OM PRAKASH GUPTA Vs. VED PRAKASH

JUDGEMENT

(1.) This Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is filed by the plaintiff in the suit impugning the Judgment of the Trial Court dated 19.11.2016 by which the trial court has dismissed the suit filed by the appellant/plaintiff for recovery of a sum of Rs. 36,38,500/- from the respondent/defendant. Appellant/plaintiff claimed the amounts from the respondent/defendant pursuant to the Agreement dated 6.5.2011, Ex.PW3/4, and which Agreement acknowledged that the respondent/defendant had sold excess land as an Attorney of the appellant/plaintiff and had not paid the sale consideration of the excess land to the appellant/plaintiff, and therefore by the Agreement dated 6.5.2011 a sum of Rs. 40,68,500/- was agreed to be paid to the appellant/plaintiff.

(2.) The facts of the case are that the appellant/plaintiff pleaded that he was the owner of the total land measuring 6931 sq. yds comprising of K.No.94/1 to 94/4 in the Revenue Estate of Village Karala, New Delhi. The appellant/plaintiff had entered into an Agreement to Sell of only 2100 sq. yds. out of total land of 6931 sq. yds. but the respondent/defendant sold the entire area of 6931 sq. yds. When confronted, the respondent/defendant by the Agreement dated 6.5.2011, hence agreed to pay the sum of Rs. 40,68,500/- to the appellant/plaintiff. The respondent/defendant however only paid to the appellant/plaintiff a sum of Rs. 2 lacs on 26.5.2012, and a further sum of Rs. 2 lacs on 17.12012 and thereafter another sum of Rs. 30,000/-, but thereafter the respondent/defendant changed his attitude and failed to pay the balance amount. The appellant/plaintiff therefore served the legal notice dated 1.5.2014 on the respondent/defendant, and thereafter the subject suit was filed.

(3.) Respondent/Defendant appeared in the suit through counsel but did not filed the written statement nor paid the cost imposed. Respondent/Defendant also therefore did not lead evidence. On the other hand the appellant/plaintiff led evidence and proved the Agreement dated 6.5.2011 through the attesting witness namely Sh. Brij Mohan Singh who deposed as PW-2 and another witness who was present at the time of the execution of the Agreement Sh. Harbans Kataria who deposed as PW The respondent/defendant even in spite of service in this appeal has failed to appear. The issues framed in the suit and evidence led by the appellant/plaintiff before the trial court are as under:-