BHULEY SINGH Vs. KHAZAN SINGH & ORS.

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 of the Trial Court dated 3.3.2011 which dismissed the suit for recovery of Rs.10,00,000/ - filed by the appellant/plaintiff against the defendants/respondents. The amount of Rs.10,00,000/ - was claimed being double the amount of earnest money of Rs.5,00,000/ - which was paid under an agreement to sell dated 5.1.2007. By the agreement to sell dated 5.1.2007, the appellant/plaintiff had agreed to purchase and the respondents/defendants had agreed to sell the suit property measuring 2,000 square yards forming part of Khasra no.72, Village Sabhapur, Chauhan Patti, Illaka Shahdara, Delhi.

(2.) WHEN notice was issued in this appeal, counsel for the appellant confined his relief in the appeal not for payment of double the amount of earnest money but for refund of the advance price paid of Rs.5,00,000/ - . This relief claimed is a lesser relief than the original relief of double the amount of earnest money. Learned Counsel for the appellant pleaded that the only defence of the respondents/defendants in the written statement was that they had forfeited the earnest money on account of breach of contract by the appellant/plaintiff. To this, counsel for the appellant argues that an earnest money or advance price paid under an agreement, cannot be forfeited, except for a nominal amount in view of the Constitution Bench decision of the Supreme Court in the case of Fateh Chand Vs. Balkishan Dass, : (1964) 1 SCR 515 : AIR 1963 SC 1405. Counsel for the appellant/plaintiff relied upon the following paragraphs of the judgment in the case of Fateh Chand (Supra):

(3.) PER contra the Learned Counsel for the respondents/defendants very vehemently argued that there was no requirement of any pleadings or any evidence of the respondents/defendants to show that any loss was caused, inasmuch as it was upon the appellant/plaintiff firstly to prove that he was entitled to refund of the advance money paid under the contract. Learned Counsel for the respondents/defendants further argued that there was no issue which was framed in the Trial Court for refund of the amount paid of Rs.5,00,000/ - and therefore there was no need for the respondents/defendants either to plead or prove any loss which is caused to them. It is also argued on behalf of the respondents/defendants that in the case the respondents/defendants have not received Rs.5,00,000/ - but have only received Rs.4,00,000/ - as Rs.1,00,000/ - had been paid to the property dealer. Finally it is argued that in the cross -examination of the appellant/plaintiff, a case was put forth that the loss was caused to the respondents/defendants.