Ms - Shruti Vs Baldev Singh and Others On 23 May, 2017
Ms - Shruti Vs Baldev Singh and Others On 23 May, 2017
Ms - Shruti Vs Baldev Singh and Others On 23 May, 2017
Desktop View
Main Search Premium Members
Cites 10 docs - [View All]
Hind Construction Contractors vs The State Of Maharashtra on 30 January, 1979
Govind Prasad Chaturvedi vs Hari Dutt Shastri And Another on 28 January, 1977
Article 54 in The Constitution Of India 1949
Section 12 in The Legal Services Authorities Act, 1987
Smt. Swarnam Ramachandran & ... vs Aravacode Chakungal Jayapalan on 25 August, 2004
Try out our Premium Member services: Virtual Legal Assistant, Query Alert Service and an ad-free experience.
Free for one month and pay only if you like it.
Print it on a file/printer
Get this document in PDF
View the actual judgment from court
Himachal Pradesh High Court
Ms.Shruti vs Baldev Singh And Others on 23 May, 2017
Bench: Hon'Ble Mr. Chauhan
Versus
Coram
Whether approved for reporting ?1 Yes For the Appellant : Mr.Saurav Rattan, Advocate.
respondent No.1.
https://webcache.googleusercontent.com/search?q=cache:LeSkj1h80h4J:https://indiankanoon.org/doc/93343801/+&cd=1&hl=en&ct=clnk&gl=in 1/8
3/25/2019 Ms.Shruti vs Baldev Singh And Others on 23 May, 2017
This Regular Second Appeal under Section 100 of the Code of Civil Procedure has been preferred by the
defendant/appellant against the judgments and decrees concurrently passed by the learned Courts below, whereby the
suit of the plaintiff/respondent No.1 has been partly decreed to the extent to refund a sum of `3,50,000/- received by
her as earnest money.
2. Brief facts of the case are that Shri Swaran Pal Singh, the predecessor-in-interest, of defendants No.1 and 2 had
agreed to sell 1 Whether reporters of Local Papers may be allowed to see the Judgment ?Yes ::: Downloaded on -
30/05/2017 00:00:25 :::HCHP 2 complete first floor of the double storied building comprised in Khata/Khatauni
No.91/212 min, Khasra No.2993/652, measuring 402 .
square metres, situated in Mauja Thodo, Solan, Tehsil and District Solan, (H.P.) (hereinafter shall be referred to as the
suit property). It was averred by the plaintiff that the price of the property was settled to be `9,50,000/-
and `3,50,000/- were paid towards earnest money at the time of the agreement dated 04.11.2004. It was further
averred that later on, the defendants No.1 and 2 on succeeding their father executed a sale deed of the property on
08.06.2007 in favour of defendant No.3 after hatching a conspiracy with him in order to deprive the plaintiff of the
property. The plaintiff averred that he was ready and willing to perform his part of agreement, but the defendants
lingered on the matter on one pretext or the other and lastly refused to execute the sale deed. It was also averred that
legal notice was served upon the defendants on 09.11.2012, but to no avail. As per the plaintiff, the cause of action
accrued in his favour when agreement to sell was executed and lateron when the sale deed was not registered after
demarcation and when defendants No.1 and 2 sold the property to defendant No.3. On these averments, the plaintiff
prayed for specific performance of the agreement to sell dated 04.11.2004 and at the same time sought declaration to
the effect that sale deed executed in favour of defendant No.3 be declared null and void. In the alternative, he prayed
for recovery of `5,33,750/- alongwith interest against the defendants.
3. The suit was contested by defendants No.1 and 2 on the plea that earnest money stood forfeited on the failure of
the plaintiff to perform his part of agreement. On merits, the agreement to sell was ::: Downloaded on - 30/05/2017
00:00:25 :::HCHP 3 admitted with the clarification that time was the essence of contract and sale deed was to be
executed within six months on the payment of .
remaining sale consideration by the plaintiff. It was averred that further stipulation was to the effect that in case sale
deed was not executed within six months, then the earnest money was to be forfeited in case the plaintiff was at fault.
It was also averred that the plaintiff did not come forward as per agreement and thus the agreement came to an end
and, therefore, defendants No.1 and 2 in the year 2007 executed a sale deed in favour of defendant No.3 for
consideration. It was lastly averred that plaintiff was never ready and willing to perform his part of agreement and,
therefore, the earnest money stood forfeited. Hence, the plaintiff is neither entitled to decree for specific performance
of contract nor for recovery of earnest money.
