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2017 DIGILAW 2224 (DEL)

Rajinder Singh v. Naresh Kumar

2017-07-11

VALMIKI J.MEHTA

body2017
JUDGMENT : VALMIKI J. MEHTA, J. C.M. No. 23776/2017 (exemption) 1. Exemption allowed subject to just exceptions. C.M. stands disposed of. RFA No. 606/2017 2. This Regular First Appeal under Section 96 of Code of Civil Procedure, 1908 (CPC) is filed by the appellant/defendant impugning the judgment of the Trial Court dated 3.3.2017 decreeing the suit for recovery of Rs. 2.5 lacs with interest @ 6% per annum filed for an amount of Rs. 5 lacs along with interest. 3. The facts of the case are that the respondent/plaintiff pleaded that he entered into an agreement to sell dated 24.6.2012 with the appellant/defendant for purchasing appellant’s property bearing no. F-26, Vishwas Park, Uttam Nagar, New Delhi for a sum of Rs. 22 lacs of which a sum of Rs. 2.5 lacs was paid as advance/earnest money. The respondent/ plaintiff pleaded that the appellant/defendant failed to perform his part of the contract, and therefore, the agreement to sell was cancelled and resultantly the respondent/plaintiff became entitled to the double the amount of earnest money in terms of relevant clause of the agreement to sell i.e. an amount of Rs. 5 lacs. The subject suit was therefore filed for recovery of Rs. 5 lacs along with interest. 4. The appellant/defendant though appeared and contested the suit, it is seen that the right of the appellant/defendant to cross-examine PW-1 was closed after repeated opportunities were not utilized. The appellant/defendant also failed to lead evidence despite repeated opportunities and ultimately the right of the appellant/defendant to lead evidence was also closed. The impugned judgment in para 12 refers to the detailed order passed by the trial court on 7.2.2017 as to how the appellant/defendant repeatedly failed to utilize the opportunities for cross-examination of PW-1 and leading his own evidence and thereby resulting in closing of his right. Therefore it is seen that whereas the respondent/plaintiff proved his case and showed that he paid a sum of Rs. 2.5 lacs to the appellant/defendant in terms of the subject agreement to sell dated 24.6.2012 Ex.PW1/1, the appellant/ defendant led no evidence and did not cross-examine the witness of the respondent/ plaintiff. Accordingly the trial court was entitled to decree the suit because the respondent/plaintiff had proved his case and the appellant/defendant failed to do so. 5. A civil case is decided on balance of probabilities. Accordingly the trial court was entitled to decree the suit because the respondent/plaintiff had proved his case and the appellant/defendant failed to do so. 5. A civil case is decided on balance of probabilities. Respondent/plaintiff discharged his onus of proof and therefore the suit was decreed for a sum of Rs. 2.5 lacs being the amount received by the appellant/defendant under the subject agreement to sell. Even the rate of interest granted by the trial court is extremely reasonable @ 6% per annum. 6. There is no reason to interfere with the impugned judgment. Dismissed.