Rakesh Kumar v. Kalawati & Ors

RAJIV SAHAI ENDLAW, J DECEMBER 10th, 2013 "gsr"..

*IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 10th December, 2013 + RFA No.521/2004 RAKESH KUMAR ..... Petitioner Through: Mr. Sumit Bansal & Mr. Ateev Mathur, Advs. Versus KALAWATI (DECEASED) THROUGH LRS & ORS... Respondents Through: None. CORAM :- HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. The appeal impugns the judgment and decree dated 17.03.2004 of the Court of the Additional District Judge (ADJ), Delhi in suit No.642/2001, declining the relief of specific performance of an agreement dated 29.05.1986 of sale of immovable property as well as alternative relief claimed of recovery of damages of Rs.3,00,000/- but directing the respondents / defendants No.1 to 4 to refund to the appellant / plaintiff Rs.30,000/- paid as advance under the said Agreement to Sell together with interest thereon at 12% per annum from the date of filing of the suit till realization. 2. Notice of the appeal was issued and the Trial Court record requisitioned. Vide subsequent order dated 19.01.2005, the appeal was admitted for hearing. Vide order dated 04.03.2005, the respondents were directed to maintain status quo with regard to the nature, title and possession of the subject land subject to the appellant / plaintiff depositing the total consideration payable in terms of Agreement to Sell dated 29.05.1986 in this Court. In compliance therewith a sum of Rs.2,73,875/- was deposited. Vide order dated 26.07.2006, the interim order already granted was ordered to continue pending further orders. The respondents were served with the notice of the appeal but only the counsel for the respondents No.1 to 4 appeared and none appeared for the respondents/defendants No.5 to 7. The respondent No.2 was stated to have died and amended memo of parties was filed and his legal heirs were served. The counsel earlier appearing for the respondents No.1 to 4 also stopped appearing after 26.07.2006 inspite of appeal being repeatedly listed for hearing. Vide order dated 31.07.2013, the appeal was directed to be listed with notation in the cause list of notice of default to the counsel for the respondents / defendants but inspite thereof, none appeared for the respondents / defendants. The counsel who had earlier appeared for the respondents No.1 to 4 upon being contacted telephonically stated that he is not the counsel in the matter. In the circumstances, the respondents were proceeded against ex parte and the counsel for the appellant / plaintiff was heard and the judgment reserved. 3. The Ld. ADJ has in the impugned judgment and decree: (a) decided the Issue No.(i) "Whether the agreement to sell dated 29.05.1986 was brought about by misrepresentation and fraud?" against the respondents / defendants No.1 to 4 sellers; (b) decided the Issue No.(ii) "Whether the agreement to sell in question (is) unconscionable? If so, its effect?" also against the respondents / defendants No.1 to 4; (c) decided the Issue No.(iii) "Whether the plaintiff was at all relevant times ready and willing to perform his part of the contract?" against the appellant / plaintiff; (d) decided the Issue No.(iv) "Whether the defendants did not commit default in the performance of the contract to sell in question?" against the respondents / defendants and held that the respondents / defendants No.1 to 4 sellers did commit default in performance of the contract in question; (e) decided the Issue No.(v) "Whether the plaintiff is not entitled to relief of specific performance?" against the appellant / plaintiff for the reason of having held under Issue No.3 that the appellant / plaintiff was not ready and willing at all relevant times to perform his part of the contract; (f) decided the Issue No.(vi) "To what amount of damage is the plaintiff entitled?" against the appellant / plaintiff for the reason of there being nothing to show that the appellant / plaintiff had actually suffered any loss of Rs.3,00,000/- for non performance of contract by the respondents / defendants No.1 to 4; (g) decided