4. Defendant No.3 did not appear to contest the suit before the learned trial Court, therefore, was proceeded against
ex part.
"1. Whether the defendants No.1 and 2 entered into an agreement with the plaintiff on 4.11.2004 agreed
to sell the suit property to the plaintiff for the sale consideration of `9,50,000/-? OPP.
2. Whether the plaintiff in accordance with agreement dated 4.11.2004 paid a sum of `3,50,000/- being
earnest money to the defendants No.1 and 2 as alleged? OPP.
3. Whether the plaintiff is entitled for specific performance of agreement dated 4.11.2004, as alleged?
OPP.
4. Whether registered sale deed dated 8.6.2007 executed by defendants No.1&2 in favour of defendant
No.3 qua suit property is illegal, null and void, as alleged? OPP.
https://webcache.googleusercontent.com/search?q=cache:LeSkj1h80h4J:https://indiankanoon.org/doc/93343801/+&cd=1&hl=en&ct=clnk&gl=in 2/8
3/25/2019 Ms.Shruti vs Baldev Singh And Others on 23 May, 2017
5. Whether the plaintiff in the alternative is entitled to recover a sum of `5,50,000/- alongwith interest at
the rate of 18% per annum as prayed for ? OPP.
6. Whether plaintiff has not come to the Court with clean hands and suppressed material facts with
malafide intention? OPD 1&2.
7. Whether the plaintiff is estopped by his acts, conduct, deed and acquiescence? OPD 1&2.
8. Whether the plaintiff has no locus standi to file the present suit? OPD 1&2.
9. Relief."
6. The learned trial Court on the basis of equity held the plaintiff to be disentitled to a decree for specific performance
of agreement, however, it ordered the defendants No.1 and 2 to refund the amount of `3,50,000/- received by them as
earnest money alongwith interest @ 6% per annum.
7. Aggrieved by the judgment and decree passed by the learned trial Court, the defendant/appellant has filed the
present appeal on the ground that the learned Courts below have erred in concluding that time was not the essence of
the contract and further erred in decreeing the suit for `3,50,000/- as refund of earnest money alongwith interest.
I have heard the learned counsel for the parties and gone through the material placed on record.
8. It is vehemently argued by the learned counsel for the appellant/ defendant that the learned Courts below have
erred in ::: Downloaded on - 30/05/2017 00:00:25 :::HCHP 5 concluding that time was not the essence of the contract
and, therefore, on this sole ground, the suit of the plaintiff/respondent deserved to be .
dismissed.
9. I have considered the said submission and find no force in the same. Admittedly, no specific date for execution of
the sale deed or for payment of balance sale consideration was mentioned in the agreement Ex.PW1/B. Therefore,
once this be the admitted position,
10. obviously then the time cannot be said to be the essence of the contract.
Description of suit Period of limitation Time from which period begins to run
54. For Specific Three years The date fixed for the performance, performance of a or, if no such date is fixed, when
the contract plaintiff has notice that performance is refused.
Whether in a contract the time is the essence of the contract has been the subject matter of interpretation in number of
cases, but the proposition can be said to have been settled by the decision of the Constitution Bench of the Hon'ble
Supreme Court in case titled Chand Rani (Smt.) (dead) by LRs vs. Kamal Rani (Smt.) (dead) by LRs (1993) 1 SCC
519 wherein the Hon'ble Supreme Court outlined the principle thus:
"19. It is a well-accepted principle that in case of sale of immoveable property, time is never regarded as
the essence of the contract. As, in fact, there is a presumption against time being the essence of the
contract. This principle is not in any way different from that obtainable in England. Under the law of
equity which governs the rights of the parties in the case of specific performance of contract to sell real
estate, law looks not at the letter but at the substance of the agreement. It has to be ascertained whether
under the terms of the contract the parties ::: Downloaded on - 30/05/2017 00:00:25 :::HCHP 6 named a
specific time within which completion was to take place, really and in substance it was intended that it
should be completed within a reasonable time. An intention to make time the essence of .
