PIYUSH KANTI ROY & ANR.  Vs S.N. BHARGHAVA & ANR.

FAO 159/2020 Page 1
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*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 15.01.2021
+ FAO 159/2020
PIYUSH KANTI ROY & ANR. ….. Appellant s
versus

S.N. BHARGHAVA & ANR. ….. Respondent s
For the Pe titioner s: Ms. Sushila Ram, Advocate . Advocates who appeared in this case:
For the Respondent s: Mr. Rajesh Kumar, Advocate.
CORAM: –
HON’BLE MR JUSTICESANJEEV SACHDEVA
JUDGMENT
SANJEEV SACHDEVA, J. (ORAL)
1. The hearing was conducted through video conferencing. CM APPL.153 4/2021(early hearing)
2. This is an application for early hearing. For the reasons stated
in the application, the application is allowed.
3. The appeal is taken up for hearing today.
1. Appellant impugn s order dated 15.07.2020 whereby the
application filed by respondents under Order XXXIX Rule 10 CPC FAO 159/2020
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has been allowed and appellants have been directed to deposit a sum
of Rs.58 lacs by way of a Fixed Deposit Receipt with the Trial Court.
2. Learned counsel for the appellants contends that the Trial Court
has erred in dire cting deposit of the amount as the respondents
themselves were in breach of the Agreement and the appellants have suffered a loss. It is contended that the flat of the appellants which was agreed to be purchased by the respondents was ready for delivery
and since the price s had gone down, respondents were not interested
in purchasing the same and defaulted in making further payments on
account of which the appellants were constrained to sell the flat at a loss.
3. Learned counsel for the appellants submits that the respondents
are liable to compensate the appellants for the loss and as such there is no question of appellants refunding any money.
4. On the other hand, learned counsel for the respondents contends
that admittedly appellants had received advance from the respondents
towards sale of their flat. Learned counsel submits that repeated acknowledgements were made by the appellants in various
correspondences that appellants were liable to refund the amount and
did not have the requisite finances for the same.
5. Learned counsel for respondents further contends that the flat
was agreed to be sold to the respondents for Rs.2,47,00,000/- and
subsequently is alleged to have been sold for only Rs.60 lakhs which
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is unbelievable.
6. The admitted position is t hat an Agreement to Sell in the form
of a bayana receipt was executed between the parties on 13.06.2012.
Respondents paid an amount of Rs.49,50,000/- and subsequently paid
further amounts of Rs.9,75,000/- and Rs. 30 lakhs. Total amount paid
by the respon dents was Rs.1,05,50,000/-.
7. Respondents cancelled the Agreement and sought refund of
their money. A ppellants disputed that entire amount of
Rs.1,05,50,000/- was received towards the sale consideration. It was
contended that some of the money had been paid to the Interior
Designer by the respondents themselves and some payments were on
other heads. It was only admitted that Rs.88 lakhs was received under
the Agreement towards sale consideration, out of which Rs.30 lakhs
have been refunded and admittedly Rs.58 lakhs was in the hands of the appellants.
8. Respondents along with the plaint had filed copy of the legal
notice dated 16.06.2014 whereb y, respondents had sought refund of
Rs.1,05,50,000/-. In response to the said notice, appellants sent a
letter dated 25.06.2014, wherein they did not dispute any of the
contentions in the legal notice but stated that they would like to meet
personally and amicably resolve the issue and they reiterated their
intention of settling the transaction at the earliest.
9. Along with the plaint further correspondence was also annexed,
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particularly, the response given by the Appellants through their
Advocate , to a letter received from the respondents dated 23.10.2015 ,
wherein also they stated that they had to make the balance payment of
Rs.67 lakhs. This was again reiterated through their Advocate’s
letter s dated 06.09.2016 and 09.09.2016.
10. Even in the Written Statement, the stand of the appellants is
that they have received a sum of Rs.88 lakhs, out of which Rs. 30
lakhs has been refunded leaving a balance of Rs.58 lakhs. Though it
is contended in the Written Statement that earnest money deposited of
Rs.49,50,000/ – is lia ble to be adjusted, however appellants have not
shown any document whereby any amount was given as an earnest
money. Be that as it may, this is a question which will arise before
the concerned Trial Court.
11. Insofar as the present application and appeal are concerne d,
appellants have admitted that they had received a sum of Rs.88 lakhs towards sale consideration. Though the stand of the respondents is
that larger amount that Rs.88 lakhs was paid, however the admitted
case of the appellants itself is that Rs.88 lakhs was received and Rs.30 lakhs was refunded leaving a balance of Rs.58 lakhs.
12. In the above circumstances and particularly in view of the
letters issued by the appellants annexed with the plaint, it is clear that
appellants have not disputed that a sum of Rs.58 lakhs received from
the respondents is with them . The question as to whether the same is
liable to be adjusted or not is a question which arises for consideration
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before the Trial Court and not before this Court and is not germane for
the purposes of deciding the application under Order XXXIX Rule 10
CPC.
13. Since the appellants admit that the appellants hold a sum of Rs.
58 lakhs which was received from the respondents and further the
admitted case of the appellants is that the flat which wa s subject
matter of the Agreement is no longer available and has since been sold
to a third party, I find no infirmity in the view taken by the Trial Court
and in directing the appellants to deposit the said amount of Rs.58
lakhs with the Trial Court pending adjudication of the suit.
14. In view of the above, I find no merit in the appeal.
15. The appeal is accordingly dismissed.
16. Copy of the order be uploaded on the High Court website and
be also forwarded to learned counsels through email by the Court
Master.

SANJEEV SACHDEVA, J
JANUARY 15, 2021
ak
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