The High Court on a second appeal dismissed the defendant-appellant's appeal against the lower appellate court's decree limiting recovery to a portion of the agreement money, holding no illegality or substantial question of law arose.
The second appeals filed by the defendant-appellant were dismissed with costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
RSA No.1655 of 2016 (O&M)
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IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
RSA No.1655 of 2016 (O&M) Date of decision:19.11.2018
Krishan Kumar ... Appellant
Vs.
Umesh Gupta and others ... Respondents
RSA No.1657 of 2016 (O&M)
Krishan Kumar ... Appellant Vs. Umesh Gupta and others ... Respondents
CORAM: HON'BLE MR. JUSTICE AMIT RAWAL
Present:Mr. Deepinder Singh, Advocate for the appellant.
AMIT RAWAL J. (Oral)
This order of mine will dispose of two regular second appeals bearing Nos.1655 and 1657 of 2016 preferred by the defendant arising out of decision rendered in one civil suit bearing No.71 of 2008 preferred by three plaintiffs; Umesh Gupta, Meenakshi Gupta wife of Umesh Gupta and Ajay Gupta claiming recovery of Rs.2,44,759/- i.e. Rs.1,79,969 as principal amount and Rs.64,790/- interest calculated @ 12% per annum from 30.05.2005 to 27.08.2008 and future interest @ 12% per annum on the premise that defendant alongwith plaintiffs had entered into an agreement to sell dated 30.06.2005 in respect of shop alongwith fitting and fixtures for a
SAVITA KADIAN 2018.12.04 12:59 I attest to the accuracy and integrity of this document High Court Chandigarh
RSA No.1655 of 2016 (O&M)
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total sale consideration of Rs.15,00,005/- and received an advance money of Rs.2,00,000/- from plaintiff no.1.
However, plaintiff no.2 owing to matrimonial discord, at that point of time with the plaintiff, refused to vacate the concerned shop and another agreement dated 13.07.2005 in respect of the same property was entered into with the defendant and plaintiff no.2 for a total sale consideration of Rs.6,70,000/- and a sum of Rs.70,000/- was paid by plaintiff no.2-wife.
It is a matter of record that appellant-defendant had registered the sale deed of aforementioned shop on 30.08.2005 in favour of plaintiff no.2. It is in this background of the matter, the plaintiffs claimed the aforementioned amount was paid by way of cheque but did not lay any claim to the sum of Rs.2,00,000/- paid at the time of execution of agreement to sell dated 30.06.2005, as the same had become time barred.
The trial Court decreed the suit by confining the recovery amounting to Rs.50,000/- qua plaintiff no.1 but the Lower Appellate Court modified the decree confining it to Rs.1,05,969/- in favour of plaintiffs no.1 and 3 along with interest @ 6 ½ % per annum from the date of filing of the suit till its realization.
Learned counsel appearing on behalf of the appellant-defendant submitted that plaintiffs have been deprived of the actual price of the property having agreed to be sold by way of an agreement to sell dated 30.06.2005 and was thus, distressed to sell for a paltry amount of Rs.6,70,000/- on 30.08.2005 in favour of plaintiff no.2. No doubt, the
SAVITA KADIAN 2018.12.04 12:59 I attest to the accuracy and integrity of this document High Court Chandigarh
RSA No.1655 of 2016 (O&M) {3}
plaintiffs have not staked any claim with regard to Rs.2,00,000/- but are not entitled to balance amount as the same was deemed to have been forfeited.
I am afraid the aforementioned argument is not sustainable in the eyes of law, for, no counter claim or any legal notice in this regard of forfeiture or declaration had been filed or claimed.
It is a matter of record that amount awarded by the Lower Appellate Court of Rs.50,000/- each paid by plaintiffs no.1 and 3 was by way of cheque. Since the appellant-defendant had already parted with the ownership of the property, plaintiffs no.1 and 3 had no other choice but to seek recovery of amount. This is what the import of the judgments and decrees of the Courts below.
As an upshot of my findings, I do not find any illegality and perversity in the judgments and decrees under challenge which are based upon the appreciation of oral and documentary evidence, much less no substantial question of law arises for adjudication of the present appeals.
Resultantly, the appeals are dismissed.
| (AMIT RAWAL) JUDGE |
|
|---|---|
| November 19, 2018 | |
| savita | |
| Whether Speaking/Reasoned | Yes/No |
| Whether Reportable | Yes/No |
SAVITA KADIAN 2018.12.04 12:59 I attest to the accuracy and integrity of this document High Court Chandigarh
2 issues framed by the court
Whether the lower appellate court commits illegality or perversity in not allowing the full balance of the consideration amount.
Whether a substantial question of law arises on the facts appreciated by the courts below.
Krishan Kumar
Umesh Gupta
Amit Rawal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