11. It is well settled that in a contract of immovable property time is not essence of contract, subject to certain
exceptions. The first is that it should be stipulated in the contract itself that time is the essence of the contract by
mentioning a specific date on which the sale deed is to be executed.
https://webcache.googleusercontent.com/search?q=cache:LeSkj1h80h4J:https://indiankanoon.org/doc/93343801/+&cd=1&hl=en&ct=clnk&gl=in 3/8
3/25/2019 Ms.Shruti vs Baldev Singh And Others on 23 May, 2017
12. to In Gomathinayagam Pillai and others vs. Palaniswami Nadar AIR 1967 (SC) 868, the Hon'ble Supreme Court
has categorically held that "in a contract relating to sale of immovable property, it will normally be presumed that
time is not the essence of the contract".
13. In Govind Prasad Chaturvedi vs.Hari Dutt Shastri and another (1977) 2 SCC 539, the Hon'ble Supreme Court has
said that "the law is settled that fixation of period within which contract has to be performed does not make the
stipulation as to time the essence of the contract. The language used in the agreement is not such as to indicate
unmistakable terms that the time is of the essence of the contract. The intention to treat time as of the essence of
contract may be evidenced by circumstances which are sufficiently strong to displace the normal presumption that in
a contract of sale of land stipulation as to time is not the essence of contract".
14. In M/s Hind Construction Contractors vs. State of Maharashtra (1979) 2 SCC 70, the Hon'ble Supreme Court
while discussing the question as to whether the time would be the essence of the contract, held as follows:
"7....that question whether or not time was of the essence of the contract would essentially be a question
of the intention of the parties to be gathered from the terms of the contract....(See .
8.... even where the parties have expressly provided that time is of the essence of the contract such a
stipulation will have to be read alongwith other provisions of the contract and such other provisions may,
on construction of the contract, exclude the inference that the completion of the work by a particular date
was intended to be fundamental;...(See Lamprell v. Billericay Union (1849) 3 Exch 283, Exch at p. 308;
Webb v. Hughes (1870) LR 10 Eq 281 ; Charles Rickards Ltd. v. Oppenheim (1950) 1 KB 616.)"
15. In Smt. Indira Kaur and others versus Sheo Lal Kapoor (1988) 2 SCC 488, the Hon'ble Supreme Court in para-6
held as under:-
"6......The law is well settled that in transactions of sale of immovable properties, time is not the essence of the
contract...."
16. In D.S. Thimmappa vs. Siddaramakka (1996) 8 SCC 365, the Hon'ble Supreme Court held as under:-
"6. It is settled law that unless the deed of agreement of sale stipulated a date for performance, time is not
always of the essence of the contract...."
17. The Hon'ble Supreme Court in Swarnam Ramachandran vs. Aravacode Chakungal Jayapalan (2004) 8 SCC 689
held as under:-
"12. That time is presumed not to be of essence of the contract relating to immovable property, but it is of
essence in contracts of reconveyance or renewal of lease. The onus to plead and prove that time was the
essence of the contract is on the person alleging it.....; When the plaintiff pleads that time was not of
essence and the defendant does not deny it by evidence, the Court is bound to accept the plea of the
plaintiff. In cases where notice is given making time of the essence, it is duty of the Court to examine the
real intention of the party giving such notice by looking at the facts and circumstances of each case. That
a vendor has no right to make time of the essence, unless he is ready and willing to ::: Downloaded on -
30/05/2017 00:00:25 :::HCHP 8 proceed to completion and secondly, when the vendor purports to make
time of the essence, the purchaser must be guilty of such gross default as to entitle the vendor to rescind
the contract."
18. It is vehemently argued by learned counsel for the appellant/defendant that the agreement to sell clearly stipulates
that the sale deed has to be executed within a period of six months and, therefore, it should be construed to mean that
time was the essence of the contract.
19. I am afraid that even this submission of learned counsel for the appellant/defendant cannot be accepted in view of
the authoritative pronouncements of the Hon'ble Supreme Court in Balasaheb Dayandeo Naik (Dead) through LRs
and others vs. Appasaheb Dattatraya Pawar (2008) 4 SCC 464 wherein while dealing with a similar clause of six
months, the Hon'ble Supreme Court observed as under:-
https://webcache.googleusercontent.com/search?q=cache:LeSkj1h80h4J:https://indiankanoon.org/doc/93343801/+&cd=1&hl=en&ct=clnk&gl=in 4/8
3/25/2019 Ms.Shruti vs Baldev Singh And Others on 23 May, 2017
"15......Even if we accept the recital in the agreement of sale (Ext.18) that the sale deed has to be
executed within a period of six months, there is an express provision in the agreement itself that on
failure to adhere to the time, the earnest money will be forfeited.
In such circumstances and in view of recital pertaining to forfeiture of the earnest money makes it clear
that time was never intended by the parties to be of essence....."
