CS(COMM) 982/2016 & IA No.15264/2017 (of defendant u/O XXXVII R-3(5) CPC)

17th January 2019

Petitioner Counsel: Mr. Aman Prasad Mr. Nikhilesh Krishnan
Respondent Counsel: Mr. Kuldeep Sehrawat

Cases Cited :
Para 20: Kailash Nath Associates Vs. Delhi Development Authority (2015) 4 SCC 136
Para 20: Dr. V.B. Roy Vs. Ravindra Kishore Sinha 2017 SCC OnLine Del 10924
Para 20: Palm Art Apparels Pvt. Ltd. Vs. Enkay Builders Pvt. Ltd. MANU/DE/3533/2017
Para 20: Satish Verma Vs. Garment Craft (India) Pvt. Ltd. 2018 SCC OnLine Del 6829
Para 28: IDBI Trusteeship Services Limited Vs. Hubtown Limited (2017) 1 SCC 568
Paras 28, 30: Mechelec Engineers & Manufacturers Vs. Basic Equipment Corporation (1976) 4 SCC 687
Para 31: Mera Baba Pvt. Ltd. Vs. Ram Lubhaya Puri 2018 SCC OnLine Del 9502
Paras 35, 36: Harbans Lal Vs. Daulat Ram ILR (2007) I Delhi 706
Para 35: Nandan Prasad Gupta Vs. Sunil Gupta 2003 (68) DRJ 315
Para 35: Versatile Commotrade Private Limited Vs. Chiranji Lal (2017) 239 DLT 83
Para 35: Versatile Commotrade Pvt. Ltd. Vs. Adharshila Country Homes Pvt. Ltd. MANU/DE/3965/2018
Para 35: Versatile Commotrade Pvt. Ltd. Vs. Satpal Yadav 2018 SCC OnLine Del 13148
Para 35: Versatile Commotrade Pvt. Ltd. Vs. Angad Developers Pvt. Ltd. MANU/DE/2533/2018

JUDGEMENT

1. Both suits, under Order XXXVII of the Code of Civil Procedure, 1908 (CPC), are ripe for hearing arguments on the applications of the defendant therein for leave to defend.

2. When the suits are called out, none appears for the plaintiff in the suits; the counsel for the defendant in both the suits states that no reply to the applications for leave to defend has been received as yet. However, as per the office notation, replies have been filed. Upon the same being put to counsel for the defendant in both the suits, he states that time be given for filing rejoinder.

3. The application for leave to defend has to stand on its own legs and without disclosing as to what plea in the reply to the application for leave to defend needs rejoinder, time for filing rejoinder cannot be mechanically granted, particularly when these are commercial suits and are listed today for arguments on the applications for leave to defend.

4. The counsel for the defendant in the two suits then states that the two suits are identical in nature and besides the said two suits, five other suits of the same nature are pending in Dwarka Courts. It is further stated that an attempt was made in mediation to settle the suits, but without any success.

5. The suits cannot be kept pending in this fashion.

6. The counsel for the defendant in both the suits states that the defendant in each of the suits as well as the defendants in the suits pending in Dwarka Courts, are part of the same family and owners of agricultural land and had entered into separate agreements with the plaintiff for sale of their respective share in the said land to the plaintiff and the plaintiff has filed the suits including these two suits, to recover the amount paid under the agreements to sell, even though the plaintiff itself is in breach of the agreements to sell.

7. On the aforesaid submissions, the leave to defend applications in law do not disclose any ground for grant of leave to defend and the counsel for the defendants has been asked to argue. He however keeps on seeking adjournment.

8. At this stage, Mr. Aman Prasad, Advocate for the plaintiff appears but instead of being keen on arguing his case, also seeks adjournment, to make another attempt to settle.

9. Once mediation has already failed, desire to make settlement is but an excuse for seeking adjournment.

10. The counsel for the defendant in both the suits has again been given an opportunity to argue. He only states, that it is the plea of the defendant in both the suits that the defendant has expended the monies received in advance from the plaintiff under the agreement to sell and thus is not in a position to refund the same.

11. I have enquired from the counsel for the defendant in both the suits, whether the defendants have instituted any suit for recovery of any loss which may have been suffered by the defendants on account of breach alleged by the plaintiff of the agreement to sell with the respective defendant.

