VIPIN KUMAR Vs. MOHINDER KUMAR

JUDGEMENT

(1.) The present appeal directs challenge against decree and judgment dated 28.01.2015 passed by the Additional District Judge, Gurgaon whereby appeal against judgment and decree dated 13.02.2014 passed by the trial Court was accepted, impugned decree and judgment were reversed and suit filed by respondent/plaintiff was decreed to the following effect:-

(2.) The facts, in brief, are that the appellant is owner of shop/plot No.12, Block H, measuring 310 square feet situated at Gurgaon. He entered into agreement dated 21.04.1994 to sell the suit property at the rate of Rs.3000/- per square feet including all the charges of security, external development and contingency deposit. An agreement - cum- receipt dated 21.04.1994 was executed by the appellant in favour of the respondent. An amount of Rs.50,000/- was paid to the appellant towards part- payment/earnest money and remaining amount was agreed to be paid at the time of registration of sale deed after obtaining income tax clearance (ITC) by the appellant. It was averred that the appellant never moved income tax authorities for grant of ITC nor gave any information in this regard despite repeated reminders including telegram dated 06.06.1994. The appellant, instead of performing his part of contract, preferred to send notice through counsel dated 05.06.1994 stating that since respondent failed to pay the remaining amount of sale consideration within 40 days from the date of agreement, the amount of part payment stood forfeited. The date has been mentioned as 05.06.1994 but the notice, in fact, was issued on 06.06.1994. The respondent sent reply to the notice and expressed his readiness and willingness to perform his part of the agreement. Vide another notice dated 05.08.1994, the respondent requested the appellant to obtain ITC immediately and get sale deed executed on or before 20.08.1994. The respondent attended office of Sub Registrar on 20.08.1994, 21.08.1994 and 22.08.1994. He got his presence recorded on 22.08.1994 but the appellant did not appear.

(3.) The appellant initially filed the written statement on 22.11.1995 but later amended the written statement in pursuance of order dated 26.08.2000. He raised preliminary objections inter alia regarding maintainability, cause of action, concealment of facts, locus standi and privity of contract. The execution of agreement-cum-receipt dated 21.04.1994 has been admitted but it is stated that the same was not signed by the respondent rather was signed by Sh. Harbhans Mahajan. The time was essence of the agreement, to be executed within 40 days but despite repeated requests of the appellant, Harbhans Mahajan failed to send copy of the agreement duly signed by the respondent, required to be presented before the Registrar for obtaining ITC. The agreement was not handed over because the respondent did not have the means to make payment of balance sale consideration that too within 40 days. The agreement had already been revoked by way of notice dated 05.06.1994 and earnest money of Rs.50,000/- stands forfeited. Subsequent reminders by the respondent are nothing but an act of taking advantage of his own wrong. All other material averments of the plaint were denied with a prayer for dismissal of the suit.