20. Coming to the other contention raised by the learned counsel for the appellant/defendant that the learned Courts
below could not have directed the refund of the earnest money alongwith interest, I really find this argument to be
preposterous, particularly, when the defendant does not deny that the suit filed by the plaintiff is within limitation and
the defendant has also not denied the receipt of consideration. What I find more intriguing is the next submission by
the learned counsel for the ::: Downloaded on - 30/05/2017 00:00:25 :::HCHP 9 appellant/ defendant that ordering
refund of earnest money has only resulted into undue enrichment of the plaintiff. In a suit filed for specific .
performance of contract that too filed within the prescribed period of limitation, the Court only has two options;
firstly to decree the suit or in the alternative ordering the refund of earnest money depending upon the facts and
circumstances and fulfillment of certain conditions. How the refund of earnest money to the plaintiff amounts to
undue enrichment is beyond my comprehension? Rather, in case earnest money is not ordered to be refunded, it
would be the defendant, who would be unduly enriched.
21. The principle of unjust enrichment proceeds on the basis that it would be unjust to allow one person to retain a
benefit received at the expense of another person. This was so held by the Hon'ble Supreme Court in Renusagar
Power Co. Ltd. Vs. General Electric Co. 1994 Supp (1) SCC 644:-
"98. The principle of unjust enrichment proceeds on the basis that it would be unjust to allow one person
to retain a benefit received at the expense of another person. It provides the theoretical foundation for the
law governing restitution. The principle has, however, its critics as well as its supporters. In the words of
Lord Diplok: "...there is no general doctrine of unjust enrichment in English law. What it does is to
provide specific remedies in particular cases of what might be classed as unjust enrichment in a legal
system that is based upon civil law." (See: Orakpo V. Manson Investments Ltd. 1978 AC, 104). In The
Law of Restitution by Goff and Jones, it has, however, been stated "that the case-law is now sufficiently
mature for the courts to recognize a generalized right of restitution" (3rd Edn., P. 15). In Chitty on
Contracts, 26th Edn., Vol. I, p. 1313, para 2037, it has been stated that "the principle of unjust enrichment
is not yet clearly established in English law". The learned editors have, however, expressed the view:
"Even if the law has not yet developed to that extent, it does not follow from the absence of a general
doctrine of unjust ::: Downloaded on - 30/05/2017 00:00:25 :::HCHP 10 enrichment that the specific
remedies provided are not justifiable by reference to the principle of unjust enrichment even if they were
originally found without primary reference to it." (pp. 1313-
22. The issue regarding undue enrichment thereafter came up before the Hon'ble Supreme Court in
Indian Council for Enviro-Legal Action Vs. Union of India and others (2011) 8 SCC 161 and it was held
as follows:-
"UNJUST ENRICHMENT
r "Unjust enrichment.---A benefit obtained from another, not intended as a gift and not legally justifiable,
for which the beneficiary must make restitution or recompense."
See Black's Law Dictionary, 8th Edition (Bryan A. Garner) at page 1573. A claim for unjust enrichment
arises where there has been an "unjust retention of a benefit to the loss of another, or the retention of
money or property of another against the fundamental principles of justice or equity and good
conscience."
152. "Unjust enrichm ent" has been defined by the court as the unjust retention of a benefit to the loss of
another, or the retention of money or property of another against the fundamental principles of justice or
https://webcache.googleusercontent.com/search?q=cache:LeSkj1h80h4J:https://indiankanoon.org/doc/93343801/+&cd=1&hl=en&ct=clnk&gl=in 5/8
3/25/2019 Ms.Shruti vs Baldev Singh And Others on 23 May, 2017
equity and good conscience. A person is enriched if he has received a benefit, and he is unjustly enriched
if retention of the benefit would be unjust. Unjust enrichment of a person occurs when he has and retains
money or benefits which in justice and equity belong to another.
153. Unjust enrichment is "the unjust retention of a benefit to the loss of another, or the retention of
money or property of another against the fundamental principles of justice or equity and good
conscience." A defendant may be liable "even when the defendant retaining the benefit is not a
wrongdoer" and "even though he may have received [it] honestly in the first instance." (Schock v. Nash,
732 A.2d 217, 232-33 (Delaware. 1999). USA)
154. Unjust enrichment occurs when the defendant wrongfully secures a benefit or passively receives a
benefit which would be unconscionable to retain. In the leading case of Fibrosa v. Fairbairn, [1942] 2 All
ER 122, Lord Wright stated the principle thus :
"... .Any civilized system of law is bound to provide remedies for cases of what has been called unjust
enrichment or unjust benefit, that is, to prevent a man from retaining the money of, or .
some benefit derived from another which it is against conscience that he should keep. Such remedies in
English law are generically different from remedies in contract or in tort, and are now recognized to fall
within a third category of the common law which has been called quasi-contract or restitution."
