DEVENDER KUMAR Vs. BRIJESH & ANR

JUDGEMENT

(1.) The plaintiff has instituted this suit for recovery of Rs.4,80,40,000/- pleading, (i) that the defendant no.1 represented himself to be the owner of land comprised in Khasra no.78/15 (2-15), 78/16 (1-2), 77/11/1 (2-8), 17 (4-16), 18 (4-16), 19 (4-16) and 20 (4-16) situated in the Revenue Estate of Village Bakhtawapur, Delhi 110 036 and vide two Agreements to Sell both dated 10th March, 2011, one with respect to 3 bigha 17 biswas of land comprised in Khasra No.78/15 (2-15) and 78/16 (1-2) and the second with respect to 21 bigha 12 biswas of land comprised in Khasra No.77/11/1 (2-8), 17 (4-16), 18 (4-16), 19 (4-16), 20 (4-16) of Village Bakhtawarpur, Delhi, aforesaid agreed to sell the said land to the plaintiff for a consideration of Rs.20,00,000/- and Rs.30,00,000/- respectively and the plaintiff, at the time of execution of the Agreements to Sell, paid advance sale consideration of Rs.2,00,000/- and Rs.3,00,000/- respectively to the defendant no.1; (ii) that while the two Agreements dated "11th March, 2011" were alive and enforceable, the defendant no.1 offered to the plaintiff that in case the plaintiff does not enforce the Agreements and gives up his rights under the Agreements, the defendant no.1 shall pay a sum of Rs.3,00,00,000/- towards compensation besides refunding double the amount of advance received i.e. Rs.10,00,000/- to the plaintiff, in the second week of June, 2013; (iii) that the plaintiff accepted the offer and a formal Memorandum of Understanding (MoU) was executed between the parties on 15th June, 2013; (iv) that with a view to secure the amount payable under the MoU, the defendant no.2 Yashpal Khatri also became a party to the MoU and undertook to pay the amounts mentioned in the MoU in case the defendant no.1 failed to pay the same; thus the liability of the two defendants is joint and several; (v) that pursuant to the MoU, the defendant no.1 has paid only a sum of Rs.30,00,000/- to the plaintiff, leaving a balance of Rs.2,80,00,000/- which has not been paid inspite of repeated reminders; and, (vi) that the defendants had also undertaken to pay interest at 24% per annum and thus, besides the principal amount of Rs.2,80,00,000/-, a sum of Rs.1,90,40,000/- is due towards pre-suit interest. Hence the suit for recovery of Rs.4,80,40,000/-.

(2.) The suit was entertained and summons thereof ordered to be issued. The defendant no.1 failed to file any written statement and in the order dated 20th December, 2016 was held liable to be proceeded against ex parte but has not been proceeded against ex parte as yet and the counsel for the defendant no.1 continues to appear. The defendant no.2 has filed written statement.

(3.) The suit came up before this court on 18th May, 2018 when doubt was expressed as to the maintainability of the suit; it was observed, that the plaintiff, if has suffered loss for breach of contract, has to prove such loss/damages, to be entitled to recover the same; but there are no averments in the plaint qua loss and the monies are sought to be recovered by enforcement of MoU. It was further observed that the Agreements to Sell provided for the consequences of breach of contract and the plaintiff, even if there was any breach by the defendant no.1, could not recover double the amount of advance/earnest money paid as well as damages. However since on that date also the "main counsel" for the plaintiff did not appear and a "non-main counsel" was sent, instead of dismissing the suit, an opportunity was given to the counsel for the plaintiff to explain. Thereafter, on several dates the matter continued to languish. Finally yesterday Mr. Vijay Dahiya, Advocate appeared and was heard on the maintainability of the suit. However after he failed to convince this Court, he stated that he is a junior to. Mr. Ravinder Narwal, Advocate and requested that Mr. Narwal, Advocate be allowed to appear. Accordingly, the hearing was adjourned to today.