Delhi District Court
Ruma Jhuma Bhaumik vs Dev Raj Arora on 13 April, 2015
IN THE COURT OF SH. BALWANT RAI BANSAL,
ADDITIONAL DISTRICT JUDGE02 (SOUTHEAST),
SAKET COURTS, NEW DELHI
Civil Suit No. 232/12
Ruma Jhuma Bhaumik
..... Plaintiff
Vs.
Dev Raj Arora
..... Defendant
O R D E R
1. Vide this order I shall dispose of an application under Order 11 Rules 1 & 2 and Order 11 Rule 14 CPC moved by the plaintiff.
2. It is stated in the application that plaintiff entered into an agreement to sell with the defendant on 21.03.2007 to purchase the property bearing No. N6, Upper Ground Floor, Chittranjan Park, New Delhi - 110019 for a total consideration of Rs. 43 lacs, out of which the defendant received Rs. 5 lacs as earnest money from the plaintiff. In clause 4 of the said agreement to sell, it has been mentioned that the said property is free from all sort of encumbrances like prior sale, mortgages, gifts, disputes, Wills, court injunction, CS No. 232/12 Ruma Jhuma Bhaumik Vs. Dev Raj Arora Page 1 of 14 attachments etc. and that if same is proved otherwise, the defendant shall be liable and responsible for all damages suffered by the plaintiff. It is stated that after entering into the said agreement to sell and payment of earnest money of Rs. 5 lacs to the defendant, the plaintiff got suspicious and made efforts to get the title verified. The plaintiff came to know that the said premises was not just encumbered but was also embroiled in litigation with the occupants of above floors in the said property. The plaintiff in her evidence by way of affidavit inter alia stated that she had asked the defendant to provide her copy of the sanction plan but the defendant could not provide her the copy of the sanction plan. Therefore, the plaintiff is seeking directions to the defendant to answer the questions/interrogatories as mentioned in para 5 of the application and has also prayed that defendant may be directed to produce the documents under Order 11 Rule 14 CPC.
3. It is stated that the interrogatories and documents are necessary to prove that the entire building in the plot No. N6, CR Park, New Delhi19 including the upper ground floor is free from all sorts of encumbrances as stated in the agreement to sell dated 21.03.2007. The interrogatories as mentioned in para 5 of the application are reproduced as under: Q.1.Do you have the original sanctioned plan or copy of the original sanctioned plan of the entire building in the plot N-6, C.R. Park, New Delhi - 19, including upper ground floor by the MCD to CS No. 232/12 Ruma Jhuma Bhaumik Vs. Dev Raj Arora Page 2 of 14 show/ prove that the building in plot No. N-6, C.R. Park, New Delhi - 19 was constructed according to the sanctioned plan? Q.2. If your answer to the above question is yes, then can you please produce the original or copy of the sanctioned plan of the said building in the plot No. N-6, C.R. Park, New Delhi - 19 on the next date of hearing?
Q.3. Do you have the copy of the completion certificate of the MCD in respect of the said building to prove that there is no unauthorized construction in the plot No. N-6, C.R. Park, New Delhi - 19 including the upper ground floor?
Q.4. Whether the basement, ground floor, upper ground floor existing in the said plot No. N-6, C.R. Park, has been approved by the MCD in your sanctioned plan?
Q.5. Whether the unauthorized construction in the plot No. N-6, C.R. Park, will invite penal provision including demolition as per the Delhi Building by laws?
Q.6. Can the defendant claim the building in the plot No. N-6, C.R. Park, including upper ground floor is free from all sorts of encumbrances if it is not constructed according to the sanctioned plan?
Q.7. Do you have any document to prove that the building in the plot No. N-6, C.R. Park, New Delhi - 19 including upper ground floor is a free hold property?
Q.8.If your answer to the above question is yes, then can you please produce the original document or copy of the original document of free hold property?
Q.9. Whether the defendant have received of Rs. 15 lacs from Jadav Chandra Dey for entering into agreement to sale dated 01.07.2008 for the same property bearing No. N-6, Upper Ground Floor, C.R. Park, New Delhi - 19 out of total consideration of Rs. 49,25,000/-?
Q.10. Whether Sh. Jadav Chandra Dey filed the suit no. CS(OS) 856 of 2009 against the defendant wherein inter alia prayed a money decree for a sum of Rs. 35,34,575/- alongwith pendente lite and future interest at the rate of 24% per annum from the date of institution of the suit till realization of the decreetal amount in favour of Sh. Jadav Chandra Dey and the said suit is still pending before the Hon'ble High Court of Delhi at New Delhi?