155. Lord Denning also stated in Nelson v. Larholt, [1947] 2 All ER 751 as under:-
"..... It is no longer appropriate, however, to draw a distinction between law and equity. Principles have
now to be stated in the light of their combined effect. Nor is it necessary to canvass the niceties of the old
forms of action. Remedies now depend on the substance of the right, not on whether they can be fitted
into a particular frame-work. The right here is not peculiar to equity or r contract or tort, but falls
naturally within the important category of cases where the court orders restitution if the justice of the
case so requires."
156. The above principle has been accepted in India. This Court in several cases has applied the doctrine
of unjust enrichment.
"The word `restitution' was used in the earlier common law to denote the return or restoration of a
specific thing or condition. In modern legal usage, its meaning has frequently been extended to include
not only the restoration or giving back of something to its rightful owner, but also compensation,
reimbursement, indemnification, or reparation for benefits derived from, or for loss or injury caused to,
another. As a general principle, the obligation to do justice rests upon all persons, natural and artificial; if
one obtains the money or property of others without authority, the law, independently of express contract,
will compel restitution or compensation."
"The phrase "unjust enrichment" is used in law to characterize the result or effect of a failure to make
restitution of, or for, property or benefits received under such circumstances as to give rise to a legal or
equitable obligation to account therefor. It is a general principle, underlying various legal doctrines and
remedies, that one person should not be permitted unjustly to enrich himself at the expense of another,
but should be required to make restitution of or for property or benefits received, retained, or
appropriated, where it is just and equitable that such restitution be made, and where such action involves
no violation or frustration of law or opposition to public policy, either directly or indirectly."
159. Unjust enrichment is basic to the subject of restitution, and is indeed approached as a fundamental
principle thereof. They are usually .
https://webcache.googleusercontent.com/search?q=cache:LeSkj1h80h4J:https://indiankanoon.org/doc/93343801/+&cd=1&hl=en&ct=clnk&gl=in 6/8
3/25/2019 Ms.Shruti vs Baldev Singh And Others on 23 May, 2017
linked together, and restitution is frequently based upon the theory of unjust enrichment. However,
although unjust enrichment is often referred to or regarded as a ground for restitution, it is perhaps more
accurate to regard it as a prerequisite, for usually there can be no restitution without unjust enrichment. It
is defined as the unjust retention of a benefit to the loss of another or the retention of money or property
of another against the fundamental principles of justice or equity and good conscience. A person is
enriched if he has received a benefit, and he is unjustly enriched if retention of the benefit would be
unjust. Unjust enrichment of a person occurs when he has and retains money or benefits which in justice
and equity belong to another.
160. While the term `restitution' was considered by the Supreme Court in South-Eastern Coalfields 2003
(8) SCC 648 and other cases excerpted later, the term `unjust enrichment' came to be considered in
Sahakari Khand Udyog Mandal Ltd vs Commissioner of Central Excise & Customs ((2005) 3 SCC 738).
This Court said:
"31. ...'unjust enrichment' means retention of a benefit by a person that is unjust or inequitable. `Unjust
enrichment' occurs when a person retains money or benefits which in justice, equity and good
conscience, belong to someone else."
161. The terms `unjust enrichment' and `restitution' are like the two shades of green - one leaning
towards yellow and the other towards blue. With restitution, so long as the deprivation of the other has
not been fully compensated for, injustice to that extent remains. Which label is appropriate under which
circumstances would depend on the facts of the particular case before the court. The courts have wide
powers to grant restitution, and more so where it relates to misuse or non- compliance with court orders.
162. We may add that restitution and unjust enrichment, along with an overlap, have to be viewed with
reference to the two stages, i.e., pre- suit and post-suit. In the former case, it becomes a substantive law
(or common law) right that the court will consider; but in the latter case, when the parties are before the
court and any act/omission, or simply passage of time, results in deprivation of one, or unjust enrichment
of the other, the jurisdiction of the court to levelise and do justice is ::: Downloaded on - 30/05/2017
00:00:25 :::HCHP 13 independent and must be readily wielded, otherwise it will be allowing the Court's
own process, along with time delay, to do injustice.
