BALWANT SINGH Vs. RAM CHARAN

JUDGEMENT

(1.) THIS matter is on the Regular Board of this Court since 2.2.2012. Today, it is effective item No. 18 on the Regular Board. No one appears for the respondent although it is 12:45 P.M. I have hear counsel for the appellant and after perusing the record am 'proceeding to dispose of the appeal. Learned Counsel for the appellant/plaintiff on instructions from the appellant/plaintiff who is present in person confines his relief in the appeal to refund of the amount of Rs. 2,70,000/ - which is paid under the subject agreement to sell along with interest at 9% per annum simple from the date of payment which is the date of agreement to sell viz. 24.8.2001.

(2.) THE present appeal impugns the judgment and decree of the Trial Court dated 29.9.2003 dismissing suit for specific performance under the agreement to sett dated 24.8.2001 with respect to the suit property No. 688 -A, Khasra No. 53 situated in the Abadi known as Gosian Mohalla, Township, Najafgarh, New Delhi. The property is situated on a plot admeasuring 105 sq. yds. It was not disputed before the Trial Court that when the agreement to sell dated 24.8.2001 was entered into for a total consideration of Rs. 8,0,000/ -, of which a sum of Rs. 2,70,000/ - was received by the respondent/defendant The respondent/defendant claims to have forfeited this amount on account of breach of contract by the appellant/plaintiff. There are however no pleadings or evidence to the effect that forfeiture has taken place because the respondent/defendant has suffered a loss. Before an amount can be forfeited which is paid as an advance price under an agreement to sell, it is necessary to plead and prove that the loss has been caused to the proposed seller/defendant. This is a ratio of the Constitution Bench judgment of the Supreme Court in the case of Fatah Chand Vs. Balkishan Dass, : (1964) 1 SCR 515; AIR 1963 SC 1405 and relevant paras 8,10,15 and 16 of this judgment read as under: -

(3.) AS per the provision of Order 7 Rule 7 of the Code of Civil Procedure, 1908 (CPC), Court can modulate the relief which can be given in the facts and circumstances of the case, though the relief is not specifically asked for. I am also empowered to modulate the relief in terms of Order 41 Rule 33 CPC since the respondent/defendant does not dispute of having received the amount of Rs. 2,70,000/Sires specific performance was not granted to the appellant/plaintiff, therefore, the respondent/defendant cannot have unjust enrichment by retaining the amount of Rs. 2,70,000/ -, although no loss is pleaded or proved to be caused in terms of the ratio of the judgment in the case of Fateh Chand (supra).