Surender Kumar v. Girish Kapoor & Ors

RAJIV SAHAI ENDLAW, J. JULY 27, 2018 'gsr'

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 27th July, 2018. + RSA 381/2016 & CM No.46434/2016 (u/O XXXIX R-1&2 CPC) SURENDER KUMAR ..... Appellant Through: Mr. Rajat Aneja, Ms. Chandrika Gupta & Ms. Nisha Sharma, Advs. Versus GIRISH KAPOOR & ORS ..... Respondents Through: Respondent no.2 in person. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. This Second Appeal under Section 100 of the Code of Civil Procedure Code, 1908 (CPC) impugns the judgment and decree, [dated 2nd July, 2016 in RCA No.23/2015 of the Court of Additional District Judge-2, District North] not only dismissing the First Appeal preferred by the appellant / plaintiff against the judgment and decree [dated 19th March, 2015 in CS No.202/14/09 of the Court of Civil Judge, District North-West] of dismissal of the suit of the appellant / plaintiff for specific performance of an Agreement of Sale of immovable property, but also setting aside the decree of the Suit Court in favour of the appellant / plaintiff and against the respondents / defendants of recovery of Rs.2,46,100/- with interest. 2. The appeal came up first before this Court on 16th December, 2016, when on the contention of the counsel for the appellant / plaintiff that the First Appellate Court has set aside the money decree in favour of the appellant / plaintiff without the respondents / defendants challenging the same, notice of the appeal was ordered to be issued. 3. The respondent no.1 / defendant appeared on 8th February, 2017 and though the respondent no.2 / defendant was unserved but the appellant / plaintiff and the respondent no.1/ defendant were referred to mediation. Mediation remained unsuccessful. The respondent no.2 / defendant also appeared on 16th August, 2017 and the advocate for the respondent no.2 / defendant also appeared on 11th December, 2017. None appeared for the respondent no.1 / defendant on 16th August, 2017 and on 11th December, 2017. Thereafter, on 21st March, 2018, none appeared for either of the respondents / defendants. 4. The respondents / defendants are proceeded against ex parte. 5. Trial Court record has been requisitioned. 6. The counsel for the appellant / plaintiff has been heard and the trial court record perused. 7. The counsel for the appellant / plaintiff states that the appellant / plaintiff is not pressing the claim for specific performance of Agreement to Sell and is only pressing the claim for recovery of money in lieu of specific performance. 8. The counsel for the appellant / plaintiff further informs that the Agreement to Sell was only by the respondent no.1 / defendant and the respondent no.2 / defendant was merely a broker in the transaction. It is also informed that in the suit as originally filed, one Dhawan & Malhotra Property Dealers was also impleaded as defendant no.3 but was directed to be deleted by the trial court. 9. A perusal of the judgment of the First Appellate Court shows the First Appellate Court to have set aside the money decree in favour of the appellant / plaintiff only for the reason that mere putting of an exhibit mark on a document was no proof of document and thus the receipts of payment made by the appellant / plaintiff to the respondent no.1 / defendant did not prove payment. 10. The following substantial question of law arises and is framed: "Whether the appreciation of evidence qua receipts of payment by the First Appellate Court is perverse and contrary to law?" 11. At this stage, one person who claims himself to be respondent no.2 / defendant appears and has again gone out to call his advocate. 12. Considering that the respondent no.1 / defendant is ex parte and the respondent no.2 / defendant also is playing hide and seek, it is not deemed proper to after framing the substantial question of law aforesaid, post this appeal for hearing to another date. 13. A perusal of the Suit Court record shows, that (i) only defendant no.3 who has since been deleted on 9th July, 2013, filed written statement; (ii) th