P.K. BHATIA Vs. SIMARJEET SINGH AND ORS.

JUDGEMENT

(1.) THE challenge by means of the present Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 is to the impugned judgment and decree dated 10.12.98 whereby the suit of the Respondents/plaintiff was decreed against the Appellant/Defendant No. 1 for Rs. 2,60,000/ - with simple interest @ 6% per annum simple from the date of decree till realization. The original suit filed was for specific performance and which relief was declined to the Respondent/plaintiff on account of the fact that the Appellant/Defendant No. 1 was not the owner of the property, and the owners were his brothers namely the Defendants No. 2 and 3 in the suit and who are the Respondents No. 2 and 3 in the present appeal.

(2.) THE facts of the case are that the Appellant entered into an agreement to sell dated 10.10.94 with the Respondent No. 1/plaintiff for selling of the first floor of the property bearing No. B -35/7, Industrial Area, G.T. Karnal Road, Delhi for the total sale consideration of Rs. 3,60,000/ - and received an amount of Rs. 60,000/ - as an advance. The Appellant/Defendant No. 1 represented that he was fully entitled to sell the property, which in fact belongs to his brothers the Defendants/Respondents No. 2 and 3 in the suit.

(3.) LEARNED senior counsel for the Appellant argued that there is no evidence which was led by the Respondent No. 1/plaintiff to show that the prices of the property had increased in the meanwhile and that if the Respondent No. 1/plaintiff had gone to the market, he would have suffered loss by purchasing a similar property at a higher cost. Learned Counsel for the Appellant has taken me through the deposition of the Respondent No. 1/plaintiff and also the cross examination of the Appellant/Respondent No. 1's witnesses to show that no such case was put up. It has therefore been argued that even assuming the Appellant/Respondent No. 1 was guilty of breach of contract, unless damages are properly quantified and proved an amount of Rs. 2,00,000/ - could not be awarded against the Appellant/Respondent No. 1.