SHASHI Vs. NAVEEN SANGHAVI

JUDGEMENT

(1.) This Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is filed by the defendant in the suit impugning the judgment of the Trial Court whereby the Trial Court has decreed the suit for recovery of Rs. 2,10,000/- alongwith interest, and this amount is held in as liable to be paid/refunded because it was the appellant/defendant who had failed to perform her part of the contract/Agreement to Sell and thus because of committing breach, the amount received of Rs. 2,10,000/- under the subject agreement to sell cannot be forfeited.

(2.) I need not narrate the facts in detail because entering into the Agreement to Sell between the parties dated 7.5.2011, Ex.PW1/2 is not disputed. That the appellant received a sum of Rs.2,10,000/- under the Agreement to Sell dated 17.5.2011 is also not disputed by the appellant/defendant. In my opinion, there is no need to go into the aspect as to whether or not the respondent/plaintiff was guilty of breach of contract, or instead whether the appellant/defendant was or was not guilty of breach of contract, because the law is that even if a buyer such as the respondent/plaintiff is guilty of breach of contract, a seller such as the appellant/defendant, cannot forfeit the amount paid under an Agreement to Sell unless the seller pleads and proves any loss caused to him on account of breach of contract by the buyer/respondent/plaintiff. In this case there is no pleading and proof especially of a specific/particular amount, that the appellant/defendant suffered any loss on account of the stated breach by the respondent/ plaintiff/buyer under the agreement to sell.

(3.) It is held by the Constitution Bench of the Supreme Court in the case of Fateh Chand Vs. Balkishan Dass, 1963 AIR(SC) 1405, and which judgment has been recently followed by me in the judgment in the case of M.C. Luthra Vs. Ashok Kumar Khanna, 2018 248 DLT 161 that a seller cannot forfeit amounts paid under an agreement to sell unless causing of loss to him is duly established. In M.C. Luthra's case I have distinguished the judgment of the Supreme Court in the case of Satish Batra Vs. Sudhir Rawal, 2013 1 SCC 345 by placing reliance upon a later judgment of the Supreme Court in Kailash Nath Associates Vs. Delhi Development Authority and Another, 2015 4 SCC 136, and that a seller under an Agreement to Sell cannot forfeit the amount paid under the Agreement to Sell unless loss is pleaded and proved by a seller, such as the appellant/defendant in this case. An SLP(C) 11702/2018 against the judgment in the case of M.C.Luthra has been dismissed by the Supreme Court vide order dated 15.5.2018. The relevant paragraphs of the judgment in the case of M.C.Luthra are paras 4 to 17 and these paras read as under:- IN WITNESS WHEREOF BOTH THE PARTIES HAVE PUT THEIR RESPECTIVE HS ON THIS AGREEMENT IN PRESENCE OF THE FOLLOWING WITNESSES:-