LOKESH Vs. RAMESHWAR TYAGI

JUDGEMENT

(1.) Rajbir Sehrawat, J. (Oral) - The present appeal has been filed, by the legal representatives of Satish Kumar, the plaintiff; against the concurrent judgment and decree passed by the Courts below; whereby the suit filed by the above said Satish Kumar for recovery of L 10,00,000/- from the defendants, which was paid by him as earnest money in an agreement to sell, has been dismissed. For convenience the parties would be referred to herein as the plaintiff and the defendant as they were described in original suit.

(2.) The brief facts, as pleaded by plaintiff and mentioned in the judgment of the lower Appellate Court; are that on 03.04.2006, the defendant agreed to sell the land measuring 28 Kanals 11 Marlas, comprised in Khasra Nos. mentioned in the agreement, situated in Village Kheri Tagga, Tehsil Gannaur, District Sonepat, to the plaintiff for a sale consideration at the rate of L 17,70,000/- per acre. He had received L 10,00,000/- from the plaintiff. The target date for execution of the sale deed was fixed as 29.05.2006. It was not recorded in the agreement that the defendant was the absolute owner of the land. However, the agreement stipulated that the defendant had agreements in his favour from several persons, who were the co-sharers in the land, to purchase this land and those agreements contained stipulations that the defendant could get the sale deed executed in his favour or in favour of the somebody else. On the target date i.e. 29.05.2006, the sale deed could not be executed because the defendant could not arrange for NOC qua the suit land and could not bring all the abovesaid co-sharers to execute the sale deed in favour of the plaintiff. Since, the defendant kept postponing the matter; expressing his inability to execute the sale deed because of the lack of title, therefore, the plaintiff asked him either to refund the earnest money or to get a General Power of Attorney (GPA) from all his vendors, so as to execute the sale deed in favour of the plaintiff. However, instead of either returning L 10,00,000/- to him or getting GPA from his vendors, the defendant hatched a conspiracy to usurp the amount of earnest money by hook or by crook. Hence, the defendant got the notice dated 09.06.2006 served upon the plaintiff through his Advocate. However, the plaintiff also replied to the notice through Advocate on 15.06.2006 and asked the defendant that he should acquire the title qua the land in question and inform the plaintiff about the date of executing the sale deed, otherwise the plaintiff would be entitled to the refund of L 10,00,000/-, besides damages and interest at the rate of 18% per annum. However, instead of acquiring the title of the land to be sold by him to the plaintiff, the defendant again got served a notice dated 19.06.2006, by way of rejoinder to the reply of the plaintiff. Faced with the situation, the plaintiff again sent a final reply dated 04.07.2006 to the defendant. In this letter, it was stated that the plaintiff and his brother will obtain the equal share, each having half share in the land being purchased, and that they have got sufficient amount in their bank accounts. It was further stated in this letter that till date, the defendant was not having the title of the suit land to confer the same upon the plaintiff; by way of executing the sale deed in favour of the plaintiff. Therefore, it was called upon the defendant that he should either obtain the sale deed in his favour from all the original owners or he should, at least, obtain the GPA from all the original owners-with whom he claims to have agreement to purchase the suit land, so that he can execute the sale deed in favour of the plaintiff. It was further written in this communication that the defendant should inform the plaintiff about acquiring of the GPA in his favour upto 31.07.2006. Otherwise, the agreement shall stand cancelled and the plaintiff will be entitled for refund of the earnest money. By this communication, the defendant was also asked to obtain and send to the plaintiff a copy of No Objection Certificate (NOC) in respect of the entire land. It was further pleaded in the suit that the defendant has, thereafter, neither sent any reply to this communication nor obtained any GPA or NOC in his favour so as to execute the sale deed of the land mentioned in the agreement. Hence, it was claimed that the plaintiff has asked the defendant several times to refund the money, he having failed to execute the sale deed. However, the claim has not been admitted by the defendant. Hence, the suit was filed.

(3.) Upon notice, the defendant filed written statement. It was claimed in the written statement that the defendant has not claimed to be the owner of the land in question. However, the defendant had agreements with the original owners of the land to sell the land in favour of the defendant or any person as per the wish of the defendant. It was claimed by the defendants that the plaintiff was not ready and willing to get the sale deed executed in his favour. It was further claimed that the plaintiff could not insist upon the defendant for obtaining the GPA from all his own vendors; for getting the sale deed executed in favour of the plaintiff. It was claimed that the sale deed in favour of the plaintiff could have been executed directly from the original owners, as per the terms in the agreement between the defendant and the original owner of the suit land. It was further pleaded that on 29.05.2006, the sale deed could not be executed because NOC qua the land had not been issued by the authorities. Hence, the date was extended upto 05.06.2006. After obtaining NOC, the plaintiff was informed and agreed to get the sale deed executed. However, he has failed to get the sale deed executed. In view of the above, the dismissal of the suit was prayed for.