12. The counsel for the defendants replies in the negative.

13. The counsel for the plaintiff has not made any arguments.

14. The files have been gone into.

15. The plaintiff has instituted each of the suits for recovery of Rs.1,66,87,500/- with pendente lite and future interest, pleading (i) that the defendant in each of the suits had offered to sell to the plaintiff his 1/3rd share i.e. 22 bighas and 5 biswas in agricultural land measuring 66 bighas and 15 biswas comprised in Khata Khatoni No.111/88 min Mustatil/Khasra Nos.148/1 (6-15), 5//135/1 (4-11), 22/2 (1-11), 23/2 (3-8), 24/2 (3-3), 27 (0-5), 6//2 (2-11), 3 (4-16), 4 (4-16), 5/1 (2-8), 7 (4-12), 8 (4-16), 9/1 (1-12), 26(0-5), 12//2/2(2-5), 3(6-6), 4(4-16), 5/1 (4-3), 7(3-16), situated in the revenue estate of Village Khera Dabar, Tehsil Najafgarh, New Delhi; (ii) that the sale consideration was agreed to be Rs.16,68,75,000/-; (iii) that the defendant in each of the suits had represented that he would obtain 'No Objection Certificate' (NOC) from the Competent Authority for transfer of the land to the plaintiff, the land being agricultural, governed by the provisions of the Delhi Lands (Restrictions on Transfer) Act, 1972, and shall furnish the said NOC to the plaintiff; (iv) that believing the representations of the defendants to be true, the plaintiff entered into an agreement to sell dated 12th April, 2013 with each of the defendants; (v) that the plaintiff paid advance/part sale consideration of Rs.1,66,87,500/- to each of the defendant; (vi) that the balance sale consideration was agreed to be paid by the plaintiff to each of the defendant on or before 12th July, 2013, at the time of execution and registration of Sale Deed in favour of the plaintiff; (vii) that as per the agreements to sell the necessary pre-condition for execution and registration of Sale Deed by the defendant and payment of balance sale consideration by the plaintiff was the defendants obtaining NOC and providing the same to the plaintiff; (viii) that each of the defendant was required to apply for and obtain the NOC before the date of payment of balance sale consideration i.e. by 12th July, 2013; (ix) that despite expiry of the above date of sale, defendant neither obtained NOC nor furnished the same to the plaintiff and thus the occasion for the plaintiff to pay the balance sale consideration did not arise; (x) that as the plaintiff was still interested in purchasing the land, the plaintiff approached the defendants in the second week of July, 2013 and has thereafter from time to time enquired about the NOC; (xi) that instead of furnishing the NOC, the defendants got served a legal notice dated 17th August, 2013 claiming that NOC had been obtained within time and it was the plaintiff who was in breach and that the defendants had also gone to the office of the Sub-Registrar on 12th July, 2013 for execution of the Sale Deed, but the plaintiff did not appear; (xii) that the plaintiff sent a reply dated 30th August, 2013 to the defendants denying that the defendants at any time informed the plaintiff of the receipt of NOC; and, (xiii) that the defendants along with rejoinder dated 9th September, 2013 to the aforesaid reply, for the first time furnished copy of the NOC dated 13th August, 2013 but which was valid till 12th September, 2013, not leaving enough time for payment of the balance sale consideration and execution of the Sale Deed. The plaintiff has thus instituted these suits under Order XXXVII of CPC for recovery of the advance sale consideration paid of Rs.1,66,87,500/- to each of the defendant.

16. Though the plaintiff had notices as far back as on 17th August, 2013 of the stand of the defendants, but these suits were instituted only on 11th July, 2016 and re-filed on 28th July, 2016 and 29th July, 2016 and came up before this Court first on 1st August, 2016, when summons for appearance and thereafter on the defendants entering appearance, summons for judgment were issued and in response to which leave to defend applications have been filed.

