Indira Seth and Another vs Vikas Madan and Another

J.R. Midha, J.—The Appellant has challenged the judgment of the learned Trial Court whereby his suit for damages has been dismissed on the ground that the suit was not maintainable.

The Appellant purchased a residential flat at J15/G3, Ground Floor, Dilshad Extension-I, Delhi-110095 from the Respondents for a total consideration of Rs. 6,50,000/- by a registered sale deed dated 2nd May, 2002. According to the Appellant, the suit property was not habitable and there were defects and deficiencies therein. The Appellant was aggrieved by the representations made by the Respondents. The Appellant, therefore, filed a suit for recovery of damages of Rs. 10,00,000/- against the Respondents.

The Respondents contested the suit on various grounds inter alia that the suit was not maintainable as the Appellant had not claimed any relief with respect to the sale deed dated 2nd May, 2002.

The learned Trial Court framed issue No. 1 with respect to the preliminary objection raised by the Respondent. The learned Trial Court decided issue No. 1 in favour of the Respondents and held the suit to be not maintainable. The learned Trial Court held that the Appellant cannot seek return of the sale consideration and the damages without claiming the cancellation of the sale deed.

This Court is of the view that the findings of the learned Trial Court with respect to issue No. 1 are perverse and, therefore, liable to be set aside. There is No. principle of law that the purchaser cannot claim damages from the seller without seeking cancellation of the sale deed.

The learned Counsel for the Respondents submit that the Appellant could not have sought refund of the sale consideration as well as the damages. The learned Counsel for the Appellant, in response, submits that the Appellant is claiming refund of the sale consideration as damages.

This Court is not expressing any opinion on the merits of the claim of the Appellant as the learned Trial Court has not given any finding in that regard.

For the reasons stated aforesaid, the findings of the learned Trial Court on issue No. 1 are liable to be set aside and the case needs to be remanded back to the learned Trial Court for decision on the merits of the case with respect to issue Nos. 2 to 5.

In the facts and circumstances of this case, the appeal is allowed and the impugned judgment and decree is set aside. Issue No. 1 is decided in favour of the Appellant. The case is remanded back to the learned Trial Court for fresh decision on issue Nos. 2 to 5.

The parties shall appear before the learned District Judge on 5th September, 2011 for listing it before the learned Trial Court.

Since the parties have already led evidence on all the issues, the learned Trial Court shall hear both the parties and decide the suit on the basis of the pleadings and evidence already on record.

This Court has not expressed any opinion on the merits of the case and nothing stated hereinabove shall be construed as expression on the merits of the case.