Q.11. If your answer to above question is yes, then can you please produce the copy of the plaint of said suit no. CS(OS) 856 of 2009 before this Hon'ble Court?
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4. The defendant has contested the application by filing reply contending that application is not maintainable and same is abuse and misuse of process of law. The plaintiff has failed to make out any ground to deliver interrogatories upon the defendant as same is not filed in the prescribed form. It is further contended that plaintiff has tried to make out a new case by way of present application for alleged discovery of interrogatories which are altogether irrelevant and far beyond the issue involved in the present case. It is stated that at the first instance the plaintiff tried to file certain documents along with her affidavit in evidence, which was not allowed by this court. Then the plaintiff moved an application seeking amendment in the plaint which was dismissed by this court vide order dated 17.04.2012 and the plaintiff unsuccessfully moved upto the Hon'ble Supreme Court seeking amendment in the plaint and the Hon'ble Supreme Court dismissed the SLP filed by the plaintiff vide order dated 24.11.2014. When the plaintiff failed to carry out the amendments in the plaint, she has moved the present application for alleged interrogatories which is totally baseless, irrelevant, unwarranted and is liable to be dismissed. It is further averred that the interrogatories sought to be delivered by the plaintiff relate to sanction plan and completion of the property which in fact is not an issue in the present CS No. 232/12 Ruma Jhuma Bhaumik Vs. Dev Raj Arora Page 4 of 14 suit. Further there is no pleading to that effect in the plaint and therefore interrogatories are not relevant in any manner and are liable to be rejected. On merits, the contents of the application are stated to be wrong and denied and the defendant has prayed for dismissal of the application.
5. The plaintiff has filed rejoinder to reply of the defendant contending that the property in question is not free from all sorts of encumbrances as falsely claimed by the defendant in clause 4 of the agreement to sell dated 21.03.2007. It is stated that the word "etc" in Clause 4 of the said agreement to sell includes all unlawful acts and deeds in the past or in the future relating to the said property. The defendant cannot claim unauthorized construction, the building not constructed as per sanctioned plan, floor/proper cannot be converted into a free hold property from lease hold property and the completion certificate cannot be obtained without sanction plan is free from all sorts of encumbrances and not covered under the word "etc". It is contended that the property in question is not free from all encumbrances as the building is not constructed according to the sanction plan and there is a huge unauthorized construction and the defendant is not providing the copy of the sanctioned plan to hide the said fact and hence the plaintiff has moved the present application to compel the defendant to produce the sanction plan before the court. It CS No. 232/12 Ruma Jhuma Bhaumik Vs. Dev Raj Arora Page 5 of 14 is stated that the plaintiff by way of present suit is seeking recovery of earnest money with interest, damages etc from the defendant after terminating the agreement to sell dated 21.05.2007 and therefore the interrogatories cannot be said to be irrelevant or beyond the issues involved in the present case. The plaintiff has prayed that her application may be allowed.
6. I have heard the Ld. Counsel for the parties and perused the record carefully. I have also gone through the written submissions filed by both the parties.
7. The plaintiff has filed the present suit seeking recovery of Rs. 8,65,952/ against the defendant. The case of the plaintiff is that she entered into an agreement to sell with the defendant on 21.03.2007 to purchase the property bearing No. N6, Upper Ground Floor, Chittranjan Park, New Delhi110019 for a total sale consideration of Rs. 43,00,000/ out of which she paid Rs. 5,00,000/ to the defendant as earnest money. As per clause 4 of the agreement to sell, the property is free from all sort to encumbrances, but on inquires from the occupants of the said property, the plaintiff came to know that the property was not just encumbered but was also embroiled in ligation with the occupants of the other floors of the said property. Therefore, the plaintiff vide legal notice dated 18.04.2007 terminated the agreement to sell and asked the defendant to return the entire earnest CS No. 232/12 Ruma Jhuma Bhaumik Vs. Dev Raj Arora Page 6 of 14 money of Rs. 5,00,000/ along with interest and damages. It is further averred that the plaintiff also came to know that the defendant on 01.07.2008 without returning the earnest money of Rs. 5 lacs entered into an advance agreement to sell in respect of the same property with one Sh. Jadav Chandra Dey for which the defendant received the earnest money to the tune of Rs. 15 lacs from the said Jadav Chandra Dey who filed a suit against the defendant which is pending adjudication before the Hon'ble High Court of Delhi. It is stated that the defendant has not refunded the earnest money of Rs. 5,00,000/ to the plaintiff despite service of legal notice and hence the present suit has been filed by the plaintiff seeking recovery of Rs. 5,00,000/ towards earnest money, Rs. 2,65,952/ towards interest and Rs. 1,00,000/ toward liquidated damages totaling to Rs. 8,65,952/ from the defendant.