17. The defendants have sought leave to defend pleading, (a) that the suits are not maintainable under Order XXXVII of the CPC because the defendants have not taken any debt from the plaintiff and the suit is for refund of earnest money paid by the plaintiff to the defendants under the agreement to sell of immoveable property; (b) that the only remedy available to the plaintiff was of suing for specific performance of the agreement to sell; (c) that there is no provision in the agreements to sell for refund of the monies paid thereunder; (d) that as per term of the agreement to sell, the defendants are entitled to forfeit the earnest money in case the plaintiff breaches or backs out from the agreement to sell and the agreement does not give any right to the plaintiff to file a suit as the present suits are, for recovery back of the amounts paid; (e) that the plaintiff has no explanation as to why the plaintiff remained silent for almost three years; (f) that the plaintiff was trying to take benefit of its own wrong and trying to “catch any prospective buyer of the land under the agreement for higher rates”; (g) that the defendants have already invested monies received under the agreement to sell and have paid earnest money for purchase of another piece of land and the “defendants will lose money under that agreement if timely payment is not made”; (h) that the defendants vide their notice dated 17th August, 2013 called upon the plaintiff to comply with the agreement to sell; (i) that the plaintiff, in its reply dated 30th August, 2013 did not demand refund of the amounts paid; (j) that the plaintiff, after remaining silent for over three years, for the first time vide legal notice dated 4th July, 2016 sought refund of the amounts paid; (k) that the plaintiff, at no point of time got any notice issued to the defendants calling upon the defendants to transfer the land to the plaintiff and perform their part of the agreement to sell; (l) that the plaintiff, at the time of execution of the agreement to sell, obtained signatures of the defendants on blank NOC forms and also promised that the draft sale deeds to be got executed from the defendants would be sent to the defendants, but did not send the draft sale deeds; (m) that it is the plaintiff who has miserably failed to perform its part of the agreement to sell; (n) that the plaintiff did not inform the defendants the name in which the NOC was to be obtained and did not even pay for the expenses for obtaining the NOC; (o) that inspite thereof, the defendants of their own applied for and obtained the NOC and forwarded the same to the plaintiff along with the notice dated 17th August, 2013; (p) that the defendants have “already invested a big/greater part of the earnest money and had entered into various agreements of sale & purchase of the land and in case the plaintiff is not able to perform its part of contractual liability then the defendant will get their money forfeited which was paid as earnest money”; (q) that the defendants have entered into such agreements to sell dated 9th May, 2013 and 4th May, 2013 respectively with one Rajesh Kumar Yadav for purchase of his share in land in revenue estate of Village Nawada Fatehpur, Gurgaon, Haryana; (r) that the defendants, in pursuance to the agreement to sell dated 9th May, 2013 and 4th May, 2013 respectively, have paid Rs.39,29,141/- and Rs.78,68,124/- respectively as earnest money; and, (s) that the defendant in each of the suits will have to suffer loss of earnest money of Rs.39,29,141/- and Rs.78,68,124/- respectively.

18. Besides the aforesaid, the counsel for the defendants has also argued that the defendants even now are ready to perform their part of the agreement to sell by sale in terms thereof in favour of the plaintiff, and in mediation had also offered to sell to the plaintiff at price lower than that mentioned in the agreements to sell, but it was the plaintiff who was not willing to purchase.

19. I have considered the aforesaid grounds for leave to defend.

20. Why I have observed at the outset that the defence as disclosed by the counsel for the defendants did not constitute a defence in law was on account of the dicta of the Supreme Court in Kailash Nath Associates Vs. Delhi Development Authority (2015) 4 SCC 136 followed by this Court in Dr. V.B. Roy Vs. Ravindra Kishore Sinha 2017 SCC OnLine Del 10924, Palm Art Apparels Pvt. Ltd. Vs. Enkay Builders Pvt. Ltd. MANU/DE/3533/2017 and Satish Verma Vs. Garment Craft (India) Pvt. Ltd. 2018 SCC OnLine Del 6829 holding that there can be no forfeiture, without proving loss and making a claim therefor.

