AMRIT PAL SINGH Vs. KAWALJEET SINGH

JUDGEMENT

(1.) Present revision petition has been filed challenging the impugned order dtd. 25/10/2021, whereby an application under Order XII Rule 6 CPC has been dismissed by the learned Trial Court holding inter alia as under:-

(2.) Petitioner has challenged the impugned order primarily on the ground that the learned Trial Court has not appreciated the pleadings of the parties in proper perspective and has also failed to appreciate the ratio laid down by the Hon'ble Supreme Court of India in Kailash Nath Associates vs. DDA: (2015) 4 SCC 136.

(3.) It has been submitted that in Kailash Nath Associates (supra), it was clarified that the forfeiture of an earnest money necessarily falls under Sec. 74 of the Contract Act i.e. before forfeiture can take place it must be necessary that loss must be caused to the respondent and the same must be pleaded by the respondent in his pleadings. It has further been submitted that the respondent himself has admitted to have received a sum of Rs.55.00 lakhs and there is no forfeiture clause in the Agreement to Sell dtd. 12/8/2012. The impugned order has also been challenged on the ground that the learned Trial Court has also not followed the law laid down in Mohan Buildmart Pvt. Ltd. Vs. Hitesh Kumar: 2019 SCC Online Del 6886. It has further been stated that the learned Trial Court has also committed a material irregularity by not appreciating that even if the issues have been framed and the evidence affidavit of the petitioner has been filed, still this court can pass a decree under Order XII Rule 6 CPC as the framing of the issues and the initiation of the evidence is not a bar in decreeing the suit of the petitioner under Order XII Rule 6 CPC.