VANDANA JAIN Vs. RITA MATHUR AND ORS

JUDGEMENT

(1.) Rfa No.38/2018 and C.M. Nos.1498/2018 (stay), 1499/2018 (for additional evidence) & 15214/2018 (under Order 1 Rule 10 CPC)

(2.) Counsel for the appellant/plaintiff has not pressed the appeal for seeking the relief of specific performance but has only pressed for seeking the relief of recovery of amount of Rs.14 lacs which the appellant/plaintiff had paid to the respondents/defendants under the subject Agreement to Sell. Refund of the amount paid is claimed in exercise of powers of this Court under Order VII Rule 7 CPC while arguing that there is no pleading or evidence led by the respondents/defendants that the respondents/defendants suffered any loss for the amount to be forfeited. It is argued that though there is no specific relief claimed for refund of money but issue no.6 was framed by the trial court as to whether respondents/defendants can forfeit the earnest money amount and parties therefore argued the case with respect to entitlement or disentitlement of the respondents/defendants to retain or not retain the amount paid under the subject agreement to sell.

(3.) The facts of the case are that the appellant/plaintiff filed the subject suit for specific performance of the Agreement to Sell dated 3.8.2011 with respect to the suit property. The total sale consideration was fixed at Rs.1.22 crores of which appellant/plaintiff claimed to have paid a sum of Rs.15 lacs as earnest money. Rs.9 lacs was paid in cash and Rs.6 lacs was paid by means of six cheques of Rs.1 lakh each. Balance amount which remained payable was a sum of Rs.1.07 crores payable within three months from 24.7.2011 to 23.10.2011. The validity of the agreement to sell was said to have been extended till 20.12.2011. Whatever facts as stated above are admitted facts. Thereafter there were re-negotiations between the parties and the sale consideration was reduced to Rs.1.08 crores. The respondents/defendants however by its pleading disputed the change of price by reducing the price. Suit of specific performance was prayed to be dismissed including because of appellant/plaintiff being not ready and willing as per Section 16(c) of the Specific Relief Act, 1963