21. I may in this context also mention that in the agreements to sell, which are identical in nature in the two suits, and are titled 'Advance Receipt-cum-Agreement to Sell & Purchase', the amount paid is not even described as 'earnest money'. The relevant clauses of the agreement to sell in each of the case and in which the plaintiff is described as 'Second Party' and defendant in each suit as 'First Party', are as under:

“6. That the total sale consideration of the above said property has been settled between the parties is as Rs.16,68,75,000/- (Rupees Sixteen Crore Sixty Eight Lacs & Seventy Five Thousand only).
7. That the Second Party has already paid a sum of Rs.1,66,87,500/- (Rupees One Crore Sixty Six Lacs Eighty Seven Thousand and Five Hundred Only) and the First Party have acknowledge the receipt of the same. The details of payments paid as per the following manner:-
Sl.No. DD/Chq./Cash & Date Amount
----------------------------------- -----------------
i) Chq. No.403791 dt. 12/04/2013 Rs.1,65,25,000/-
ii) By Cash Rs.1,62,500/-
______________________________________________
Total Rs. Rs.1,66,87,500/-
______________________________________________
8. That balance of amount Rs.15,01,87,500/- (Rupees Fifteen Crore One Lac Eighty Seven Thousand & Five Hundred Only) shall be paid by the Second Party within a period of 03 months from this date of Agreement on or before 12th July, 2013.
9. That at time of making final payment the First Party shall execute all sale concerning document like, SALE DEED or whatsoever applicable as required by the Second Party in its own firm/Company or its nominee.
………
8. That in case the Second Party fails to perform the terms and conditions of the said Agreement to Sell & purchase, then their paid amount shall be Forfeited in favour of the First Party, and in case of breach of any clause by the First Party, the Second Party shall have every right to get the physical vacant possession of the said property through Court of Law by Specific Performance Act, after depositing the balance sale consideration amount as per this agreement to sell.”

22. Though the amounts paid under the agreements to sell are not described as 'earnest' or 'security' but the agreements do provide for forfeiture thereof in the event of breach by the plaintiff. However, the said forfeiture would be governed by the dicta and the judgments aforesaid. Merely because there is a provision in the agreements to sell, of forfeiture, will not entitle the defendants to forfeit, without establishing loss.

23. The defendants, neither in the leave to defend applications have pleaded that they have made a claim for any loss nor has the counsel for the defendants has today claimed so. The limitation for the defendants to recover the compensation for loss, if any suffered by the defendants on account of breach by the plaintiff, has now long since elapsed, inasmuch as the suits have also been pending for more than two years and the defendants cannot today make a claim for compensation for breach of contract against the plaintiff.

24. Not only have the defendants not made any claim for compensation for loss by breach, but the pleas in the applications for leave to defend are nebulous. The defendants, in the applications for leave to defend, at one place have pleaded that the defendants had apprised the plaintiff “that the defendant had already invested money and had paid earnest money for the purchase of another piece of land and the defendant will loose money under that agreement if timely payment is not made”. In the subsequent paragraph, it is pleaded that:

“….the defendant and his brother and other family members had already invested a big/greater part of the earnest money and had entered into various agreements of sale & purchase of the land and in case the plaintiff is not able to perform its part of contractual liability then the defendant will get their money forfeited which was paid as earnest money. The defendant herein had also entered into such agreement to sell dated 09.05.2013 with one Sh. Rajesh Kumar Yadav S/o Late Sh. Samay Singh Yadav R/o H.No.B-284-A, Block-B, Sushant Lok-I, Gurgaon, Haryana for 1/3 share of his 1/3rd share in the land admeasuring 26 Kanal 16 Marla comprised in Khewat/Khata Jamabandi No.7/9 Mustil No.8 Kila No.6 (8 Kanal), 7 (07 kanal 12 marla), 8/2(06 Kanal 4 Marla) Mustil no.9 kila No.10/2 (05 Kanal) situated in the revenue estate of Village Newada Fatehpur, Tehsil & Dist. Gurgaon, Haryana. The defendant in pursuance of the said Agreement to Sell dated 09.05.2013 paid Rs.39.29,141/- as earnest money out of total Sale Consideration of Rs.1,50,00,000/- (Rupees One Crores fifty lacs only). The copy of the said agreement is annexed herewith as ANNEXURE A-3.”
In yet subsequent paragraph, it is pleaded:
“That the defendant had to suffer loss of his earnest money of Rs.39,29,141/- paid in pursuant to the Agreement to Sale dated 09.05.2013, due to plaintiff’s failure of performance of his contractual obligation under Agreement dated 12.04.2013. The defendant also could not fulfil his contractual obligations under the agreement to Sell dated 09.05.2013 and the amount paid by the defendant was forfeited by Mr. Rajesh Kumar Yadav only for the reason that the plaintiff’s failure in the agreement dated 12.04.2013.
That as the defendant had entered into Agreement to Sell dated 09.05.2013 and had also communicated this fact to the plaintiff vide its legal notice dated 17.08.2013, thereby making the time essence of the contract/agreement dated 12.04.2013 and even then the plaintiff had miserably failed to perform his part of contractual obligation.”
The pleas in leave to defend application in other suit are verbatim the same save for the earnest money paid by defendant being Rs.78,68,124/- as against total consideration of Rs.2,97,50,000/-.