163. For this second stage (post-suit), the need for restitution in relation to court proceedings, gives full
jurisdiction to the court, to pass appropriate orders that levelise. Only the court has to levelise and not go
further into the realm of penalty which will be a separate area for consideration altogether.
164. This view of law as propounded by the author Graham Virgo in his celebrated book on "The
Principle of Law of Restitution" has been accepted by a later decision of the House of Lords (now the
UK Supreme Court) reported as 136 Sempra Metals Ltd (formerly Metallgesellschaft Limited) v Her
Majesty's Commissioners of Inland Revenue and Another [2007] UKHL 34 = [2007] 3 WLR 354 =
[2008] 1 AC 561 = [2007] All ER (D) 294.
165. In similar strain, across the Altantic Ocean, a nine judge Bench of the Supreme Court of Canada in
Bank of America Canada vs. Mutual Trust Co. [2002] 2 SCR 601 = 2002 SCC 43 (both Canadian
Reports) took the view :
"There seems in principle no reason why compound interest should not be awarded. Had prompt
recompense been made at the date of the wrong the plaintiff should have had a capital sum to invest; the
plaintiff would have received interest on it at regular intervals and would have invested those sums also.
By the same token the defendant will have had the benefit of compound interest. Although not
historically available, compound interest is well suited to compensate a plaintiff for the interval between
when damages initially arise and when they are finally paid."
This view seems to be correct and in consonance with the principles of equity and justice.
166. Another way of looking at it is suppose the judgment- debtor had borrowed the money from the
nationalised bank as a clean loan and paid the money into this court. What would be the bank's demand.
167. In other words, if payment of an amount equivalent of what the ledger account in the nationalised
bank on a clean load would have shown as a debit balance today is not paid and something less than that
https://webcache.googleusercontent.com/search?q=cache:LeSkj1h80h4J:https://indiankanoon.org/doc/93343801/+&cd=1&hl=en&ct=clnk&gl=in 7/8
3/25/2019 Ms.Shruti vs Baldev Singh And Others on 23 May, 2017
is paid, that differential or shortfall is what there has been : (1) failure to restitute; (2) unfair gain by the
non-complier; and (3) provided the incentive to obstruct or delay payment. Unless this differential is
paid, justice has not been done to the creditor. It only encourages non-
compliance and litigation. Even if no benefit had been retained or availed even then, to do justice, the
debtor must pay the money. In other words, it is this is not only disgorging all the benefits but making the
.
creditor whole i.e. ordering restitution in full and not dependent on what he might have made or
benefited is what justice requires."
24. In view of the aforesaid discussion, no question of law much less substantial question of law arises for
consideration.
25. Accordingly, the appeal is dismissed in limine, leaving the parties to bear their own costs.
disposed of.
26. Since the appellant is entitled to exemption from payment of court fee under Section 12 of the Legal Services
Authorities Act, 1987, the application is allowed and the applicant is exempted from paying court fee of `11,310/-.
The application stands disposed of.
27. By medium of this application, the applicant/appellant has sought permission to deposit 50% of the decretal
amount i.e. 2,06,500/-, however, as the appeal itself stands dismissed, in the aforesaid terms, this application has been
rendered infructuous and dismissed as such.
The case was listed under the caption "Speaking to the Minutes" as there was an error in para-7 inasmuch as instead
of making a reference to the judgment passed by the learned "first appellate Court", it has been mentioned that the
defendant/appellant had filed the present appeal against the judgment and decree passed by the learned "trial Court",
whereas, it was not so. Accordingly, para-7 of the judgment dated 23.05.2017 is ordered to be corrected and now be
read as under:-
"7. Aggrieved by the judgment and decree passed by the learned trial Court, the defendant/appellant filed
an appeal before the learned first appellate Court, however, the same was dismissed, constraining her to
file the instant appeal before this Court on the ground that the learned Courts below have erred in
concluding that time was not the essence of the contract and further erred in decreeing the suit for
`3,50,000/- as refund of earnest money alongwith interest".
Ordered accordingly. This order be read as part and parcel of the judgment dated 23.05.2017.
https://webcache.googleusercontent.com/search?q=cache:LeSkj1h80h4J:https://indiankanoon.org/doc/93343801/+&cd=1&hl=en&ct=clnk&gl=in 8/8