VINOD KUMAR SHARMA Vs. GEETA KHURANA

JUDGEMENT

(1.) C.M. Appl. No. 27366/2017 (for exemption) Exemption allowed, subject to all just exceptions. The application stands disposed of. FAO No. 328/2017 and C.M. Appl. No. 27365/2017 (for stay) This first appeal under Order XLIII (1)(d) of the Code of Civil Procedure, 1908 (CPC) is filed by the defendant in the suit impugning the judgment of the court below dated 5.7.2017 whereby the application filed by the appellant/defendant under Order IX Rule 13 CPC has been dismissed.

(2.) The facts of the case are that respondent/plaintiff filed a suit for recovery of Rs. 34,56,250/- against the appellant/defendant on the ground that a sum of Rs. 25,00,000/- was paid by the respondent/plaintiff to the appellant/defendant under an agreement to sell dated 6.2.2013 with respect to second floor without roof rights with ?th share in the parking and other amenities in the property bearing old Municipal no. 55, new Municipal no. 53, land admeasuring 200 sq. yards, built on plot no. 5, situated in the area of Village Sandhor Kalan abadi, Sri Nagar Colony, Delhi. Respondent/plaintiff claimed that out of the total sale consideration of Rs. 1,05,00,000/- an amount of Rs. 25,00,000/- was paid to the appellant/defendant. As per the plaint the respondent/plaintiff pleaded breach on the part of the appellant/defendant, that the plot in question was only 150 sq. yards and 200 sq. yards, that the appellant/defendant demanded further amounts before executing the sale deed and which was envisaged under the agreement to sell, that the appellant/defendant committed breach of the contract by constructing the property and accordingly since the appellant/defendant wrongly terminated the contract, the respondent/plaintiff was entitled to return of the amount of Rs. 25,00,000/- paid along with interest.

(3.) It is disputed by the appellant/defendant, through its counsel before this Court, that the appellant/defendant was served in the subject suit filed for recovery of Rs. 34,56,250/- along with interest. Appellant/defendant was served for 18.8.2015 in the suit and which suit was instituted on 11.5.2015. Since the appellant/defendant failed to appear on 18.8.2015 and was set ex-parte, after evidence was led by the respondent/plaintiff, the suit was decreed after about one and a half years on 3.12.2016. In the application under Order IX Rule 13 CPC the only reason given by the appellant/defendant for appearing in the suit was that he was assured by the respondent/plaintiff that the respondent/plaintiff will proceed with the suit. This is stated in paras 19 and 20 of the application under Order IX Rule 13 CPC and these paras read as under:-