25. The defendant in each of the suits, save for making the aforesaid pleas and filing agreement to sell purportedly entered into between the defendant and Rajesh Kumar Yadav, of sale by Rajesh Kumar Yadav to the defendant of agricultural land, has not produced before this Court any document of title or of entry in the revenue records in the name of Rajesh Kumar Yadav of the land which the defendants claim Rajesh Kumar Yadav had agreed to sell to the defendants and in pursuance to which the defendants claim to have paid earnest money to the said Rajesh Kumar Yadav. Moreover, the agreements to sell by Rajesh Kumar Yadav relied upon by the defendants are of 9th May, 2013 and sale in pursuance whereto was to be completed on or before 28th August, 2013. Though the said agreements to sell provide for forfeiture by Rajesh Kumar Yadav of the “advance money” paid by the defendants and received by Rajesh Kumar Yadav under the agreements to sell, in the event of the defendants failing to comply with their part of the agreement to sell, but the defendants have not produced before this Court any correspondence exchanged with Rajesh Kumar Yadav qua forfeiture. There is absolutely nothing to support, that the monies were forfeited. There is absolutely nothing to show that even if the defendants had entered into the agreements to sell with Rajesh Kumar Yadav and even if had paid the amounts claimed to have been paid to Rajesh Kumar Yadav and even if the defendants owing to breach by the plaintiff herein were unable to fulfil their part of the agreements to sell with Rajesh Kumar Yadav and Rajesh Kumar Yadav had refused to refund the money received as advance under the agreements to sell, the defendants took any steps whatsoever for demanding the said monies from Rajesh Kumar Yadav. The law as cited above would equally apply to the monies paid by the defendants as advance sale consideration to Rajesh Kumar Yadav and the defendants cannot be permitted to plead loss and claim compensation therefor from the plaintiff, without being diligent and taking appropriate steps for mitigating the loss if any.

26. There is another aspect of the matter. The defendant in CS(COMM) No.982/2016, out of the amount of Rs.1,66,87,500/- received from the plaintiff, claims to have paid a sum of Rs.39,29,141/- only to Rajesh Kumar Yadav and claims forfeiture of the said amount of Rs.39,29,141/- only. The defendant in CS(COMM) No.983/2016, out of the amount of Rs.1,66,87,500/- received from the plaintiff claims to have paid a sum of Rs.78,68,124/- only to Rajesh Kumar Yadav and which is claimed to be forfeited by Rajesh Kumar Yadav. Even after deducting the said amounts, the defendant in CS(COMM) No.982/2016 has not explained the loss of Rs.1,27,58,359/- remaining after deducting Rs.39,29,141/- and the defendant in CS(COMM) No.983/2016 has not explained the loss of Rs.88,19,376/- after deducting Rs.78,68,124/-. The plaintiff in any case would be entitled to recover the said amounts from the defendants respectively.

27. A defendant in an Order XXXVII suit cannot be entitled to leave to defend, merely by taking a plea and without giving particulars and filing documents as would logically be available in support of the said plea and if fails to do so, cannot be entitled to leave to defend. If leave to defend suits under Order XXXVII of the CPC were to be granted merely by taking a plea, even if does not inspire confidence owing to lack of particulars and documents, there would be no case in which leave would not be granted owing to the drafting skills of the Advocates for the defendants and disposal of the suits under Order XXXVII of the CPC, instead of being summary, would be lengthier, for having additional issuance of summons for appearance, summons for judgment and filing of application for leave to defend and consideration thereof.

