SHAILESH MUDGIL Vs. VIJAY ARORA

JUDGEMENT

(1.) The challenge by means of this Regular First Appeal under Section 96 of the Code of Civil Procedure (CPC), 1908 is to the impugned judgment and decree of the Trial Court dated 4.6.2011. By the impugned judgment and decree, the suit of the appellant/plaintiff for recovery of an amount of Rs. 4,50,000/- paid under an agreement to sell has been dismissed.

(2.) The facts of the case are that the appellant/plaintiff as a buyer entered into an agreement to sell dated 26.8.2009 with the defendant/proposed seller with respect to entire built up third floor with terrace roof rights of the property bearing No. 24/75, West Patel Nagar, New Delhi-8 situated in a plot of 100 square yards. The total sale consideration was fixed at Rs. 42,50,000/-. The appellant/plaintiff paid a total sum of Rs. 4,25,000/- to the respondent/defendant, being a sum of Rs. 2,50,000/-on 26.8.2009, Rs. 1,00,000/- on 19.9.2009 and Rs. 75,000/- on 2.10.2009. These payments made to the respondent/defendant totalling to Rs. 4,25,000/-is not disputed.

(3.) Disputes and differences arose between the parties because the appellant/plaintiff alleged that the suit property was already mortgaged with Punjab & Sind Bank, Naraina Branch, Delhi and thus respondent/defendant was guilty of breach of contract. The respondent/defendant, on the contrary, charged the appellant/plaintiff with breach of contract and averred that she had entered into an agreement on the basis of the subject agreement to sell, and which is in the danger of cancellation on account of default of the appellant/plaintiff. It was alleged that it was the appellant/plaintiff who was guilty of the breach of contract.