8. The defendant in the written statement contended that it is the plaintiff who has been guilty for noncompliance with the terms of the agreement. It is stated that the plaintiff at the time of execution of the agreement to sell had seen, perused and checked up all the documents of title of the defendant and satisfied about the title of the defendant over the property in question. As per the agreement, the balance sale consideration of Rs. 38,00,000/ was to be paid by the plaintiff on or before 21.04.2007 positively at the time of handing over CS No. 232/12 Ruma Jhuma Bhaumik Vs. Dev Raj Arora Page 7 of 14 the possession, execution and registration of relevant documents in favour of the plaintiff before the Sub Registrar, but the plaintiff had no means to make payment of the balance amount under the agreement and as such she in order to escape from the contractual obligation leveled false allegations about the title of the defendant over the property in dispute. It is denied that the agreement to sell with Sh. Jadav Chanbdra Dey was entered into fraudulently. It is stated that Sh. Jadav Chandra Dey was intimated about the earlier agreement with the plaintiff dated 21.03.2007 having been terminated and Sh. Jadav Chandra Dey in collusion with the plaintiff has filed the suit against the defendant to put undue pressure on the defendant. The defendant has contended that there is no clause in the agreement to refund the earnest money and therefore the plaintiff is not entitled to any claim as alleged. The defendant has prayed for dismissal of the suit.
9. From the aforesaid narration of the facts, it is not in dispute that the parties entered into an agreement to sell dated 21.03.2007 in respect of property bearing No. N6, Upper Ground Floor, Chittrajjan Park, New Delhi110019 for a total sale consideration of Rs. 43 lacs and the plaintiff paid Rs. 5 lacs to the defendant as an earnest money. The sale deed was to be executed on or before 21.04.2007 subject to payment of balance sale consideration CS No. 232/12 Ruma Jhuma Bhaumik Vs. Dev Raj Arora Page 8 of 14 amount by the plaintiff. The plaintiff vide legal notice dated 18.04.2007 terminated the agreement to sell on the ground that on inquiry she found that property in question was involved in the litigation with the occupants of other floors of the property and further the title of the defendant was also in dispute. The legal notice dated 18.04.2007 was replied by the defendant vide reply dated 25.04.2007 wherein the allegations made in the notice are stated to be misconceived. It was also stated by the defendant that as per commitment to vacate the premises before 21.04.2007, he had already vacated the premises on 10th April and when the plaintiff could not arrange the balance sale consideration amount, she made the present excuse. It was further stated by the defendant that the agreement entered into between the parties is irrevocable and is enforceable in the court of law and therefore plaintiff was called upon to fulfill her commitment as per agreement as he is willing to perform his part of the agreement at the soonest. The defendant also wrote a letter to the plaintiff dated 10.06.2008 intimating her that earnest money paid by her stood forfeited and agreement dated 21.03.2007 stood cancelled as she failed to fulfill her part of contractual obligation. Thereafter, the plaintiff filed the present suit for recovery of earnest money along with interest and damages from the defendant.
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10. Perusal of the legal notice dated 18.04.2007 by which the plaintiff claimed to have terminated the agreement to sell dated 21.03.2007 shows that no such plea was raised by the plaintiff for termination of agreement to sell that property in question is not constructed as per the sanction plan or that there is unauthorized construction or that the defendant has failed to provide the copy of sanction plan to hide the unauthorized construction. Even no such pleadings were made in the plaint. The reason for termination of agreement to sell as mentioned by the plaintiff was that property was not just encumbered but also embroiled in litigation with the occupants of the above floors over the premises in the said property coupled with the fact that title of the defendant was in dispute.
11. It is also relevant here to mention that plaintiff earlier also raised similar plea that the defendant failed to provide the copy of sanction plan to hide the fact of unauthorized construction of the suit property in her application u/o 6 rule 17 CPC and wanted to amend the plaint to the said effect. The said application was dismissed by the Ld. Predecessor of this court vide order dated 17.04.2012. The said order has been upheld upto the Hon'ble Supreme Court and the SLP filed by the plaintiff was dismissed by the Hon'ble Apex Court.