28. Supreme Court, in IDBI Trusteeship Services Limited Vs. Hubtown Limited (2017) 1 SCC 568, while holding the earlier dicta in Mechelec Engineers & Manufacturers Vs. Basic Equipment Corporation (1976) 4 SCC 687 which had held fort for decades, to be no longer good law pursuant to amendment of the CPC in the year 1976, laid down the following law for grant of leave to defend:

“17.1. If the defendant satisfies the Court that he has a substantial defence, that is, a defence that is likely to succeed, the plaintiff is not entitled to leave to sign judgment, and the defendant is entitled to unconditional leave to defend the suit.
17.2. If the defendant raises triable issues indicating that he has a fair or reasonable defence, although not a positively good defence, the plaintiff is not entitled to sign judgment, and the defendant is ordinarily entitled to unconditional leave to defend.
17.3. Even if the defendant raises triable issues, if a doubt is left with the trial Judge about the defendant’s good faith, or the genuineness of the triable issues, the trial Judge may impose conditions both as to time or mode of trial, as well as payment into court or furnishing security. Care must be taken to see that the object of the provisions to assist expeditious disposal of commercial causes is not defeated. Care must also be taken to see that such triable issues are not shut out by unduly severe orders as to deposit or security.
17.4. If the defendant raises a defence which is plausible but improbable, the trial Judge may impose conditions as to time or mode of trial, as well as payment into court, or furnishing security. As such a defence does not raise triable issues, conditions as to deposit or security or both can extend to the entire principal sum together with such interest as the court feels the justice of the case requires.
17.5. If the defendant has no substantial defence and/or raises no genuine triable issues, and the court finds such defence to be frivolous or vexatious, then leave to defend the suit shall be refused, and the plaintiff is entitled to judgment forthwith.
17.6. If any part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit, (even if triable issues or a substantial defence is raised), shall not be granted unless the amount so admitted to be due is deposited by the defendant in court.”

29. Applying the aforesaid law, I find the case of the defendants in these suits to be falling under para 17.5 above. I find the pleas raised by the defendants in the applications for leave to defend to be not raising any substantial defence and/or not raising any genuine triable issues. I find the defence of the defendants to be frivolous and vexatious.

30. The defendants, had there been substance in their defence, could have produced documents to show title of Rajesh Kumar Yadav to the land with respect to which the defendants claim to have entered into agreement to sell with Rajesh Kumar Yadav. The defendants have not pleaded or filed any letters or notices issued to Rajesh Kumar Yadav, for refund of the monies claimed by the defendants to have been paid to Rajesh Kumar Yadav. The defendants did not take any steps for recovery of the amounts claimed to have been paid to Rajesh Kumar Yadav and forfeited by him. The defendants have not pleaded that Rajesh Kumar Yadav suffered any loss or was entitled to forfeit the monies claimed to have been paid to him. Without all the said particulars, the defence cannot qualify as substantial and, to borrow the words from Mechelec Engineers & Manufacturers supra, though overruled, is a moonshine and the defendants cannot be permitted to create a mirage to fool the Court. In fact, there is nothing to show that any person by the name of Rajesh Kumar Yadav exists.

31. There is yet another aspect. The defendants, after the alleged breach by the plaintiff, did not take any steps for recovery from the plaintiff of the losses claimed to be suffered by them. The defendants, in the present suit also, have not made any counter-claim. The limitation therefor has now expired. I have in Mera Baba Pvt. Ltd. Vs. Ram Lubhaya Puri 2018 SCC OnLine Del 9502 held that a claim for damages/compensation for breach of agreement being of an unascertained amount, cannot be adjusted. The need to reiterate the position in detail in this judgment is thus not felt.

32. Thus, the position as of today is, that while the plaintiff has sued for refund of the amounts paid within the prescribed time, the defendants in law have no defence thereto.

33. Once, it is found that the defence raised in the applications for leave to defend has no merit in law, the question of grant of leave to defend does not arise.

