N K TOMAR Vs. VIRAJ IMPEX LTD

JUDGEMENT

(1.) The appellant herein filed suit for recovery of money, which has been dismissed by the learned Single Judge on the ground that despite opportunities, no evidence was led by the appellant/plaintiff. Challenging the same the appellant has filed FAO (OS) under Order XLIII of the Civil Procedure Code, 1908 read with Section X of the Delhi High Court Act. When the matter came up on an earlier occasion, learned counsel for the respondent raised objection to the maintainability of the appeal on the ground that the appeal is not against an "order" but against "final judgment and decree" and, therefore, only Regular First Appeal is maintainable. Under these circumstances, the appellant has filed this application for converting the said FAO into RFA. Requisite court fee has also been filed, which is payable in the appeal. In view of the aforesaid, we permit this application. This FAO (OS) shall be treated as RFA (OS) and shall be assigned appropriate number by the Registry.

(2.) The appellant herein (referred as the "plaintiff" hereafter) had filed CS (OS) No. 22/1999 for recovery of Rs.22 lacs along with interest and costs against the respondent herein. In the plaint it was alleged by the plaintiff that he had paid certain amounts as advance towards negotiations in respect of purchase of agricultural land situated at village Kapashera, Delhi. According to the plaintiff, a sum of Rs.2 lacs was given on 16.8.1995 vide DD and further sum of Rs.20 lacs was paid to the defendant (respondent herein) on 1.1.1996, which was a payment made through cheque. It was further alleged that the negotiations ultimately did not fructify and deal failed through because of which the defendant became liable for refund of the said amount of Rs.22 lacs. On these averments, the suit for recovery of the said amount, along with interest and costs, was filed on 4.1.1999.

(3.) In the written statement filed by the defendant, receipt of the aforesaid amount of Rs.22 lacs is admitted. It was also admitted that the amount was paid in respect of purchase of agricultural land situated at Village Kapashera, Delhi, for which negotiations were held between the parties. However, the defence of the defendant was that it is the plaintiff who did not come forward by making balance payment in respect of the said deal and because of this reason, the amount of Rs.22 lacs was forfeited. Some preliminary objections to the maintainability of the suit as well as limitation etc. were also taken by the defendant and keeping in view the pleadings of the parties, following issues were framed on 12.1.2005 :-