12. It is apparent that there is no such pleadings either in the plaint or in the legal notice regarding providing of copy of sanction CS No. 232/12 Ruma Jhuma Bhaumik Vs. Dev Raj Arora Page 10 of 14 plan by the defendant or copy of competition certificate by MCD and further about unauthorized construction as sought by the plaintiff by way of present interrogatories at Serial No. 1 to 8. Further these interrogatives are neither the issues in the present case nor relevant and necessary for determination of the issues involved in the present case. Hence, the defendant cannot be asked to answer the interrogatories or produce the documents as prayed.
13. Though the plaintiff in her evidence by way of affidavit has averred that defendant could not provide the copy of sanction plan. But, it is a settled law that evidence beyond pleadings is not permissible. Since the plaintiff has not made a single whisper in the plaint regarding unauthorized construction in the suit property or that defendant has failed to provide copy of sanction plan, the evidence of the plaintiff to said effect is inconsequential being beyond pleadings.
14. It is apparent that plaintiff has cancelled the agreement to sell merely on the ground that property was found not free from all the encumbrances as same was involved in litigation and title of the defendant was also disputed. But it was never the case of the plaintiff that property is not constructed as per the sanction plan and there is unauthorized construction and hence she has terminated the agreement to sell. The plaintiff cannot be allowed to bring those facts which are not in the pleadings.
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15. So far the interrogatives at Serial No. 9 to 11, which are in respect of suit filed by one Sh. Jadav Chandra Dey against the defendant, are concerned, first of all, there is no denial by the defendant in the written statement that Sh. Jadav Chandra Dey has filed a suit against him before the Hon'ble High Court of Delhi which is pending adjudication and there is also status quo order in respect of suit premises. Moreover, filing of the suit by Sh. Jadav Chandra Dey is not germane to the present proceedings as in the present case the plaintiff is required to prove her case and filing of suit by Sh. Jadav Chandra Dey against the defendant before the Hon'ble High Court of Delhi is not relevant and helpful in adjudication of the issues involved in the present case. Furthermore, since there is no dispute regarding the facts as sought to be answered by the defendant by way of interrogatories at Serial No. 9 to 11, the same cannot be said to be relevant. It has been held in Raj Narain Vs. Smt. Indira Nehru Gandhi & Ors. AIR 1972 SC 1302 that, "Questions that may be relevant during crossexamination are not necessarily relevant as interrogatories. The only questions that are relevant as interrogatories are those relating to "any matters in question". The interrogatories served must have reasonably close connection with "matters in question".
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16. The plaintiff has also contended in the rejoinder that in the suit filed by Sh. Jadav Chandra Dey against the defendant, the defendant has failed to provide the copy of sanction plan to hide the fact that there is huge unauthorized construction in the suit property and has also referred some evidence recorded before Ld. Joint Registrar of Hon'ble High Court. But again, the same are not germane to the present proceedings. The plaintiff has to stand on her own legs and she is required to prove her case and proceedings of the other case has no bearing on the facts in issue involved in the present case.
17. Similarly there is no merit in the contention of the plaintiff that plaintiff is entitled to get the copy of the sanction plan and defendant is bound to produce the same because the defendant could not have forfeited the amount in the absence of any such clause and more so when the defendant has not taken any recourse under clause 11 of the agreement to sell to compel the plaintiff to execute the sale deed by way of filing the suit for specific performance. Whether the plaintiff is entitled to recover the earnest money from the defendant or the defendant was not justified in forfeiting the earnest money in the absence of any forfeiture clause are matter of trial on which appropriate issue has already framed and shall be decided after evidence led by the parties.
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18. In view of aforesaid discussions and law laid down in the authority cited supra, the interrogatories being not matter in question and beyond the scope of pleadings are not warranted. Hence, application moved by the plaintiff is devoid of any merit and same is hereby dismissed.
Announced in the open Court (Balwant Rai Bansal)
on 13th April, 2015 Additional District Judge 02 (SouthEast)
Saket Courts, New Delhi
CS No. 232/12
Ruma Jhuma Bhaumik Vs. Dev Raj Arora Page 14 of 14
CS No. 232/12
Ruma Jhuma Bhaumik Vs. Dev Raj Arora
13.04.2015
Present: None.
Vide my separate order of even date, the application moved by the plaintiff under Order 11 Rules 1 & 2 and Order 11 Rule 14 CPC is dismissed.
Now, to come up on 28.05.2015 for PE.
(Balwant Rai Bansal) ADJ02/SE/Saket/New Delhi 13.04.2015 CS No. 232/12 Ruma Jhuma Bhaumik Vs. Dev Raj Arora Page 15 of 14