34. As far as the other plea taken in the applications for leave to defend, of the suits being not maintainable under Order XXXVII of the CPC is concerned, the same also has no merit in law. Rule 1(2) of Order XXXVII of the CPC, while laying down the categories/classes of suits which could be instituted thereunder, includes “suits in which the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant, with or without interest, arising on a written contract”. It is not in dispute that there is a written contract between the plaintiff and the defendant in each of the suits. The next question is, whether the recovery sought in the suits is of a debt or liquidated demand in money. The plaintiff, under the agreement with each of the defendant, paid to the defendant advance sale consideration. Admittedly, the agreements to sell did not fructify. Once an agreement to sell does not fructify, the seller under the law as laid down above, is liable to refund to the purchaser the advance sale consideration received. The agreements to sell do not describe the payments admittedly made by the plaintiff to each of the defendant as earnest money. However, they do indeed provide for forfeiture of the monies received. However, for the defendants as sellers to forfeit, under the law, it is incumbent upon the sellers to establish loss. I have hereinabove held that the defendants have failed to establish loss. Once, it is so, the suits would be for recovery of a debt owed by the defendants to the plaintiff or for recovery of liquidated demand in money.

35. The Division Bench of this Court in Harbans Lal Vs. Daulat Ram ILR (2007) I Delhi 706 was concerned with a suit filed for recovery of double of the earnest money paid under an agreement of purchase of immoveable property, on the ground of the defendant seller having breached the agreement. Finding the agreement to sell admittedly entered into between the parties to contain a clause that in the event of breach by the seller, the seller will pay twice the earnest money received to the purchaser, it was held that Order XXXVII of the CPC is attracted inasmuch as the plaintiff was seeking a decree for recovery of liquidated money payable on a written contract. Similarly, in Nandan Prasad Gupta Vs. Sunil Gupta 2003 (68) DRJ 315, a suit for recovery of the advance sale consideration paid, on breach by the defendant of the agreement to sell, was held to be maintainable under Order XXXVII of the CPC. My research also shows judgments in a number of other similar suits filed by the plaintiff, all under Order XXXVII of the CPC but need to refer thereto is not felt. Reference in this regard be made to Versatile Commotrade Private Limited Vs. Chiranji Lal (2017) 239 DLT 83, Versatile Commotrade Pvt. Ltd. Vs. Adharshila Country Homes Pvt. Ltd. MANU/DE/3965/2018, Versatile Commotrade Pvt. Ltd. Vs. Satpal Yadav 2018 SCC OnLine Del 13148 and Versatile Commotrade Pvt. Ltd. Vs. Angad Developers Pvt. Ltd. MANU/DE/2533/2018.

36. As far as the plea of the defendants, of the remedy of the plaintiff being to sue for specific performance only is concerned, the same did not find favour also by the Division Bench of this Court in Harbans Lal supra.

37. The plaintiff is thus found entitled to a decree against the defendant in each of the suits, for the amount claimed therein.

38. However, as far as the claim of the plaintiff for interest is concerned:

(I) The plaintiff itself has not claimed interest for the pre-suit period.
(II) The plaintiff has not been diligent in pursuing these suits and today also is found to be wanting adjournment.
(III) The plaintiff, prior to the notice dated 4th July, 2016 did not demand refund of the amounts for recovery of which these suits are filed; without the plaintiff having done so and without the plaintiff pleading that the defendant, inspite of such demand did not pay, the plaintiff cannot be entitled to interest.
(IV) The conduct of the plaintiff indeed shows that it is the plaintiff who is in breach of the agreement to sell; however because the defendant in each case has not claimed any compensation for loss suffered by breach, the plaintiff is found entitled to recover the amount claimed in these suits. Thus, the plaintiff is not found entitled to any interest pendente lite and to costs of the suits.

39. The applications for leave to defend being IA No.15264/2017 in CS(COMM) No.982/2016 and IA No.15267/2017 in CS(COMM) No.983/2016 are thus dismissed.

40. Resultantly, a decree is passed in favour of the plaintiff and against the defendant in each of the suits, in the sum of Rs.1,66,87,500/-, without pendente lite interest and without any costs. The defendant in each of the suits is granted three months' time to pay the decretal amount to the plaintiff, failing which the decretal amount shall incur interest @ 7% per annum from the expiry of three months till the date of payment.

No costs.
Decree sheet be drawn up.