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Judgment
Indermeet Kaur, J.—This appeal has impugned the judgment and decree dated 26.02.2010 which had endorsed the findings of the trial Judge dated 16.05.2009 whereby the suit filed by the Plaintiff Mrs. M.S. Franklin had been decreed in the sum of Rs. 1 lac along with interest @ 6% per annum.
The Plaintiff had agreed to purchase the house bearing No. 59, Khasra No. 131,village Khajoori Khas, Extension Delhi from Defendant No. 1 for a sum ofRs.13,10,000/- A sum of Rs. 50,000/- was paid in cash as ''bayana'' (earnest money)by the Plaintiff to the Defendant. ''Bayana'' receipt dated 28.08.2005 had been executed. The Defendant had undertaken to execute the sale documents in favour of the Plaintiff by 15.09.2005. On 09.09.2005, Defendant No. 1 had approached the Plaintiff; he was in dire need of money. The Plaintiff paid a sum of Rs. 1 lac as part payment of the sale consideration which was vide receipt dated 09.09.2005 (Ex.PW-1/2). Thereafter, in spite of efforts by the Plaintiff to pay the balance sum, the Defendant with malafide and ulterior motive refused to execute the sale agreement. The Plaintiff had accordingly filed the present suit seeking recovery ofRs.1,50,000/- which she had paid vide two receipts dated 28.08.2005 & 09.09.2005;Rs.60,000/- was the commission which had been paid by the Plaintiff to Defendant No. 2; interest had also been claimed. Suit amount was Rs. 2,23,650/-.
The Defendant had contested the suit. It was stated that no amount was due to the Plaintiff; the Defendant was liable to forfeit the affronted amount as it was only an earnest money and the Plaintiff had in fact not honored the sale transaction.
On the pleadings of the parties, four issues were framed. Oral and documentary evidence was led. ''Bayana'' receipt dated 09.09.2005 which is the subject matter of dispute before this Court has been proved as Ex. PW-1/2. It is an admitted document. The legal notice Ex. PW-1/3 is dated 23.01.2005. On the basis of oral and documentary evidence, the suit of the Plaintiff had been decreed for Rs. 1lac plus interest @ 6% per annum. The sum of Rs. 60,000/- purported to have been paid by the Plaintiff to Defendant No. 2 had not been pressed for. The sum ofRs.50,000/- paid in terms of the first Bayana i.e. vide receipt dated 28.08.2005being earnest money had been forfeited by the Defendant and was held to be a rightful forfeiture. However, the sum of Rs. 1 lac which had been paid in terms of Ex. PW-1/2 was liable to be returned by Defendant No. 1 to the Plaintiff as it was a payment which had been made by the Plaintiff to the Defendant as part of the sale consideration agreed upon between the parties.
This judgment of the trial court was affirmed in first appeal.
This is a second appeal. It is still at its admission stage. On behalf of the Appellant, it has been urged that ''bayana'' receipt (Ex. PW-1/2) has not been rightly construed; attention has been drawn to legal notice Ex. PW-1/3 wherein in Para 4, the Plaintiff had demanded a sum of Rs. 1,50,000/- as ''bayana'' amount which had been paid by her to Defendant No. 1. It is pointed out that this sum of Rs. 1lac also comprised of ''bayana'' (earnest money) which was held liable to be returned; the judgment suffers a from perversity.
Arguments have been refuted.
The legal notice relied upon by learned Counsel for the Appellant has been read only in part; the second Para of the legal notice clearly states that Defendant No. 1 had approached the Plaintiff as he was in dire need of money and on09.09.2005, a sum of Rs. 1 lac was paid as part payment of the sale consideration agreed upon between the parties. This is clearly so stated in Ex. PW-1/3. Ex. PW-1/2 also states that Rs. 50,000/- has already been paid as bayana and this sum ofRs.1 lac had been paid today i.e. on 09.09.2005, the balance sum of Rs. 11,60,000/-is now left out of sale consideration of Rs. 13,10,000/- which was the agreed amount. The courts below had rightly drawn a conclusion that the payment made in terms of Ex. PW-1/2 was not an earnest money; it could not be forfeited by Defendant No. 1; it was liable to be refunded back to the Plaintiff. These two concurrent findings of fact of the two courts below call for no interference. No perversity has been pointed.
Substantial questions of law have been embodied on page 2 of the body of the appeal. No such substantial question of law has arisen. Appeal as also pending applications is dismissed in limine.