RAJENDER KUMAR Vs. RAMA BALA GUPTA

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 29.11.2016 by which the trial court has dismissed the suit for specific performance filed by the appellant/plaintiff with respect to the suit property bearing no. E-2, Upper Ground Floor, Jawahar Park, Laxmi Nagar, Delhi-110092 and with respect to which, the parties had entered into two agreements on 20.02.2008, one being an Agreement to Sell and another being an Memorandum of Understanding (hereinafter "MOU").

(2.) The facts of the case are that the appellant/plaintiff pleaded that he had entered into two agreements with the respondent/defendant, with the appellant/plaintiff being the buyer and the respondent/defendant being the seller, whereby the suit property was agreed to be sold to the appellant/plaintiff for a sum of Rs. 27 lakhs. The first agreement is the Agreement to Sell is dated 20.02.2008, and this document records the receipt of Rs. 4.50 lakhs as advance earnest money by the respondent/defendant. The MOU of the same date i.e. 20.02.2008 records that the appellant/plaintiff has to take a housing loan with respect to the property, and that if the appellant/plaintiff is not successful in getting the housing loan, then the agreement to sell will stand superseded and the respondent/defendant will return the earnest money amount of Rs. 4.50 lakhs. The MOU refers to cheque no. 993885 dated 18.08.2008 drawn on the Oriental Bank of Commerce, Rohini, Delhi being handed over by the respondent/defendant to the appellant/plaintiff as security for return of the earnest money. The appellant/plaintiff pleaded that it was the respondent/defendant who was guilty of breach of contract in not completing the Agreement to Sell, and the appellant/plaintiff was ready and willing to perform his part of the contract. Hence, the subject suit for specific performance was filed.

(3.) The respondent/defendant contested the suit and denied that the parties had entered into any agreement to sell. The respondent/defendant contended that parties had actually only entered into a loan transaction whereby the respondent/defendant had taken a sum of Rs. 4 lakhs from the appellant/plaintiff as loan and was to return a sum of Rs. 4.50 lakhs by 18.08.2008, with the amount of Rs. 50,000/- comprised in a sum of Rs. 4.50 lakhs being towards the interest payable. It was also denied that the appellant/plaintiff was ready and willing to perform his part of the contract. The suit was therefore prayed to be dismissed.