial notice of fact that there is escalation in the prices of real estate and according to clear intention of parties, in this case, time was essence of contract - That is why a stipulation has been mentioned, in the agreement to sell, to forfeit earnest money, in case of non-performance of the contract by the plaintiff. (Para 42)
Finding of Court :
Relief sought by plaintiff is not liable to be granted to him on another count also - When relationship is governed by agreement between parties, then, setting conditions, with regard to GPA, as well as, getting the revenue record corrected, seems to be an afterthought story, as, there is nothing on record, to show that plaintiff had ever issued such notice, by bringing the above two facts, which are not the subject matter of agreement, between the parties, to knowledge of defendants - Sole statement of plaintiff is not liable to be accepted as gospel truth - Considering all these facts, Court is of considered opinion that learned trial Court has wrongly granted relief of recovery to plaintiff, as, this amount has already been forfeited, on account of non-performance of conditions of document, which governs the relationship between the parties - Time was essence of contract and plaintiff has miserably failed to perform his part of contract and suit of the plaintiff is liable to be dismissed.
Result : Appeal is allowed and suit of plaintiff is dismissed.

JUDGMENT :

VIRENDER SINGH, J.

1. Appellants have preferred this Regular First Appeal, under Section 96 of the Code of Civil Procedure (hereinafter referred to as ‘CPC’) against the judgment and decree, dated 30th December 2016 (hereinafter referred to as ‘the impugned judgment and decree’), passed by the learned Additional District Judge-I, Shimla, H.P. (hereinafter referred to as ‘the learned trial Court’), in Civil Suit RBT No. 3-S/1 of 14/12, titled as Desh Raj vs. Pradeep Sen and Another.

2. By virtue of the impugned judgment and decree, the learned trial Court has decreed the suit of the respondent, for recovery of Rs. 25,00,000/- (Rupees Twenty Five Lakh only), alongwith interest @ 9% per annum, from the date of filing of the suit till the realization of the amount, against the appellants.

3. For the sake of convenience, parties to the lis, are hereinafter referred to, in the same manner, as referred to, by the learned trial Court.

4. Brief facts, leading to the filing of the present appeal, before this Court, may be summed up, as under:

Plaintiff-Desh Raj has filed the suit for recovery of Rs. 25,00,000/- (Rupees Twenty Five Lakh only), as well as, for permanent prohibitory injunction against the defendants, on the ground that defendant No. 2-Karan Vir Singh Pathania had posed himself as General Power of Attorney (hereinafter referred to as ‘GPA’) of defendant No. 1-Pradeep Sen and as such, he had entered into an agreement to sell with the plaintiff on 10th August, 2011, regarding the land comprised in Khata Khatauni No. 83/79, Khasra Nos. 214, 215, 216, 217, 218, 219, 220, 221, 222, 223, measuring 01-34-39 hectare (17.17 bighas), situated in Muhal Dhamechi, Patwar Circle Beolia, Shimla Gramin, Tehsil and District Shimla (hereinafter referred to as ‘the suit land’) for a consideration of Rs. 6,50,00,000/- (Rupees Six Crore Fifty Lakh only), in favour of the plaintiff.

4.1 The terms and conditions of the agreement were reduced into writing on 10th August, 2011 and at that time, the plaintiff had paid a sum of Rs. 22,00,000/- (Rupees Twenty Two Lakh only) in cash and Rs. 3,00,000/- (Rupees Three Lakh only) vide cheque No. 195545, dated 10th September, 2011. Thus, the plaintiff had paid a sum of Rs. 25,00,000/- (Rupees Twenty Five Lakh only), as advance money, which was duly acknowledged by defendant No. 2 and the balance sale consideration of Rs. 50,00,000/- (Rupees Fifty Lakh only) was agreed to be paid on or before 16th November, 2011 and further balance amount of Rs. 5,75,00,000/- (Rupees Five Crore Seventy Five Lakh only) was agreed to be paid by the plaintiff, at the time of execution of the sale deed, which was fixed to be on or before 31st March, 2012.

4.2 The plaintiff has further asserted that when the bargain was stuck between the parties, it has been assured by the defendants that the suit land is free from all encumbrances, charges, claim, mortgage, litigation etc. and it has also been agreed that if there will be any defect in the title of the seller, then, they shall make all the losses, suffered by the plaintiff, good.

4.3 It is the further case of the plaintiff that at the time of execution of the agreement to sell, dated 10th August, 2011, the suit land was shown to be in possession of one Mansha Ram, s/o Sh. Hem Ram, s/o Sh. Karam Dass, in his capacity as Gair Moroos (tenant), in the revenue record, i.e. jamabandi for the year 2007-08 and defendant No. 2 had assured that before the execution of the sale deed, he will get the revenue entry, corrected, with regard to the possession of the suit land. Before this, defendant No. 2 had also assured the plaintiff to supply the authenticated copy of GPA, executed by defendant No. 1.

4.4 After the execution of the said agreement, the plaintiff had approached defendant No. 2 on 16th November, 2011, on the day, when the second installment of Rs. 50,00,000/- (Rupees Fifty Lakh only) was agreed to be paid by the plaintiff, to defendant No. 1 and requested him to supply the cop