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Judgment
Valmiki J Mehta, J.
C.M. No. 346/2011 (Exemption) in RFA No. 16/2011
Exemption allowed subject to just exceptions.
Application stands disposed of.
RFA No. 16/2011
By means of the present first appeal u/s 96 of Code of Civil Procedure, 1908 (CPC) the Appellant/seller impugns the judgment and decree dated 6.10.2010 whereby the trial Court decreed the suit of the Respondents/Plaintiffs, not for specific performance, but for refund of the advance amounts paid to the Appellant/seller/Defendant totaling to a sum of Rs. 5,20,000/-. This sum of Rs. 5,20,000/- was paid to the Appellant/Defendant in June, 2005 and May 2006. The agreement to sell is dated 31.3.2006.
The trial Court has decreed the suit for a sum of Rs. 6,20,000/- alongwith interest @ 9% per annum from 10.5.2006 till its realization. Effectively, what has therefore been ordered is the refund of the amount paid of Rs. 5,20,000/- mostly in June, 2005 and one payment of Rs. 2,80,000/- on 9.5.2006 with interest.
Right from the Constitution Bench judgment of the Supreme Court in the case of Fateh Chand v. Balkishan Das AIR 1963 SC 1485 it is settled law that a mere breach of contract on behalf of the buyer under an agreement to sell in respect of an immovable property is not actionable unless by the breach, the seller is caused a loss on account of fall in the price of property. Admittedly, and it is not disputed by the learned Counsel for the Appellant, that, it is not the case of the Appellant that the Appellant has suffered loss on account of the fall in the price of the property. In fact, this is not even the pleading of the Appellant/seller in the trial Court. Accordingly, there does not arise any question of forfeiture of any amount. The learned Counsel, however, then states that he is not challenging grant of sum of Rs. 5,20,000/- but is only challenging the grant of compensation of Rs. 1 lakh which he says ought not to have been granted because the Appellant/seller was not guilty of the breach. I have already stated above that the sum of Rs. 1 lakh is basically towards interest from the dates of payment in June, 2005 and March, 2006 till 10.5.2006-the latter being the date from which further interest has been ordered to be paid. The additional payment of Rs. 1 lakh towards compensation is therefore in sum and substance towards interest payable on the amounts paid to the Appellant in June 2005/March, 2006 till 10.5.2006. I thus do not find any error committed by the trial Court in awarding compensation which really is interest on the amount which was admittedly received by the Appellant as an advance.
In view of the above, I do not find any error in the impugned judgment and decree. The appeal is therefore dismissed, leaving the parties to bear their own costs.
C.M. No. 345/2011 in RFA No. 16/2011
Since the main appeal is dismissed, no orders are required to be passed in this application which is accordingly disposed of.